Common use of Sale of New Securities Clause in Contracts

Sale of New Securities. For so long as a Qualifying Purchaser owns the Minimum Ownership Interest, if at any time after the date hereof the Company makes any public or nonpublic offering or sale of any equity (including Common Stock, 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, Series B Preferred 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 Qualifying Purchaser in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction; or (iv) within thirty (30) days following completion of this offering, issuances of Common Stock pursuant to a proposed unregistered offering to non-institutional investors, consisting of existing shareholders and certain other Persons, to sell up to an aggregate of $5,800,004 in shares of Common Stock at the Purchase Price); then each Qualifying Purchaser shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Qualifying 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 the Purchaser (counting for such purposes all shares of Common Stock into or for which any securities owned by the Purchaser are directly or indirectly convertible or exercisable, 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 the Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common Stock.

Sale of New Securities. For so long as a Qualifying Purchaser, together with its Affiliates and, for purposes of this Section 4.17, persons who share a common discretionary investment advisor with the Purchaser, owns 4.9% or more of all of the outstanding shares of Common Stock (provided that, in making such calculation, (i) all shares of Common Stock into or for which shares of any securities owned by the Purchaser owns are directly or indirectly convertible or exercisable (which, for the Minimum Ownership Interestavoidance of doubt, shall include those shares of Common Stock and Non-Voting Common Stock issuable upon the conversion of shares of Series A Preferred Stock), shall be included in the numerator, (ii) the shares described in clause (i) and all such shares owned by or attributed to other Purchasers or Other Investors shall be included in the denominator, and (iii) all securities issued by the Company after the Closing Date other than in connection with an issuance in which the Purchaser was offered the right to purchase its pro rata portion of such securities in accordance with this Section 4.17 shall be excluded from the denominator) (before giving effect to any issuances triggering provisions of this Section 4.17), if at any time after the date hereof the Company 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, Series B A Preferred 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 Qualifying Purchaser in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company’s stock incentive plans approved by the board Board of directors Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the board Board of directors Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction; or (iv) within thirty (30) days following completion of this offering, issuances of Common Stock pursuant to a proposed unregistered registered offering to non-institutional investors, consisting of existing shareholders and certain other Persons, persons to sell up to an aggregate of $5,800,004 3,000,000 in shares of our Common Stock at the Purchase Price); then each Qualifying 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 per share as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securitiesthis offering. The amount of New Securities that the Qualifying 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 the Purchaser (counting for such purposes all shares of Common Stock into or for which any securities owned by the Purchaser are directly or indirectly convertible or exercisable, 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 the 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 the Purchaser have the right to purchase New Securities hereunder to the extent such purchase would result in such Purchaser, together with any other person whose Company securities would be aggregated with the 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 the Purchaser) would represent more than 9.9% of the Voting Securities or more than 33.3% of the Company’s total equity outstanding.

Sale of New Securities. For so long as a Qualifying Purchaser owns the Minimum Ownership Interest, if If at any time after during the thirty-six (36) month period commencing on the date hereof the Company makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting or securities convertible into 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, Series B Preferred 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 Qualifying Purchaser in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock options or other stock incentives pursuant to the Company’s stock incentive plans approved by the board its Board of directors Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the board its Board of directors Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction; or (iv) within thirty (30) days following completion of this offering, issuances of Common Stock pursuant to a proposed unregistered offering to non-institutional investorsfinancing transaction), consisting of existing shareholders and certain other Persons, to sell up to an aggregate of $5,800,004 in shares of Common Stock at then the Purchase Price); then each Qualifying Purchaser Investor shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to maintain its proportionate Common Stock-equivalent interest enable it to own, in the Company immediately prior aggregate, the same percentage of the outstanding shares of Common Stock held by the Investor following the transactions contemplated hereby (calculated after giving effect to any such issuance of New Securitiesthe Offering (as defined below)). The amount of New Securities that the Qualifying Purchaser Investor shall be entitled to apportion the purchase rights granted pursuant to this Section 9 among itself and its Affiliates in such proportions as it deems appropriate. Notwithstanding the foregoing, in the aggregate shall be determined by multiplying (x) event that the total number or principal amount of such offered New Securities by (y) a fraction, Offering is insufficient to enable each Investor to purchase the numerator of which is the total number of the outstanding shares of Common Stock as contemplated above, then held by such right of the Purchaser (counting for Investor shall be reduced, on a proportionate basis, in relation to such purposes all shares of Common Stock into or for which any securities owned by the 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 the Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common StockInvestor’s Subscription Amount hereunder.

Sale of New Securities. For so long as a Qualifying Purchaser owns the Minimum Ownership Interest, if If at any time after the date hereof the Company makes any public or nonpublic offering or sale of any equity (including Common Stock, Series B Preferred Stock, Non-Voting or securities convertible into 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, Series B Preferred 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 Qualifying Purchaser in writing) to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee stock options, restricted stock options or other stock incentives pursuant to the Company’s stock incentive plans approved by the board Board of directors Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the board Board of directors Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction; or (iv) within thirty (30) days following completion of this offering), issuances of Common Stock pursuant to a proposed unregistered offering to non-institutional investors, consisting of existing shareholders and certain other Persons, to sell up to an aggregate of $5,800,004 in shares of Common Stock at the Purchase Price); then each Qualifying Purchaser shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to maintain its proportionate Common Stock-equivalent interest enable it to own, in the Company immediately prior aggregate, the same percentage of the outstanding shares of Common Stock held by such Purchaser following the transactions contemplated hereby (calculated after giving effect to any such issuance of New Securitiesthe Offering (as defined below) and on an as-converted basis, if applicable). The amount of New Securities that the Qualifying A Purchaser shall be entitled to apportion the purchase rights granted pursuant to this Section 4.10 among itself and its Affiliates in such proportions as it deems appropriate. Notwithstanding the foregoing, in the aggregate shall be determined by multiplying (x) event that the total number or principal amount of such offered New Securities by (y) a fraction, Offering is insufficient to enable each Purchaser to purchase the numerator of which is the total number of the outstanding shares of Common Stock as contemplated above, then held by the such right of each such Purchaser (counting for shall be reduced, on a proportionate basis, in relation to such purposes all shares of Common Stock into or for which any securities owned by the 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 the Purchaser are directly or indirectly convertible or exercisable, including the Series B Preferred Stock and the Non-Voting Common StockPurchaser’s aggregate Subscription Amount hereunder.