Blocker. Notwithstanding anything to the contrary contained herein, the Company shall not issue Adjustment Shares, and no Buyer shall have the right to receive Adjustment Shares, and any such issuance shall be null and void and treated as if never made, to the extent that after giving effect to such issuance, such Buyer (together with such Buyer's Affiliates) would beneficially own in excess of 9.99% (the "Maximum Percentage") of the number of shares of Common Stock outstanding immediately after giving effect to such issuance. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Buyer and its Affiliates shall include the number of shares of Common Stock issuable pursuant to Section 1(b) hereof with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of the Warrants beneficially owned by such Buyer or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Buyer or any of its Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"). For purposes of determining the number of outstanding shares of Common Stock, the Buyers may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-K, Form 10-Q, Form 8-K or other public filing with the SEC, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company's transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a Buyer, the Company shall within one (1) Business Day confirm orally and in writing to such Buyer the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the issuance of the Adjustment Shares and the conversion or exercise of securities...
Blocker. Notwithstanding anything to the contrary contained herein, the Company shall not issue Adjustment Shares, and no Buyer shall have the right to receive Adjustment Shares, and any such issuance shall be null and void and treated as if never made, to the extent that after giving effect to such issuance, such Buyer (together with such Buyer’s Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the number of shares of Common Stock outstanding immediately after giving effect to such issuance. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Buyer and its Affiliates shall include the number of shares of Common Stock issuable pursuant to Section 1(b) hereof with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of the Warrants beneficially owned by such Buyer or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Buyer or any of its Affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”). For purposes of determining the number of outstanding shares of Common Stock, the Buyers may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Form 8-K or other public filing with the SEC, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a Buyer, the Company shall within one (1) Business Day confirm orally and in writing to such Buyer the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the issuance of the Adjustment Shares and the conversion or exercise of securities...
Blocker. An Optionee shall not be entitled to purchase any shares of Common Stock pursuant to this Agreement if the sum of (i) the number of shares of Common Stock beneficially owned by the Optionee and its Affiliates on the Closing Date, and (ii) the number of shares of Common Stock purchasable on the Closing Date, would result in beneficial ownership by the Optionee and its affiliates of more than 4.99% of the outstanding shares of Common Stock of the Company on the Closing Date. For the purposes of the provision to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. Each Optionee, for itself only, shall have the authority and obligation to determine whether the restriction contained in this Section 4(c) will limit any purchases hereunder and to the extent that the Optionee determines that the limitation contained in this Section applies, the determination of the amount of shares of Common Stock purchasable by such Optionee hereunder shall be the responsibility and obligation of the such Optionee. Each Optionee for itself only, may increase the permitted beneficial ownership amount up to 9.99% upon and effective after 61 days prior written notice to Gunnerman. The Optionee may allocate which of the equity of the Company deemed beneficially owned by the Optionee shall be included in the 4.99% amount described above and which shall be allocated to the excess above 4.99%.
Blocker. Solely for purposes of Section 7, THL OPTIMAL BLUE BLOCKER CORP. By: /s/ Xxxxxx Xxx Name: Xxxxxx Xxx Title: President Solely for purposes of Section 7, OPTIMAL BLUE HOLDCO, LLC By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Senior Vice President and Corporate Secretary LC
Blocker. In no event will the Company issue Restricted Shares in excess of an amount as would result in the Existing Bondholders becoming the beneficial owner (as such term is defined in Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended, or any other applicable provision under any federal securities laws, rules or regulations that may govern what constitutes a beneficial owner for purposes of determining reporting obligations and/or a person’s or entity’s constituting an affiliate of the Company) of more than 9.5% of the outstanding shares of Common Stock of the Company on a fully-diluted basis immediately following the issuance of such Restricted Shares (such number of shares of Common Stock otherwise due to the Existing Bondholder’s above and beyond such 9.5% level as so determined being the “Exercise Shares”). In such event, the Company shall issue warrants (the “Warrants”) to such Existing Bondholder(s) exercisable for an exercise price of zero (0.00) substantially in the form of Exhibit A hereto.
Blocker. Except as set forth on Schedule 4.7(a):
(a) As of the date hereof: (i) Blocker is the record and beneficial owner of 83.32% of the membership interests of the Company; (ii) the issued and outstanding equity interests of Blocker consist of membership interests all of which are owned by Seller as of the date hereof and all of which will be owned by Seller as of immediately prior to the Closing; (iii) Blocker was formed solely for the purpose of holding equity interests in the Company and activities incidental thereto; (iv) except for its ownership of equity interests in the Company and activities incidental thereto, Blocker has not conducted any business or operations; (v) Blocker does not have any employees or employee benefit plans; (vi) to the Knowledge of Seller, Blocker does not have any Liabilities (whether absolute or contingent, liquidated or unliquidated, known or unknown), other than Liabilities related to its ownership of equity interests in the Company and activities incidental thereto; and
(b) Blocker has filed in a timely manner all Tax Returns required to have been filed by it, and has paid (or Seller has paid on its behalf) in full all Taxes due and payable. All such tax Returns are accurate and correct in all material respects. There are not now any extensions of time in effect with respect to the dates on which any Tax Returns of Blocker were or are due to be filed. No material claims have been asserted in writing and no proposals or deficiencies for any material Taxes of Blocker are being asserted, proposed or, to the Knowledge of Seller, threatened, and no audit or investigation of any Tax Return of Blocker is currently underway, pending or, to the Knowledge of the Company, threatened
Blocker. Within ten Business Days after the Closing Date, Buyer shall cause Blocker to file with the Secretary of State of the State of Delaware a certificate of amendment to Blocker’s certificate of incorporation changing Blocker’s name to a name that does not contain the phrase “Insignia”.
Blocker. Company (i) has not been a member of an affiliated, consolidated, combined, unitary or similar group filing a consolidated federal income Tax Return or (ii) has no liability for the Taxes of any Person under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local or non-U.S. law), as a transferee or successor, or by Contract (other than any Ordinary Commercial Agreement).
Blocker. In the event that the delivery to GG of any of the Settlement Shares and/or Make Whole Shares would cause GG to beneficially own more that 9.99% of the number of common shares outstanding immediately after giving effect of issuance of such Settlement Shares and/or Make Whole Shares, the issuance of such shares to GG shall be held in abeyance, until such time as the issuance of such shares may occur without violating the restrictions of this paragraph.
Blocker. The Company and Subscribers agree that anything to the contrary notwithstanding in the transaction documents employed in connection with the Prior Fundings or the Transaction Documents, there shall be no limitation on the amount of Common Stock issuable to Longview Fund, L.P., LEF and LIEF upon conversion of any convertible notes, warrants, other instruments convertible, exercisable or exchangeable for Common stock or any other basis for issuance of Common stock to Longview Fund, L.P., LEF and LIEF. The "blocker percentage" of 4.99% in connection with the Prior Fundings is hereby amended to 9.99% for Alpha Capital Anstalt and its Affiliates.
