Excess Ownership Position means any of the following: (i) the Equity Percentage exceeds 9.0%, (ii) Dealer or any “affiliate” or “associate” of Dealer would own in excess of 14.0% of the outstanding Shares for purposes of Section 203 of the Delaware General Corporation Law or (iii) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act) or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1% of the number of Shares outstanding on the date of determination. The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or of any “group” (within the meaning of Section 13) of which Dealer is or may be deemed to be a part (Dealer and any such affiliates, persons and groups, collectively, “Dealer Group”), beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day and (B) the denominator of which is the number of Shares outstanding on such day (including, solely for such purpose, Shares that would be deemed outstanding pursuant to the last sentence of Rule 13d-3(d)(1)(i) if such sentence were applicable to the calculation of clause (B) of the definition of Equity Percentage).
Excess Ownership Position means any of the following: (i) the Equity Percentage exceeds 7.5%, (ii) BofA or any “affiliate” or “associate” of BofA would own in excess of 13% of the outstanding Shares for purposes of Section 203 of the Delaware General Corporation Law or (iii) BofA, BofA Group (as defined below) or any person whose ownership position would be aggregated with that of BofA or BofA Group (BofA, BofA Group or any such person, a “BofA Person”) under any federal, state or local laws, regulations, regulatory orders or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a BofA Person, or could result in an adverse effect on a BofA Person, under Applicable Laws, as determined by BofA in its reasonable discretion, and with respect to which such requirements have not been met or the relevant approval has not been received or that would give rise to any consequences under the constitutive documents of Counterparty or any contract or agreement to which Counterparty is a party, in each case minus (y) 1% of the number of Shares outstanding on the date of determination. The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that BofA and any of its affiliates or any other person subject to aggregation with BofA, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13) of which BofA is or may be deemed to be a part (BofA and any such affiliates, persons and groups, collectively, “BofA Group”) beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that, as a result of a change in law, regulation or interpretation after the date hereof, the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such number) and (B) the denominator of which is the number of Shares outstanding on such day.
Excess Ownership Position has the meaning set forth in Section 9.07.
Examples of Excess Ownership Position in a sentence
As of the date hereof, it is not expected that the receipt by the holder of an Exchangeable Preferred Limited Partnership Interest of the shares of Newmark Class A Common Stock upon an Exchangeable Preferred Newmark Exchange would cause the holder of the Exchangeable Preferred Limited Partnership Interest to be in an Excess Ownership Position (but no assurance is given that such holder will not be in an Excess Ownership Position in the future).
Notwithstanding anything to the contrary herein, in no event shall a holder of an Exchangeable Preferred Limited Partnership Interest be entitled to receive, or shall be deemed to receive, any shares of Newmark Class A Common Stock upon any Exchangeable Preferred Newmark Exchange if, immediately upon giving effect to such receipt of such shares, an Excess Ownership Position would exist.
If any delivery owed to such holder hereunder is not made, in whole or in part, as a result of this provision, the Partnership’s obligation to make such delivery shall not be extinguished and the Partnership shall make such delivery as promptly as practicable after, but in no event later than three Business Days after, such holder gives notice to the General Partner that such delivery would not result in the existence of an Excess Ownership Position.
More Definitions of Excess Ownership Position
Excess Ownership Position means with respect to a holder of an Exchangeable Preferred Limited Partnership Interest, at any time, that (1) such holder beneficially owns more than 4.5% of the total shares of Newmark Class A Common Stock outstanding for purposes of Section 13(d) of the Securities Exchange Act or 1934, as amended (including by virtue of being part of a group or other aggregation with another person), or (2) under any other applicable law, rule, regulation or regulatory order or organizational documents or contracts of Newmark applicable to ownership of shares of Newmark Class A Common Stock, such holder is deemed to own (including constructive ownership, however defined) a percentage of total number of shares of Newmark Class A Common Stock outstanding exceeding, or within 1% of exceeding, the threshold that would give rise to any obligation of, or restriction or other adverse effect on, such holder or any Affiliate thereof. As of the date hereof, it is not expected that the receipt by the holder of an Exchangeable Preferred Limited Partnership Interest of the shares of Newmark Class A Common Stock upon an Exchangeable Preferred Newmark Exchange would cause the holder of the Exchangeable Preferred Limited Partnership Interest to be in an Excess Ownership Position (but no assurance is given that such holder will not be in an Excess Ownership Position in the future).
Excess Ownership Position means any of the following: (i) the Equity Percentage exceeds 8.5%, (ii) the Option Equity Percentage exceeds 14.5% or (iii) the CBCA Percentage exceeds 8.5%. The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or of any “group” (within the meaning of Section 13) of which Dealer is or may be deemed to be a part, beneficially owns (within the meaning of Section 13 of the Exchange Act) on such day and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the product of the Number of Warrants and the Warrant Entitlement on such day and (B) the denominator of which is the number of Shares outstanding on such day. The “CBCA Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares deemed to be directly or indirectly owned or controlled, for purposes of the Change in Bank Control Act, as amended, by Dealer and its affiliates on such day and (B) the denominator of which is the number of Shares outstanding on such day;
Excess Ownership Position means any of the following: (i) the Beneficial Ownership of Dealer Group is equal to or greater than 8.5% of the outstanding Shares, (ii) Dealer or any “affiliate” or “associate” of Dealer would own in excess of 13% of the outstanding Shares for purposes of Section 203 of the Delaware General Corporation Law, (iii) the Maritime Law Ownership Percentage of the Maritime Law Dealer Group would be equal to or greater than 4% of the outstanding Shares, or (iv) the aggregate percentage of non-U.S. citizen owners (as determined pursuant to the Certificate) of Shares shall equal or exceed 18% of the outstanding Shares.
Excess Ownership Position and Dealer is unable, after commercially reasonable efforts, to effect a transfer or assignment on pricing terms and within a time period reasonably acceptable to it of all or a portion of the Transaction such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that an Excess Ownership Position no longer exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of this Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Shares equal to the Terminated Portion, (y) Counterparty shall be the sole Affected Party with respect to such partial termination and (z) such Transaction shall be the only Terminated Transaction. The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (“Dealer Group”), beneficially own (within the meaning of Section 13 of the Exchange Act) on such day and (B) the denominator of which is the number of Shares outstanding on such day.
Excess Ownership Position means (1) the Equity Percentage exceeds 8.0%, (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under Section 203 of the Delaware General Corporation Law (the “DGCL Takeover Statute”) or other federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership, or could be reasonably viewed as meeting any of the foregoing, in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration, filing or notification obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws (including, without limitation, “interested shareholder” or “acquiring Person” status under the DGCL Takeover Statute) and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1% of the number of Shares outstanding on the date of determination, (3) solely with respect to any Designated Repurchase Units, any Dealer Person under the organizational documents of Counterparty owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership, or could be reasonably viewed as meeting any of the foregoing, in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration, filing or notification obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person, or would result in an adverse effect on a Dealer Person, in each case, under the organizational documents of Counterparty and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1% of the number of Shares outstanding on the date of determination or (4) the Units Equity Percentage (as defined below) exceeds 9%.
Excess Ownership Position means any of the following: (i) the Beneficial Ownership of Dealer Group is equal to or greater than 8.5% of the outstanding Shares, (ii) Dealer or any “affiliate” or “associate” of Dealer would own in excess of 13% of the outstanding Shares for purposes of Section 203 of the Delaware General Corporation Law, (iii) the Maritime Law Ownership Percentage of the Maritime Law Dealer Group would be equal to or greater than 4% of the outstanding Shares, or (iv) the aggregate percentage of non-U.S. citizen owners (as determined pursuant to Counterparty’s Amended and Restated Certificate of Incorporation (the “Certificate”)) of Shares shall equal or exceed 18% of the outstanding Shares. “Beneficial Ownership” means the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer or any affiliate of Dealer subject to aggregation with Dealer under such Section 13 and rules (collectively, “Dealer Group”). “Maritime Law Ownership Percentage” means the ownership, as construed under the Maritime Laws, of Shares by Dealer or any person whose ownership would be aggregated with that of Dealer or Dealer’s parent entity under the Maritime Laws (collectively, the “Maritime Law Dealer Group”). “Maritime Laws” means, collectively and without duplication, Chapters 121 and 505 of Title 46 of the United States Code and any successor statute thereto, and the regulations promulgated under such Title or successor statute or, to the extent remaining in force, under any predecessor statute, in each case as amended or supplemented from time to time, or any “Maritime Laws” as defined in the Certificate. Counterparty shall promptly notify Dealer if at any time either (i) any purported transfer of any shares of any class or series of capital stock of Counterparty is void and ineffective pursuant to paragraph 4(a) of Article V of the Certificate or (ii) any shares of any class or series of capital stock of Counterparty are “Excess Shares” pursuant to paragraph 5 of Article V of the Certificate. Counterparty shall provide Dealer with a copy of any filings submitted to any regulatory authority relating to Counterparty’s or Counterparty’s stockholders’ citizenship under the Maritime Laws so long as Dealer (or any assignee of Dealer) has agreed to keep any such filings and the information contained therein confidential on terms reasonably acceptable to Counterparty and Dealer. Counterparty acknowledges that it will not tr...
Excess Ownership Position means, at any time, that (1) Dealer beneficially owns more than 4.5% of total Shares (or Newmark Shares, as the case may be) outstanding for purposes of Section 13(d) of the Exchange Act (including by virtue of being part of a group or other aggregation with another person) or (2) under any other applicable law, rule, regulation or regulatory order or organizational documents or contracts of Issuer (or the Newmark Issuer, as the case may be) applicable to ownership of Shares (or Newmark Shares, as the case may be), Dealer is deemed to own (including constructive EXECUTION ownership, however defined) a percentage of total Shares (or Newmark Shares, as the case may be) outstanding exceeding, or within 1% of exceeding, the threshold that would give rise to any obligation of, or restriction or other adverse effect on, Dealer or any affiliate thereof. In the case of a Physical Settlement where there is a delay in delivery of some or all of the Shares due to an Excess Ownership Position, Dealer shall deliver the the relevant Preferred Unit Property for all Components of the relevant Tranche as originally scheduled. In the event of a Modified Physical Settlement, Counterparty may request, prior to electing Modified Physical Settlement, that Dealer inform it if there would be an Excess Ownership Position in respect of Newmark Shares if Modified Physical Settlement were elected and Dealer shall, within one Business Day, respond to such request in writing. If Dealer fails to respond or responds in the negative and an Excess Ownership Position nonetheless exists with respect to Newmark Shares, then Dealer shall compensate Counterparty for any delay in receipt of payment resulting from operation of this provision at a rate per annum equal to the cost (without proof or evidence of any actual cost) to the relevant payee (as certified byit) if it were to fund or of funding the relevant amount.