Common use of Preemptive Rights Clause in Contracts

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common 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, Non-Voting 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 Closing Date; (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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights 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 (subject to applicable regulatory considerations), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With From the Closing until such time as the Purchaser Parties cease to Beneficially Own at least 25% of the Purchased Shares received by the Purchaser pursuant to this Agreement (adjusted for subdivisions, stock-splits, combinations, recapitalizations or similar events; and provided that any shares of Common Stock issued upon conversion of shares of Preferred Stock shall be treated as that number of shares of Preferred Stock with respect to Castle Creek and CPV which such shares of Common Stock was converted into), if the Company makes any public or non-public offering of any Equity Securities or any securities that are convertible or exchangeable into (or exercisable for) Equity Securities, including, for the purposes of this Section 4.184.11, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting 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 Closing Date; (ii1) pursuant to any employee or director benefit Plan or the granting or exercise of employee stock options, restricted stock options or RSUs or PRSUs or other stock equity incentives pursuant to the Company’s stock Company Equity Plans (or any successor equity 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 employees, officers or directors Plans of the Company) or employment or consulting arrangements with the Company or any of its Subsidiaries, (2) issuances made as consideration for any acquisition (by sale, merger in each case in which the ordinary course Company is the surviving corporation, or otherwise) by the Company of providing incentive compensation in all cases not to exceed in the aggregate five percent equity in, or assets of, another Person, business unit, division or business, (3) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (4) issuances of Equity Securities issued upon conversion or exchange of, or as a dividend on, shares of Preferred Stock then outstanding, and (5%) as set forth on Schedule 4.11(a)), Purchaser and each Purchaser Party to whom Purchaser later transfers any shares of Preferred Stock purchased on the outstanding Closing Date (or any shares of Common Stock as issued upon conversion of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as such shares of the Closing Date; or (iiiPreferred Stock) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser shall be afforded the opportunity to acquire from the Company such Purchaser Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such Equity Securities or other securities; provided, that the Purchaser Parties shall not be entitled to acquire any New Securities pursuant to this Section 4.11 to the extent the issuance of such New Securities to the Purchaser Parties would require approval of the stockholders of the Company as a result of any underwriting discounts such Purchaser Party’s status as an Affiliate of the Company or sales commissions) pursuant to the rules and on the same terms as such securities are proposed to be offered to others listing standards of NASDAQ (subject to applicable regulatory considerationsincluding NASDAQ Rule 5635), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 4.11(f) outstandingbelow).

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from From and after the ClosingClosing and unless an Investor Party has sold, transferred or otherwise disposed of any of the Acquired Shares, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic non-public offering or sale of any capital stock of, other equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock)voting interests in, or equity-linked securities of the Company or any securities, options or debt securities that is are convertible or exchangeable into (or exercisable for) capital stock of, other equity or that includes an equity component voting interests in, or equity-linked securities of the Company (collectively “Preemptive Securities”), including, for the purposes of this Section 18(a), warrants, options or other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i) any Common Stockissuances by the Company of Preemptive Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (ii) issuances by the Company of Preemptive Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (iii) issuances by the Company made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company or any of its Subsidiaries of equity in, or assets of, another Person, business unit, division or business, (iv) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (v) issuances by the Company of Preemptive Securities in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm, venture capital firm, asset management firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (vi) shares of a Subsidiary of the Company issued to the Company (or agreed or contemplated a wholly owned Subsidiary of the Company), (vii) shares of Exchangeable Preferred to be issued as of the Closing Date; (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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent ECP Investors (5%) of the outstanding including shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or Exchangeable Preferred to be issued in connection with the closing of the ECP Investment or as the accumulation of payment in kind dividends), and (viii) Preemptive Securities to be issued upon exchange of any shares of Exchangeable Preferred, an Investor Party that then owns the Acquired Shares (in the case of an issuance of debt to a third party, then each Preemptive Rights Purchaser New Securities by the Company) shall be afforded the opportunity to acquire from the Company Company, as applicable, the Preemptive Rights Portion of such New Securities for the same price (net of any underwriting discounts or sales commissions) and on the same terms per share as such securities are proposed to be that offered to others the other purchasers of such New Securities; provided, that an Investor Party shall not be entitled to acquire any New Securities pursuant to this Section 18(a) to the extent the issuance of such New Securities to such Investor Party would require approval of the stockholders of the Company as a result of the status, if applicable, of such Investor Party as an Affiliate of the Company or pursuant to the rules and listing standards of Nasdaq, and in the event such Investor Party is not eligible to acquire such New Securities because of the limitations set forth in this proviso (subject or such Investor Party does not acquire all of the New Securities to applicable regulatory considerationswhich it is entitled pursuant to the terms of Section 18(a) because of such limitations), 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 (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount (or, as applicable, that portion of New Securities that each Preemptive Rights Purchaser shall be entitled such Investor Party not subject to purchase such limitations does not otherwise acquire) to other Persons prior to obtaining approval of the stockholders the Company (subject to compliance by the Company with Section 18; provided further, that, in the aggregate shall be determined event that prior to the closing of the transactions contemplated by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fractionMerger Agreement, the numerator Company or any of which is its Subsidiaries has entered into an agreement to issue any equity securities, the total number of shares of Common Stock then held by Preemptive Right shall not apply with respect to such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingissuance.

Preemptive Rights. (a) With respect Except for issuances of equity securities or securities or instruments containing equity-like features (i) in the form of Class A Common Stock or options to Castle Creek and CPV (for purposes acquire Class A Common Stock to employees, directors or consultants of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes Subsidiaries, (ii) upon the conversion, recapitalization or reorganization of any securities of the Company, (iii) as consideration for the acquisition of or investment in another company or business (whether through a purchase of securities, a merger, consolidation, purchase of assets or otherwise), including, without limitation, joint ventures and strategic alliances, (iv) pursuant to a registered public offering of Class A Common Stock under the Securities Act, (v) as additional yield or nonpublic offering return in respect of institutional indebtedness for borrowed money, (vi) as a dividend or other distribution in respect of the Company's equity securities or (vii) in connection with a stock split or similar event, if the Company authorizes the issuance or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting shares of Class A Common Stock or restricted stock), any other equity securities of the Company 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 other rights to acquire any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting shares of Class A Common Stock or other securities issuable upon the exercise or conversion of any equity securities of the Company (any such securities or rights referred to herein as "ADDITIONAL SECURITIES"), the Company shall first offer to sell to each holder of Stockholder Shares (other than shares of Class A Common Stock issued or agreed or contemplated issuable upon exercise of stock options (such shares referred to herein collectively as "OPTION SHARES")) a portion of such Additional Securities equal to the quotient determined by dividing (A) the number of shares of Class A Common Stock (other than Option Shares) held by such holder by (B) the total number of shares of Class A Common Stock outstanding on a fully-diluted basis (assuming exercise of all outstanding rights to acquire shares of Class A Common Stock); provided that such offer shall be issued as made only to the holders of Stockholder Shares that are "accredited investors" under Regulation D of the Closing Date; (ii) pursuant to the granting or exercise of employee stock optionsSecurities Act, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board or the issuance of stock pursuant Company otherwise consents to the Company’s employee stock purchase plan approved by the Board or similar plan where stock is such holders' participation under this paragraph 6; and provided further that, if such Additional Securities are being issued or offered to a trust, in combination with other entity or otherwise, for the benefit of any employees, officers or directors securities of the Company, in each case in the ordinary course Persons exercising rights pursuant to this paragraph 6 shall also be required to purchase the same strip of providing incentive compensation in all cases not to exceed in securities on the aggregate five percent same terms and conditions as being offered by the Company. Holders of Stockholder Shares (5%other than Option Shares) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser shall be afforded the opportunity entitled to acquire from the Company for purchase such Additional Securities at the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities Additional Securities are proposed to be offered to others (subject to applicable regulatory considerations), up any other Persons. The purchase price for all Additional Securities so offered to the amount holders of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in the Company (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights Purchaser Stockholder Shares hereunder shall be entitled to purchase payable 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 such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingcash.

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at At any time after following the Closing Date until an Initial Public Offering, if the Company Company, Intermediate Holdings, J. Crew or any of its Subsidiaries makes any public their respective subsidiaries proposes to issue additional Company Shares or nonpublic offering or sale equity securities of any equity (including Common Stockthe Company, Series B Preferred StockIntermediate Holdings, Non-Voting Common Stock or restricted stock), J. Crew or any securitiesof their respective subsidiaries, including any warrants, options or other rights to acquire Company Shares, equity securities of the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries or debt securities that is are convertible into Company Shares or exchangeable into equity securities of the Company, Intermediate Holdings, J. Crew or that includes an equity component any of their respective subsidiaries to any Person (such as, an “equity kicker”) (including with the exception of any hybrid security) (any such security, a “New Security”) (other than issuance (i) as consideration in any Common Stockmerger, Non-Voting Common Stock acquisition 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 Closing Date; similar transaction, (ii) in an Initial Public Offering, (iii) as consideration in a joint venture or any other strategic transaction, (iv) to a financial institution in connection with any borrowing, (v) to employees, advisors or consultants pursuant to the granting or exercise of an employee stock options, restricted stock 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 of Directors or similar plan where stock is being issued or offered to employees pursuant to a trust, other entity or otherwise, subscription agreement for the benefit purchase of any employeesshares in connection with the Closing, officers (vi) by a direct or directors indirect subsidiary of the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries to the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries, (vii) as a result of the conversion of convertible securities or the exercise of any warrants, options or other rights (in each case case, having been issued in accordance with this Section 6.1 and otherwise approved in accordance with the ordinary course terms of providing incentive compensation in all cases not to exceed in the aggregate five percent this Agreement) and (5%viii) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any stock split, stock combination, stock dividend, distribution or recapitalization) (a “New Issuance” and any such Company Shares or equity securities of the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries, “Newly Issued Securities”), the Company shall provide written notice to each Rollover Manager of such anticipated issuance of debt no later than fifteen (15) Business Days prior to a third party, then each the anticipated issuance date (the “Preemptive Rights 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 (subject to applicable regulatory considerationsNotice”), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights Purchaser Notice shall be entitled to purchase in set forth the aggregate shall be determined by multiplying (x) material terms and conditions of 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 such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisableIssuance, including the Series B Preferred Stock and proposed purchase price for the Non-Voting Common Stock)Newly Issued Securities, if anythe anticipated issuance date, and the denominator purpose 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock)New Issuance. Notwithstanding anything herein to the contrary, in no event Each Rollover Manager shall any Preemptive Rights Purchaser have the right to purchase New up to its Pro Rata Portion of such Newly Issued Securities hereunder at the price and on the terms and conditions specified in the Preemptive Rights Notice by delivering an irrevocable written notice to the extent Company no later than five (5) Business Days before the anticipated issuance date, setting forth the number of such Newly Issued Securities for which such right is exercised. Such notice shall also include the maximum number of Newly Issued Securities such Rollover Manager would be willing to purchase would result in such Preemptive Rights Purchaser, together with the event any other person whose Company securities would be aggregated Stockholder with such Preemptive Rights Purchaser’s Company securities for purposes of any bank regulation or law, preemptive rights and entitled to collectively be deemed participate elects to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise purchase less than its Pro Rata Portion of such securities Newly Issued Securities. If any such stockholder elects not to purchase its full Pro Rata Portion of such Newly Issued Securities, the Company shall allocate any remaining amount among those Rollover Managers (pro rata in accordance with the Over-Allocation Pro Rata Portion of each such Stockholder up to, in the case of each such stockholder, the maximum number specified by such Preemptive Rights PurchaserStockholder pursuant to the immediately preceding sentence) would represent more than 9.9% (or, following who have indicated in their notice to the Bank Regulatory Approvals, 24.9%) Company a desire to purchase Newly Issued Securities in excess of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingtheir respective Pro Rata Portions.

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum During the Ownership Interest from and after the ClosingPeriod, if at any time after the Closing Date the Company or any of its Subsidiaries makes proposes to make any public or nonpublic offering or sale of any equity (including Common Stocksecurities, Series B Preferred Stockor instrument convertible into or exchangeable for any equity securities, Non-Voting Common Stock of the Company or restricted stock)any of its Subsidiaries, or any securities, options option or debt that is convertible warrant by the Company or exchangeable into equity or that includes an equity component any of its Subsidiaries with respect to any of the foregoing (such as, an collectively “equity kickerPreemptive Securities”) (including any hybrid security) (any such securityin each case, a “New Security”) (other than issuances of any Preemptive Securities (i1) any Common Stockto directors, Non-Voting Common Stock officers, employees, advisors, consultants or other securities issuable upon the exercise or conversion of any securities agents of the Company issued or agreed or contemplated to be issued in connection with their service as directors of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved their employment 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 employees, officers or directors of the Company, in each case in authorized by the ordinary course of providing incentive compensation in all cases not Board pursuant to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding an employee stock optionsoption plan, management incentive plan, restricted stock plan, stock purchase plan or other stock incentives as of the Closing Date; ownership plan or similar benefit plan, program or agreement, (iii2) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance “business combination” (as defined in the rules and regulations promulgated by the Commission) or otherwise made as initial or deferred consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of debt equity in, or assets of, another Person, business unit, division or business, (3) as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (4) to a third partyThird Party financial institution in connection with a bona fide borrowing by the Company or its Subsidiaries in kind and size typical to those offered as a customary “equity kicker” in connection with similar transactions, then each Preemptive Rights Purchaser and (5) by a Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company (collectively “Excluded Securities”)), the Investor shall be afforded the opportunity to acquire from the Company or its Subsidiary, as applicable, the Investor’s Preemptive Rights Portion of such Preemptive 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 those offered to others the other purchasers of such Preemptive Securities; provided, that the Investor shall not be entitled to acquire any Preemptive Securities pursuant to this Section 7.5 to the extent the issuance of such Preemptive Securities to the Investor would require approval of the stockholders of the Company as a result of any such Investor status, if applicable, as an Affiliate or related party of the Company or pursuant to the rules and listing standards of the Principal Market (including NYSE Listed Company Manual Section 312.03(c)), in which case the Company may in its discretion consummate the proposed issuance of Preemptive Securities to other Persons prior to obtaining approval of the stockholders of the Company (subject to applicable regulatory considerations), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in compliance by the Company (or its Subsidiarieswith Section 7.5(e) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stockbelow), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With respect Subject to Castle Creek and CPV (for purposes of this Section 4.184.40(g) below, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if each Purchaser shall have the right to exercise the preemptive rights set forth in this Section 4.40 (such Purchaser who exercises such right, an “Exercising Party”). If the Company, at any time after following the Closing Date the Company or Closing, intends to offer any of its Subsidiaries makes equity securities, including any public security convertible into, or nonpublic offering exercisable or sale of exchangeable for, any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common 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) security of the Company (any such security, a “New Security”) (other than (i) any a registered offering of Common Stock, Non-Voting 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 Closing Date; (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 in the Board ordinary course of equity compensation awards and any other compensatory stock options or equity-based awards that may be considered an “inducement grant” pursuant to NASDAQ Marketplace Rule 5635(c)(4), (iii) issuances of securities to holders of securities of acquired entities in connection with acquisition transactions, (iv) issuances of securities to holders of assets in connection with acquisition transactions, (v) issuances of shares of Common Stock issued upon conversion of, or as a dividend on, any convertible or exchangeable securities of the issuance of stock Company issued pursuant to the transactions contemplated hereby and (vi) distributions or issuances pursuant to the Company’s employee stock purchase plan approved by rights plan), the Board 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 in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser Exercising Party shall be afforded the opportunity to acquire from the Company a portion of such New Securities (the “Purchaser New Securities”) for the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities New Securities are proposed sold to be offered to others (subject to applicable regulatory considerations)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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basisfollowing sentence. The amount of Purchaser New Securities that each Preemptive Rights Purchaser the Exercising Party 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 such Preemptive Rights Purchaser on a fully-diluted basis (counting assuming conversion, exercise or exchange of all “in-the-money” securities or other “in-the-money” interests convertible into, exercisable for such purposes all or exchangeable for shares of Common Stock into Stock) from either Conversion Shares or for which any securities are directly or indirectly convertible or exercisableWarrant Shares, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 assuming conversion, exercise or exchange of all “in-the-money” securities or other “in-the-money” interests convertible into, exercisable for such purposes all or exchangeable for shares of Common Stock into or for which any securities owned by Stock), as of such date (such fraction, a “Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common StockFraction”). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With respect Prior to Castle Creek and CPV any issuance, sale or exchange of its Equity Securities, the Company shall offer to each Purchaser (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”)by written notice) the right, for so long as a period of 20 days, to purchase all of such Preemptive Rights Purchasersecurities for cash at an amount equal to the price or other consideration for which such securities are to be issued; provided, together with its Affiliates (and for purposes of however, that the Purchasers' preemptive rights pursuant to this Section 4.18 with respect Paragraph 2 shall not apply to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common 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 securities issued (i) any Common Stock, Non-Voting Common Stock or other securities issuable upon the exercise or conversion of any securities shares of the Company issued or agreed or contemplated to be issued as of the Closing DatePreferred Stock; (ii) as a stock dividend, stock split or similar subdivision of shares of Preferred Stock or Common Stock, so long as the securities issued pursuant to such stock dividend, stock split or subdivision consist exclusively of additional shares of Preferred Stock or Common Stock; (iii) pursuant to subscriptions, warrants, options, rights, contracts or commitments which are outstanding on the granting date hereof; (iv) pursuant to an effective registration statement under the Securities Act in an underwritten public offering; (v) as the sole consideration for the acquisition (whether by merger, consolidation or exercise otherwise) by the Company of all or substantially all the capital stock or assets of any other person; (vi) pursuant to any employee stock optionsoption, restricted stock incentive or other benefit plant provided that the number of shares issued thereunder do not exceed, in the aggregate, 259,007 shares (adjusted appropriately to reflect stock incentives splits, stock dividends, subdivisions of shares and the like with respect to the Common Stock) less the number of shares (adjusted as aforesaid) issued pursuant to options outstanding on the date of this Agreement pursuant to clause (iii) above; (vii) (at any time and from time to time) as all or a portion of the consideration paid by the Company to one or more of its officers, key employees or consultants for services furnished to the Company’s stock incentive plans approved by , provided that 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights 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 (subject to applicable regulatory considerations), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser so issued (counting for such purposes all shares of Common Stock into whether at one time or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein from time to the contrarytime) does not exceed, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to aggregate, 35,078 shares; and (viii) upon the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’s Company securities for purposes exercise 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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.right issued

Preemptive Rights. (a) With respect to Castle Creek From and CPV after the Closing and so long as the 50% Beneficial Ownership Requirement is satisfied, if the Company makes any public or non-public offering of any capital stock of, or other equity or voting interests in, the Company or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, or other equity or voting interests in, the Company (collectively “Equity Securities”)), including, for the purposes of this Section 4.185.19, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i1) any Common Stockissuances of Equity Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (2) issuances of Equity Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (3) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, another Person, business unit, division or business, (4) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (5) the issuances of shares of equity securities in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (6) securities issued pursuant to the conversion, exercise or exchange of Series A Preferred Stock issued to the Investor Parties and (7) shares of a Subsidiary of the Company issued or agreed or contemplated to be issued as of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock 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 employees, officers or directors wholly owned Subsidiary of the Company, in ) the Investor and each case in Investor Party to which the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding Investor later Transfers any shares of Series A Preferred Stock or Common Stock as issued upon conversion of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser Series A Preferred Stock shall be afforded the opportunity to acquire from the Company such Investor Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such New Securities; provided, that the Investor Parties shall not be entitled to acquire any New Securities pursuant to this Section 5.19 to the extent the issuance of such New Securities to the Investor Parties would require approval of the stockholders of the Company as a result of any underwriting discounts such Investor Party’s status, if applicable, as an Affiliate of the Company or sales commissions) pursuant to the rules and on listing standards of the same terms as such securities are proposed to be offered to others NYSE (subject to applicable regulatory considerationsincluding NYSE Listed Company Manual Section 312.03(c)), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 5.19(f) outstandingbelow).

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after At any time following the Closingdate hereof until an Initial Public Offering, if at any time after the Closing Date the Company Company, Intermediate Holdings, J. Crew or any of its Subsidiaries makes any public their respective subsidiaries proposes to issue additional Company Shares or nonpublic offering or sale equity securities of any equity (including Common Stockthe Company, Series B Preferred StockIntermediate Holdings, Non-Voting Common Stock or restricted stock), J. Crew or any securitiesof their respective subsidiaries, including any warrants, options or other rights to acquire Company Shares, equity securities of the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries or debt securities that is are convertible into Company Shares or exchangeable into equity securities of the Company, Intermediate Holdings, J. Crew or that includes an equity component any of their respective subsidiaries to any Person (such as, an “equity kicker”) (including with the exception of any hybrid security) (any such security, a “New Security”) (other than issuance (i) as consideration in any Common Stockmerger, Non-Voting Common Stock acquisition 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 Closing Date; similar transaction, (ii) in an Initial Public Offering, (iii) as consideration in a joint venture or any other strategic transaction, (iv) to a financial institution in connection with any borrowing, (v) to employees, advisors or consultants pursuant to the granting or exercise of an employee stock options, restricted stock 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 of Directors or similar plan where stock is being issued or offered to employees pursuant to a trust, other entity or otherwise, subscription agreement for the benefit purchase of any employeesshares in connection with the Closing, officers (vi) by a direct or directors indirect subsidiary of the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries to the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries, (vii) as a result of the conversion of convertible securities or the exercise of any warrants, options or other rights (in each case case, having been issued in accordance with this Section 6.1 and otherwise approved in accordance with the ordinary course terms of providing incentive compensation in all cases not to exceed in the aggregate five percent this Agreement) and (5%viii) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any stock split, stock combination, stock dividend, distribution or recapitalization) (a “New Issuance” and any such Company Shares or equity securities of the Company, Intermediate Holdings, J. Crew or any of their respective subsidiaries, “Newly Issued Securities”), the Company shall provide written notice to each Rollover Manager of such anticipated issuance of debt no later than fifteen (15) Business Days prior to a third party, then each the anticipated issuance date (the “Preemptive Rights 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 (subject to applicable regulatory considerationsNotice”), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights Purchaser Notice shall be entitled to purchase in set forth the aggregate shall be determined by multiplying (x) material terms and conditions of 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 such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisableIssuance, including the Series B Preferred Stock and proposed purchase price for the Non-Voting Common Stock)Newly Issued Securities, if anythe anticipated issuance date, and the denominator purpose 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock)New Issuance. Notwithstanding anything herein to the contrary, in no event Each Rollover Manager shall any Preemptive Rights Purchaser have the right to purchase New up to its Pro Rata Portion of such Newly Issued Securities hereunder at the price and on the terms and conditions specified in the Preemptive Rights Notice by delivering an irrevocable written notice to the extent Company no later than five (5) Business Days before the anticipated issuance date, setting forth the number of such Newly Issued Securities for which such right is exercised. Such notice shall also include the maximum number of Newly Issued Securities such Rollover Manager would be willing to purchase would result in such Preemptive Rights Purchaser, together with the event any other person whose Company securities would be aggregated Stockholder with such Preemptive Rights Purchaser’s Company securities for purposes of any bank regulation or law, preemptive rights and entitled to collectively be deemed participate elects to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise purchase less than its Pro Rata Portion of such securities Newly Issued Securities. If any such stockholder elects not to purchase its full Pro Rata Portion of such Newly Issued Securities, the Company shall allocate any remaining amount among those Rollover Managers (pro rata in accordance with the Over-Allocation Pro Rata Portion of each such Stockholder up to, in the case of each such stockholder, the maximum number specified by such Preemptive Rights PurchaserStockholder pursuant to the immediately preceding sentence) would represent more than 9.9% (or, following who have indicated in their notice to the Bank Regulatory Approvals, 24.9%) Company a desire to purchase Newly Issued Securities in excess of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingtheir respective Pro Rata Portions.

Preemptive Rights. (a) With respect Except for issuances of equity securities or securities or instruments containing equity-like features (i) in the form of Company Class A Common Stock or options to Castle Creek and CPV (for purposes acquire Company Class A Common Stock to employees, directors or consultants of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes Subsidiaries, (ii) upon the conversion, recapitalization or reorganization of any securities of the Company, (iii) as consideration for the acquisition of or investment in another company or business (whether through a purchase of securities, a merger, consolidation, purchase of assets or otherwise), including, without limitation, joint ventures and strategic alliances, (iv) pursuant to a registered public offering of Company Class A Common Stock under the Securities Act, (v) as additional yield or nonpublic offering return in respect of institutional indebtedness for borrowed money, (vi) as a dividend or other distribution in respect of the Company’s equity securities or (vii) in connection with a stock split or similar event, if the Company authorizes the issuance or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting shares of Company Class A Common Stock or restricted stock), any other equity securities of the Company 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 other rights to acquire any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting shares of Company Class A Common Stock or other securities issuable upon the exercise or conversion of any equity securities of the Company (any such securities or rights referred to herein as “Additional Securities”), the Company shall first offer to sell to each holder of Stockholder Shares (other than shares of Company Class A Common Stock issued or agreed or contemplated issuable upon exercise of stock options (such shares referred to herein collectively as “Option Shares”)) a portion of such Additional Securities equal to the quotient determined by dividing (A) the number of shares of Company Class A Common Stock (other than Option Shares) held by such holder by (B) the total number of shares of Company Class A Common Stock outstanding on a fully-diluted basis (assuming exercise of all outstanding rights to acquire shares of Company Class A Common Stock); provided that such offer shall be issued as made only to the holders of Stockholder Shares that are “accredited investors” under Regulation D of the Closing Date; (ii) pursuant to the granting or exercise of employee stock optionsSecurities Act, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board or the issuance of stock pursuant Company otherwise consents to the Company’s employee stock purchase plan approved by the Board or similar plan where stock is such holders’ participation under this Section 6; and provided further that, if such Additional Securities are being issued or offered to a trust, in combination with other entity or otherwise, for the benefit of any employees, officers or directors securities of the Company, in each case in the ordinary course Persons exercising rights pursuant to this Section 6 shall also be required to purchase the same strip of providing incentive compensation in all cases not to exceed in securities on the aggregate five percent same terms and conditions as being offered by the Company. Holders of Stockholder Shares (5%other than Option Shares) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser shall be afforded the opportunity entitled to acquire from the Company for purchase such Additional Securities at the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities Additional Securities are proposed to be offered to others (subject to applicable regulatory considerations), up any other Persons. The purchase price for all Additional Securities so offered to the amount holders of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in the Company (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights Purchaser Stockholder Shares hereunder shall be entitled to purchase payable 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 such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingcash.

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for For so long as such Preemptive Rights a Purchaser, together with its Affiliates (and and, for purposes of this Section 4.18 with respect to Castle Creek4.22, other investment funds persons who share a common discretionary investment advisor with Castle Creek)such Purchaser, has continued to hold holds a Minimum Ownership Interest from and after the ClosingInterest, if at any time after the Closing Date date hereof the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B C Preferred Stock, Non-Voting Common 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, Non-Voting 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 Purchasers in writing) to be issued as of the Closing Datedate 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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) the number of the outstanding shares of Common Stock authorized and reserved for issuance under the 2019 Plan as of the Closing Date, date hereof (excluding outstanding employee stock options, restricted stock or other stock incentives issued under the 2003 Plan and the 2009 Plan which are outstanding as of the Closing Datedate hereof); or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”transaction)) or in connection with any issuance of debt to a third party, then each Preemptive Rights that 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 (subject to applicable regulatory considerations)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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basisSecurities. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (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, including the Series B C Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B C Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights a Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person Person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%% with respect to Castle Creek) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes At any time following the date hereof until consummation of this Section 4.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closingan IPO, if at the Company proposes to issue additional Membership Units or equity securities (including any time after warrants, options or other rights to acquire Membership Units or equity securities, or other equity securities or debt securities that are, or may become, convertible into, or exchangeable or exercisable for, Membership Units or equity securities) (with the Closing Date exception of any issuance (i) to lenders or other institutional investors in connection with the provision of debt financing to the Company or any of its Subsidiaries makes on arms-length terms, (ii) as consideration in any public bona fide arms-length merger, acquisition or nonpublic offering similar transaction, (iii) as consideration in a bona fide arms-length joint venture or sale any other strategic transaction, (iv) in connection with any Public Offering, (v) in connection with any Membership Unit split, subdivision, conversion, exercise or dividend (in the case of any equity (including Common Stocksplit, Series B Preferred Stock, Non-Voting Common Stock subdivision or restricted stockdividend that treats each class or series of outstanding Membership Units equally), or upon conversion or exercise of any securitiesother equity security, options (vi) to employees or debt that is convertible directors of the Company or exchangeable into any of its Subsidiaries, pursuant to equity or that includes based incentive programs, in each case, as approved by the Board) and (vii) in connection with an equity component (such as, an “equity kicker”) (including any hybrid security) Initial Capital Raise (any such securityMembership Units, equity securities or convertible debt securities not described in the foregoing clauses (i)-(vii), “New Securities”, and the issuance of any New Securities, a “New SecurityIssuance”), the Company shall as soon as practicable provide written notice to each Convertible Preferred Member and Common Unit Member of such anticipated issuance (the “Preemptive Rights Notice”). The Preemptive Rights Notice shall (x) (other than (i) any Common Stock, Non-Voting Common Stock or other securities issuable upon set forth the exercise or conversion of any securities material terms and conditions of the Company issued or agreed or contemplated New Issuance, including the number and description of New Securities to be issued as issued, the proposed purchase price for the New Securities to be issued, the anticipated issuance date (which shall be at least fifteen (15) Business Days from the date of the Closing Date; (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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser shall be afforded Notice) and the purpose of such New Issuance, and (y) offer such Member 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 elect to participate in such securities are proposed to be offered to others (subject to applicable regulatory considerations), up New Issuance. Subject to the amount terms of New Securities in the aggregate required to enable it to maintain its proportionate this Section 4.10, each Convertible Preferred Member and Common Stock equivalent interest in the Company (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights Purchaser Unit Member 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 such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase up to its Pro Rata Portion of such New Securities hereunder at the price and on the terms and conditions specified in the Preemptive Rights Notice by delivering an irrevocable written notice to the extent such purchase would result in such Preemptive Rights PurchaserCompany no later than three (3) Business Days before the anticipated issuance date, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have setting forth the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise number of such securities New Securities for which such right is exercised. The Company shall amend Schedule B as necessary to reflect the purchase by such Preemptive Rights Purchaser) would represent more than 9.9% (or, following any Common Unit Member of New Securities in accordance with the Bank Regulatory Approvals, 24.9%) terms of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingthis Section 4.10(a).

Preemptive Rights. (a) With respect From the First Closing until such time as the CD&R Designator is no longer entitled to Castle Creek and CPV designate a Director to the Board pursuant to Section 2.2, if the Company makes any public or non-public offering of any Equity Securities or any securities that are convertible or exchangeable into (or exercisable for) Equity Securities, including, for the purposes of this Section 4.182.6, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting 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 Closing Date; (ii1) pursuant to any employee or director benefit plan or the granting or exercise of employee stock options, restricted stock options or other stock equity incentives pursuant to the Company’s stock incentive plans approved by or employment or consulting arrangements with the Board Company or the issuance any 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 trustits Subsidiaries, 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 in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii2) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, a business, including any joint venture or strategic partnership or to financial institutions, commercial lenders, brokers/finders or any similar party in connection with the incurrence or guarantee of indebtedness by the Company or any of its Subsidiaries, (3) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (4) issuances of Equity Securities issued pursuant to a Capitalisation Issue in accordance with the Authorizing Resolutions or issued upon conversion, exchange or exercise of, or as a dividend on, the Preferred Shares then outstanding, if any, (5) issuances of Equity Securities issued upon conversion, exchange or exercise of, or as a dividend on, any convertible securities of the Company issued prior to the date of the Investment Agreement, (6) issuances of Equity Securities upon conversion, exchange or exercise of, or as a dividend on, any Equity Securities issued after the date hereof in a transaction to which this Section 2.6 applied, (7) issuances of Equity Securities pursuant to the Permitted Offering (as defined in the Investment Agreement), and (8) issuances of Equity Securities or issuance of debt Equity Securities upon conversion, exchange or exercise of, or as a dividend on, any Equity Securities issued pursuant to a third partyan exception described in clauses (1) through (7) above), then Shareholder and each Preemptive Rights Purchaser CD&R Party that purchased Preferred Shares on the Closing Dates or to whom Shareholder later transfers any of its Preferred Shares purchased on the Closing Dates (or Ordinary Shares issued upon conversion of such Preferred Shares) shall be afforded the opportunity to acquire from the Company such CD&R Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such Equity Securities or other securities; provided, that the CD&R Parties shall not be entitled to acquire any New Securities pursuant to this Section 2.6 if the issuance of such New Securities to the CD&R Parties would require approval of the shareholders of the Company as a result of any underwriting discounts or sales commissions) and on such CD&R Party’s status as an Affiliate of the same terms as such securities are proposed to be offered to others (subject to applicable regulatory considerations)Company, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case, the Company (or its Subsidiaries) immediately prior to any such may consummate the issuance of New Securities on a fully-diluted basis. The amount to other investors prior to obtaining approval of the shareholders of the Company but subject to the right of the CD&R Parties to purchase additional New Securities that each up to its Preemptive Rights Purchaser shall be entitled to purchase in Portion of such issuance following approval of the aggregate shall be determined by multiplying shareholders of the Company; provided, further, that (x) the total number or principal amount Company shall use its reasonable best efforts to obtain the approval of such offered the shareholders to approve the issuance of the New Securities by to such CD&R Parties and (y) that, if the issuance of such New Securities is to be effected via a fractionprivate placement, the numerator Company shall use its commercially reasonable efforts to obtain commitments from the purchasers of which is such New Securities to vote in favor of the total number issuance of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for New Securities to such purposes all shares of Common Stock into CD&R Parties; provided, that the Company shall not be required to make any payment to such purchasers or for which make any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein changes to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase terms of such New Securities hereunder that would be adverse to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With respect If, prior to Castle Creek and CPV (for purposes of this Section 4.18, eachthe consummation of, a Qualified IPO, the Company or any Subsidiary wishes to issue and sell any shares of Common Stock or any security convertible into or exchangeable for Common Stock (a “Preemptive Rights PurchaserNew Security”) to any Person or Persons (collectively, the “Subject Purchasers”) other than (A) in a Public Offering pursuant to a Demand IPO, in connection with a Qualified IPO or in connection with or following a Public Offering Event, (B) an issuance to directors, officers, employees and consultants of the Company and its Subsidiaries of restricted Common Stock and/or stock options exercisable for shares of Common Stock pursuant to any equity incentive plan of the Company or any Subsidiary approved by CCMP, as well as the issuance of Common Stock upon the exercise of such options (it being understood that the proviso in this clause (B) shall not apply to, or include, options assumed in connection with any transaction described in the following clause (C)); (C) the issuance of any equity security in connection with (1) any arms-length merger, for so long as such Preemptive Rights Purchaserconsolidation, together share exchange or similar transaction of the Company or any Subsidiary with its Affiliates any other Person or (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after 2) the Closing, if at any time after the Closing Date arms-length strategic acquisition by the Company or any of its Subsidiaries makes any public Subsidiary of the capital stock (or nonpublic offering other equity interests) or sale assets of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common 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, Non-Voting 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 Closing Date; (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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing DatePerson; or (iiiD) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any an issuance of debt to a third party, then each Preemptive Rights 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 (subject to applicable regulatory considerations), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting or any security convertible into or exchangeable for such purposes all shares of Common Stock into pursuant to the conversion or for exchange of a New Security the issuance of which any securities are directly was subject to this Section 4.10, then the Company shall also offer such New Securities to the Principal Investor Group and its Permitted Transferees by sending written notice (the “New Issuance Notice”) to such Principal Investor Group and Permitted Transferees (“Preemptive Right Beneficiary”) at least fifteen (15) days prior to the issuance and sale of the New Securities. The New Issuance Notice shall state (a) the number of shares, notes or indirectly convertible or exercisableother securities, including the Series B Preferred Stock as applicable, of New Securities proposed to be issued and sold and the Non-Voting Common Stockterms of such New Securities, (b) the proposed purchase price per share, note or other security, as applicable, of the New Securities that the Company is willing to accept (the “Proposed Price”) and the terms and conditions of the purchase of such New Securities, (c) the proposed date on which the New Securities will be sold (the “New Issuance Closing Date”), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.DC\1281653.10

Preemptive Rights. (a) With respect Prior to Castle Creek and CPV (for purposes of this Section 4.18a Qualified IPO, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after in the Closing, if at any time after the Closing Date the Company event that Holdings or any of its Subsidiaries makes subsidiaries proposes to issue or sell any public or nonpublic offering or sale shares of any equity (including Common Stock, Series B Preferred Stockcommon stock equivalents or other equity securities, Non-Voting Common Stock or restricted stock)Holdings shall, no later than five (5) days prior to the consummation of such transaction, give written notice of such transaction to each Holder and offer to sell to each Holder (provided that such Holder is an Accredited Investor) all or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component part of such Holder’s pro rata portion of such securities (such as, an “equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting 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 Closing Date; (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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser which shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and based on the same terms as such securities are proposed to be offered to others (subject to applicable regulatory considerations), up to ratio that the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in the Company (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting Holder bears to the amount of the then outstanding fully-diluted Common Stock, excluding, for purposes of such purposes all calculation, any shares of Common Stock into issuable upon exercise of any options granted pursuant to any employee, officer or for which any securities are directly director benefit plan or indirectly convertible or exercisablearrangement, including the Series B Preferred Stock and Options). Such preemptive rights may not be transferred to any person, other than to (i) any member of the NonBrazos Group, (ii) any member of the MassMutual Group, (iii) Mxxxxx or (iv) Mxxxx; provided, that the foregoing restriction shall not apply to the transferee of twenty-Voting Common Stock), if any, and five percent (25%) or more of the denominator Securities beneficially owned by the MassMutual Group on the date of which is execution of the total number Stockholders Agreement. The preemptive rights set forth in the Stockholders Agreement shall not apply to (i) issuances or sales of shares of Common Stock then outstanding Stock, common stock equivalents or other equity securities of Holdings upon exercise, conversion or exchange of an Option or Warrant, (counting for such purposes all ii) shares of Common Stock Stock, common stock equivalents or other equity securities of Holdings distributed or set aside ratably to all holders of Common Stock, common stock equivalents or other equity securities of Holdings (or any class or series thereof) on a per share equivalent basis, (iii) issuances or sales of shares of Common Stock, common stock equivalents or other equity securities of Holdings pursuant to a registered underwritten public offering, pursuant to a merger of Holdings or any of its subsidiaries into or for which with another entity or pursuant to an acquisition by Holdings or any of its subsidiaries of the capital stock or assets of another business entity or business segment of any such entity, (iv) issuances or sales of shares of Common Stock, common stock equivalents or other equity securities owned by such Preemptive Rights Purchaser are directly of the Company to employees, officers, consultants, and/or directors of Holdings and/or any of its subsidiaries pursuant to employee benefit or indirectly convertible similar plans or exercisablearrangements of Holdings and/or its subsidiaries, including the Series B Preferred Stock and option plan to be entered into in connection with the Non-Voting transactions, (v) issuances of shares of Common Stock). Notwithstanding anything herein , common stock equivalents or other equity securities of the Company in payment of all or any portion of the principal of, or interest or premium on, any indebtedness of Holdings or any of its subsidiaries, (vi) the issuance of the Warrants, and (vii) issuances of shares of Common Stock, common stock equivalents or other equity securities of Holdings in connection with the issuance of debt securities of Holdings or any or any of its subsidiaries, provided that the exception set forth in clause (vii) shall only apply to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder MassMutual Group to the extent that the MassMutual Group first has been given the opportunity to offer to provide the financing with respect to such purchase would result in debt securities on substantially the same terms and such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’s Company securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have terms are at the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingthen market rate.

Preemptive Rights. (a) With respect to Castle Creek From and CPV after the Initial Closing and so long as the 50% Beneficial Ownership Requirement is satisfied, if the Company makes any public or non-public offering of any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, other equity or voting interests in, or equity-linked securities of, the Company (collectively “Preemptive Securities”)), including, for the purposes of this Section 4.185.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i1) any Common Stockissuances of Preemptive Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (2) issuances of Preemptive Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (3) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, another Person, business unit, division or business, (4) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (5) issuances of shares of Preemptive Securities in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (6) securities issued pursuant to the conversion, exercise or exchange of Series B Preferred Stock issued to the Investor Parties and (7) shares of a Subsidiary of the Company issued or agreed or contemplated to be issued as of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock 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 employees, officers or directors wholly owned Subsidiary of the Company, in ) the Investor and each case in Investor Party to which the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding Investor later Transfers any shares of Series B Preferred Stock or Common Stock as issued upon conversion of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser Series B Preferred Stock shall be afforded the opportunity to acquire from the Company such Investor Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such New Securities; provided, that the Investor Parties shall not be entitled to acquire any New Securities pursuant to this Section 5.17 to the extent the issuance of such New Securities to the Investor Parties would require approval of the stockholders of the Company as a result of any underwriting discounts such Investor Party’s status, if applicable, as an Affiliate of the Company or sales commissions) pursuant to the rules and on listing standards of the same terms as such securities are proposed to be offered to others NYSE (subject to applicable regulatory considerationsincluding NYSE Listed Company Manual Section 312.03(c)), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 5.18(f) outstandingbelow).

Preemptive Rights. (a) With respect to Castle Creek From and CPV after the Initial Closing and so long as the 25% Beneficial Ownership Requirement is satisfied, if the Company makes any public or non-public offering of any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, other equity or voting interests in, or equity-linked securities of, the Company (collectively “Preemptive Securities”), including, for the purposes of this Section 4.185.16, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i1) any Common Stockissuances of Preemptive Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (2) issuances of Preemptive Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (3) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, another Person, business unit, division or business, (4) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (5) issuances of shares of Preemptive Securities in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (6) securities issued pursuant to the conversion, exercise or exchange of Series A Preferred Stock issued to the Investor Parties, or any of the “Investor Parties” as such term is defined in the Periphas Investment Agreement, (7) shares of a Subsidiary of the Company issued or agreed or contemplated to be issued as of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock 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 employees, officers or directors wholly owned Subsidiary of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent and (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) 8) issuances of capital stock as full any securities to the Investor Parties pursuant to this Agreement at the Second Closing or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or issuances of any securities pursuant to the Periphas Investment Agreement in connection with any issuance of debt to a third partythe “Second Closing” (as such term is defined in the Periphas Investment Agreement)), then the Investor and each Preemptive Rights Purchaser Investor Party to which the Investor later Transfers any shares of Series A Preferred Stock or Common Stock issued upon conversion of Series A Preferred Stock shall be afforded the opportunity to acquire from the Company such Investor Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such New Securities; provided, that the Investor Parties shall not be entitled to acquire any New Securities pursuant to this Section 5.16 to the extent the issuance of such New Securities to the Investor Parties would require approval of the stockholders of the Company as a result of any underwriting discounts such Investor Party’s status, if applicable, as an Affiliate of the Company or sales commissions) pursuant to the rules and on listing standards of the same terms as such securities are proposed to be offered to others NYSE (subject to applicable regulatory considerationsincluding NYSE Listed Company Manual Section 312.03(c)), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 5.16(f) outstandingbelow).

Preemptive Rights. (a) With respect From Closing until such time that the SLS Beneficial Ownership Percentage is less than 10%, the Company shall not issue any Company Securities to Castle Creek any Person, unless the Company offers the right (the “Participation Right”) to each Investor Securityholder to purchase its pro rata portion (as specified below) of such Company Securities at the same price per security (payable in cash) and CPV (for purposes of otherwise upon the same terms and conditions as those offered to such Person in accordance with the procedures set forth in this Section 4.185.7; provided that Participation Rights shall not be applicable to the issuance of Company Securities: (i) issued as consideration pursuant to an acquisition of the stock, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes assets or business of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date another Person by the Company or any of its Subsidiaries makes Subsidiaries, (ii) issued to directors, officers, employees or individuals who are consultants pursuant to any public Approved Stock Plan, (iii) pursuant to a stock split, stock dividend or nonpublic offering or sale similar transaction in which all holders of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock)are treated equally on a pro rata basis, 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, Non-Voting 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 Closing Date; (iiiv) pursuant to the granting payment of paid-in-kind interest on indebtedness for borrowed money incurred by the Company or any of its Subsidiaries, (v) pursuant to the conversion, exchange or exercise of employee stock optionsa Company Security that is either (A) outstanding on the Closing Date substantially in accordance with the terms in effect on the Closing Date or (B) outstanding after the Closing Date as long as, restricted stock in the case of clause (B), the Investor Securityholders have had an opportunity to exercise their Participation Rights with respect to the underlying Company Security or other stock incentives such Company Security was issued pursuant to clause (i), (ii) or (iv) of this sentence, and (vi) pursuant to an offering of the Company’s stock incentive plans approved by type described to in clause (i) of the Board or definition of “Public Sale” of Company Securities. For purposes of clarity, the parties agree that the issuance of stock pursuant Conversion Shares upon conversion or exercise of the Securities or the 8% Notes shall not be subject 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights 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 (subject to applicable regulatory considerations), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingParticipation Rights.

Preemptive Rights. 2.1. Except for Excluded Securities, the Corporation shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (ai) With any shares of Common Stock, (ii) any other equity security of the Corporation, (iii) any debt security of the Corporation which by its terms is convertible into or exchangeable for, with or without consideration, any equity security of the Corporation, (iv) any security of the Corporation that is a combination of debt and equity or (v) any security convertible into, or exchangeable or exercisable for, shares of Common Stock, or warrant or other right to subscribe for, purchase or otherwise acquire any equity security or any such debt security of the type described in clause (iii) or (iv) above of the Corporation (collectively, the “Financing Securities”) unless in each case the Corporation shall have first offered to sell to each Investor then holding at least 2,000,000 shares in the aggregate of Series D Preferred or Series C Preferred (subject to appropriate and proportionate adjustment for any stock dividends, stock splits and other subdivisions and combinations of, and recapitalizations and like occurrences with respect to Castle Creek and CPV to, such shares) (for purposes or an equivalent amount of this Section 4.18, Common Stock issued upon conversion thereof) (each, a “Preemptive Rights PurchaserMajor Investor” and collectively, the “Major Investors”) its pro-rata share of the Financing Securities, at a price and on such other terms as the Corporation proposes to offer such Financing Securities to other parties and which shall have been specified by the Corporation in writing (an “Offer”) delivered to the Major Investors, which Offer by its terms shall remain open and irrevocable for a period of fifteen (15) days from the date the Offer is received by the Major Investors (or, if later, within five (5) days after the giving of any written notice of a material change in such Offer). As used in this Section 2(a), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, NonMajor Investor’s “pro-Voting Common Stock or restricted stock), or any securities, options or debt rata share” shall be 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, Non-Voting Common Stock or other securities issuable upon the exercise or conversion of any securities amount of the Company issued or agreed or contemplated to be issued as of the Closing Date; (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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights 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 (subject to applicable regulatory considerations), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Financing Securities that each Preemptive Rights Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying equals (x) the total number or principal aggregate amount of such offered New Financing Securities to be issued, sold or exchanged, multiplied by (y) a fraction, fraction (A) the numerator of which is the total number of shares of Common Stock then issued or issuable upon the conversion of all shares of Preferred Stock held by such Preemptive Rights Purchaser Major Investor immediately prior to the Offer and (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), if any, and B) the denominator of which is the total number of shares of Common Stock then outstanding (counting for such purposes issued or issuable upon the conversion of all shares of Common Stock into or for which any securities owned by such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein held by all Major Investors immediately prior to the contraryOffer. The Offer will specify (i) the aggregate amount of Financing Securities to be issued, in no event shall any Preemptive Rights Purchaser have sold or exchanged, (ii) the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) calculation of the Voting Securities Major Investor’s pro rata share and (iii) the number of shares, principal amount or more than 33.3% the like of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingFinancing Securities which such Major Investor may purchase.

Preemptive Rights. (a) With From and after the Closing and so long as the applicable Purchaser and/or any of its Affiliates exercising its rights under this Section 4.09 collectively own at least 25% of the Shares initially purchased by such Purchaser at the Closing, if the Company makes any public or non-public offering of any of its capital stock having rights, preferences or privileges with respect to Castle Creek and CPV distributions or liquidation that rank senior to or pari passu with the Shares, or any securities that are convertible or exchangeable into (or exercisable for) capital stock of the Company having rights, preferences or privileges with respect to distributions or liquidation that rank senior to or pari passu with the Shares (collectively “Preemptive Securities”), including, for the purposes of this Section 4.184.09, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting Common Stock or other securities issuable upon the exercise or conversion issuances of any securities to directors, officers, employees, consultants or other agents of the Company, (ii) issuances of any securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or stock ownership plan or similar benefit plan, program or agreement, (iii) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company or any of its Subsidiaries of equity in, or assets of, another Person, business unit, division or business, (iv) issuances of any securities issued as a result of a stock split, stock dividend, spin-off, reclassification or reorganization or similar event, (v) securities issued pursuant to the conversion, exercise or exchange of the Shares issued to the Purchasers, (vi) shares of a Subsidiary of the Company issued or agreed or contemplated to be issued as of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock 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 employees, officers or directors wholly owned Subsidiary of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent and (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iiivii) issuances of capital stock as full or partial consideration for a mergerany securities pursuant to the terms of the LLC Agreement), acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser shall be afforded the opportunity to acquire from the Company such Purchaser’s Preemptive Rights 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 that offered to others (subject to applicable regulatory considerations)the other purchasers of such New Securities; provided, 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights no Purchaser shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered acquire any New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein pursuant to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder this Section 4.09 to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 issuance of such securities by New Securities to such Preemptive Rights Purchaser) Purchaser would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) require approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company as a result of the status, if applicable, of such Purchaser as an Affiliate of the Company or pursuant to the rules and listing standards of NASDAQ, in which case the Company may consummate the proposed issuance of New Securities to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance by the Company with Section 4.09(f) below); provided, further, that the Specified Purchaser and/or any of its Affiliates shall not be entitled to acquire any New Securities pursuant to this Section 4.09 to the extent the issuance of such New Securities to such Specified Purchaser and/or any of its Affiliates would violate the Voting Limit (as defined in the Federal Reserve’s Regulation YCertificate of Designations) outstandingset forth in the Certificate of Designations.

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for For so long as such Preemptive Rights a Purchaser, together with its Affiliates (and and, for purposes of this Section 4.18 with respect to Castle Creek4.21, other investment funds persons who share a common discretionary investment advisor with Castle Creek)such Purchaser, has continued to hold holds a Minimum Ownership Interest from and after the ClosingInterest, if at any time after the Closing Date date hereof the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common 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, Non-Voting 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 Purchasers in writing) to be issued as of the Closing Datedate 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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Datedate hereof, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Datedate hereof; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”transaction)) or in connection with any issuance of debt to a third party, then each Preemptive Rights that 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 (subject to applicable regulatory considerations)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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basisSecurities. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (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, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights a Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%% with respect to Castle Creek) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With respect to Castle Creek and CPV If the Company makes any non-public offering of any Equity Securities or any securities that are convertible or exchangeable into (or exercisable for) Equity Securities, including, for the purposes of this Section 4.182.5, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting 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 Closing Date; (ii1) pursuant to any employee or director benefit plan or the granting or exercise of employee stock options, restricted stock options or other stock equity incentives pursuant to the Company’s stock incentive plans approved by or employment or consulting arrangements with the Board Company or the issuance any 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 trustits Subsidiaries, 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 in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii2) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, a business, including any joint venture or strategic partnership or to financial institutions, commercial lenders, brokers/finders or any similar party in connection with the incurrence or guarantee of Indebtedness by the Company or any of its Subsidiaries, (3) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (4) issuances of Equity Securities issued upon conversion, exchange or exercise of, or as a dividend on, any convertible securities of the Company issued prior to the date of the Investment Agreement, (5) issuances of Equity Securities upon conversion, exchange or exercise of, or as a dividend on, any Equity Securities issued after the date hereof in a transaction to which this Section 2.5 applied, (6) in connection with any offer or sale of any Equity Securities to the public pursuant to a registration statement effected in accordance with the Securities Act, and (7) issuances of Equity Securities or issuance of debt Equity Securities upon conversion, exchange or exercise of, or as a dividend on, any Equity Securities issued pursuant to a third partyan exception described in clauses (1) through (6) above), then each Preemptive Rights Purchaser Eligible Xxxxxxx Party shall be afforded the opportunity to acquire from the Company such Eligible Xxxxxxx Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such Equity Securities or other securities; provided, that such Eligible Xxxxxxx Party shall not be entitled to acquire any New Securities pursuant to this Section 2.5 if the issuance of such New Securities to such Eligible Xxxxxxx Party would require approval of the stockholders of the Company as a result of any underwriting discounts or sales commissions) and on such Eligible Xxxxxxx Party’s status as an Affiliate of the same terms as such securities are proposed to be offered to others (subject to applicable regulatory considerations)Company, up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case, the Company (or its Subsidiaries) immediately prior to any such may consummate the issuance of New Securities on a fully-diluted basis. The amount to other investors prior to obtaining approval of the stockholders of the Company but subject to the right of such Eligible Xxxxxxx Party to purchase additional New Securities that each up to its Preemptive Rights Purchaser shall be entitled to purchase in Portion of such issuance following approval of the aggregate shall be determined by multiplying stockholders of the Company; provided, further, that (x) the total number or principal amount Company shall use its reasonable best efforts to obtain the approval of such offered the stockholders of the Company to approve the issuance of the New Securities by to such Eligible Xxxxxxx Party and (y) if the issuance of such New Securities is to be effected via a fractionprivate placement, the numerator Company shall use its reasonable best efforts to obtain commitments from the purchasers of which is such New Securities to vote in favor of the total number issuance of shares of Common Stock then held by such Preemptive Rights Purchaser (counting New Securities to such Eligible Xxxxxxx Party; provided, that the Company shall not be required to make any payment to such purchasers in exchange for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) of the Voting Securities or more than 33.3% of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstandingcommitments.

Preemptive Rights. The Company shall, prior to any proposed issuance by the Company of any of its securities (aother than debt securities with no equity feature), offer to each Major Investor by written notice the right, for a period of ten (10) With respect to Castle Creek and CPV business days (for purposes of this Section 4.18, each, a the “Preemptive Rights PurchaserPurchase Period”), to purchase for cash at an amount equal to the price or other consideration for which such securities are to be issued, a number of such securities so long as that, after giving effect to such Preemptive Rights Purchaser, together with its Affiliates issuance (and the conversion, exercise and exchange into or for purposes (whether directly or indirectly) shares of Common Stock of all such securities that are so convertible, exercisable or exchangeable), such Major Investor will continue to maintain his, her or its same proportionate equity ownership in the Company as of the date of such notice (treating each Major Investor, for the purpose of such computation, as the holder of the number of shares of Common Stock which would be issuable to such Major Investor upon conversion, exercise and exchange of all securities (including but not limited to the Series D Preferred Stock and Series E Preferred Stock) held by such Major Investor on the date such offer is made, that are convertible, exercisable or exchangeable into or for (whether directly or indirectly) shares of Common Stock and assuming the like conversion, exercise and exchange of all such other securities held by other Persons); provided, however, that the rights of the Major Investors pursuant to this Section 6 shall not apply to securities issued (A) upon conversion of any shares of Series D Preferred Stock and Series E Preferred Stock, (B) as a stock dividend or upon any subdivision of shares of Common Stock, provided that the securities issued pursuant to such stock dividend or subdivision are limited to additional shares of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible securities, or other rights which are listed in Schedule I as being outstanding on the date of this Section 4.18 with respect to Castle CreekAgreement, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after (D) solely in consideration for the Closing, if at any time after the Closing Date acquisition (whether by merger or otherwise) by the Company or any of its Subsidiaries makes any public subsidiaries of all or nonpublic offering substantially all of the stock or sale assets of any equity other entity which is not an Affiliate of an Investor and provided that the transaction is approved by the Required Preferred Investors as required pursuant to the Company’s Sixth Amended and Restated Certificate of Incorporation (including Common Stockas amended and restated or supplemented from time to time, Series B Preferred Stock, Non-Voting Common Stock or restricted stockthe “Charter”), (E) pursuant to a firm commitment underwritten public offering, (F) to directors, officers, employees 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, Non-Voting Common Stock or other securities issuable upon the exercise or conversion of any securities consultants of the Company issued or agreed or contemplated to be issued as of the Closing Date; (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 (or securities issued or issuable upon exercise thereof) as may be approved from time to time by the Compensation Committee of the Company’s Board or of Directors and, if applicable, by the issuance of stock Required Preferred Investors as required pursuant to the Charter, and (G) upon the exercise of any security described in paragraphs (A) through (F) of this proviso. The Company’s employee stock purchase plan approved by written notice to the Board or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for Major Investors shall describe the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights 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 issued by the Company and specify the number, price and payment terms. Each Major Investor may accept the Company’s offer as to the full number of securities offered to others (subject to applicable regulatory considerations)him, up her or it or any lesser number, by written notice thereof given to the amount Company prior to the expiration of New Securities the aforesaid ten (10) business day period, in which event the aggregate required Company shall promptly sell and such Major Investor shall promptly, and in any event within fifteen (15) business days, buy, upon the terms specified, the number of securities agreed to enable it be purchased by such Major Investor. Subject to maintain the last sentence of this Section 6, the Company shall be free at any time prior to 120 days after the date of its proportionate Common Stock equivalent interest in notice of offer to the Major Investors, to offer and sell to any third party or parties the remainder of such securities proposed to be issued by the Company (including but not limited to the securities not agreed by the Major Investors to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Major Investors. If such third party sale or its Subsidiaries) immediately prior to any sales are not consummated within such issuance of New Securities on a fully120-diluted basis. The amount of New Securities that each Preemptive Rights 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 fractionday period, however, the numerator of which is the total number of shares of Common Stock then held by Company shall not sell such Preemptive Rights Purchaser (counting for securities as shall not have been purchased within such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock)period without again complying with this Section 6. Notwithstanding anything herein to the contrary, for purposes of this Section 6, in no the event that, if not for this sentence, the amount of any securities that Summit would be entitled to purchase pursuant to this Section 6 in connection with any issuance of securities by the Company is greater than the amount of securities that Xxxx would be entitled to purchase in connection with such issuance, then the amount of securities that the Major Investors shall be entitled to purchase in connection with such issuance shall be calculated as if Xxxx owned the same number of shares of Common Stock (on an as converted, as exercised basis) as Summit; provided that, with respect to such calculation, Summit’s ownership of any shares of Series E Preferred Stock (or Common Stock issuable upon conversion thereof) shall not be counted for purposes of determining Xxxx’x new Pro Rata Fraction. Notwithstanding anything in this Agreement to the contrary, any Major Investor shall be permitted to assign its rights under this Section 6 to an Affiliate of such Major Investor, provided that any such assignee not already a party to this Agreement shall agree in writing with the Company and such Major Investor, for the benefit of all of the Investors, as a condition to such assignment, to be bound by all of the provisions of this Agreement to the same extent as if such transferee were such Major Investor. Notwithstanding anything to the contrary in this Section 6, in the event (x) the Company proposes to issue securities for the purpose of financing an acquisition by the Company or any of its subsidiaries of any other entity whose principal place of business is located in a European country, which opportunity is identified and brought to the attention of the Company by Advent, and (y) any Major Investor does not exercise its right to purchase such amount of securities as it is entitled to purchase under this Section 6 within the Preemptive Rights Purchaser Purchase Period, then, for a period of ten (10) business days after the end of the Preemptive Purchase Period, Advent will have the right to purchase New Securities hereunder for cash up to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 fifty percent (assuming, for this purpose only, full conversion and/or exercise of such securities by such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.950%) of the Voting Securities or more than 33.3% total amount of securities that all Major Investors have chosen not to purchase, which may be exercised by written notice thereof given to the Company prior to the expiration of the aforesaid ten (10) business day period, in which event the Company shall promptly sell and Advent shall promptly, and in any event within fifteen (15) business days, buy, upon the terms specified, the number of securities agreed to be purchased by Advent; provided that in the event there is a dispute among the Major Investors regarding the fulfillment of condition (x), such dispute shall be determined in the sole judgment of the chief executive officer of the Company’s total equity (as defined in the Federal Reserve’s Regulation Y) outstanding.

Preemptive Rights. (a) With respect to Castle Creek From and CPV after the Initial Closing and so long as the 25% Beneficial Ownership Requirement is satisfied, if the Company makes any public or non-public offering of any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, other equity or voting interests in, or equity-linked securities of, the Company (collectively “Preemptive Securities”), including, for the purposes of this Section 4.185.16, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i1) any Common Stockissuances of Preemptive Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (2) issuances of Preemptive Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (3) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, another Person, business unit, division or business, (4) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (5) issuances of shares of Preemptive Securities in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (6) securities issued pursuant to the conversion, exercise or exchange of Series A Preferred Stock issued to the Investor Parties, or any of the “Investor Parties” as such term is defined in the Apax Investment Agreement, (7) shares of a Subsidiary of the Company issued to the Company or agreed or contemplated to be issued as a wholly owned Subsidiary of the Company and (8) issuances of any securities to the Investor Parties pursuant to this Agreement at the Second Closing Date; (ii) or issuances of any securities 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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or Apax Investment Agreement in connection with any issuance of debt to a third partythe “Second Closing” (as such term is defined in the Apax Investment Agreement)), then the Investor and each Preemptive Rights Purchaser Investor Party to which the Investor later Transfers any shares of Series A Preferred Stock or Common Stock issued upon conversion of Series A Preferred Stock shall be afforded the opportunity to acquire from the Company such Investor Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such New Securities; provided, that the Investor Parties shall not be entitled to acquire any New Securities pursuant to this Section 5.16 to the extent the issuance of such New Securities to the Investor Parties would require approval of the stockholders of the Company as a result of any underwriting discounts such Investor Party’s status, if applicable, as an Affiliate of the Company or sales commissions) pursuant to the rules and on listing standards of the same terms as such securities are proposed to be offered to others NYSE (subject to applicable regulatory considerationsincluding NYSE Listed Company Manual Section 312.03(c)), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 5.16(f) outstandingbelow).

Preemptive Rights. (a) With respect From the Closing until such time as the Purchaser Parties cease to Castle Creek Beneficially Own at least twenty five percent (25%) of the Purchased Shares received by the Purchaser pursuant to this Agreement (adjusted for subdivisions, stock-splits, combinations, recapitalizations or similar events; and CPV provided that any shares of Common Stock issued upon conversion of shares of Preferred Stock shall be treated as that number of shares of Preferred Stock from which such shares of Common Stock were converted), if the Company makes any public or non-public offering of any Equity Securities or any securities to one or more Persons (other than a Purchaser Party) that are convertible or exchangeable into (or exercisable for) Equity Securities, including, for the purposes of this Section 4.184.9, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights to purchase such Equity Securities (any such security, a “New Security”) (other than (i) any Common Stock, Non-Voting 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 Closing Date; (ii1) pursuant to any employee or director benefit Plan or the granting or exercise of employee stock options, restricted stock options or RSUs or PRSUs or other stock equity incentives pursuant to the Company Equity Plans (or any successor or additional equity incentive Plans of the Company for the benefit of employees, directors or other service providers of the Company’s ) or employment or consulting or other service provider arrangements with the Company or any of its Subsidiaries, (2) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company or any Subsidiary thereof of equity in, or assets of, another Person, business unit, division or business, (3) issuances of any securities issued as a result of a stock incentive plans split, stock dividend, reclassification or reorganization or similar event, (4) issuances of Equity Securities issued upon conversion or exchange of, or as a dividend on, shares of Preferred Stock or other Equity Securities then outstanding and that were issued in compliance with the terms of this Agreement, and (5) Equity Securities issued to (i) lenders in connection with bona fide debt financings, (ii) to joint venture or strategic partners in exchange for contribution of assets (other than cash, cash equivalents or marketable securities) or services (in each case, other than a relationship focused on the raising of equity capital) approved by the Board or the of Directors) (such securities contemplated for 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent clauses (1) through (5%) of this proviso, “Exempted Securities”), Purchaser and each Purchaser Party to whom Purchaser later transfers any shares of Preferred Stock purchased on the outstanding Closing Date (or any shares of Common Stock as issued upon conversion of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as such shares of the Closing Date; or (iiiPreferred Stock) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser shall be afforded the opportunity to acquire from the Company such Purchaser Party’s Preemptive Rights Portion of such New Securities for the same price as that offered to the other purchasers of such Equity Securities or other securities (except, in the case of any Equity Securities otherwise subject to a public offering, the purchase price shall be the gross price of such Equity Securities and shall not be net of any underwriting discounts underwriters’ discount, commission or sales commissions) and on similar fee); provided, that the same terms as such securities are proposed to be offered to others (subject to applicable regulatory considerations), 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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights Purchaser Parties shall not be entitled to purchase in acquire the aggregate shall be determined by multiplying (x) the total number or principal amount portion of such offered any New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein pursuant to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder this Section 4.9 to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’s Company securities for purposes the portion 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 issuance of such securities by such Preemptive Rights Purchaser) New Securities to the Purchaser Parties would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) require approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company pursuant to the rules and listing standards of the NYSE (or another Acceptable Exchange (as defined in the Federal Reserve’s Regulation YCertificate of Designations)), in which case the Company may, with respect to the portion of such New Securities so subject to approval of stockholders of the Company, consummate the proposed issuance of New Securities to other Persons without compliance with this Section 4.9(a) outstandingbut subject to compliance by the Company with Section 4.9(f) below.

Preemptive Rights. (a) With respect to Castle Creek and CPV (for purposes of this Section 4.18, each, a “Preemptive Rights Purchaser”), for For so long as such Preemptive Rights a Purchaser, together with its Affiliates (and and, for purposes of this Section 4.18 with respect to Castle Creek4.21, other investment funds persons who share a common discretionary investment advisor with Castle Creek)such Purchaser, has continued to hold holds a Minimum Ownership Interest from and after the ClosingInterest, if at any time after the Closing Date date hereof the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B A Preferred Stock, Non-Voting Common 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, Non-Voting 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 Purchasers in writing) to be issued as of the Closing Datedate 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 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 employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Datedate hereof, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Datedate hereof; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”transaction)) or in connection with any issuance of debt to a third party, then each Preemptive Rights that 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 (subject to applicable regulatory considerations)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 (or its Subsidiaries) immediately prior to any such issuance of New Securities on a fully-diluted basisSecurities. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (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, including the Series B A Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B A Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein to the contrary, in no event shall any Preemptive Rights a Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%% with respect to [·]) of the Voting Securities or more than 33.324.9% of the Company’s total equity (as defined in interpreted under the Federal Reserve’s Regulation YLL) outstanding.

Preemptive Rights. (a) With From and after the Closing and so long as the 50% Beneficial Ownership Requirement with respect to Castle Creek and CPV such Investor Party is satisfied, if the Company makes any public or non-public offering of any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, other equity or voting interests in, or equity-linked securities of, the Company (collectively “Preemptive Securities”), including, for the purposes of this Section 4.185.18, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i1) any Common Stockissuances of Preemptive Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (2) issuances of Preemptive Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (3) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company or any of its Subsidiaries of equity in, or assets of, another Person, business unit, division or business, (4) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (5) issuances of Preemptive Securities in connection with a bona fide research, collaboration, technology license, development, OEM, marketing or other strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (6) securities issued pursuant to the conversion, exercise or exchange of Series A Preferred Stock issued to the Investor Parties, and (7) shares of a Subsidiary of the Company issued or agreed or contemplated to be issued as of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock 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 employees, officers or directors wholly owned Subsidiary of the Company), in each case in the ordinary course of providing incentive compensation in all cases not to exceed in the aggregate five percent (5%) of the outstanding shares of Common Stock as of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser Investor Party shall be afforded the opportunity to acquire from the Company such Investor Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such New Securities; provided, that the Investor Party shall not be entitled to acquire any New Securities pursuant to this Section 5.17 to the extent the issuance of such New Securities to the Investor Parties would require approval of the stockholders of the Company as a result of the status, if applicable, of any underwriting discounts Investor Party as an Affiliate of the Company or sales commissions) pursuant to the rules and on listing standards of the same terms as such securities are proposed to be offered to others NYSE (subject to applicable regulatory considerationsincluding NYSE Listed Company Manual Section 312.03(c)), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 5.18(f) outstandingbelow).

Preemptive Rights. (a) With respect to Castle Creek From and CPV after the Closing and so long as the 60% Beneficial Ownership Requirement is satisfied, if the Company makes any public or non-public offering of any capital stock of, or other equity or voting interests in, or equity-linked securities of, the Company or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, or other equity or voting interests in, or equity-linked securities of, the Company (collectively “Equity Securities”)), including, for the purposes of this Section 4.184.16, each, a “Preemptive Rights Purchaser”), for so long as such Preemptive Rights Purchaser, together with its Affiliates (and for purposes of this Section 4.18 with respect to Castle Creek, other investment funds who share a common discretionary investment advisor with Castle Creek), has continued to hold a Minimum Ownership Interest from and after the Closing, if at any time after the Closing Date the Company or any of its Subsidiaries makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting Common Stock or restricted stock), or any securitieswarrants, options or debt that is convertible or exchangeable into equity or that includes an equity component (other such as, an “equity kicker”) (including any hybrid security) rights (any such security, a “New Security”) (other than (i1) any Common Stockissuances of Equity Securities to directors, Non-Voting Common Stock officers, employees, consultants or other securities issuable upon agents of the exercise Company, (2) issuances of Equity Securities pursuant to an employee stock option plan, management incentive plan, restricted stock plan, stock purchase plan or conversion stock ownership plan or similar benefit plan, program or agreement, (3) issuances made as consideration for any acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or assets of, another Person, business unit, division or business, (4) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, (5) the issuances of shares of equity securities in connection with a bona fide strategic partnership or commercial arrangement with a Person that is not an Affiliate of the Company or any of its Subsidiaries (other than (x) any such strategic partnership or commercial arrangement with a private equity firm or similar financial institution or (y) an issuance the primary purpose of which is the provision of financing), (6) securities issued pursuant to the conversion, exercise or exchange of Series A Preferred Stock issued to the Investor Parties and (7) shares of a Subsidiary of the Company issued or agreed or contemplated to be issued as of the Closing Date; (ii) pursuant to the granting Company or exercise of employee stock options, restricted stock 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 employees, officers or directors wholly owned Subsidiary of the Company, in ) the Investors and each case in the ordinary course of providing incentive compensation in all cases not Investor Party to exceed in the aggregate five percent (5%) of the outstanding which either Investor later Transfers any shares of Series A Preferred Stock or Common Stock as issued upon conversion of the Closing Date, excluding outstanding employee stock options, restricted stock or other stock incentives as of the Closing Date; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction (collectively, “Excluded Issuances”)) or in connection with any issuance of debt to a third party, then each Preemptive Rights Purchaser Series A Preferred Stock shall be afforded the opportunity to acquire from the Company such Investor Party’s Preemptive Rights Portion of such New Securities for the same price (net as that offered to the other purchasers of such New Securities; provided, that the Investor Parties shall not be entitled to acquire any New Securities pursuant to this Section 4.16 to the extent the issuance of such New Securities to the Investor Parties would require approval of the stockholders of the Company as a result of any underwriting discounts such Investor Party’s status, if applicable, as an Affiliate of the Company or sales commissions) pursuant to the rules and on listing standards of the same terms as such securities are proposed to be offered to others NYSE (subject to applicable regulatory considerationsincluding NYSE Listed Company Manual Section 312.03(b)-(d)), up to the amount of New Securities in the aggregate required to enable it to maintain its proportionate Common Stock equivalent interest in which case the Company (or its Subsidiaries) immediately prior to any such may consummate the proposed issuance of New Securities on a fully-diluted basis. The amount of New Securities that each Preemptive Rights 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 total number of shares of Common Stock then held by such Preemptive Rights Purchaser (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock), 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 such Preemptive Rights Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock). Notwithstanding anything herein other Persons prior to the contrary, in no event shall any Preemptive Rights Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Preemptive Rights Purchaser, together with any other person whose Company securities would be aggregated with such Preemptive Rights Purchaser’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 such Preemptive Rights Purchaser) would represent more than 9.9% (or, following the Bank Regulatory Approvals, 24.9%) obtaining approval of the Voting Securities or more than 33.3% stockholders of the Company’s total equity Company (as defined in subject to compliance by the Federal Reserve’s Regulation YCompany with Section 4.16(f) outstandingbelow).