Common use of Limitations to the Subsequent Issuance Clause in Contracts

Limitations to the Subsequent Issuance. (i) Notwithstanding anything to the contrary contained herein, and provided the Company’s Class A Common Stock is listed for trading on the NYSE (or other securities exchange with similar listing standards and rules), the Company shall only effect the issuance of such portion of the Aggregate Subsequent Issuance Shares, if and as applicable, and Investors and Structural shall only have the right to acquire such portion of the Aggregate Subsequent Issuance Shares on a pro rata basis in accordance with Schedule I hereto and Schedule I to the Structural Agreement, to the extent that after giving effect to such issuances, Investors and Structural would not have received pursuant to this Agreement and the Structural Agreement, in the aggregate, an amount in excess of 19.99% (the “Maximum Percentage”) of either (A) the shares of Common Stock or (B) the voting power of the shares of Common Stock, each to the extent that such shares of Common Stock are issued and outstanding immediately before giving effect to the Subsequent Issuance (without having given effect to the Closing Issuance). In the event that the limitation set forth in this Section 2.2.2(b)(i) is applicable, the issuance of any shares above the Maximum Percentage shall be null and void and treated as if never made. (ii) Additionally, no Person shall be entitled to receive a number of Aggregate Subsequent Issuance Shares in excess of that number of Subsequent Issuance Shares which, upon giving effect to such issuance, would result in any required filing and waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act (the “HSR Act”) or any filing and/or clearance under any other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (together, “Antitrust Laws”) unless and until such a filing has been made, all required waiting periods have been observed and/or any required pre-approval has been obtained. If a filing, observance of a waiting period and/or clearance under any Antitrust Laws will be required in connection with the issuance of the Aggregate Subsequent Issuance Shares, such Person and the Company shall make such filings in accordance with Section 11 and shall only proceed with the issuance of the Aggregate Subsequent Issuance Shares after applicable waiting periods have expired and approvals are obtained. (iii) If the Subsequent Issuance Closing is at a time when the issuance of the Aggregate Subsequent Issuance Shares would not comply with applicable law, including the rules and regulations of the NYSE (or, if not the NYSE, the primary securities exchange on which the Class A Common Stock is listed) (“Applicable Law”), the Company shall (A) notify Investors in writing of the number of shares of Class A Common Stock issued or issuable in connection with any other transaction by the Company that may be aggregated with the issuance of the Aggregate Subsequent Issuance Shares under the rules and regulations of the NYSE (or, if not the NYSE, the primary securities exchange on which the Class A Common Stock is then listed), and (B) to the extent that the Subsequent Issuance would otherwise cause any Person’s ownership, as determined pursuant to this Section 2.2.2(b), to exceed the Maximum Percentage or to not comply with Applicable Law, such Person must notify the Company of a reduced number of Subsequent Issuance Shares to be acquired. (iv) For purposes of clarity, the shares of Class A Common Stock issuable pursuant to the terms of this Agreement and the Structural Agreement in excess of the Maximum Percentage or the issuance of which would not comply with Applicable Law shall not be deemed to be beneficially owned by any Person for any purpose including for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or Rule 16a-1(a)(1) under the Exchange Act. (v) To the extent that any Subsequent Issuance Shares are not issuable at a particular point in time due to any limitation set forth herein, the Company shall use commercially reasonable efforts to enable the Company to issue such Shares and such Shares shall be issued to the appropriate Person promptly after, and to the extent that, the limitations set forth herein no longer prohibit such issuance. The operation of any limitation hereunder shall not be deemed to result in a forfeiture of any Subsequent Issuance Shares.

Limitations to the Subsequent Issuance. (i) Notwithstanding anything to the contrary contained herein, and provided the Company’s Class A Common Stock is listed for trading on the NYSE (or other securities exchange with similar listing standards and rules), the Company shall only effect the issuance of such portion of the Aggregate Subsequent Issuance Shares, if and as applicable, and Investors and Structural Avenue shall only have the right to acquire such portion of the Aggregate Subsequent Issuance Shares on a pro rata basis in accordance with Schedule I hereto and Schedule I to the Structural Avenue Agreement, to the extent that after giving effect to such issuances, Investors and Structural Avenue would not have received pursuant to this Agreement and the Structural Avenue Agreement, in the aggregate, an amount in excess of 19.99% (the “Maximum Percentage”) of either (A) the shares of Common Stock or (B) the voting power of the shares of Common Stock, each to the extent that such shares of Common Stock are issued and outstanding immediately before giving effect to the Subsequent Issuance (without having given effect to the Closing Issuance). In the event that the limitation set forth in this Section 2.2.2(b)(i) is applicable, the issuance of any shares above the Maximum Percentage shall be null and void and treated as if never made. (ii) Additionally, no Person shall be entitled to receive a number of Aggregate Subsequent Issuance Shares in excess of that number of Subsequent Issuance Shares which, upon giving effect to such issuance, would result in any required filing and waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act (the “HSR Act”) or any filing and/or clearance under any other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (together, “Antitrust Laws”) unless and until such a filing has been made, all required waiting periods have been observed and/or any required pre-approval has been obtained. If a filing, observance of a waiting period and/or clearance under any Antitrust Laws will be required in connection with the issuance of the Aggregate Subsequent Issuance Shares, such Person and the Company shall make such filings in accordance with Section 11 and shall only proceed with the issuance of the Aggregate Subsequent Issuance Shares after applicable waiting periods have expired and approvals are obtained. (iii) If the Subsequent Issuance Closing is at a time when the issuance of the Aggregate Subsequent Issuance Shares would not comply with applicable law, including the rules and regulations of the NYSE (or, if not the NYSE, the primary securities exchange on which the Class A Common Stock is listed) (“Applicable Law”), the Company shall (A) notify Investors in writing of the number of shares of Class A Common Stock issued or issuable in connection with any other transaction by the Company that may be aggregated with the issuance of the Aggregate Subsequent Issuance Shares under the rules and regulations of the NYSE (or, if not the NYSE, the primary securities exchange on which the Class A Common Stock is then listed), and (B) to the extent that the Subsequent Issuance would otherwise cause any Person’s ownership, as determined pursuant to this Section 2.2.2(b), to exceed the Maximum Percentage or to not comply with Applicable Law, such Person must notify the Company of a reduced number of Subsequent Issuance Shares to be acquired. (iv) For purposes of clarity, the shares of Class A Common Stock issuable pursuant to the terms of this Agreement and the Structural Avenue Agreement in excess of the Maximum Percentage or the issuance of which would not comply with Applicable Law shall not be deemed to be beneficially owned by any Person for any purpose including for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or Rule 16a-1(a)(1) under the Exchange Act. (v) To the extent that any Subsequent Issuance Shares are not issuable at a particular point in time due to any limitation set forth herein, the Company shall use commercially reasonable efforts to enable the Company to issue such Shares and such Shares shall be issued to the appropriate Person promptly after, and to the extent that, the limitations set forth herein no longer prohibit such issuance. The operation of any limitation hereunder shall not be deemed to result in a forfeiture of any Subsequent Issuance Shares.