Counterparty Share Repurchases Counterparty agrees not to repurchase, directly or indirectly, any Shares if, immediately following such purchase, the Outstanding Share Percentage would be equal to or greater than 4.5%. The “Outstanding Share Percentage” as of any day is the fraction (1) the numerator of which is the aggregate of the Number of Shares for this Transaction and the “Number of Shares” under each Additional Equity Derivative Transaction that is a share forward transaction and (2) the denominator of which is the number of Shares outstanding on such day.
Acquired Shares Any Shares or other voting securities of the Bank with respect to which beneficial ownership is acquired by Shareholder or its affiliates, including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such Shares or upon exercise or conversion of any securities of the Bank, if any, after the date hereof shall automatically become subject to the terms of this Agreement.
Purchased Shares Subject to the terms and conditions provided below, Seller shall sell and transfer to Buyers and Buyers shall purchase from Seller, on the Closing Date (as defined in Section 1(c)), all of the Shares.
Sale and Repurchase of Shares (a) Distributor will have the right, as agent for the Trust, to enter into dealer agreements with responsible investment dealers, and to sell Shares to such investment dealers against orders therefor at the public offering price (as defined in subparagraph 2(d) hereof) stated in the Trust's effective Registration Statement on Form N-1A under the Act and the Securities Act of 1933, as amended, including the then current prospectus and statement of additional information (the "Registration Statement"). Upon receipt of an order to purchase Shares from a dealer with whom Distributor has a dealer agreement, Distributor will promptly cause such order to be filled by the Trust. All dealer agreements shall be in such form as has been approved by the Trust.
(b) Distributor will also have the right, as agent for the Trust, to sell such Shares to the public against orders therefor at the public offering price.
(c) Distributor will also have the right to take, as agent for the Trust, all actions which, in Distributor's reasonable judgment, are necessary to carry into effect the distribution of the Shares.
(d) The public offering price for the Shares of each Series shall be the respective net asset value of the Shares of that Series then in effect, plus any applicable sales charge determined in the manner set forth in the Registration Statement or as permitted by the Act and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. In no event shall any applicable sales charge exceed the maximum sales charge permitted by the Rules of FINRA.
(e) The net asset value of the Shares of each Series shall be determined in the manner provided in the Registration Statement, and when determined shall be applicable to transactions as provided for in the Registration Statement. The net asset value of the Shares of each Series shall be calculated by the Trust or by another entity on behalf of the Trust. Distributor shall have no duty to inquire into or liability for the accuracy of the net asset value per Share as calculated.
(f) On every sale, the Trust shall receive the applicable net asset value of the Shares promptly, but in no event later than the third business day following the date on which Distributor shall have received an order for the purchase of the Shares.
(g) Upon receipt of purchase instructions, Distributor will transmit such instructions to the Trust or its transfer agent for the issuance and registration of the Shares purchased.
(h) Nothing in this Agreement shall prevent Distributor or any affiliated person (as defined in the Act) of Distributor from acting as distributor for any other person, firm or corporation (including other investment companies) or in any way limit or restrict Distributor or any such affiliated person from buying, selling or trading any securities for its or their own account or for the accounts of others from whom it or they may be acting; provided, however, that Distributor expressly represents that it will undertake no activities which, in its reasonable judgment, will adversely affect the performance of its obligations to the Trust under this Agreement.
(i) Distributor, as agent of and for the account of the Trust, may repurchase the Shares at such prices and upon such terms and conditions as shall be specified in the Registration Statement.
Repurchase Transactions (a) Repo Custodian shall make all credits and debits to the Transaction Account and effect the transfer of Securities to or from the Participating Funds upon proper instructions received from the Participating Funds, or the Custodian on behalf of the Participating Funds, and shall make all credits and debits to the Seller Account and effect the transfer of Securities to or from the Seller upon proper instructions received from Seller. In the event that Repo Custodian receives conflicting proper instructions from Seller and the Participating Funds, or the Custodian on behalf of the Participating Funds, Repo Custodian shall follow the Participating Funds' or the Custodian's proper instructions. The Participating Funds shall give Repo Custodian only such instructions as shall be permitted by the Master Agreement. Notwithstanding the preceding sentence, the Participating Funds, or the Custodian on behalf of the Participating Funds, may from time to time instruct Repo Custodian to transfer cash from the Transaction Account to Custodian.
(b) (i) Whenever on any Banking Day one or more Funds and Seller agree to enter into a repurchase transaction, Seller and the Participating Funds, or the Custodian on behalf of the Participating Funds, will give Repo Custodian proper instructions by telephone or otherwise on the Sale Date, specifying the Transaction Category, Repurchase Date, Sale Price, Repurchase Price or the applicable Pricing Rate and the Margin Percentage for each such repurchase transaction.
(ii) In the case of repurchase transactions in which the Repurchase Date is the Banking Day next following the Sale Date (x) the Participating Funds may increase or decrease the Sale Price for any such repurchase transaction by no more than 10% of the initial Sale Price by causing to be delivered further proper instructions by telephone or otherwise to Repo Custodian prior to the close of business on the Sale Date and (y) Seller and the Participating Funds may by mutual consent agree to increase or decrease the Sale Price by more than 10% of the initial Sale Price by causing to be provided further proper instructions to Repo Custodian by the close of business on the Sale Date. In any event, Repo Custodian shall not be responsible for determining whether any such increase or decrease of the Sale Price exceeds the 10% limitation.
(c) Seller will take such actions as are necessary to ensure that on the Sale Date the aggregate Market Value of all Securities held by Repo Custodian for Seller and cash in the Seller Account equals or exceeds the Margin Percentage of the Sale Price. Seller shall give Repo Custodian proper instructions specifying with respect to each of the Securities which is to be the subject of a repurchase transaction (a) the name of the issuer and the title of the Securities, and (b) the Market Value of such Securities. Such instructions shall constitute Seller's instructions to Repo Custodian to transfer the Securities to the Participating Funds and/or Cash Collateral from the Seller Account to the Transaction Account.
Parent Shares All outstanding Parent Shares, and all Parent Shares, which may be issued pursuant to this Agreement shall when issued in accordance with this Agreement be, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
Buyer Shares Each Buyer Share issued and outstanding at and as of the Effective Time will remain issued and outstanding.
Parent Stock (a) As of the date hereof the authorized capital stock of Parent consists of (I) (A) 75,000,000 shares of Class A Common Stock, $.01 par value, of which no shares are validly issued and outstanding, and (B) 100,000,000 shares of Class B Common Stock, $.01 par value, of which 8,869,010 shares are validly issued and outstanding (without taking into account any shares of Parent Stock to be issued pursuant to (I) this Agreement, (II) the Agreement and Plan of Merger, dated as of May 4, 1998, among Parent, iXL-New York, Inc., Micro Interactive, Inc. ("Micro") and the shareholders of Micro identified therein (the "Micro Merger"), which Agreement is anticipated to close on or about May 15, 1998, or (III) the proposed Agreement and Plan of Merger among Parent, Sub, Digital Planet ("Digital") and the shareholders of Digital identified therein (the "Digital Merger"), which Agreement is anticipated to be executed and delivered, and closed, on or about May 8, 1998), fully paid and nonassessable; (ii) 750,000 shares of blank check preferred stock, (A) 250,000 of which have been designated as Class A Convertible Preferred Stock, of which 172,452 shares are validly issued and outstanding, fully paid and nonassessable, (B) 200,000 of which have been designated as Class B Convertible Preferred Stock, of which 98,767 shares are validly issued and outstanding, fully paid and nonassessable, and (C) 15,000 of which have been designated as Class C Convertible Preferred Stock, of which 9,232 shares are validly issued and outstanding, fully paid and nonassessable. Except as set forth on Schedule 5.6 hereto, there are no options, ------------ warrants, calls, agreements, commitments or other rights presently outstanding that would obligate Parent to issue, deliver or sell shares of its capital stock, or to grant, extend or enter into any such option, warrant, call, agreement, commitment or other right. In addition to the foregoing, as of the Closing Date, Parent has no bonds, debentures, notes or other indebtedness issued or outstanding that have voting rights in Parent.
(b) The outstanding shares of capital stock of Parent immediately prior to the Effective Time are set forth on Schedule 5.6 hereto. ------------
(c) When delivered to the SCE Shareholders in accordance with the terms hereof, the Parent Stock will be (i) duly authorized, fully paid and nonassessable, and (b) free and clear of all Liens other than restrictions imposed by the Stockholders' Agreement and by federal and state securities laws.
Purchase and Sale of Shares and Warrants Subject to the satisfaction (or waiver) of the conditions to Closing set forth in this Agreement and the Escrow Agreement, each Subscriber shall purchase the Shares and Warrants for the portion of the Purchase Price indicated on the signature page hereto, and the Company shall sell such Shares and Warrants to the Subscriber. The Purchase Price for the Shares and Warrants shall be paid in cash. The entire Purchase Price shall be allocated to the Shares.
Purchase and Sale of Purchased Shares At the Closing and on the terms and subject to the conditions set forth in this Agreement, Sellers shall sell and deliver to Purchaser, and Purchaser shall purchase from Sellers and pay therefor, the Purchased Shares, free and clear of any and all Encumbrances and in suitable form for transfer to Purchaser.
