Common use of Sale of New Securities Clause in Contracts

Sale of New Securities. For so long as the Investors collectively, together with their respective Affiliates, (A) prior to the Second Closing, has not sold Common Shares in an amount, individually or in the aggregate, that would result in the Investors collectively, together with their respective Affiliates, Beneficially Owning less than 5% of the outstanding shares of Common Stock and (B) on or after the Second Closing, own in the aggregate 6% or more of all of the outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which the securities of the Company owned by the Investors are directly or indirectly convertible or exercisable) (before giving effect to any issuances triggering provisions of this Section), if, at any time after the date hereof, the Company makes any public or nonpublic offering or sale of any equity security (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock or other securities (1) issuable upon the exercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof or (2) issuable pursuant to the transactions contemplated by this Agreement; (ii) pursuant to the granting or exercise of employee stock options or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), then any or all of the Investors, together in such proportions as they shall determine amongst themselves in their sole discretion, 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 (except that, to the extent permitted by law and the Certificate of Incorporation and bylaws of the Company, the Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable the Investors to maintain their collective proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Investors shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock collectively held by the Investors, and the denominator of which is the number of shares of Common Stock then outstanding.

Sale of New Securities. For so long as the Investors collectivelyInvestor, together with their respective its Affiliates, (A) prior to the Second Closing, has not sold Common Shares in an amount, individually or in the aggregate, that would result in the Investors collectivelyInvestor, together with their respective its Affiliates, Beneficially Owning less than 5% of the outstanding shares of Common Stock and (B) on or after the Second Closing, own in the aggregate owns 6% or more of all of the outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which the securities of the Company owned by the Investors Investor are directly or indirectly convertible or exercisableexercisable and excluding as shares owned and outstanding all Common Shares issued by the Company after the Second Closing Date other than as contemplated by this Agreement) (before giving effect to any issuances triggering provisions of this Section), if, at any time after the date hereof, the Company makes any public or nonpublic offering or sale of any equity security (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “"equity kicker”") (including any hybrid security) (any such security, a “"New Security”") (other than (i) any Common Stock or other securities (1) issuable upon the exercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof or (2) issuable pursuant to the transactions contemplated by this Agreement; (ii) pursuant to the granting or exercise of employee stock options or other stock incentives pursuant to the Company’s 's stock incentive plans approved by the Board of Directors or the issuance of stock pursuant to the Company’s 's employee stock purchase plan approved by the Board of Directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), then any or all of the Investors, together in such proportions as they shall determine amongst themselves in their sole discretion, 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 (except that, to the extent permitted by law and the Certificate of Incorporation and bylaws of the Company, the Investors Investor may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable the Investors it to maintain their collective 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 Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock collectively held by the InvestorsInvestor, and the denominator of which is the number of shares of Common Stock then outstanding.

Sale of New Securities. For so So long as the Investors collectivelyLead Investor maintains a Qualifying Ownership Interest, together with their respective Affiliates, (A) prior to the Second Closing, has not sold Common Shares in an amount, individually or in the aggregate, that would result in the Investors collectively, together with their respective Affiliates, Beneficially Owning less than 5% of the outstanding shares of Common Stock and (B) on or after the Second Closing, own in the aggregate 6% or more of all of the outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which the securities of the Company owned by the Investors are directly or indirectly convertible or exercisable) (before giving effect to any issuances triggering provisions of this Section), if, at any time after the date hereof, if the Company makes any public or nonpublic offering or sale of any equity security (including Common Stock, preferred stock Preferred Stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, as an “equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (iA) any Common Stock, Non-Voting Common Stock, Series A Preferred Stock, Series B Preferred Stock or other securities (1) issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated (and disclosed to the Lead Investor in writing) to be issued as of the date hereof or (2) issuable pursuant to of the transactions contemplated by this Agreement; (iiB) pursuant to the granting or exercise of employee stock options options, restricted stock or other stock incentives or awards pursuant to the Company’s stock incentive plans approved by the Board of Directors or the issuance of stock pursuant to the Company’s employee stock purchase plan approved by the Board of Directors 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 (iiiC) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction; (D) issuances of Common Stock upon exercise of warrants outstanding as of the date of the Agreement; (E) issuances of any securities issued as a result of a stock split, stock dividend, reclassification or reorganization or similar event, but solely to the extent such issuance is made to all holders of Common Stock); or (F) issuances of Series A Preferred Stock to other investors as part of the offering contemplated by the Agreement), then any or all of the Investors, together in such proportions as they shall determine amongst themselves in their sole discretion, Lead Investor shall be afforded the opportunity (provided, in the case of an offering that is not a registered public offering, that the Lead Investor satisfied any applicable “accredited investor” requirements applicable to such offering) to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Certificate of Incorporation and bylaws of the Company, the Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable the Investors it to maintain their collective its proportionate Common Stock-Stock equivalent interest in the Company immediately prior to any such issuance of New Securities. The amount of New Securities that the Investors Lead Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock collectively and Non-Voting Common Stock then held by the InvestorsLead Investor (counting for such purposes all shares of Common Stock and Non-Voting Common Stock into or for which any securities owned by the Lead Investor (including the Warrants owned by the Lead Investor) are directly or indirectly convertible or exercisable, if any, and assuming full conversion of the Series A Preferred Stock and Series B Preferred Stock) and the denominator of which is the total number of shares of Common Stock then outstandingoutstanding (counting for such purposes all shares of Common Stock and Non-Voting Common Stock into or for which any securities owned by the Lead Investor (including the Warrants owned by the Lead Investor) are directly or indirectly convertible or exercisable, and assuming full conversion of the Series A Preferred Stock and Series B Preferred Stock). Notwithstanding anything herein to the contrary, in no event shall the Lead Investor have the right to purchase New Securities hereunder to the extent such purchase would result in the Lead Investor, together with any other person whose Series A Preferred Stock and Warrants would be aggregated with the Lead Investor’s Series A Preferred Stock and Warrants 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 Lead Investor) would represent more than 9.9% of a class of the Voting Securities or more than 33.3% of the Company’s total equity outstanding (as defined in 12 C.F.R. § 225.2 and 12 C.F.R. § 225.34, respectively); provided that the Company shall permit the Lead Investor to purchase Series B Preferred Stock or Non-Voting Common Stock to the extent that such limitation applies.

Sale of New Securities. For so long as the Investors collectivelyInvestor, together with their respective its Affiliates, (A) prior to have a Qualifying Ownership Interest and the Second Closing, has not sold Common Shares in an amount, individually or in the aggregate, that would result in the Investors collectively, together with their respective Affiliates, Beneficially Owning less than 5% Investor is a non-objecting beneficial owner of the outstanding shares of Common Stock and (B) on or after the Second ClosingQualifying Ownership Interest, own in the aggregate 6% or more of all of the outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which the securities of the Company owned by the Investors are directly or indirectly convertible or exercisable) (before giving effect to any issuances triggering provisions of this Section), if, if at any time after the date hereof, hereof the Company makes any public or nonpublic offering or sale of any equity security (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock or other securities (1) issuable upon the exercise or conversion of any securities of the Company issued or agreed or contemplated (and disclosed to the Investor in writing) to be issued as of the date hereof or (2) issuable pursuant to the transactions contemplated by this Agreementhereof; (ii) pursuant to the granting or exercise of employee stock options 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; 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), then any or all ; (iv) issuance of Common Stock upon exercise of warrants outstanding as of the Investorsdate hereof; (v) issuances of any securities issued as a result of a stock split, together stock dividend, reclassification or reorganization or similar event, but solely to the extent such issuance is made to all holders of Common Stock; or (vi) in such proportions as they shall determine amongst themselves in their sole discretion, connection with the Rights Offering); then the Investor shall be afforded the opportunity (provided, in the case of an offering that is not a registered public offering, that Investor satisfied any applicable “accredited investor,” “qualified institutional buyer” or other investor criteria applicable to such offering) to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Certificate of Incorporation and bylaws of the Company, the Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable the Investors it to maintain their collective 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 Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the total number of shares of Common Stock collectively then held by the InvestorsInvestor (counting for such purposes all shares of Common Stock into or for which any securities owned by the Investor are directly or indirectly convertible or exercisable, if any) and the denominator of which is the total number of shares of Common Stock then outstandingoutstanding (counting for such purposes all shares of Common Stock into or for which any securities are directly or indirectly convertible or exercisable). Notwithstanding anything herein to the contrary, in no event shall the Investor have the right to purchase New Securities hereunder to the extent such purchase would result in such Investor, together with any other person whose Company Securities would be aggregated with the Investor’s Company Securities for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor) would represent more than 9.9% of the Common Stock. For the avoidance of doubt, to the extent that the Company complies with its obligations pursuant to this Section 5.10 with respect to any securities that are convertible or exchangeable into (or exercisable for) Common Stock, Investor shall not have an additional right to purchase pursuant to this Section 5.10 additional securities as a result of the issuance of New Securities upon the conversion, exchange or exercise of such earlier issued securities (whether or not Investor exercised its right to purchase such earlier issued securities).

Sale of New Securities. For After the Closing, for so long as the Investors collectivelyBuyer, together with Xxxx Park and its or their respective Affiliates, controlled Affiliates and Principals collectively own ten percent (A10%) prior to the Second Closing, has not sold Common Shares in an amount, individually or in the aggregate, that would result in the Investors collectively, together with their respective Affiliates, Beneficially Owning less than 5% more of the outstanding shares of Common Stock and (B) on or after the Second Closing, own in the aggregate 6% or more of all of the outstanding shares of Common Stock (counting for such purposes all Conversion Shares and Convertible IFMI LLC Units as outstanding shares of the Common Stock into or for which the securities of the Company owned by the Investors are directly or indirectly convertible or exercisableStock) (before giving effect to any issuances triggering provisions of this SectionSection 6.10), if, at any time after the date hereof, that the Company or IFMI, LLC makes any public or nonpublic offering or sale of any equity security (including the Common Stock, or any preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity (including Convertible IFMI LLC Units) or that includes an equity component (such as, an “equity equity” kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock or other securities (1) issuable upon the exercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof or (2) issuable pursuant to the transactions contemplated by this Agreement; (ii) pursuant to the granting or exercise of employee stock options or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors (so long as the authorized awards under the Company’s stock incentive plans represent less than ten percent (10%) of the outstanding shares of the Company’s capital stock) or the issuance of capital stock pursuant to the Company’s any employee stock purchase plan of the Company 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 case, in the ordinary course of providing incentive compensation; or , (iiiii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), then any or all (iii) issuances of shares of the InvestorsCommon Stock upon the conversion or exercise of any convertible preferred stock or notes outstanding as of the Effective Date or issued pursuant to the Transaction Documents, together in such proportions each case, in accordance with the terms thereof as they shall determine amongst themselves in their sole discretionof the Effective Date); (iv) issuances of rights, stock or other property pursuant to the Shareholder Rights Plan; or (v) issuances of Convertible IFMI LLC Units pursuant to Section 6.10(x) or (y) of the IFMI LLC Agreement, Buyer shall be afforded the opportunity to acquire from the Company and/or IFMI, LLC for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Certificate of Incorporation and bylaws of the Company, the Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities New Securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable the Investors it to maintain their collective 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 Investors shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of counting for such offered New Securities by (y) a fraction, the numerator of which is the number of purposes all Conversion Shares and Convertible IFMI LLC Units as outstanding shares of the Common Stock collectively held by the Investors, and the denominator of which is the number of shares of Common Stock then outstandingStock).

Sale of New Securities. For so long as After the Investors collectively, together with their respective Affiliates, (A) prior to the Second Closing, has not sold Common Shares in an amount, individually or in until the aggregate, that would result in earlier of (x) the Investors collectively, together with their respective Affiliates, Beneficially Owning less than 5% of the outstanding shares of Common Stock and (B) date on or after the Second Closing, own in the aggregate 6% or more of all of the outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which the securities of the Company owned by the Investors are directly or indirectly convertible or exercisable) Investor no longer owns Securities representing a Qualifying Ownership Interest (before giving effect to any issuances triggering provisions of this Section), ifSection 4.03) or (y) the first anniversary of the Closing Date, at any time after the date hereof, that the Company makes any public or nonpublic offering or sale of any equity security (including Common Stock, preferred stock or restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as, an “equity equity” kicker”) (including any hybrid security) (any such security, a “New Security”) (other than (i) any Common Stock or other securities (1) issuable upon the exercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof or (2) issuable pursuant to the transactions contemplated by this Agreement; (ii) pursuant to the granting or exercise of employee stock options or other stock incentives pursuant to the Company’s stock incentive plans approved by the Board of Directors (so long as the authorized awards under the Company’s stock incentive plans represent less than 10% of the outstanding shares of capital stock) or the issuance of stock pursuant to the Company’s employee stock 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 case, in the ordinary course of providing incentive compensation; or , (iii2) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), then (3) issuances of shares of Common Stock upon the conversion or exercise of any convertible preferred stock or all warrants issued in connection with the THL Investment, the Warburg Investment, the Other Private Placements or the TARP Exchange, in each case, in accordance with the terms thereof as of the Investorsdate hereof) or (4) issuances of rights, together in such proportions as they shall determine amongst themselves in their sole discretion, stock or other property pursuant to the Shareholder Rights Plan) the Investor shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Certificate of Incorporation and bylaws of the Company, the Investors may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable the Investors it to maintain their collective 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 Investors Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of shares of Common Stock collectively held by the InvestorsInvestor plus the number of shares of Common Stock represented by the Series D Stock held by the Investor on an as-converted basis as of such date, and the denominator of which is the number of shares of Common Stock then outstandingoutstanding plus the number of shares of Common Stock represented by the Series B Stock and Series D Stock then outstanding (if any).