Ownership Cap. Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive shares representing Equity Interests upon conversion of this Note to the extent (but only to the extent) that such exercise or receipt would cause the Holder Group (as defined below) to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder) of a number of Equity Interests of a class that is registered under the 1934 Act which exceeds the Maximum Percentage (as defined below) of the Equity Interests of such class that are outstanding at such time. Any purported delivery of Equity Interests in connection with the conversion of this Note prior to the termination of this restriction in accordance herewith shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the Holder Group becoming the beneficial owner of more than the Maximum Percentage of the Equity Interests of a class that is registered under the 1934 Act that is outstanding at such time. If any delivery of Equity Interests owed to the Holder following conversion of this Note is not made, in whole or in part, as a result of this limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such Equity Interests as promptly as practicable after the Holder gives notice to the Company that such delivery would not result in such limitation being triggered or upon termination of the restriction in accordance with the terms hereof. To the extent limitations contained in this Section 3.3 apply, the determination of whether this Note is convertible and of which portion of this Note is convertible shall be the sole responsibility and in the sole determination of the Holder, and the submission of a notice of conversion shall be deemed to constitute the Holder’s determination that the issuance of the full number of Conversion Shares requested in the notice of conversion is permitted hereunder, and the Company shall not have any obligation to verify or confirm the accuracy of such determination. For purposes of this Section 3.3, (i) the term “Maximum Percentage” shall mean 4.99%; provided, that if at any time after the date hereof the Holder Group beneficially owns in excess of 4.99% of any class of Equity Interests in the Company that is registered under the 1934 Act, then the Maximum Percentage shall autom...
Ownership Cap. The Company shall not knowingly effect the exercise of this Warrant, and the Holder shall not have the right to exercise this Warrant to the extent that, after giving effect to such exercise, the Holder (together with its Affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the voting Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Shares beneficially owned by the Holder and its Affiliates shall include the number of Shares issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude Shares which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder and its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Holder and its Affiliates (including, without limitation, any convertible notes or convertible shares 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 Section 5.4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of this Warrant, in determining the number of outstanding Shares, the Holder of this Warrant may rely on the number of outstanding Shares as reflected in the most recent of (i) the Company’s Form 10-K, Form 10-Q or other public filing with the Commission, as the case may be, (ii) a more recent public announcement by the Company or (iii) any other notice by the Company or its transfer agent setting forth the number of Shares outstanding. Upon the written request of the Holder, the Company shall, within fifteen (15) Business Days, confirm to the Holder the number of Shares then outstanding. Furthermore, upon the written request of the Company, the Holder shall confirm to the Company its then current beneficial ownership with respect to the Company’s Shares.
Ownership Cap. Notwithstanding anything to the contrary set forth in Section 3 of this Note, at no time may a holder of this Note convert this Note if the number of shares of Common Stock to be issued pursuant to such conversion would exceed, when aggregated with all other shares of Common Stock owned by such holder at such time, the number of shares of Common Stock which would result in such holder owning more than 9.99% of all of the Common Stock outstanding at such time; provided, however, that upon a holder of this Note providing the Company with 75 days notice (pursuant to Section 4.1 hereof) (the "Waiver Notice") that such holder would like to waive this Section 3.4 with regard to any or all shares of Common Stock issuable upon conversion of this Note, this Section 3.4 will be of no force or effect with regard to all or a portion of the Note referenced in the Waiver Notice.
Ownership Cap. Unless approved by a majority of the Independent Directors, Sibelco will not, and will cause the Sibelco-related Parties not to acquire any Shares if such acquisition would result in Sibelco and the Sibelco-related Parties beneficially owning more than:
(a) 70% of the outstanding Common Stock during the Restricted Period; or
(b) 80.1% of the outstanding Common Stock after the Restricted Period.
Ownership Cap. For the avoidance of doubt, during the Interim Merger Period, (a) except as provided in Section 8(a) hereof (including the proviso therein), any provision of the Existing Stockholders Agreement (including, by way of example and not in limitation thereof, Section 4.7 thereof) which relates to the Cap will be deemed modified to refer to Liberty’s Equity Interest at the applicable time of determination and from time to time thereafter to the extent such percentage increases as a result of share repurchases and (b) the Liberty Parties shall not be deemed to be in breach of Sections 4.1 or 4.2 of the Existing Stockholders Agreement to the extent that Liberty’s Equity Interest exceeds the Cap solely as a result of the effects of compliance with Section 3; provided that all provisions of Sections 4.1 and 4.2 of the Existing Stockholders Agreement shall otherwise continue to apply with full force and effect.
Ownership Cap. The Holder’s Maximum Ownership Percentage is 9.9% (which may be changed only as specified in PST Document CN).
Ownership Cap. Assuming compliance by Seller with Section 6.2(b)(i), neither Buyer nor Parent will, after giving effect to the consummation of the Transactions, (i) “beneficially own” (as determined under Rule 13d-3 under the Exchange Act) 19.9% or more of the shares of Common Stock and/or (ii) possess 19.9% or more of the voting power of Seller.
Ownership Cap. From the Execution Date until the First Closing Date and after giving effect to the consummation of the Transactions, subject to Seller’s compliance with Section 6.2(b)(i), Buyer shall not and shall cause parent not to (i) “beneficially own” (as determined under Rule 13d-3 under the Exchange Act) 19.9% or more of the shares of Common Stock and/or (ii) possess 19.9% or more of the voting power of Seller.
Ownership Cap. (a) No McCain Family Party, or Person acting jointly or in concert with a McCain Family Party, shall, directly or indirectly, acquire beneficial ownership of, or control or direction over (an “Acquisition”) any common shares or any other shares in the capital of the Company entitled to vote generally in the election of directors (collectively, the “Shares”) or any right or option to acquire Shares (whether under a Company Equity Compensation Plan, pursuant to the terms of a convertible security or otherwise) (each, a “Right to Acquire Shares”) where such Acquisition would result at any time in the aggregate number of Shares beneficially owned, or over which control or direction is exercised, by the McCain Family Parties (together with any Person acting jointly or in concert with a McCain Family Party) exceeding 45% of the issued and outstanding Shares, in each case calculated as follows as of the relevant date (such percentage calculated below, the “Ownership Percentage”):
(i) 100%; multiplied by
(ii) the quotient of:
(A) (1) the aggregate number of Shares beneficially owned, or over which control or direction is exercised, by the McCain Family Parties (together with any person acting jointly or in concert with a McCain Family Party); plus (2) the aggregate number of Shares issuable or transferrable (as the case may be) to the McCain Family Parties (or by any Person acting jointly or in concert with a McCain Family Party) pursuant to any Right to Acquire Shares held by them (assuming for this purpose that all unvested Rights to Acquire Shares are deemed to be vested and exercisable (with those subject to performance criteria being deemed to be vested at their maximum level)) and that the relevant Rights to Acquire Shares are deemed to be exercised or otherwise satisfied in accordance with their terms (all Shares in clauses (1) and (2) together being the Shares that are “Beneficially Owned”); divided by
(B) (1) the total number of issued and outstanding Shares; plus
Ownership Cap. Notwithstanding anything to the contrary contained herein, the Investor shall not be entitled to receive Common Shares upon Optional Conversion of this Note to the extent (but only to the extent) that such exercise or receipt would cause the Investor Group (as defined below) to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder) of a number of Common Shares of a class that is registered under the 1934 Act which exceeds the Maximum Percentage of the Common Shares of such class that are outstanding at such time. For purposes of this Section 5, (i) the term “Maximum Percentage” shall initially be set at the discretion of each Investor to a percentage designated by such Investor on its signature page to the Purchase Agreement between 4.99% and up to 19.99% until the date the Stockholder Approval is obtained. Notwithstanding the foregoing, by written notice to the Company (which may be by email), (i) which will not be effective until the sixty-first (61st ) day after such written notice is delivered to the Company, the Investor may reset the Maximum Percentage to a higher percentage, not to exceed 19.99% until the date the Stockholder Approval is obtained, to the extent applicable, and (ii) which will be effective immediately after such notice is delivered to the Company, the Investor may reset the Maximum Percentage to a lower percentage and (ii) the term “Investor Group” shall mean the Investor plus any other Person with which the Investor is considered to be part of a group under Section 13 of the 1934 Act or with which the Investor otherwise files reports under Sections13 and/or 16 of the 1934 Act. In determining the number of Common Shares of a particular class outstanding at any point in time, the Investor may rely on the number of outstanding Common Shares of such class as reflected in (x) the Company’s most recent Annual Report on Form10-K or Quarterly Report on Form 10-Q, each filed with the Securities and Exchange Commission, as the case may be, (y)a more recent public announcement by the Company or (z) a more recent notice by the Company or the Transfer Agent to the Investor setting forth the number of Common Shares of such class then outstanding. For any reason at any time, upon written or oral request of the Investor, the Company shall, within one (1) Business Day of such request, confirm orally and in writing to the Investor the number of Co...
