Common use of Participation in Other Offerings Clause in Contracts

Participation in Other Offerings. (a) Except as provided in Section 6.5(b) or 6.5(c), in the event this Agreement is terminated pursuant to Section 9.1, other than a termination by the Company under Section 9.1(c) if the Closing Date shall not have occurred by December 31, 2011 because one or more Investors has breached its representations, warranties or obligations under this Agreement and such breach has resulted in the failure of a condition set forth in Section 5.1 to be fulfilled, each of the Investors shall have the right, for a period of one year after the date of such termination, to participate and purchase securities in any offering of securities by the Company on terms no less favorable to such Investor(s) than to any other participants in such offering, including with respect to price and the type and rights of such securities purchased and offered, in an amount to be determined by such Investors in their sole discretion up to the lesser of (x) 24.9% of all the Common Stock that will be outstanding after the offering and after any substantially simultaneous conversion of the Series G Preferred Stock into Common Stock or (y) the maximum amount that will not result in such Investor or any of its affiliates being in control of the Company or of FirstBank for purposes of the Bank Holding Company Act or the Federal Reserve Board’s Regulation Y, or otherwise being subject to regulation as a bank holding company under that Act. (b) The provisions of Section 6.5(a) will not apply to (i) any transaction or series of transactions that will result in a person or group of persons acquiring 100% of the common stock of the Company or to any merger of the Company, or (ii) any offering of securities of the Company as part of a merger, share exchange or other transaction in which either the Company becomes part of, or majority owned by, another entity that results in such entity or any of its affiliates being in control of the Company or of FirstBank for purposes of the Bank Holding Company Act or the Federal Reserve Board’s Regulation Y, or otherwise being subject to regulation as a bank holding company under that Act or the Company acquires at least a majority of the outstanding equity of another entity. (c) The provisions of Section 6.5(a) will not apply to any offering of securities to investors if (i) the offering is fully subscribed by investors other than the Investors, (ii) the investors who have proposed to purchase a majority of the securities the Company is offering inform the Company in writing that if the Company issues securities to the Investors in accordance with Section 6.5(a) the other investors will withdraw their willingness to purchase the securities the Company is offering and (iii) the Company pays the Investors a total of $12.5 million, minus any sum paid pursuant to Section 9.3 allocated among them in proportion to the respective numbers of shares of Acquired Common Stock each of them has agreed in this Agreement to purchase. (d) If the Investors are entitled under Section 6.5(a) to participate in an offering of securities by the Company, not later than the earliest time that any of the securities are issued to purchasers in the offering, the Company will notify the Investors of the offering, including the title and principal terms of the securities being offered, the price for which the securities are being offered, and the maximum amount of the securities that the Investors are entitled under Section 6.5(a) to purchase. The respective Investors will have 30 days from the date they are sent that notice to notify the Company that they wish to purchase at least some of the securities they are entitled to purchase and, if an Investor wishes to purchase less than all the securities it is entitled to purchase, the amount of securities the Investor wishes to purchase. An Investor will not have the right to purchase securities under Section 6.5(a) unless it notifies the Company within the 30 day period that it wishes to purchase the securities. A notice to the Company that an Investor wishes to purchase securities will be a binding agreement by the Investor to purchase the securities specified in the notice. (e) If an Investor exercises its purchase right provided in this Section 6.5, the closing of the purchase of the New Securities with respect to which such right has been exercised shall take place on the later of (i) a date specified by the Company that will be not less than ten nor more than thirty calendar days after the giving of notice of such exercise, or (ii) the earliest date on which securities are issued to any purchasers in the offering, which period of time shall be extended for a maximum of twenty days in order to comply with applicable laws and regulations (including receipt of any applicable regulatory or stockholder approvals). Each of the Company and the Investors agree to use their commercially reasonable efforts to secure any regulatory or stockholder approvals or other consents, and to comply with any law or regulation necessary in connection with the offer, sale and purchase of, the securities. (f) If the Investors fail to purchase the full amount of securities that they are entitled to purchase under Section 6.5(a), the Company may, within 90 days after the end of the 30 day period described in Section 6.5(d), sell to other persons the securities the Investors did not purchase for a sale price not less than the price at which the securities were offered to the Investors. (g) The Company may issue securities that are the subject of an offering to purchasers other than the Investors before the time when Investors must decide whether to participate in the offering and before the Investors who elect to participate in the offering purchase securities that are the subject of the offering.

Participation in Other Offerings. (a) Except as provided in Section 6.5(b) or 6.5(c), in the event this Agreement is terminated pursuant to Section 9.1, other than a termination by the Company under Section 9.1(c9.1(b) if the Closing Date shall not have occurred by December 31, 2011 because one or more Investors has breached its representations, warranties or obligations under this Agreement and such breach has resulted in the failure of a condition set forth in Section 5.1 to be fulfilled, each of the Investors shall have the right, for a period of one year after the date of such termination, to participate and purchase securities in any offering of securities by the Company on terms no less favorable to such Investor(s) than to any other participants in such offering, including with respect to price and the type and rights of such securities purchased and offered, in an amount to be determined by such Investors in their sole discretion up to the lesser of (x) 24.9% of all the Common Stock that will be outstanding after the offering and after any substantially simultaneous conversion of the Series G Preferred Stock into Common Stock or (y) the maximum amount that will not result in such Investor or any of its affiliates being in control of the Company or of FirstBank for purposes of the Bank Holding Company Act or the Federal Reserve Board’s Regulation Y, or otherwise being subject to regulation as a bank holding company under that Act. (b) The provisions of Section 6.5(a) will not apply to (i) any transaction or series of transactions that will result in a person or group of persons acquiring 100% of the common stock of the Company or to any merger of the Company, or (ii) any offering of securities of the Company as part of a merger, share exchange or other transaction in which either the Company becomes part of, or majority owned by, another entity that results in such entity or any of its affiliates being in control of the Company or of FirstBank for purposes of the Bank Holding Company Act or the Federal Reserve Board’s Regulation Y, or otherwise being subject to regulation as a bank holding company under that Act or the Company acquires at least a majority of the outstanding equity of another entity. (c) The provisions of Section 6.5(a) will not apply to any offering of securities to investors if (i) the offering is fully subscribed by investors other than the Investors, (ii) the investors who have proposed to purchase a majority of the securities the Company is offering inform the Company in writing that if the Company issues securities to the Investors in accordance with Section 6.5(a) the other investors will withdraw their willingness to purchase the securities the Company is offering and (iii) the Company pays the Investors a total of $12.5 million, minus any sum paid pursuant to Section 9.3 allocated among them in proportion to the respective numbers of shares of Acquired Common Stock each of them has agreed in this Agreement to purchase. (d) If the Investors are entitled under Section 6.5(a) to participate in an offering of securities by the Company, not later than the earliest time that any of the securities are issued to purchasers in the offering, the Company will notify the Investors of the offering, including the title and principal terms of the securities being offered, the price for which the securities are being offered, and the maximum amount of the securities that the Investors are entitled under Section 6.5(a) to purchase. The respective Investors will have 30 days from the date they are sent that notice to notify the Company that they wish to purchase at least some of the securities they are entitled to purchase and, if an Investor wishes to purchase less than all the securities it is entitled to purchase, the amount of securities the Investor wishes to purchase. An Investor will not have the right to purchase securities under Section 6.5(a) unless it notifies the Company within the 30 day period that it wishes to purchase the securities. A notice to the Company that an Investor wishes to purchase securities will be a binding agreement by the Investor to purchase the securities specified in the notice. (e) If an Investor exercises exercise its purchase right provided in this Section 6.5, the closing of the purchase of the New Securities with respect to which such right has been exercised shall take place on the later of (i) a date specified by the Company that will be not less than ten nor more than thirty calendar days after the giving of notice of such exercise, or (ii) the earliest date on which securities are issued to any purchasers in the offering, which period of time shall be extended for a maximum of twenty days in order to comply with applicable laws and regulations (including receipt of any applicable regulatory or stockholder approvals). Each of the Company and the Investors agree to use their commercially reasonable efforts to secure any regulatory or stockholder approvals or other consents, and to comply with any law or regulation necessary in connection with the offer, sale and purchase of, the securities. (f) If the Investors fail to purchase the full amount of securities that they are entitled to purchase under Section 6.5(a), the Company may, within 90 days after the end of the 30 day period described in Section 6.5(d), sell to other persons the securities the Investors did not purchase for a sale price not less than the price at which the securities were offered to the Investors. (g) The Company may issue securities that are the subject of an offering to purchasers other than the Investors before the time when Investors must decide whether to participate in the offering and before the Investors who elect to participate in the offering purchase securities that are the subject of the offering.