Common use of Sale of New Securities Clause in Contracts

Sale of New Securities. After the Closing, for so long as the Anchor Investors own securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9), at any time that the Company proposes to make any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) (any such security, a “New Security”) (other than the issuance and sale of securities (i) in connection with the Rights Offering; (ii) to employees, officers, directors or consultants of the Company pursuant to employee benefit plans or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted pursuant to any such plans or arrangements) or (iii) as consideration in connection with any bona fide, arm’s-length direct or indirect merger, acquisition or similar transaction) the Anchor Investors shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The New Securities that the Anchor Investors shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock held by the Anchor Investors and the denominator of which is the number of shares of Common Stock then outstanding. Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors have the right to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors exceeding the ownership limitations of the Anchor Investors set forth in Section 3.6.

Sale of New Securities. After the Closing, for For so long as the Anchor Investors own securities representing Investor, together with its affiliates, owns 9.9% or more of all of the Qualifying Ownership Interest outstanding shares of common stock (before giving effect to any issuances triggering provisions of this Section 3.9Section), if at any time that after the date hereof the Company proposes to make makes any public or nonpublic private offering or sale of any equity (including Common Stock, preferred stock or restricted common stock), or any securities, options or debt that is securities convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) common stock (any such security, a “New Security”) (other than the issuance and sale of securities (i) any common stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated to be issued as of the date hereof, including, for the avoidance of doubt, the exercise of any warrants by certain founding employees of the Company as described in the private placement memorandum delivered to the Investor in connection with the Rights Offering; (ii) to employees, officers, directors or consultants of the Company pursuant to the granting or exercise of employee benefit stock options or other stock incentives pursuant to the Company’s stock incentive plans or compensatory arrangements approved by the Board of Directors (including upon or the exercise issuance of stock pursuant to the Company’s employee stock options granted pursuant purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any such plans employees, officers or arrangements) directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration in connection with any bona fide, arm’s-length direct or indirect for a merger, acquisition acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction) ), then the Anchor Investors Investor shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities New Securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stockcommon stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the sum of (i) the number of shares of Common Stock common stock held by the Anchor Investors Investor, if any, and (ii) the number of shares of common stock represented by any securities convertible into common stock held by the Investor on an as-converted basis as of such date, if any, and the denominator of which is the sum of (i) the number of shares of Common Stock common stock then outstanding, (ii) the number of shares of common stock represented by any securities convertible into common stock on an as-converted basis as of such date. Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors Investor have the right to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors exceeding Investor, together with its affiliates, owning a greater percentage interest in the ownership limitations Company than the Investor held immediately prior to the issuance of the Anchor Investors set forth in Section 3.6New Securities (counting for such purposes all shares of common stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable).

Sale of New Securities. After the Closing, for For so long as a Purchaser, together with its Affiliates and, for purposes of this Section 4.17 only, Persons who share a common discretionary investment adviser with such Purchaser, owns 4% or more of all of the Anchor Investors own outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which any securities representing owned by the Qualifying Ownership Interest Purchaser are directly or indirectly convertible or exercisable and, for the avoidance of doubt, including as shares owned and outstanding all shares of Common Stock issued by the Company after the Closing) (before giving effect to any issuances triggering provisions of this Section 3.9Section), if at any time that after the date hereof the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is securities convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) Common Stock (any such security, a “New Security”) (other than the issuance and sale of securities (i) in connection with any Common Stock or other securities issuable upon the Rights Offeringexercise or conversion of any securities of the Company issued or agreed or contemplated to be issued as of the date hereof; (ii) to employees, officers, directors or consultants of the Company pursuant to employee benefit plans the granting or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any such plans employees, officers or arrangements) directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration in connection with any bona fide, arm’s-length direct or indirect for a merger, acquisition acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction) ), then the Anchor Investors Purchaser shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the sum of (i) the number of shares of Common Stock held by the Anchor Investors Purchaser, if any, and (ii) the number of shares of Common Stock represented by the Preferred Shares held by the Purchaser on an as-converted basis as of such date, if any, and the denominator of which is the sum of (i) the number of shares of Common Stock then outstanding, and (ii) the number of shares of Common Stock represented by the Preferred Shares on an as-converted basis as of such date. Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors Purchaser have the right to purchase securities hereunder to the extent that such purchase would result in such Purchaser, together with its Affiliates, owning a greater percentage interest in the Anchor Investors exceeding Company than such Purchaser held immediately prior to the ownership limitations issuance of the Anchor Investors set forth in Section 3.6New Securities (counting for such purposes all shares of Common Stock into or for which any securities owned by the Purchaser are directly or indirectly convertible or exercisable).

Sale of New Securities. After During the ClosingPre-emptive Rights Period (as defined below), for so long as the Anchor Investors own securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9)if, at any time that following the Closing, the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred other capital stock of the Company or other type of equity interest, warrants, options or other equity securities of the Company, including any securities that are convertible into or exchangeable into the foregoing (other than (i) Common Stock (including restricted stock), options or other equity securities issuable to directors, officers, advisors, employees, consultants or other persons as approved by the Board (or a committee thereof) or pursuant to one or more incentive, employee stock ownership, employee stock purchase, employee inducement or similar plans or arrangements (including, without limitation, upon conversion or exchange of any equity interests in any Subsidiary granted under any such plan or arrangement into Common Stock), (ii) in connection with any bona fide business combination, acquisition, strategic partnership, commercial arrangement or joint venture, (iii) as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (iv) pursuant to the exercise of the Warrant, (v) in connection with a bona fide debt financing arrangement (excluding convertible debt) or (vi) in connection with any at-the-market offering program or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid securityfirm commitment underwritten offering) (any such security, a “New Security”) (other and the Purchaser owns shares of Common Stock constituting more than 4.9% of the issuance issued and sale of securities (i) in connection with the Rights Offering; (ii) to employees, officers, directors or consultants outstanding Common Stock of the Company pursuant (calculated on an Adjusted Basis) immediately prior to employee benefit plans or compensatory arrangements approved by such Offering (as defined below), then the Board of Directors Purchaser shall have the right (including upon but not the exercise of employee stock options granted pursuant to any such plans or arrangementsobligation) or (iii) as consideration in connection with any bona fide, arm’s-length direct or indirect merger, acquisition or similar transaction) the Anchor Investors shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities New Securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent Stock interest in the Company (calculated on an Adjusted Basis) immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the sum of (i) the number of shares of Common Stock held by the Anchor Investors Purchaser, if any, and (ii) without duplication, any securities held by the denominator of which is the number of shares of Common Stock then outstanding. Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors have the right to purchase securities hereunder to the extent Purchaser that such purchase would result in the Anchor Investors exceeding the ownership limitations of the Anchor Investors set forth in Section 3.6.​ ​ ​

Sale of New Securities. After the Closing, for For so long as the Anchor Investors own securities representing the Investor, together with its Affiliates, have a Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9)Interest, if at any time that after the date hereof the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity” equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated (and disclosed to the Investor in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance and sale of securities stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; (iiii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction); (iv) issuance of Common Stock upon exercise of warrants outstanding as of the date hereof; or (v) in connection with the Rights OfferingOffering (except as set forth in the Standby Purchase Agreement); (ii) to employees, officers, directors or consultants of then the Company pursuant to employee benefit plans or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted pursuant to any such plans or arrangements) or (iii) as consideration in connection with any bona fide, arm’s-length direct or indirect merger, acquisition or similar transaction) the Anchor Investors Investor shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock then held by the Anchor Investors Investor (counting for such purposes all shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable), if any, and the denominator of which is the total number of shares of Common Stock then outstandingoutstanding (counting for such purposes all shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable). Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors Investor have the right to purchase securities New Securities hereunder to the extent that such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the Anchor Investors exceeding Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the ownership limitations power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor) would represent more than (i) 4.9% of the Anchor Investors set forth in Section 3.6Voting Securities after the First Closing but prior to the Second Closing or (ii) 9.9% of the Voting Securities or more than 33.3% of the Company’s total equity outstanding after the Second Closing.

Sale of New Securities. After the Closing, Closing and for so long as any Purchaser, together with its Affiliates, owns at least 9.9% of the Anchor Investors own securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9)Common Stock issued and outstanding, if at any time that the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) -linked security (any such security, a “New Security”) (other than the issuance and sale of any securities issuable (i) as consideration in connection with the Rights Offering; a bona fide arms-length direct or indirect merger, acquisition or similar transaction, (ii) to employeesin accordance with the terms of any equity compensation plans, officers, directors or consultants of the Company pursuant to employee benefit plans or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted pursuant to any such plans or arrangements) or ), (iii) as consideration in connection with part of dividend reinvestment or stock purchase plan or a bona fide public offering or (iv) at the written direction of any bona fidegovernmental agency), arm’s-length direct or indirect merger, acquisition or similar transaction) the Anchor Investors then any such Purchaser shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent Stock interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors each such Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock held by the Anchor Investors such Purchaser and its Affiliates (assuming full conversion or exercise of any securities convertible into or exercisable for Common Stock) and the denominator of which is the number of shares of Common Stock then outstandingoutstanding (assuming full conversion or exercise of any securities convertible into or exercisable for Common Stock). Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors a Purchaser have the right to purchase securities hereunder to the extent that such purchase would result in such Purchaser, together with its Affiliates, owning a greater percentage interest in the Anchor Investors exceeding Company than such Purchaser held immediately prior to the ownership limitations issuance of the Anchor Investors set forth in New Securities (counting for such purposes all shares of Common Stock into or for which any securities owned by such Purchaser are directly or indirectly convertible or exercisable). For the avoidance of doubt, to the extent that the Company complies with its obligations pursuant to this Section 3.64.16 with respect to any securities that are convertible or exchangeable into (or exercisable for) Common Stock, the Purchaser shall not have an additional right to purchase pursuant to this Section 4.16 additional securities as a result of the issuance of New Securities upon the conversion, exchange or exercise of such earlier issued securities (whether or not the Purchaser exercised its right to purchase such earlier issued securities).

Sale of New Securities. After the Closing, for so long as the Anchor Investors own securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9), If at any time that after the date hereof the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is securities convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) Common Stock (any such security, a “New Security”) (other than the issuance and sale of securities (i) in connection with any Common Stock or other securities issuable upon the Rights Offeringexercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof; (ii) to employees, officers, directors or consultants of the Company pursuant to the granting or exercise of employee benefit stock options or other stock incentives pursuant to the Company’s stock incentive plans or compensatory arrangements approved by the Board of Directors (including upon or the exercise issuance of stock pursuant to the Company’s employee stock options granted pursuant purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any such plans employees, officers or arrangements) directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration in connection with any bona fide, arm’s-length direct or indirect for a merger, acquisition acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction) the Anchor Investors ), then each Purchaser shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest own, in the Company immediately prior to any such issuance of New Securities. The New Securities that the Anchor Investors shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fractionaggregate, the numerator same percentage of which is the number of outstanding shares of Common Stock held by such Purchaser following the Anchor Investors transactions contemplated hereby (calculated after giving effect to the Offering (as defined below) and on an as-converted basis, if applicable). A Purchaser shall be entitled to apportion the denominator of which purchase rights granted pursuant to this Section 4.10 among itself and its Affiliates in such proportions as it deems appropriate. Notwithstanding the foregoing, in the event that the Offering is insufficient to enable each Purchaser to purchase the number of the outstanding shares of Common Stock as contemplated above, then outstanding. Notwithstanding anything herein to the contrarysuch right of each such Purchaser shall be reduced, on a proportionate basis, in no event shall the Anchor Investors have the right relation to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors exceeding the ownership limitations of the Anchor Investors set forth in Section 3.6Purchaser’s aggregate Subscription Amount hereunder.

Sale of New Securities. After the Closing, for For so long as the Anchor Investors own securities representing Investor. together with its affiliates. owns 4.9% or more of all of the Qualifying Ownership Interest outstanding shares of common stock (before giving effect to any issuances triggering provisions of this Section 3.9Section), if at any time that after the date hereof the Company proposes to make makes any public or nonpublic private offering or sale of any equity (including Common Stock, preferred stock or restricted common stock), or any securities, options or debt that is securities convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) common stock (any such security, . a “New Security”) (other than the issuance and sale of securities (i) any common stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated to be issued as of the date hereof, including. for the avoidance of doubt, the exercise of any warrants by certain founding employees of the Company as described in the private placement memorandum delivered to the Investor in connection with the Rights Offering; (ii) to employees, officers, directors or consultants of the Company pursuant to the granting or exercise of employee benefit stock options or other stock incentives pursuant to the Company’s stock incentive plans or compensatory arrangements approved by the Board of Directors (including upon or the exercise issuance of stock pursuant to the Company’s employee stock options granted pursuant purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust other entity or otherwise, for the benefit of any such plans employees, officers or arrangements) directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration in connection with any bona fide, arm’s-length direct or indirect for a merger, acquisition acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction) ), then the Anchor Investors Investor shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities New Securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stockcommon stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, . the numerator of which is the sum of (i) the number of shares of Common Stock common stock held by the Anchor Investors Investor, if any. and (ii) the number of shares of common stock represented by any securities convertible into common stock held by the Investor on an as-converted basis as of such date. if any, and the denominator of which is the sum of (i) the number of shares of Common Stock common stock then outstanding. Notwithstanding anything herein to (ii) the contrary, in no event shall the Anchor Investors have the right to purchase number of shares of common stock represented by any securities hereunder to the extent that such purchase would result in the Anchor Investors exceeding the ownership limitations of the Anchor Investors set forth in Section 3.6.convertible into common

Sale of New Securities. After the Closing, for For so long as the Anchor Investors own securities representing the Investor, together with its Affiliates, have a Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9)Interest, if at any time that after the date hereof the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity” equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated (and disclosed to the Investor in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance and sale of securities stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; (iiii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction); (iv) issuance of Common Stock upon exercise of warrants outstanding as of the date hereof; or (v) in connection with the Rights OfferingOffering (except as set forth in the Standby Purchase Agreement); (ii) to employees, officers, directors or consultants of then the Company pursuant to employee benefit plans or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted pursuant to any such plans or arrangements) or (iii) as consideration in connection with any bona fide, arm’s-length direct or indirect merger, acquisition or similar transaction) the Anchor Investors Investor shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Anchor Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock then held by the Anchor Investors Investor (counting for such purposes all shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable), if any, and the denominator of which is the total number of shares of Common Stock then outstandingoutstanding (counting for such purposes all shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable). Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors Investor have the right to purchase securities New Securities hereunder to the extent that such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the Anchor Investors exceeding Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the ownership limitations power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor) would represent more than 9.9% of the Anchor Investors set forth in Section 3.6Voting Securities or more than 33.3% of the Company’s total equity outstanding after the Closing.

Sale of New Securities. After the Closing, for so long as the Anchor Investors own securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.9), If at any time that during the thirty-six (36) month period commencing on the date hereof the Company proposes to make makes any public or nonpublic offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is securities convertible or exchangeable into equity or that includes an equity component (such as, an “equity” kicker) (including any hybrid security) Common Stock (any such security, a “New Security”) (other than the issuance and sale of securities (i) in connection with any Common Stock or other securities issuable upon the Rights Offeringexercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof; (ii) to employees, officers, directors or consultants of the Company pursuant to employee benefit plans the granting or compensatory arrangements approved by the Board of Directors (including upon the exercise of employee stock options granted or other stock incentives pursuant to the Company’s stock incentive plans approved by its Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by its Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any such plans employees, officers or arrangements) directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration in connection with any bona fide, arm’s-length direct or indirect for a merger, acquisition acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction) ), then the Anchor Investors Investor shall first be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by Law and the Articles of Incorporation and By-Laws of the Company, the Anchor Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed offering) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest own, in the Company immediately prior to any such issuance of New Securities. The New Securities that the Anchor Investors shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fractionaggregate, the numerator same percentage of which is the number of outstanding shares of Common Stock held by the Anchor Investors Investor following the transactions contemplated hereby (calculated after giving effect to the Offering (as defined below)). The Investor shall be entitled to apportion the purchase rights granted pursuant to this Section 9 among itself and its Affiliates in such proportions as it deems appropriate. Notwithstanding the denominator of which foregoing, in the event that the Offering is insufficient to enable each Investor to purchase the number of the outstanding shares of Common Stock as contemplated above, then outstanding. Notwithstanding anything herein to such right of the contraryInvestor shall be reduced, on a proportionate basis, in no event shall the Anchor Investors have the right relation to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors exceeding the ownership limitations of the Anchor Investors set forth in Section 3.6Investor’s Subscription Amount hereunder.