Common use of Sale of New Securities Clause in Contracts

Sale of New Securities. For so long as the Investor, together with its Affiliates, have a Qualifying Ownership Interest, if at any time after the date hereof the Company 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 (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 of 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; (iii) 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 Offering (except as set forth in the Standby Purchase Agreement); then the Investor shall 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 as such securities are proposed to be offered to others, up to the amount of New Securities 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 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 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 outstanding (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 Investor have the right to purchase New Securities hereunder to the extent such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the 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 Voting 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. For so long as During the one year period commencing from the Closing Date (the “Preemptive Rights Period”), the Investor shall have the right (or may appoint an Affiliate to exercise such right; provided that any such Affiliate agrees in writing to be bound by the terms of this Agreement (any such Affiliate shall be deemed to be included in the term “Investor”)) to exercise the preemptive rights set forth in this Section 4.04 (the Investor or any such Affiliate who exercises such right, together with its Affiliates, have a Qualifying Ownership Interestan “Exercising Entity”). During the Preemptive Rights Period, if the Company at any time after the date hereof the Company makes or from time to time consummates any public or nonpublic non-public offering or sale of any equity (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is are convertible or exchangeable into equity or that includes an equity component (such as, an “equity kicker”) Common Stock (including any hybrid security) ), at a price per share of Common Stock of less than $3.25 (or if the conversion, exercise or exchange price per share of Common Stock is less than $3.25), as appropriately adjusted in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to Common Stock (any such security, 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 compensatory stock options, restricted stock options or other stock incentives equity-based awards pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors plan, or similar plan where stock is being issued or offered rights to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Companyacquire Common Stock, in each case in the ordinary course of providing incentive compensation; equity compensation awards, or pursuant to the Company’s 401(k) plan, (ii) issuances for the purposes of consideration in acquisition transactions, (iii) issuances of capital stock shares of Common Stock issued upon conversion of, or as full a dividend on, any convertible or partial consideration for a mergerexchangeable securities of the Company issued either (A) pursuant to the transactions contemplated hereby or (B) prior to the Signing Date), acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction); (iv) issuance issuances of Common Stock upon exercise of warrants outstanding debt that include an equity component (such as of the date hereof; or an “equity kicker”), (v) in connection with distributions or issuances pursuant to any rights plan adopted by the Rights Offering Company, and (except as set forth in vi) the Standby Purchase Agreementrights offerings and other issuances contemplated by the Transaction Outline (collectively, “Permitted Transactions”); then ), the Investor Exercising Entity shall be afforded the opportunity to acquire from the Company a portion of such New Securities for the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities are proposed to be offered sold to others, up to the amount of New Securities specified 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 Securitiesfollowing sentence. The amount of New Securities that the Investor Exercising Entity shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered shares of New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock then held by the Investor on a fully-diluted basis (counting i.e., assuming conversion, exercise or exchange of all securities or other interests convertible into, exercisable for such purposes all or exchangeable for shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisableStock), if anyas of such date, and the denominator of which is the total number of shares of Common Stock then outstanding on a fully-diluted basis (counting i.e., assuming conversion, exercise or exchange of all securities or other interests convertible into, exercisable for such purposes all or exchangeable for shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisableStock). Notwithstanding anything herein to the contrary, in no event shall the Investor have the right to purchase New Securities hereunder to the extent such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise as of such securities by the Investor) would represent more than (i) 4.9% of the Voting 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 Closingdate.

Sale of New Securities. For so long as the Investor, together with its Affiliates, have a Qualifying Ownership Interest, if at any time after the date hereof the Company 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 (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 of 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; (iii) 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 Offering (except as set forth in the Standby Purchase Agreement); then the Investor shall 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 as such securities are proposed to be offered to others, up to the amount of New Securities 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 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 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 outstanding (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 Investor have the right to purchase New Securities hereunder to the extent such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the 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 Voting 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. For so long as the Investor, together with its Affiliates, have a Qualifying Ownership Interest, if If at any time after during the thirty-six (36) month period commencing on the date hereof the Company 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 (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 options or other stock incentives pursuant to the Company’s stock incentive plans approved by the its Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the 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 employees, officers or 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 for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing non-financing transaction); (iv) issuance of Common Stock upon exercise of warrants outstanding as of the date hereof; or (v) in connection with the Rights Offering (except as set forth in the Standby Purchase Agreement); , then the Investor shall 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 as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest own, in the Company immediately prior aggregate, the same percentage of the outstanding shares of Common Stock held by the Investor following the transactions contemplated hereby (calculated after giving effect to any such issuance of New Securitiesthe Offering (as defined below)). The amount of New Securities that 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 foregoing, in the aggregate shall be determined by multiplying (x) event that the total number or principal amount of such offered New Securities by (y) a fraction, Offering is insufficient to enable each Investor to purchase the numerator of which is the total number of the outstanding shares of Common Stock as contemplated above, then held by such right of the 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)shall be reduced, if any, and the denominator of which is the total number of shares of Common Stock then outstanding (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 contraryon a proportionate basis, in no event shall the Investor have the right relation to purchase New Securities hereunder to the extent such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the Investor’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the 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 Voting 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 ClosingSubscription Amount hereunder.

Sale of New Securities. For so long as the Investor, together with its Affiliates, have a Qualifying Ownership Interest, if If at any time after the date hereof the Company 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 (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 options or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance of 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; or (iii) 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 Offering (except as set forth in the Standby Purchase Agreement); , then the Investor each Purchaser shall 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 as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock-equivalent interest own, in the Company immediately prior aggregate, the same percentage of the outstanding shares of Common Stock held by such Purchaser following the transactions contemplated hereby (calculated after giving effect to any such issuance of New Securitiesthe Offering (as defined below) and on an as-converted basis, if applicable). The amount of New Securities that the Investor A Purchaser shall be entitled to apportion the 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 aggregate shall be determined by multiplying (x) event that the total number or principal amount of such offered New Securities by (y) a fraction, Offering is insufficient to enable each Purchaser to purchase the numerator of which is the total number of the outstanding shares of Common Stock as contemplated above, then held by the Investor (counting for such purposes all shares right of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable)each such Purchaser shall be reduced, if any, and the denominator of which is the total number of shares of Common Stock then outstanding (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 contraryon a proportionate basis, in no event shall the Investor have the right relation to purchase New Securities hereunder to the extent such purchase would result in such Investor, together with any other person whose Company securities would be aggregated with the InvestorPurchaser’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the 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 Voting 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 Closingaggregate Subscription Amount hereunder.