Common use of Limitation on Beneficial Ownership Clause in Contracts

Limitation on Beneficial Ownership. No Purchaser shall be entitled to purchase a number of Preferred Shares that would cause such Purchaser, together with any other person whose Company securities would be aggregated with such Purchaser’s Company securities for purposes of any banking regulation or law, to collectively be deemed to own, control or have the power to vote shares of Common Stock which would represent more than 9.9% of the number of shares of Common Stock issued and outstanding (based on the number of outstanding shares as of the Closing Date. With respect to any Purchaser whose ownership following the Closing would be more than 5% of the Company’s outstanding Common Stock on an as-converted basis, such Purchaser acknowledges that it is familiar with the Federal Reserve Board’s Policy Statement on equity investments in banks and bank holding companies announced September 22, 2008 (12 CFR Section 225.144) and has received or had an opportunity to review such policy statement. Such Purchaser further agrees that it will take all necessary and customary actions requested by the Federal Reserve, including consultation with the Federal Reserve if appropriate, and execution of customary passivity commitments if required by the Federal Reserve, to ensure that its ownership does not constitute a “change in control,” but only to the extent such actions are typically taken by such Purchaser under such Purchaser’s policies consistently applied, to the extent such Purchaser has such policies. Notwithstanding anything in the contrary in this Section 4.12, no Purchaser shall be required to perform any such actions if such performance would constitute or could reasonably result in any Burdensome Condition; for the avoidance of doubt, any requirement to disclose the identities or financial condition of limited partners, shareholders or non-managing members of such Purchaser or its Affiliates or its investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Investor in its sole discretion.

Limitation on Beneficial Ownership. No Purchaser Notwithstanding anything to the contrary contained in this Certificate of Designations, the Preferred Shares held by a Holder shall not be convertible by such Holder, and the Company shall not effect any conversion of any Preferred Shares held by such Holder, to the extent (but only to the extent) that such Holder or any of its affiliates would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Preferred Shares held by such Holder shall be entitled convertible (vis-à-vis other convertible, exercisable or exchangeable securities owned by such Holder or any of its affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by such Holder and its affiliates) shall, subject to purchase such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior inability of a number Holder to convert Preferred Shares, or of Preferred Shares that would cause such Purchaser, together with any other person whose the Company securities would be aggregated with such Purchaser’s Company securities for purposes of any banking regulation or law, to collectively be deemed to own, control or have the power to vote issue shares of Common Stock to such Holder, pursuant to this Section 4(c) shall have any effect on the applicability of the provisions of this Section 4(c) with respect to any subsequent determination of convertibility or issuance (as the case may be). For purposes of this Section 4(c), beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. The provisions of this Section 4(c) shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 4(c) to correct this Section 4(c) (or any portion hereof) which would represent more than 9.9% may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this Section 4(c) shall apply to a successor holder of Preferred Shares. The holders of Common Stock shall be third party beneficiaries of this Section 4(c) and the Company may not waive this Section 4(c). For any reason at any time, upon the written or oral request of a Holder, the Company shall within two (2) Business Days confirm orally and in writing to such Holder the number of shares of Common Stock issued then outstanding, including by virtue of any prior conversion or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to this Certificate of Designations. By written notice to the Company, any Holder may increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% specified in such notice; provided that (i) any such increase will not be effective until the 61st day after such notice is delivered to the Company, and (ii) any such increase or decrease will apply only to such Holder sending such notice and not to any other Holder. For purposes hereof, in determining the number of outstanding (based shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company, or (3) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a holder of Preferred Shares, the Company shall within three (3) Business Days confirm orally and in writing to such 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 Company, including the Preferred Shares, by the Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, that in any event are convertible or exercisable, as the Closing Date. With respect to any Purchaser whose ownership following the Closing would be more than 5% case may be, into shares of the Company’s outstanding Common Stock within 60 days’ of such calculation and that are not subject to a limitation on an as-converted basis, such Purchaser acknowledges that it conversion or exercise analogous to the limitation contained herein. The determination of whether the conversion of shares of Preferred Stock into Common Stock is familiar with the Federal Reserve Board’s Policy Statement on equity investments in banks and bank holding companies announced September 22, 2008 (12 CFR permitted under this Section 225.1444(c) and has received or had an opportunity to review such policy statement. Such Purchaser further agrees that it will take all necessary and customary actions requested shall be made by the Federal Reserve, including consultation with the Federal Reserve if appropriateRecord Holder of such shares of Preferred Stock in such Record Holder’s sole discretion, and execution the submission of customary passivity commitments if required by a Conversion Notice shall be conclusively deemed to constitute such Record Holder’s determination that the Federal Reserve, to ensure that its ownership does not constitute a “change conversion of the shares of Preferred Stock identified in control,” but only to the extent such actions are typically taken by such Purchaser Conversion Notice is permitted under such Purchaser’s policies consistently applied, to the extent such Purchaser has such policies. Notwithstanding anything in the contrary in this Section 4.12, no Purchaser 4(c). The provisions of this paragraph shall be required to perform any such actions if such performance would constitute or could reasonably result construed and implemented in any Burdensome Condition; for a manner in accordance with Section 13(d) of the avoidance of doubt, any requirement to disclose 1934 Act and the identities or financial condition of limited partners, shareholders or non-managing members of such Purchaser or its Affiliates or its investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Investor in its sole discretionrules and regulations promulgated thereunder.

Limitation on Beneficial Ownership. No Purchaser Notwithstanding anything to the contrary contained in this Certificate of Designations, the Preferred Shares held by a Holder shall not be convertible by such Holder, and the Company shall not effect any conversion of any Preferred Shares held by such Holder, to the extent (but only to the extent) that such Holder or any of its affiliates would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Preferred Shares held by such Holder shall be entitled convertible (vis-à-vis other convertible, exercisable or exchangeable securities owned by such Holder or any of its affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by such Holder and its affiliates) shall, subject to purchase such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior inability of a number Holder to convert Preferred Shares, or of Preferred Shares that would cause such Purchaser, together with any other person whose the Company securities would be aggregated with such Purchaser’s Company securities for purposes of any banking regulation or law, to collectively be deemed to own, control or have the power to vote issue shares of Common Stock to such Holder, pursuant to this Section 3(e) shall have any effect on the applicability of the provisions of this Section 3(e) with respect to any subsequent determination of convertibility or issuance (as the case may be). For purposes of this Section 3(e), beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. The provisions of this Section 3(e) shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 3(e) to correct this Section 3(e) (or any portion hereof) which would represent more than 9.9% may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this Section 3(e) shall apply to a successor holder of Preferred Shares. For any reason at any time, upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to such Holder the number of shares of Common Stock issued then outstanding, including by virtue of any prior conversion or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to this Certificate of Designations. By written notice to the Company, any Holder may increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% specified in such notice; provided that (i) any such increase will not be effective until the 61st day after such notice is delivered to the Company, and outstanding (based on ii) any such increase or decrease will apply only to such Holder sending such notice and not to any other Holder. Notwithstanding the number foregoing and for avoidance of outstanding shares as doubt, to comply with the rules and regulations of the Closing Principal Market, the Company shall not effect any conversion of any Preferred Shares prior to the Shareholder Approval Date. With respect , to any Purchaser whose ownership following the Closing extent such conversion would be more than 5result in the issuance of shares of Common Stock, in the aggregate and taking into account prior conversions of Preferred Shares and other issuances of Common Stock pursuant to or in connection with the Merger Agreement and the transactions contemplated thereby, in excess of 19.99% of the Company’s outstanding Common Stock on an as-converted basisas of the Initial Issuance Date, or such Purchaser acknowledges that it is familiar with the Federal Reserve Board’s Policy Statement on equity investments in banks and bank holding companies announced September 22other lesser percentage, 2008 (12 CFR Section 225.144) and has received or had an opportunity to review such policy statement. Such Purchaser further agrees that it will take all necessary and customary actions requested by the Federal Reserve, including consultation with the Federal Reserve if appropriate, and execution of customary passivity commitments if required by the Federal ReservePrincipal Market, to ensure such that its ownership the conversion does not constitute a “change violate the rules and regulations of the Principal Market without first obtaining Shareholder Approval in control,” but only to accordance with the extent such actions are typically taken by such Purchaser under such Purchaser’s policies consistently applied, to the extent such Purchaser has such policies. Notwithstanding anything in the contrary in this Section 4.12, no Purchaser shall be required to perform any such actions if such performance would constitute or could reasonably result in any Burdensome Condition; for the avoidance of doubt, any requirement to disclose the identities or financial condition of limited partners, shareholders or non-managing members of such Purchaser or its Affiliates or its investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Investor in its sole discretionPrincipal Market rules and regulations.

Limitation on Beneficial Ownership. No Purchaser Notwithstanding anything to the contrary contained in this Certificate of Designation, the shares of Series A Preferred Stock held by a Holder shall not be convertible by such Holder, and the Company shall not effect any conversion of any Preferred Shares held by such Holder, to the extent (but only to the extent) that such Holder or any of its affiliates would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the Preferred Shares held by such Holder shall be entitled convertible (vis-à-vis other convertible, exercisable or exchangeable securities owned by such Holder or any of its affiliates) and of which such securities shall be convertible, exercisable or exchangeable (as among all such securities owned by such Holder and its affiliates) shall, subject to purchase such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior inability of a number Holder to convert shares of Series A Preferred Shares that would cause such PurchaserStock, together with any other person whose or of the Company securities would be aggregated with such Purchaser’s Company securities for purposes of any banking regulation or law, to collectively be deemed to own, control or have the power to vote issue shares of Common Stock to such Holder, pursuant to this Section 4(e) shall have any effect on the applicability of the provisions of this Section 4(e) with respect to any subsequent determination of convertibility or issuance (as the case may be). For purposes of this Section 4(e), beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. The provisions of this Section 4(e) shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 4(e) to correct this Section 4(e) (or any portion hereof) which would represent more than 9.9% may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this Section 4(e) shall apply to a successor holder of Preferred Shares. The holders of Common Stock shall be third party beneficiaries of this Section 4(e) and the Company may not waive this Section 4(e). For any reason at any time, upon the written or oral request of a Holder, the Company shall within two (2) Business Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding, including by virtue of any prior conversion or exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to this Certificate of Designations or securities issued and outstanding (based on pursuant to the number of outstanding shares as of Exchange Agreements. By written notice to the Closing Date. With respect Company, any Holder may increase or decrease the Maximum Percentage to any Purchaser whose ownership following other percentage not in excess of 9.99% specified in such notice; provided that (i) any such increase will not be effective until the Closing would be more than 5% of 61st day after such notice is delivered to the Company’s outstanding Common Stock on an as-converted basis, such Purchaser acknowledges that it is familiar with the Federal Reserve Board’s Policy Statement on equity investments in banks and bank holding companies announced September 22, 2008 (12 CFR Section 225.144) and has received or had an opportunity to review such policy statement. Such Purchaser further agrees that it will take all necessary and customary actions requested by the Federal Reserve, including consultation with the Federal Reserve if appropriate, and execution of customary passivity commitments if required by the Federal Reserve, to ensure that its ownership does not constitute a “change in control,” but (ii) any such increase or decrease will apply only to the extent such actions are typically taken by Holder sending such Purchaser under such Purchaser’s policies consistently applied, notice and not to the extent such Purchaser has such policies. Notwithstanding anything in the contrary in this Section 4.12, no Purchaser shall be required to perform any such actions if such performance would constitute or could reasonably result in any Burdensome Condition; for the avoidance of doubt, any requirement to disclose the identities or financial condition of limited partners, shareholders or non-managing members of such Purchaser or its Affiliates or its investment advisers shall be deemed a Burdensome Condition unless otherwise determined by such Investor in its sole discretionother Holder.