Common use of Exempt Share Transactions Clause in Contracts

Exempt Share Transactions. The foregoing notwithstanding, the Investors’ rights under Section 4(a) shall not apply to any sales of Bank Entity Equity Securities in any of the following transactions or offerings (each, a “Bank Entity Exempt Share Transaction” and, collectively, “Bank Entity Exempt Share Transactions”): (i) shares of Bank Entity common stock issued by reason of a dividend, stock split, split-up or other distribution on shares of Bank Entity common stock which does not result in a change in the ownership percentage of the underlying security holders; (ii) shares of Bank Entity common stock issued or issuable pursuant to the exercise, exchange or conversion of any Bank Entity Common Stock Equivalents, provided that the exercise prices or conversion prices of such Bank Entity Common Stock Equivalents are not decreased and the number of Bank Entity Equity Securities issuable upon exercise or conversion of such Bank Entity Common Stock Equivalents are not increased other than in accordance with the terms of such Bank Entity Common Stock Equivalents; provided further, that in the case of compensatory Bank Entity Common Stock Equivalents granted or issued to directors, officers, employees or consultants to the Bank Entity, as the case may be, the exercise or conversion price of such Bank Entity Common Stock Equivalents was equal to or greater than the fair market value of the common stock of the Bank Entity on the date of grant or issuance of such Bank Entity Common Stock Equivalents; (iii) shares of Bank Entity common stock issued or that may become issuable pursuant to (A) the acquisition of another Person by the Bank Entity, or any subsidiary thereof, whether by merger or other statutory reorganization, or (B) a purchase by the Bank Entity of all or substantially all of the assets of another Person, (C) the acquisition of shares or other voting securities of another Person, and (D) a joint venture or partnership agreement, provided that in each case the issuance of Bank Entity common stock has been or is approved by the Bank Entity’s Board of Directors, and provided further that any Bank Entity Equity Securities issued or issuable in connection with any transaction contemplated by this clause (iii) that is either (1) attributable to capital raising for the Bank Entity or its subsidiaries (other than nominal amounts of capital) or (2) to raise capital for the Bank Entity or its subsidiaries, directly or indirectly, in order to fund any transaction contemplated by this clause (iii), including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be a Bank Entity Exempt Share Transaction.

Exempt Share Transactions. The foregoing notwithstanding, the Investors’ Investor’s rights under Section 4(a) and Section 4(b) shall not apply to any sales of Bank Entity Equity Securities in any of the following transactions or offerings (each, a “Bank Entity Exempt Share Transaction” and, collectively, the “Bank Entity Exempt Share Transactions”): (i) shares of Bank Entity common stock or other Bank Entity Equity Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Bank Entity common stock which does not result in a change in the ownership percentage of the underlying security holders; (ii) shares of Bank Entity common stock or other Bank Entity securities issued or issuable pursuant to the exercise, exercise or exchange or conversion of any Bank Entity Common Stock Equivalents, provided that the exercise prices or conversion prices of such Bank Entity Common Stock Equivalents are not decreased and the number of Bank Entity Equity Securities issuable upon exercise or conversion as a result of the exchange of such Bank Entity Common Stock Equivalents are not increased other than in accordance with the terms of such Bank Entity Common Stock Equivalents; provided further, that in the case of compensatory Bank Entity Common Stock Equivalents granted or issued in the form of stock options, stock purchase warrants or similar stock purchase rights, to directors, officers, officers or employees of or consultants to the Bank Entity, as the case may be, the exercise or conversion price of such Bank Entity Common Stock Equivalents was equal to or greater than the closing price of the shares of Bank Entity common stock, or if there is no market for such common stock, then, the fair market value of the such shares of Bank Entity common stock (as determined in good faith by its Board of the Bank Entity Directors) on the date of grant or issuance of such Bank Entity Common Stock Equivalents; (iii) shares of Bank Entity common stock or other Bank Entity Equity Securities issued or that may become issuable pursuant to (A) the acquisition of another Person by the Bank Entity, or any subsidiary thereof, whether by merger or other statutory reorganization, or (B) a purchase by the Bank Entity of all or substantially all of the assets of another Person, (C) the acquisition by the Bank Entity of shares or other more than 50% of the voting securities of another Person, and (D) a joint venture or partnership agreementagreement (each of such transactions, a “Bank Entity Acquisition Transaction”), provided that in each case the issuance of Bank Entity common stock has been or is approved by the Bank Entity’s Board of Directors, and provided further that any Bank Entity Equity Securities issued or issuable in connection with any transaction contemplated by this clause (iii) that such Bank Entity Acquisition Transaction the primary purpose of which is either (1) attributable to raise capital raising for the Bank Entity or its subsidiaries (other than nominal amounts of capital) or (2) to raise capital for the Bank Entity or its subsidiaries, directly or indirectly, in order to fund any transaction contemplated by this clause (iii), including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be a Bank Entity Exempt Share Transaction. (iv) shares of Bank Entity common stock issued on conversion of any convertible preferred stock or as a dividend or distribution on any preferred stock which a Bank Entity may issue prior to the Rights Termination Date, provided that the Bank Entity offered to sell to the Investor shares of such convertible preferred stock pursuant to and in accordance with Sections 4(a) and 4(b) above; (v) any public offering of shares of any Bank Entity Equity Securities (including shares of Bank Entity common stock or Common Stock Equivalents) pursuant to either an exemption from the registration requirements of or a registration statement filed under the Securities Act.

Exempt Share Transactions. The foregoing notwithstanding, the Investors’ rights under Section 4(a) shall not apply to any sales of Bank Entity Equity Securities in any of the following transactions or offerings (each, a “Bank Entity Exempt Share Transaction” and, collectively, “Bank Entity Exempt Share Transactions”): (i) shares of Bank Entity common stock issued by reason of a dividend, stock split, split-up or other distribution on shares of Bank Entity common stock which does not result in a change in the ownership percentage of the underlying security holders; (ii) shares of Bank Entity common stock issued or issuable pursuant to the exercise, exchange or conversion of any Bank Entity Common Stock Equivalents, provided that the exercise prices or conversion prices of such Bank Entity Common Stock Equivalents are not decreased and the number of Bank Entity Equity Securities issuable upon exercise or conversion of such Bank Entity Common Stock Equivalents are not increased other than in accordance with the terms of such Bank Entity Common Stock Equivalents; provided further, that in the case of compensatory Bank Entity Common Stock Equivalents granted or issued to directors, officers, employees or consultants to the Bank Entity, as the case may be, Entity the exercise or conversion price of such Bank Entity Common Stock Equivalents was equal to or greater than the fair market value of the common stock of the Bank Entity on the date of grant or issuance of such Bank Entity Common Stock Equivalents; (iii) shares of Bank Entity common stock issued or that may become issuable pursuant to (A) the acquisition of another Person by the Bank Entity, or any subsidiary thereof, whether by merger or other statutory reorganization, or (B) a purchase by the Bank Entity of all or substantially all of the assets of another Person, (C) the acquisition of shares or other voting securities of another Person, and (D) a joint venture or partnership agreement, provided that in each case the issuance of Bank Entity common stock has been or is approved by the Bank Entity’s Board of Directors, and provided further that any Bank Entity Equity Securities issued or issuable in connection with any transaction contemplated by this clause (iii) that is either (1) attributable to capital raising for the Bank Entity or its subsidiaries (other than nominal amounts of capital) or (2) to raise capital for the Bank Entity or its subsidiaries, directly or indirectly, in order to fund any transaction contemplated by this clause (iii), including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be a Bank Entity Exempt Share Transaction.;

Exempt Share Transactions. The foregoing notwithstanding, the Investors’ Investor’s rights under Section 4(a3(a) shall not apply to any sales of Bank Entity Company Equity Securities in any of the following transactions or offerings (each, a an “Bank Entity Exempt Share Transaction” and, collectively, “Bank Entity Exempt Share Transactions”): (i) shares of Bank Entity common stock Common Stock issued on conversion of the Series A Preferred Stock, the Series B Preferred Stock or the Series C Preferred Stock; (ii) shares of Common Stock issued as a dividend or distribution on Series A Preferred Stock, on Series B Preferred Stock or Series C Preferred Stock; (iii) shares of Common Stock issued by reason of a dividend, stock split, split-up or other distribution on shares of Bank Entity common stock Common Stock which does not result in a change in the ownership percentage of the underlying security holdersInvestor’s Ownership Percentage; (iiiv) shares of Bank Entity common stock Common Stock issued or issuable pursuant to the exercise, exchange or conversion of any Bank Entity Common Stock Equivalents, provided that the exercise prices or conversion prices of such Bank Entity Common Stock Equivalents are not decreased and the number of Bank Entity Company Equity Securities issuable upon exercise or conversion of such Bank Entity Common Stock Equivalents are not increased other than in accordance with the terms of such Bank Entity Common Stock Equivalents; provided further, that in the case of compensatory Bank Entity Common Stock Equivalents granted or issued to directors, officers, employees or consultants to the Bank Entity, as the case may beCompany, the exercise or conversion price of such Bank Entity Common Stock Equivalents was equal to or greater than the fair market value closing price of the common stock of the Bank Entity Common Stock on the date of grant or issuance of such Bank Entity Common Stock Equivalents; (iiiv) shares of Bank Entity Common Stock purchased in a common stock rights offering by the Company to the holders of the Company’s outstanding Common Stock in which the Investor is entitled to participate (either directly or as holders of Series B Shares), and the rights to purchase such shares of Common Stock to be distributed to the Company shareholders in such rights offering; (vi) the adoption of or the grant or exercise of rights under a Shareholder Rights Plan (commonly known as a “poison pill”) or the issuance of any shares of Common Stock or other securities thereunder at an exercise price for the rights equal to or above the fair market value of the Common Stock at the time of such issuance; (vii) shares of Common Stock issued or that may become issuable pursuant to (A) the acquisition of another Person by the Bank EntityCompany, or any subsidiary thereof, whether by merger or other statutory reorganization, or (B) a purchase by the Bank Entity Company of all or substantially all of the assets of another Person, (C) the acquisition of shares or other voting securities of another Person, and (D) a joint venture or partnership agreement, provided that in each case the issuance of Bank Entity common stock Common Stock has been or is approved by the Bank EntityCompany’s Board of Directors, Directors and provided further that any Bank Entity Company Equity Securities issued or issuable in connection with any transaction contemplated by this clause (iiivii) that is either (1) attributable to capital raising for the Bank Entity Company or its subsidiaries (other than nominal amounts of capital) or (2) to raise capital for the Bank Entity Company or its subsidiaries, directly or indirectly, in order to fund any transaction contemplated by this clause (iiivii), including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be a Bank Entity an Exempt Share Transaction; (viii) Additional Series B Shares, shares of Common Stock, or Common Stock purchase warrants issued pursuant to the Secondary Financing; and (ix) any other public offering by the Company of shares of Common Stock or Common Stock Equivalents registered under the Securities Act.

Exempt Share Transactions. The foregoing notwithstanding, the Investors’ Investor’s rights under Section 4(a3(a) shall not apply to any sales of Bank Entity Company Equity Securities in any of the following transactions or offerings (each, a an “Bank Entity Exempt Share Transaction” and, collectively, “Bank Entity Exempt Share Transactions”): (i) shares of Bank Entity common stock Common Stock or other Company Equity Securities issued on conversion of the Series B Preferred Stock or the Series C Preferred Stock, in accordance with the respective terms thereof; (ii) shares of Common Stock or other Company Equity Securities issued as a dividend or distribution on the Series B Preferred Stock or Series C Preferred Stock, in accordance with the respective terms thereof; (iii) shares of Common Stock or other Company Equity Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Bank Entity common stock Common Stock which does not result in a change in the ownership percentage of the underlying security holdersInvestor’s Ownership Percentage; (iiiv) shares of Bank Entity common stock Common Stock or other Company Equity Securities issued or issuable pursuant to the exercise, exercise or exchange or conversion of any Bank Entity Common Stock Equivalents, provided that the exercise prices or conversion prices of such Bank Entity Common Stock Equivalents are not decreased and the number of Bank Entity Company Equity Securities issuable upon exercise or conversion of such Bank Entity Common Stock Equivalents are not increased other than in accordance with the terms of such Bank Entity Common Stock Equivalents; provided further, that in the case of compensatory Bank Entity Common Stock Equivalents granted or issued issued, in the form of stock options, stock purchase warrants or other similar rights to purchase Common Stock, to directors, officers, employees or consultants to the Bank Entity, as the case may beCompany, the exercise or conversion price of such Bank Entity Common Stock Equivalents was equal to or greater than the fair market value closing price of the common stock of the Bank Entity Common Stock on the date of grant or issuance of such Bank Entity Common Stock Equivalents; (iiiv) shares of Bank Entity common stock Company Equity Securities sold and issued by the Company in a rights offering to the holders of the Company’s outstanding Common Stock in which the Investor is entitled to participate (either directly or as a holder of Series B Shares), and the rights to purchase such shares of Common Stock to be distributed to the Company shareholders in such rights offering; (vi) the adoption of or the grant or exercise of rights under a Shareholder Rights Plan (commonly known as a “poison pill”) and the issuance of any shares of Common Stock or other securities thereunder at an exercise price for the rights equal to or above the fair market value of the Common Stock at the time of such issuance; (vii) shares of Common Stock or any other Company Equity Securities issued or that may become issuable pursuant to (A) the acquisition of another Person by the Bank EntityCompany, or any subsidiary thereof, whether by merger or other statutory reorganization, or (B) a purchase by the Bank Entity Company or any of its subsidiaries of all or substantially all of the assets of another Person, (C) the acquisition of shares or other voting securities of another PersonPerson by the Company or any of its subsidiaries, and (D) a joint venture or partnership agreementagreement (each of such transactions, an “Acquisition Transaction”), provided that in each case the issuance of Bank Entity common stock Common Stock or other Company Equity Securities, as the case may be, has been or is approved by the Bank EntityCompany’s Board of Directors, Directors and provided further that any Bank Entity Company Equity Securities issued or issuable in connection with any transaction contemplated by this clause (iii) that Acquisition Transaction the primary purpose of which is either (1) attributable to raise capital raising for the Bank Entity Company or its subsidiaries (other than nominal amounts of capital) or (2) to raise capital for the Bank Entity or its subsidiaries, directly or indirectly, in order to fund any transaction contemplated by this clause (iii), including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be a Bank Entity an Exempt Share Transaction; (viii) the sale and issuance of Xxxxxxxxx Common Shares pursuant to the Amended CSPA; (ix) the issuance of the Stock Purchase Warrants pursuant to the Amended CSPA or to SBAV and the shares issuable on exercise thereof (the “Warrant Shares”); (x) any other public offering by the Company of shares of any Company Equity Securities (including Common Stock or Common Stock Equivalents) registered under the Securities Act.

Exempt Share Transactions. The foregoing notwithstanding, the Investors’ Investor’s rights under Section 4(a3(a) shall not apply to any sales of Bank Entity Company Equity Securities in any of the following transactions or offerings (each, a an “Bank Entity Exempt Share Transaction” and, collectively, “Bank Entity Exempt Share Transactions”): (i) shares of Bank Entity common stock Common Stock issued on conversion of the Series A Preferred Stock, the Series B Preferred Stock or the Series C Preferred Stock, in accordance with the respective terms thereof; (ii) shares of Common Stock issued as a dividend or distribution on Series A Preferred Stock, on Series B Preferred Stock or Series C Preferred Stock, in accordance with the respective terms thereof; (iii) shares of Common Stock issued by reason of a dividend, stock split, split-up or other distribution on shares of Bank Entity common stock Common Stock which does not result in a change in the ownership percentage of the underlying security holdersInvestor’s Ownership Percentage; (iiiv) shares of Bank Entity common stock Common Stock issued or issuable pursuant to the exercise, exchange or conversion of any Bank Entity Common Stock Equivalents, provided that the exercise prices or conversion prices of such Bank Entity Common Stock Equivalents are not decreased and the number of Bank Entity Company Equity Securities issuable upon exercise or conversion of such Bank Entity Common Stock Equivalents are not increased other than in accordance with the terms of such Bank Entity Common Stock Equivalents; provided further, that in the case of compensatory Bank Entity Common Stock Equivalents granted or issued to directors, officers, employees or consultants to the Bank Entity, as the case may beCompany, the exercise or conversion price of such Bank Entity Common Stock Equivalents was equal to or greater than the fair market value closing price of the common stock of the Bank Entity Common Stock on the date of grant or issuance of such Bank Entity Common Stock Equivalents; (iiiv) shares of Bank Entity Common Stock purchased in a common stock rights offering by the Company to the holders of the Company’s outstanding Common Stock in which the Investor is entitled to participate (either directly or as holders of Series B Shares), and the rights to purchase such shares of Common Stock to be distributed to the Company shareholders in such rights offering; (vi) the adoption of or the grant or exercise of rights under a Shareholder Rights Plan (commonly known as a “poison pill”) or the issuance of any shares of Common Stock or other securities thereunder at an exercise price for the rights equal to or above the fair market value of the Common Stock at the time of such issuance; (vii) shares of Common Stock issued or that may become issuable pursuant to (A) the acquisition of another Person by the Bank EntityCompany, or any subsidiary thereof, whether by merger or other statutory reorganization, or (B) a purchase by the Bank Entity Company of all or substantially all of the assets of another Person, (C) the acquisition of shares or other voting securities of another Person, and (D) a joint venture or partnership agreement, provided that in each case the issuance of Bank Entity common stock Common Stock has been or is approved by the Bank EntityCompany’s Board of Directors, Directors and provided further that any Bank Entity Company Equity Securities issued or issuable in connection with any transaction contemplated by this clause (iiivii) that is either (1) attributable to capital raising for the Bank Entity Company or its subsidiaries (other than nominal amounts of capital) or (2) to raise capital for the Bank Entity Company or its subsidiaries, directly or indirectly, in order to fund any transaction contemplated by this clause (iiivii), including, without limitation, securities issued in one or more related transactions or that result in similar economic consequences, shall not be deemed to be a Bank Entity an Exempt Share Transaction; (viii) Additional Series B Shares, or Common Stock purchase warrants issued pursuant to the Secondary Financing; (ix) shares of Common Stock issued pursuant to the Secondary Financing; and (x) any other public offering by the Company of shares of Common Stock or Common Stock Equivalents registered under the Securities Act.