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 First Closing, for so long as the Anchor Investors own Investor owns securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.93.8), 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” 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 OfferingOffering and the Second Closing; (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 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 bylaws of the Company, the Anchor Investors Investor 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 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 number of shares of Common Stock held by the Anchor Investors Investor (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 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 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 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 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 so long as the Anchor Investors own securities Investor owns Securities representing the Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section 3.94.3), 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) (any such security, a “New Security”) (other than the issuance and sale of securities (i1) 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 so long as the exercise authorized awards under the Company’s stock incentive plans represent less than 10% of the outstanding shares of capital stock) or the 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 arrangementsdirectors of the Company, in each case, in the ordinary course of providing incentive compensation, (2) issuances of capital stock as full or (iii) as 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 transactionnonfinancing transaction (together an “Excluded New Issuance”)) 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 law and the Articles of Incorporation and By-Laws bylaws of the Company, the Anchor Investors Investor 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 number of shares of Common Stock held by the Anchor Investors Investor, 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 Investor have the right to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors Investor exceeding the ownership limitations of the Anchor Investors set forth in Section 3.64.1(a).

Sale of New Securities. After the Closing, for so long as the Anchor Investors own CapGen owns 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 OfferingOffering or Second Closing (as defined in the Anchor Investor Agreement) (except as provided herein); (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; or (iv) securities issued pursuant to the Anchor Investors Troubled Assets Relief Program (“TARP”) or any similar United States Government program), CapGen 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 CapGen may elect to receive such securities in nonvoting form, convertible into voting securities disposable 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 CapGen 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 CapGen 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 outstanding. Notwithstanding anything herein to the contrary, in no event shall the Anchor Investors CapGen have the right to purchase securities hereunder to the extent that such purchase would result in the Anchor Investors CapGen exceeding the ownership limitations of the Anchor Investors CapGen set forth in Section 3.6.

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.​ ​ ​