Limitations on Beneficial Ownership. The Company shall not be obligated to effect any conversion of this Note and no Holder shall have the right to convert any Conversion Amount pursuant to Section 2(b) to the extent that after giving effect to such conversion such Person (together with such Person's affiliates) would have acquired, through conversion of the Notes or otherwise, in excess of 10.00% of the outstanding shares of the Common Stock following such conversion during the 60-day period ending on and including the date of such conversion. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by a Person and its affiliates or acquired by a Person and its affiliates, as the case may be, shall include the number of shares of Common Stock issuable upon conversion of the Conversion Amount of such Notes 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) conversion of the remaining, nonconverted Conversion Amount of such Notes beneficially owned by such Person and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, the Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person and its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 5(a), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Section 5, in determining the number of outstanding shares of Common Stock a holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q or Form 10-K, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its 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 the Holder, the Company shall within two (2) Business Days confirm orally and in writing to the Holder the number of shares Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion of the Conversion Amount of such Notes and exercising the Warrants by the Person and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported.
Appears in 1 contract
Limitations on Beneficial Ownership. The Company Notwithstanding anything to the contrary contained herein, no holder of Series C Preferred Stock will be entitled to receive shares of Common Stock upon conversion pursuant to Section 8 or Section 10 to the extent (but only to the extent) that such receipt would cause such converting holder to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 11(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 9.9% of the shares of Common Stock outstanding at such time. Any purported delivery of shares of Common Stock upon conversion of Series C Preferred Stock shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting holder becoming the beneficial owner of more than 9.9% of the shares of Common Stock outstanding at such time. If any delivery of shares of Common Stock owed to a holder upon conversion of Series C Preferred Stock is not made, in whole or in part, as a result of this limitation, the Corporation’s obligation to make such delivery shall not be obligated to effect extinguished and the Corporation shall deliver such shares as promptly as practicable after any conversion of this Note and no Holder shall have the right to convert any Conversion Amount pursuant to Section 2(b) such converting holder gives notice to the extent Corporation that after giving effect to such conversion such Person (together with such Person's affiliates) delivery would have acquired, through conversion not result in it being the beneficial owner of the Notes or otherwise, in excess of 10.00more than 9.9% of the outstanding shares of the Common Stock following outstanding at such conversion during time. For the 60-day period ending on avoidance of doubt (i) (x) any converting holder shall have no right to cast any vote with respect to any shares of Common Stock that are not delivered to such converting holder due to the restrictions set forth in this Section 16 and including (y) any dividends payable otherwise by the date Corporation with respect to any shares of Common Stock that are not delivered to such converting holder due to the restrictions set forth in this Section 16 shall not be payable to such converting holder prior to the delivery of such conversion. For purposes shares of the foregoing sentenceCommon Stock to such converting holder, and (ii) these limitations on beneficial ownership provided for in this Section 16 shall not limit the number of shares of Common Series C Preferred Stock beneficially owned by a Person and the Corporation may cause to be converted, or otherwise constrain in any way the Corporation’s ability to exercise its affiliates or acquired by a Person and its affiliatesright to cause Series C Preferred Stock to be converted, as the case may be, shall include the number of shares of Common Stock issuable upon conversion of the Conversion Amount of such Notes with respect pursuant 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) conversion of the remaining, nonconverted Conversion Amount of such Notes beneficially owned by such Person and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, the Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person and its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 5(a), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Section 5, in determining the number of outstanding shares of Common Stock a holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q or Form 10-K, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its 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 the Holder, the Company shall within two (2) Business Days confirm orally and in writing to the Holder the number of shares Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion of the Conversion Amount of such Notes and exercising the Warrants by the Person and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Midsouth Bancorp Inc)
Limitations on Beneficial Ownership. The Company shall not be obligated to effect the exercise of any conversion portion of this Note Warrant, and no the Holder shall not have the right to convert exercise any Conversion Amount portion of this Warrant, pursuant to Section 2(b) the terms and conditions of this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such conversion such Person (exercise, the Holder together with such Person's affiliates) the other Attribution Parties collectively would have acquired, through conversion of the Notes or otherwise, beneficially own in excess of 10.004.99% (the “Maximum Percentage”) of the outstanding shares of the Common Stock following outstanding immediately after giving effect to such conversion during the 60-day period ending on and including the date of such conversionexercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by a Person the Holder and its affiliates or acquired by a Person and its affiliates, as the case may be, other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion exercise of the Conversion Amount of such Notes this Warrant 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 (iA) conversion exercise of the remaining, nonconverted Conversion Amount unexercised portion of such Notes this Warrant beneficially owned by such Person and its affiliates the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, the any convertible notes or convertible preferred stock or warrants, including other SPA Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person and its affiliatesin this Section 1(f)(i). Except as set forth in the preceding sentence, for For purposes of this Section 5(a1(f)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended1934 Act. For purposes of this Section 5, in determining the number of outstanding shares of Common Stock a holder the Holder may acquire upon the exercise of this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company's ’s most recent Form 10-Q or Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or its the Transfer Agent Agent, if any, setting forth the number of shares of Common Stock outstandingoutstanding (the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two one (21) Business Days Day confirm orally and in writing or by electronic mail to the Holder 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 conversion or exercise of securities of the Conversion Amount of such Notes and exercising the Warrants Company, including this Warrant, by the Person Holder and its affiliates any other Attribution Party since the date as of which such number of outstanding shares of Common Stock was reported.the Reported Outstanding Share Number was
Appears in 1 contract
Samples: Rescission and Exchange Agreement (Patriot National, Inc.)
Limitations on Beneficial Ownership. The Company shall not be obligated to effect the exercise of any conversion portion of this Note Warrant, and no the Holder shall not have the right to convert exercise any Conversion Amount portion of this Warrant, pursuant to Section 2(b) the terms and conditions of this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such conversion such Person (exercise, the Holder together with such Person's affiliates) the other Attribution Parties collectively would have acquired, through conversion of the Notes or otherwise, beneficially own in excess of 10.004.99% (the “Maximum Percentage”) of the outstanding shares of the Common Stock following outstanding immediately after giving effect to such conversion during the 60-day period ending on and including the date of such conversionexercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by a Person the Holder and its affiliates or acquired by a Person and its affiliates, as the case may be, other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion exercise of the Conversion Amount of such Notes this Warrant 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 (iA) conversion exercise of the remaining, nonconverted Conversion Amount unexercised portion of such Notes this Warrant beneficially owned by such Person and its affiliates the Holder or any of the other Attribution Parties and (iiB) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, the any convertible notes or convertible preferred stock or warrants, including other SPA Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person and its affiliatesin this Section 1(f)(i). Except as set forth in the preceding sentence, for For purposes of this Section 5(a1(f)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended1934 Act. For purposes of this Section 5, in determining the number of outstanding shares of Common Stock a holder the Holder may acquire upon the exercise of this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1x) the Company's ’s most recent Form 10-Q or Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (2y) a more recent public announcement by the Company or (3z) any other written notice by the Company or its the Transfer Agent Agent, if any, setting forth the number of shares of Common Stock outstandingoutstanding (the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two one (21) Business Days Day confirm orally and in writing or by electronic mail to the Holder 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 conversion or exercise of securities of the Conversion Amount of such Notes and exercising the Warrants Company, including this Warrant, by the Person Holder and its affiliates any other Attribution Party since the date as of which such the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock was reported(as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of SPA Warrants that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(f)(i) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(f)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
Appears in 1 contract
Samples: Securities Purchase Agreement (Patriot National, Inc.)
Limitations on Beneficial Ownership. The Company shall not be obligated to effect any conversion of this Note and Notwithstanding the foregoing, no Holder (other than any Permitted Holder) shall have the right be entitled to convert any Conversion Amount pursuant to Section 2(b) receive shares of Common Stock upon conversion to the extent (but only to the extent) that after giving effect such receipt would cause such converting Holder to such conversion such Person become, directly or indirectly, a “beneficial owner” (together with such Person's affiliateswithin the meaning of Section 13(d) would have acquired, through conversion of the Notes Exchange Act and the rules and regulations promulgated thereunder) of 5.0% or otherwise, in excess of 10.00% more of the shares of Common Stock outstanding shares at such time. In addition, no Holder (other than any Permitted Holder) who holds more than 5% of the Common Stock following such conversion during the 60-day period ending on and including the date of such conversion. For purposes outstanding as of the foregoing sentenceIssue Date (any such Holder, a “5% Holder”) shall be entitled to receive shares of Common Stock upon conversion to the number extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a beneficial owner of more than an additional 1% of the shares of Common Stock outstanding at such time in respect of conversions of the Notes by such 5% Holder. Any purported delivery of shares of Common Stock beneficially owned by a Person upon conversion of Notes shall be void and its affiliates have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder (other than any Permitted Holder) becoming the beneficial owner of 5.0% or acquired by a Person and its affiliatesmore of the shares of Common Stock outstanding at such time or, as in the case may beof a 5% Holder, shall include more than an additional 1% of the number shares of Common Stock outstanding at such time. If any delivery of shares of Common Stock issuable owed to a Holder upon conversion of the Conversion Amount of such Notes with respect to which the determination of such sentence is being not made, but in whole or in part, as a result of this limitation, Parent’s obligation to make such delivery shall exclude the number of not be extinguished and it shall deliver such shares of Common Stock which as promptly as practicable after any such converting Holder gives notice to us that such delivery would not result in such limitation being triggered. These limitations on beneficial ownership shall be issuable upon terminated (i) conversion of upon 61 days’ notice to Parent by any Holder, solely with respect to the remaining, nonconverted Conversion Amount of such Notes beneficially owned by such Person and its affiliates and Holder, (ii) exercise immediately upon delivery by Parent of notice of its election to terminate conversion rights as specified above, (iii) immediately upon delivery by Parent of notice of a fundamental change as specified below or conversion of the unexercised or unconverted portion of any other securities of the Company (includingiv) on June 15, without limitation, the Warrants) subject to a limitation 2016. These limitations on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person and its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 5(a), beneficial ownership shall be calculated not constrain in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Section 5, in determining the number of outstanding shares of Common Stock a holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company's most recent Form 10-Q or Form 10-K, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or event Parent’s ability to exercise its 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 the Holder, the Company shall within two (2) Business Days confirm orally and in writing right to the Holder the number of shares Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the terminate conversion of the Conversion Amount of such Notes and exercising the Warrants by the Person and its affiliates since the date as of which such number of outstanding shares of Common Stock was reportedrights.
Appears in 1 contract
Samples: Indenture (Sealy Corp)
