Exhibit
10.1


 


EXECUTION VERSION


 


INVESTMENT AGREEMENT


 


BY AND AMONG


 


GUARANTY BANCORP


 


AND


 


THE INVESTORS NAMED HEREIN


 










 


DATED AS OF MAY 6, 2009


 





















 


TABLE OF CONTENTS


 


	
  Section 1.

  	
  Certain Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
  Purchase; Closings

  	
  6

  
	
   

  	
  (a)

  	
  Purchase

  	
  6

  
	
   

  	
  (b)

  	
  Closing

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
  Representations and Warranties of the Company

  	
  6

  
	
   

  	
  (a)

  	
  Organization and Authority

  	
  7

  
	
   

  	
  (b)

  	
  Authorization

  	
  7

  
	
   

  	
  (c)

  	
  Capitalization; Subsidiaries

  	
  7

  
	
   

  	
  (d)

  	
  No Conflicts

  	
  8

  
	
   

  	
  (e)

  	
  Governmental Approvals

  	
  8

  
	
   

  	
  (f)

  	
  Reports

  	
  8

  
	
   

  	
  (g)

  	
  Financial Statements

  	
  9

  
	
   

  	
  (h)

  	
  No Undisclosed Liabilities

  	
  9

  
	
   

  	
  (i)

  	
  Company Significant Agreements

  	
  9

  
	
   

  	
  (j)

  	
  Controls and Procedures

  	
  10

  
	
   

  	
  (k)

  	
  Properties

  	
  11

  
	
   

  	
  (l)

  	
  Taxes

  	
  11

  
	
   

  	
  (m)

  	
  Litigation and Other Proceedings

  	
  11

  
	
   

  	
  (n)

  	
  Compliance with Laws

  	
  11

  
	
   

  	
  (o)

  	
  Absence of Certain Changes

  	
  12

  
	
   

  	
  (p)

  	
  Company Benefit Plans

  	
  12

  
	
   

  	
  (q)

  	
  Regulatory Matters

  	
  13

  
	
   

  	
  (r)

  	
  Environmental Matters

  	
  14

  
	
   

  	
  (s)

  	
  Anti-takeover Provisions Not Applicable

  	
  14

  
	
   

  	
  (t)

  	
  Labor

  	
  14

  
	
   

  	
  (u)

  	
  Insurance

  	
  14

  
	
   

  	
  (v)

  	
  No Integration

  	
  15

  
	
   

  	
  (w)

  	
  Loan Portfolio

  	
  15

  
	
   

  	
  (x)

  	
  Brokers and Finders

  	
  16

  
	
   

  	
  (y)

  	
  No Change of Control

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 4.

  	
  Representations and Warranties of Investors

  	
  16

  
	
   

  	
  (a)

  	
  Organization

  	
  16

  
	
   

  	
  (b)

  	
  Authorization

  	
  16

  
	
   

  	
  (c)

  	
  No Affiliates

  	
  17

  
	
   

  	
  (d)

  	
  Purchase for Investment

  	
  17

  
	
   

  	
  (e)

  	
  Knowledge as to Conditions

  	
  17

  
	
   

  	
  (f)

  	
  Sufficient Funds

  	
  17

  
	
   

  	
  (g)

  	
  Ownership

  	
  17

  
	
   

  	
  (h)

  	
  No Conflicts

  	
  17

  
	
   

  	
  (i)

  	
  Brokers and Finders

  	
  18

  
	
   

  	
  (j)

  	
  Non-Reliance

  	
  18

  



 


i

















 


	
  Section 5.

  	
  Deliveries at Closing

  	
  18

  
	
   

  	
  (a)

  	
  Company Deliverables

  	
  18

  
	
   

  	
  (b)

  	
  Investor Deliverables

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 6.

  	
  Covenants

  	
  19

  
	
   

  	
  (a)

  	
  Public Statements

  	
  19

  
	
   

  	
  (b)

  	
  Regulatory Approvals

  	
  19

  
	
   

  	
  (c)

  	
  Cooperation

  	
  19

  
	
   

  	
  (d)

  	
  Legends

  	
  20

  
	
   

  	
  (e)

  	
  Transfer Restrictions

  	
  21

  
	
   

  	
  (f)

  	
  Conversion Restriction

  	
  22

  
	
   

  	
  (g)

  	
  No Change of Control

  	
  22

  
	
   

  	
  (h)

  	
  Certificate of Designations

  	
  22

  
	
   

  	
  (i)

  	
  Access, Information and Confidentiality

  	
  22

  
	
   

  	
  (j)

  	
  No Senior Preferred

  	
  23

  
	
   

  	
  (k)

  	
  Passivity and Standstill

  	
  23

  
	
   

  	
  (l)

  	
  Certain Transactions

  	
  23

  
	
   

  	
  (m)

  	
  Tax Treatment

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 7.

  	
  Conditions to Closing

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 8.

  	
  Termination

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 9.

  	
  Additional Covenants

  	
  26

  
	
   

  	
  (a)

  	
  Governance Matters

  	
  26

  
	
   

  	
  (b)

  	
  Reservation for Issuance

  	
  29

  
	
   

  	
  (c)

  	
  Indemnification

  	
  29

  
	
   

  	
  (d)

  	
  Exchange Listing

  	
  31

  
	
   

  	
  (e)

  	
  Stockholder Meeting

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 10.

  	
  Registration Rights

  	
  32

  
	
   

  	
  (a)

  	
  Registration

  	
  32

  
	
   

  	
  (b)

  	
  Expenses

  	
  34

  
	
   

  	
  (c)

  	
  Obligations of the Company

  	
  34

  
	
   

  	
  (d)

  	
  Suspension of Sales

  	
  37

  
	
   

  	
  (e)

  	
  Termination of Registration Rights

  	
  37

  
	
   

  	
  (f)

  	
  Furnishing Information; “Market Stand-Off” Agreement

  	
  37

  
	
   

  	
  (g)

  	
  Indemnification

  	
  38

  
	
   

  	
  (h)

  	
  Assignment of Registration Rights

  	
  40

  
	
   

  	
  (i)

  	
  Rule 144 Reporting

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 11.

  	
  Survival

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 12.

  	
  Notices

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 13.

  	
  Assignment

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 14.

  	
  Entire Agreement

  	
  42

  



 


ii

















 


	
  Section 15.

  	
  Governing Law

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 16.

  	
  Severability

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 17.

  	
  Expenses

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 18.

  	
  Disclosure Schedule

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 19.

  	
  Several and Not Joint Obligations

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 20.

  	
  Construction

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 21.

  	
  Counterparts and Facsimiles

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 22.

  	
  [Intentionally Reserved.]

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 23.

  	
  Joinder

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 24.

  	
  Specific Performance

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 25.

  	
  Amendment; Waiver

  	
  44

  
	
   

  	
   

  	
   

  
	
  Annex A

  	
  Schedule of
  Investors

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Certificate of Designations for Series A Convertible Non-Cumulative
  Preferred Stock

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  Form of
  Voting Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  Passivity
  Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  Form of
  Joinder

  	
   

  



 


iii

















 


This INVESTMENT AGREEMENT (this “Agreement”), dated as of May 6,
2009, is by and among Guaranty Bancorp, a Delaware corporation (the “Company”), and each investor listed
on Annex A attached hereto and such
other investors that may become party hereto from time to time (each, an “Investor” and collectively, the “Investors”).


 


RECITALS


 


The Company intends to sell to each Investor, and such Investor intends
to purchase from the Company the number of shares of Series A
Non-Cumulative Convertible Preferred Stock, par value $0.001 per share (the “Convertible Preferred Stock”), set
forth next to such Investor’s name on Annex A, to
be designated with the terms, privileges and preferences set forth in the form
of Certificate of Designations attached as Exhibit A
hereto on the terms and subject to the conditions set forth herein.


 


On or prior to the date hereof, certain stockholders of the Company
have entered into a voting agreement, the form of which is attached hereto as Exhibit B, pursuant to which
such persons have agreed to vote shares of Common Stock which they beneficially
own and over which they exercise voting control in favor of the approval of any
matters necessary to effect the transactions contemplated herein, including
those proposals to be submitted to stockholders pursuant to Section 9(e).


 


NOW THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto hereby agree as follows:


 


Section 1.               Certain
Definitions.  The following terms
used herein shall have the meanings set forth below:


 


“Additional Investor” means
each Person who executes a Joinder.


 


“Affiliate” means, with
respect to any Person, any Person directly or indirectly controlling,
controlled by or under common control with such other Person.


 


“Agency” has the meaning set
forth in Section 3(w) hereof.


 


“Agreement” has the meaning
set forth in the preamble hereof.


 


“Bank” has the meaning set
forth in Section 3(q)(i) hereof.


 


“Bank  Board”
has the meaning set forth in Section 9(a)(vi) hereof.


 


“Bank  Board
Observer” has the meaning set forth in Section 9(a)(vi) hereof.


 


“Bank  Board
Representative” has the meaning set forth in Section 9(a)(vi) hereof.


 


“Benefit  Plan”
means all employee welfare benefit plans within the meaning of Section 3(1) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), all employee pension
benefit plans within the meaning of Section 3(2) of ERISA, including,
but not limited to, plans that provide retirement income or result in a
deferral of income by employees 


 

















 


for periods extending to termination of employment or beyond, and plans
that provide medical, surgical, or hospital care benefits or benefits in the
event of sickness, accident, disability, death or unemployment, and all other
employee benefit agreements or arrangements, including, but not limited to, all
bonus, incentive, deferred compensation, vacation, stock purchase, stock
option, stock award, severance, employment, change of control,
golden-parachute, consulting, dependent care, cafeteria, employee assistance,
scholarship, or fringe benefit or similar plans, programs, agreements or
policies, in all cases whether written, unwritten or otherwise, funded or
unfunded, and whether or not ERISA is applicable to such plan, program,
agreement or policy.


 


“BHC Act” has the meaning set
forth in Section 3(q)(iv) hereof.


 


“Board of Directors” means the
Board of Directors of the Company.


 


“Board Representative” has the
meaning set forth in Section 9(a)(i) hereof.


 


“Business Day” means any day
that is not a Saturday, a Sunday or a day on which banks are required or
permitted by law or executive order to be closed in the State of New York or
Colorado.


 


“Castle Creek” means Castle
Creek Capital Partners III, L.P.


 


“Certificate of Designations”
means the certificate of designations for the Convertible Preferred Stock.


 


“Certificate of Incorporation”
means the Amended and Restated Certificate of Incorporation of the Company, as
amended prior to the date hereof and as amended by the Certificate of
Designations and as may be further amended as contemplated by the terms hereof.


 


“Closing” has the meaning set
forth in Section 2(b) hereof.


 


“Closing Date” has the meaning
set forth in Section 2(b) hereof.


 


“Code” means Internal Revenue
Code of 1986, as amended as of the date hereof.


 


“Commission” means the
Securities and Exchange Commission, or any successor agency thereto.


 


“Common Stock” means the
Company’s common stock, par value $0.001.


 


“Company” has the meaning set
forth in the preamble hereof.


 


“Company Financial Statements”
has the meaning set forth in Section 3(g).


 


“Company Registration Indemnitee”
has the meaning set forth in Section 10(g)(ii) hereof.


 


“Company Reports” has the meaning set forth in Section 3(q)(vi) hereof.


 


“Company  SEC
Documents” has the meaning set forth in Section 3(f) hereof.


 


2

















 


“Company Significant Agreement”
means any contract or agreement that is a “material contract” within the
meaning of Item 601(b)(10) of Regulation S-K to be performed in whole or
in part after the date of this Agreement.


 


“Confidentiality Agreement”
means, as to any Investor, the applicable Confidentiality Agreement previously
entered into by the Company and such Investor.


 


“Conversion Price” has the
meaning set forth in the Certificate of Designations.


 


“Conversion Securities” has
the meaning set forth in the Certificate of Designations.


 


“Convertible Preferred Stock”
has the meaning set forth in the recitals hereof.


 


“Deductible” has the meaning
set forth in Section 9(c)(iv) hereof.


 


“De Minimis Claim” has the
meaning set forth in Section 9(c)(iv) hereof.


 


“Disclosure Schedule” has the
meaning set forth in Section 3 hereof.


 


“Environmental Law” means any
federal, state, local or foreign statute, law, regulation, order, decree,
permit, authorization, opinion, common law or agency requirement relating
to:  (A) the protection,
investigation or restoration of the environment, health, safety, or natural
resources, (B) the handling, use, presence, disposal, release or threatened
release of any Hazardous Substance or (C) noise, odor, indoor air,
employee exposure, wetlands, pollution, contamination or any injury or threat
of injury to Persons or property relating to any Hazardous Substance.


 


“ERISA” has the meaning set
forth in Section 1 hereof under the term “Benefit Plan.”


 


“ERISA Affiliate” means any
Person which, together with the Company, would be treated as a single employer
under Section 414 of the Code.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder.


 


“Federal Reserve Board” means
the Board of Governors of the Federal Reserve System.


 


“GAAP” has the meaning set
forth in Section 3(g) hereof.


 


“Governmental Entity” means
any court, administrative agency or commission or other governmental authority
or instrumentality, whether federal, state, local or foreign, and any
applicable industry self-regulatory organization.


 


“Hazardous Substance” means
any substance that is:  (A) listed,
classified or regulated pursuant to any Environmental Law; (B) any
petroleum product or by-product, asbestos-containing material, lead-containing
paint or plumbing, polychlorinated biphenyls, radioactive material or radon;
and (C) any other substance which may be the subject of regulatory action
by any Government Entity in connection with any Environmental Law.


 


3

















 


“Holder” means any Investor
and any other holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred in compliance with Section 10(h).


 


“Indemnified Party” has the
meaning set forth in Section 9(c)(iii) hereof.


 


“Indemnifying Party” has the
meaning set forth in Section 9(c)(iii) hereof.


 


“Institutional Investor” means
either of Patriot or Relational.


 


“Insurer” has the meaning set
forth in Section 3(w) hereof.


 


“Investor” has the meaning set
forth in the preamble hereof and shall include each Additional Investor upon
its execution of a Joinder.


 


“Joinder” means a joinder to
become a party to this Agreement substantially in the form of Exhibit C.


 


“Loan Investor” has the
meaning set forth in Section 3(w) hereof.


 


“Losses” has the meaning set
forth in Section 9(c)(i) hereof.


 


“Material Adverse Effect” or “Material Adverse Change” means any
circumstance, event, change, development or effect that (1) is material
and adverse to the business, results of operations or financial condition of
the Company and its subsidiaries taken as a whole or (2) could materially
impair the ability of the Company to perform its obligations under this
Agreement or to consummate the Closing; provided, however,
that in determining whether a Material Adverse Effect or Material Adverse
Change has occurred, there shall be excluded any effect to the extent resulting
from the following: (A) changes or proposed changes in generally accepted
accounting principles or regulatory accounting principles generally applicable
to banks, savings associations or their holding companies, (B) changes or
proposed changes in laws, rules and regulations of general applicability
or interpretations thereof by Governmental Entities, (C) actions or
omissions of the Company expressly required by the terms of this Agreement or
taken with the prior written consent of all of the Investors, (D) changes
in general economic, monetary or financial conditions or markets generally or
that are the result of factors generally affecting the banking industry, (E) changes
in the market price or trading volumes of the Common Stock or the Company’s
other securities in and of themselves (but not the underlying causes of such
changes), (F) the failure of the Company to meet any internal or public
projections, forecasts, estimates or guidance in and of themselves for any period
ending on or after December 31, 2008 (but not the underlying causes of
such failure), (G) changes in global or national political conditions,
including the outbreak or escalation of war or acts of terrorism, and (H) the
public disclosure of this Agreement or the transactions contemplated hereby;
except, with respect to clauses (A), (B), (D) and (G), to the extent that
the effects of such changes have a materially disproportionate effect on the
Company and its subsidiaries, taken as a whole, relative to other banks,
savings associations and their holding companies generally.


 


“Non-Control Determination”
has the meaning set forth in Section 6(b) hereof.


 


4

















 


“Observer” has the meaning set
forth in Section 9(a)(v) hereof.


 


“Patriot” means collectively
Patriot Financial Partners, L.P. and Patriot Financial Partners Parallel, L.P.


 


“Person” means an individual,
corporation, partnership, association, joint stock company, limited liability
company, joint venture, trust, Governmental Entity, unincorporated organization
or other legal entity.


 


“Previously Disclosed” means
information set forth or incorporated by reference in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2008 or
its other reports and forms filed with the Commission under Sections 13(a), 14(a) or
15(d) of the Exchange Act on or after January 1, 2009 and that are
filed prior to the execution and delivery of this Agreement.


 


“Purchase Price” has the
meaning set forth in Section 2(a) hereof.


 


“Registrable Securities” means
all shares of Convertible Preferred Stock, all Conversion Securities and all
Conversion Securities issued or issuable directly or indirectly with respect to
the Conversion Securities by way of conversion or exchange thereof or share
dividend or share split or in connection with a combination of shares,
recapitalization, reclassification, merger, amalgamation, arrangement,
consolidation or other reorganization. 
As to any securities constituting Registrable Securities, such
securities will cease to be Registrable Securities when (i) a registration
statement with respect to the sale by the holder thereof is declared effective
under the Securities Act and such securities have been disposed of in
accordance with such registration statement, (ii) they have been acquired
by the Company, (iii) they have been sold to the public pursuant to Rule 144
or Rule 145 or other exemption from registration under the Securities Act,
or (iv) they are able to be sold in their entirety by the Investor or
transferee holding such securities pursuant to Rule 144 under the
Securities Act within any single three-month period.


 


“Registration Demand” has the
meaning set forth in Section 10(a)(ii) hereof.


 


“Registration Indemnitee” has
the meaning set forth in Section 10(g)(i) hereof.


 


“Regulatory Agreement” has the
meaning set forth in Section 3(q)(iii) hereof.


 


“Relational” means
collectively Relational Investors Mid-Cap Fund I, L.P. and Relational Investors
Mid-Cap Fund II, L.P.


 


“Requesting Investor” has the
meaning set forth in Section 6(b) hereof.


 


“Rights” has the meaning set
forth in Section 3(c) hereof.


 


“Scheduled Black-out Period”
means the period from and including the last day of a fiscal quarter of the
Company to and including the Business Day after the day on which the Company
publicly releases its earnings for such fiscal quarter, provided that the
trading window


 


5




















 


applicable to the Company’s senior management under the Company’s
trading policies then in effect is not open any time during such period.


 


“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder.


 


“Shelf Registration Statement”
has the meaning set forth in Section 10(a)(ii).


 


“Stockholder Approval” has the
meaning set forth in Section 9(e) hereof.


 


“Taxes” means all taxes,
charges, levies, penalties or other assessments imposed by any United States
federal, state, local or foreign taxing authority, including any income,
excise, property, sales, transfer, franchise, payroll, withholding, social
security or other taxes, together with any interest or penalties attributable
thereto, and any payments made or owing to any other Person measured by such
taxes, charges, levies, penalties or other assessment, whether pursuant to a
tax indemnity agreement, tax sharing payment or otherwise (other than pursuant
to commercial agreements or Benefit Plans).


 


“Tax Return” means any return,
report, information return or other document (including any related or
supporting information) required to be filed with any taxing authority with
respect to Taxes, any claims for refunds of Taxes and any amendments or
supplements to any of the foregoing.


 


“Termination Date” has the
meaning set forth in Section 6(k) hereof.


 


“Voting Debt” has the meaning
set forth in Section 3(c) hereof.


 


Section 2.              Purchase; Closings.


 


(a)           Purchase.  On the terms
and subject to the conditions set forth herein, each Investor hereby severally
agrees, at the Closing, to purchase from the Company, and the Company hereby
agrees to sell to such Investor, the number of shares of Convertible Preferred
Stock set forth next to such Investor’s name on Annex A for an aggregate
purchase price set forth next to such Investor’s name on Annex A (with respect
to each Investor, the “Purchase Price”).


 


(b)           Closing.  Subject to
the satisfaction or waiver of the conditions set forth in Section 7
hereof, the closing of the purchase of the shares of Convertible Preferred
Stock hereunder (the “Closing”)
shall occur at the Los Angeles offices of Sullivan & Cromwell LLP at
9:00 a.m., Pacific time, on the first Business Day following the day on
which the conditions to Closing set forth in Section 7 hereof
(other than those conditions that by their nature are to be satisfied at the
Closing, but subject to the fulfillment or waiver of those conditions) shall be
satisfied or waived in accordance with this Agreement (the “Closing Date”).


 


Section 3.              Representations and Warranties of the Company. 
Except as Previously Disclosed or as set forth in the corresponding
sections or subsections of the disclosure schedule delivered to the Investors
by the Company prior to entering into this Agreement or, with respect to any
Additional Investor, prior to such Investor’s entering into a Joinder (the “Disclosure 


 


6

















 


Schedule”),
the Company represents and warrants to each Investor as of the date hereof as
follows:


 


(a)           Organization and Authority. 
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and each of the Company’s
subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization or incorporation, as applicable,
and, except as has not had or would not be reasonably expected to have a
Material Adverse Effect, each of the Company and the Company’s subsidiaries is
duly qualified to do business and is in good standing in all jurisdictions
where its ownership or leasing of property or the conduct of its business
requires it to be so qualified and has all requisite corporate or similar power
and authority to carry on its business as currently conducted.


 


(b)           Authorization. 
This Agreement has been duly and validly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by such Investor, constitutes a binding obligation of the Company
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).  Subject
to the receipt of stockholder approval contemplated by Section 9(e)(i) and
Section 9(e)(ii), all of the shares of Convertible Preferred Stock to be
issued to such Investor hereunder and the Conversion Securities to be issued to
such Investor upon conversion of the Convertible Preferred Stock have been duly
authorized for issuance and, when issued, paid for and delivered as set forth
herein, or in the Certificate of Designations, as applicable, the shares of
Convertible Preferred Stock and the Conversion Securities will be validly
issued, fully paid and non-assessable.


 


(c)           Capitalization; Subsidiaries. 
As of the date hereof, the authorized capital stock of the Company
consists of (i) 100,000,000 shares of Common Stock, of which 52,464,335
shares are issued and outstanding as of April 30, 2009, and (ii) 50,000,000
shares of preferred stock, par value $0.001 per share, none of which is issued
and outstanding as of the date of this Agreement.  All of the outstanding shares of Common Stock
have been duly authorized, are validly issued, fully paid and nonassessable and
were offered, sold and issued in compliance with all applicable federal and
state securities laws and without violating any contractual obligation or any
other preemptive or similar rights.  As
of April 30, 2009, there were 900,079 shares of Common Stock authorized
and reserved for issuance under the Company’s Amended and Restated 2005 Stock
Incentive Plan and no outstanding options to purchase shares of Common Stock
thereunder.  As of the date of this
Agreement, no bonds, debentures, notes or other indebtedness having the right
to vote on any matters on which stockholders of the Company may vote (“Voting Debt”) are issued or
outstanding.  As of April 30, 2009,
except pursuant to this Agreement, the Company does not have and is not bound
by any outstanding subscriptions, options, warrants, calls, rights, commitments
or agreements (“Rights”) calling for the
purchase or issuance of, or the payment of any amount based on, any shares of
Common Stock or any other equity securities of the Company or any securities
representing the right to purchase or otherwise receive any shares of the
Common Stock, preferred stock, Voting Debt or other equity securities of the
Company.  There are no contractual
obligations of the Company or any of its 


 


7

















 


subsidiaries (x) to
repurchase, redeem or otherwise acquire any shares of its capital stock or any
securities representing the right to purchase or otherwise receive any shares
of capital stock or any other equity security of the Company or its
subsidiaries or (y) pursuant to which the Company or any of its
subsidiaries is or could be required to register shares of the Company’s
capital stock or other securities under the Securities Act.  All of the outstanding shares of capital
stock or other securities of each of the Company’s subsidiaries have been duly
authorized and are validly issued, fully paid and non-assessable and directly
or indirectly owned by the Company, free and clear of any lien or encumbrance.


 


(d)           No Conflicts. 
The issuance and sale of the Convertible Preferred Stock and the
Conversion Securities, the execution, delivery and performance by the Company
of this Agreement, the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated
will not (i) violate, conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration of, or result in the creation of, any lien,
security interest, charge or encumbrance upon any of the properties or assets
of the Company or any of its subsidiaries under any of the terms, conditions or
provisions of (A) its certificate of incorporation or by-laws or
organizational documents, as applicable, or (B) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other agreement to which
the Company or any of its subsidiaries is a party or by which it or any of its
subsidiaries may be bound, or to which the Company or any of its subsidiaries
or any of the properties or assets of the Company or any of its subsidiaries
may be subject, or (ii) subject to the Stockholder Approval, violate any
statute, rule or regulation or any judgment, ruling, order, writ,
injunction or decree applicable to the Company or any of its subsidiaries or
any of their respective properties or assets except, in the case of clauses (i)(B) and
(ii), for those occurrences that, individually or in the aggregate, have not
had and would not be reasonably expected to have a Material Adverse Effect.


 


(e)           Governmental Approvals. 
Assuming the accuracy of the representations and warranties made by each
Investor in Section 4(d), no notice to, registration, declaration
or filing with, exemption or review by, or authorization, order, consent or
approval of, any Governmental Entity, nor expiration or termination of any
statutory waiting periods, is necessary for the consummation by the Company of
the transactions contemplated by this Agreement, except for those that,
individually or in the aggregate, have not had and would not be reasonably
expected to have a Material Adverse Effect, other than (i) such as may be
required by the securities or blue sky laws of the various states and (ii) any
approval required pursuant to Sections 7(a)(iv) and 7(b)(iv).


 


(f)            Reports.


 


(i)             Since December 31, 2007, the Company
has filed with the Commission all forms, reports, schedules, statements and
other documents required to be filed by it through the date hereof under the
Exchange Act or the Securities Act (all such documents, as supplemented and
amended since the time of filing, collectively, the “Company
SEC Documents”).  The
Company SEC Documents, at the time filed or, in the case of any Company SEC
Document amended or superseded by a filing prior to the date of this Agreement,
then on 


 


8

















 


the date of such amending
or superseding filing, and, in the case of registration statements and proxy
statements, on the dates of effectiveness and the dates of mailing,
respectively, (A) did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (B) complied in all material respects
with the applicable requirements of the Exchange Act and the Securities Act, as
applicable.


 


(ii)            No executive
officer of the Company or any subsidiary of the Company has failed in any
respect to make the certifications required of him or her under Section 302
or 906 of the Sarbanes-Oxley Act of 2002 with respect to the Company SEC
Documents.


 


(g)           Financial Statements. 
The Company’s financial statements, including the notes thereto,
included in the Company SEC Documents (the “Company
Financial Statements”) have been prepared in accordance with
U.S. generally accepted accounting principles (“GAAP”)
consistently applied (except as may be indicated in the notes and schedules
thereto) during the periods involved and present fairly in all material
respects the Company’s consolidated financial position at the dates thereof and
of its consolidated results of operations, changes in stockholders’ equity and
cash flows for the periods then ended. 
Since the date of the most recent balance sheet included in the Company
Financial Statements, the Company has not effected any change in any method of
accounting or accounting practice, except for any such change required because
of a concurrent change in GAAP, nor has it been advised by its independent
registered accounting firm or any Governmental Entity that any such change in
method of accounting or accounting practice is appropriate.


 


(h)           No Undisclosed Liabilities. 
Neither the Company nor any of its subsidiaries has any liabilities or
obligations of any nature (absolute, accrued, contingent or otherwise) that are
not properly reflected or reserved against in the Company Financial Statements
to the extent required to be so reflected or reserved against in accordance
with GAAP, except for (1) liabilities that have arisen since December 31,
2008 in the ordinary course of business, (2) contractual liabilities under
agreements entered into in the ordinary course of business or that are
disclosed in the Company SEC Documents, and (3) liabilities that have not
had and would not reasonably be expected to have a Material Adverse Effect.


 


(i)            Company Significant Agreements. 
The Company has made available to such Investor true, correct and
complete copies of all Company Significant Agreements to which the Company or
any of its subsidiaries is a party or subject. 
Each of the Company Significant Agreements is valid and binding on the
Company and its subsidiaries, as applicable, and in full force and effect.  The Company and each of its subsidiaries, as
applicable, are in compliance with and have performed all obligations required
to be performed by them to date under each Company Significant Agreement,
except as, individually or in the aggregate, have not had or would reasonably
not be expected to have a Material Adverse Effect.  As of the date hereof, neither the Company
nor any of its subsidiaries has received written notice of any material
violation or default (or any condition which with the passage of time or the
giving of notice would cause such a violation of or a default) by any party
under any Company Significant Agreement.


 


9

















 


(j)            Controls and Procedures.


 


(i)             The Company has implemented and maintains
disclosure controls and procedures (as defined in Rule 13a-15(e) of
the Exchange Act) to ensure that material information relating to the Company,
including its subsidiaries, is made known to the chief executive officer and
the chief financial officer of the Company by others within those
entities.  The Company maintains internal
control over financial reporting (as defined in Rule 13a-15 of the
Exchange Act) that is effective in providing reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP and includes policies and
procedures that (A) pertain to the maintenance of records that in
reasonable detail accurately and fairly reflect the transactions and
dispositions of the asset of the Company, (B) provide reasonable assurance
that transactions are recorded as necessary to permit preparation of financial
statements in accordance with GAAP, and that receipts and expenditures of the
Company are being made only in accordance with authorizations of management and
directors of the Company, and (C) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition
of the Company’s assets that could have a material effect on its financial
statements.  The Company has disclosed,
based on its most recent evaluation prior to the date hereof, to the Company’s
outside auditors and the audit committee of the Board of Directors (x) any
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting that are reasonably expected to
adversely affect the Company’s ability to record, process, summarize and report
financial information and (y) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company’s internal controls over financial reporting.


 


(ii)            Since December 31, 2007, (A) neither
the Company nor any subsidiary of the Company nor, to the knowledge of the
Company, any director or officer of the Company or any subsidiary of the
Company, has received or otherwise had or obtained knowledge of any material
complaint, allegation, assertion or claim, whether written or oral, regarding
the accounting or auditing practices, procedures, methodologies or methods of
the Company or a subsidiary of the Company or their respective internal
accounting controls, including any material complaint, allegation, assertion or
claim that the Company or any subsidiary of the Company has engaged in
questionable accounting or auditing practices, and (B) no attorney
representing the Company or any subsidiary of the Company, whether or not
employed by the Company or any subsidiary of the Company, has reported evidence
of a material violation of securities laws, breach of fiduciary duty or similar
violation by the Company or any of its officers, directors, employees or agents
to the Board of Directors or any committee thereof or to any director or
officer of the Company.  The records,
systems, controls, data and information of the Company and the subsidiaries of
the Company are recorded, stored, maintained and operated under means
(including any electronic, mechanical or photographic process, whether
computerized or not) that are under the exclusive ownership and direct control
of the Company or the subsidiaries of the Company or their accountants
(including all means of access thereto and therefrom), except for any
non-exclusive ownership and non-direct control that would not, individually or
in the aggregate, reasonably be expected to adversely affect in any material
respect the system of internal accounting controls described above in this Section 3(j).


 


10

















 


(k)           Properties.  Except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, the Company and its subsidiaries have good and
marketable title to all real properties and all other properties and assets
owned by them, in each case free from liens, encumbrances, claims and defects
that would adversely affect the value thereof or interfere with the use made or
to be made thereof by them.


 


(l)            Taxes.  (i) Each
of the Company and its subsidiaries has (x) duly and timely filed
(including pursuant to applicable extensions) all material Tax Returns required
to be filed by it and (y) paid in full all material Taxes due or made
adequate provision in the financial statements of the Company (in accordance
with GAAP) for any such Taxes, whether or not shown as due on such Tax Returns;
(ii) no material deficiencies for any Taxes have been proposed, asserted
or assessed in writing against or with respect to any Taxes due by or Tax
Returns of the Company or any of its subsidiaries, which deficiencies have not
since been resolved, except for Taxes proposed, asserted or assessed that are
being contested in good faith by appropriate proceedings and for which reserves
adequate in accordance with GAAP have been provided; and (iii) there are
no material liens for Taxes upon the assets of either the Company or its
subsidiaries except for statutory liens for current Taxes not yet due or liens
for Taxes that are being contested in good faith by appropriate proceedings and
for which reserves adequate in accordance with GAAP have been provided.


 


(m)          Litigation and Other Proceedings. 
There is no pending or, to the knowledge of the Company, threatened,
claim, action, suit, investigation or proceeding against the Company or any of
its subsidiaries or to which any of their assets are subject, nor is the
Company or any of its subsidiaries subject to any order, judgment or decree, in
each case except as, individually or in the aggregate, have not had or would
not reasonably be expected to have a Material Adverse Effect.  Except as would not, individually or in the
aggregate, reasonably be expected to have a Material Advise Effect, there is no
unresolved violation, criticism or exception by any Governmental Entity with
respect to any report or relating to any examinations or inspections of the
Company or any subsidiary of the Company.


 


(n)           Compliance with Laws. 
The Company and each of its subsidiaries have all material permits,
licenses, franchises, authorizations, orders and approvals of all Governmental
Entities that are required in order to permit them to own or lease their
properties and assets and to carry on their business as presently conducted
(other than with respect to tax and environmental matters which are covered in
separate representations).  Since January 1,
2007, the Company and its subsidiaries have complied with and are not in
default or violation of, and none of them is, to the knowledge of the Company,
under investigation with respect to or, to the knowledge of the Company, has
been threatened to be charged with or given written notice of any violation of,
any applicable domestic (federal, state or local) or foreign law, statute,
ordinance, license, rule, regulation, policy or guideline, order, demand, writ,
injunction, decree or judgment of any Governmental Entity, other than such
noncompliance, defaults or violations that, individually or in the aggregate, have
not had or would not reasonably be expected to have a Material Adverse Effect
(other than with respect to tax and environmental matters which are covered in
separate representations).  Except for
statutory or regulatory restrictions of general application, no Governmental
Entity has placed any restriction on the business or properties of the Company
or any of its subsidiaries that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


11

















 


(o)           Absence of Certain Changes. 
Since December 31, 2008, (i) the Company and each of the
subsidiaries of the Company have conducted their respective businesses in all
material respects in the ordinary course, consistent with prior practice; (ii) except
for publicly disclosed dividends on the Common Stock, the Company has not made
or declared any distribution in cash or in kind to its stockholders or issued
or repurchased any shares of its capital stock or other equity interests; and (iii) no
event or events have occurred that, individually or in the aggregate, has had
or would reasonably be expected to have a Material Adverse Effect.


 


(p)           Company Benefit Plans.


 


(i)             Except as has not had or would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (A) with respect to each Benefit Plan, the Company and
each ERISA Affiliate, as well as each Benefit Plan, have complied, and are now
in compliance with all provisions of ERISA, the Code and all laws and
regulations applicable to such Benefit Plan; and (B) each Benefit Plan has
been administered in accordance with its terms and all laws and regulations
applicable to such Benefit Plan, including ERISA and the Code.


 


(ii)            Except as has not had or would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and except for liabilities fully reserved for or identified in
the Company Financial Statements filed prior to the date hereof, (A) no
claim has been made, or to the knowledge of the Company threatened, against the
Company or any ERISA Affiliate related to the employment and compensation of
employees or any Benefit Plan, including any claim related to the purchase of
employer securities or to expenses paid under any defined contribution pension
plan and (B) no event has occurred, and there exists no condition or set
of circumstances, which could reasonably be expected to subject the Company or
any Company subsidiary to any liability under the terms of, or with respect to,
any Benefit Plan or under ERISA, the Code or any other applicable law.


 


(iii)           Neither
the Company nor any ERISA Affiliate has ever maintained, established,
sponsored, participated in, or contributed to, any (A) Benefit Plan which
is or was subject to Title IV of ERISA or Section 412 of the Code, (B) “multiemployer
plan” (as defined in Section 4001(a)(3) of ERISA), (C) “multiple
employer plan” within the meaning of Section 4001(a)(3) of ERISA or
subject to Section 413(c) of the Code, or (D) “welfare benefit
fund” within the meaning of Section 419 of the Code.


 


(iv)          Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, (A) neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby will (i) result in any payment (including
severance, unemployment compensation, “excess parachute payment” (within the
meaning of Section 280G of the Code), forgiveness of indebtedness or
otherwise) becoming due to any current or former employee, officer or director
of the Company or any subsidiary of the Company from the Company or any ERISA
Affiliate under any Benefit Plan or otherwise, (ii) increase any benefits
otherwise payable under any Benefit Plan, (iii) result in any acceleration
of the time of payment or vesting of any such benefits, (iv) require the
funding or increase in the funding of any such benefits or (v) result in
any limitation on the right of the Company or any ERISA Affiliate to amend, merge,
terminate or receive a reversion of assets 


 


12

















 


from any Benefit Plan or
related trust and (B) neither the Company nor any ERISA Affiliate has
taken, or permitted to be taken, any action that required, and no circumstances
exist that will require the funding, or increase in the funding, of any
benefits or resulted, or will result, in any limitation on the right of the
Company or any ERISA Affiliate to amend, merge, terminate or receive a
reversion of assets from any Benefit Plan or related trust.


 


(q)           Regulatory Matters.


 


(i)             Guaranty Bank and Trust Company (the “Bank”), is duly registered and
licensed with the Colorado Banking Board. 
The Bank is and, there has not been any event or occurrence since January 1,
2008 that would reasonably be expected to result in a determination that the
Bank is not, “well-capitalized” as a matter of U.S. federal banking law.  The Bank has at least a “satisfactory” rating
under the U.S. Community Reinvestment Act.


 


(ii)            The deposit accounts of the Bank are
insured by the Federal Deposit Insurance Corporation through the Deposit
Insurance Fund to the fullest extent permitted by law, and all premiums and
assessments required to be paid in connection therewith have been paid when
due.  The Bank is a member in good
standing of the Federal Home Loan Bank of Topeka.


 


(iii)           Neither
the Company nor any of its subsidiaries is subject to (1) a written
agreement or final order required to be publicly disclosed under 12 U.S.C. §
1818(u), (2) any restrictions on its ability to appoint or replace a
director or executive officer (other than those arising under the federal
securities laws and regulations or applicable listing standards), or (3) any
restrictions on its ability to pay dividends or make other capital
distributions, other than limitations imposed on the Company or its
subsidiaries or their respective boards of directors or similar governing
bodies by applicable state corporation law (including general principles of
fiduciary duties).  Neither the Company
nor any of its subsidiaries is subject to any cease-and-desist or other order
or enforcement action issued by, or is a party to any written agreement,
consent agreement or memorandum of understanding with, or is a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by,
or has been since January 1, 2007 ordered to pay any civil money penalty
by, or has been since January 1, 2007 a recipient of any supervisory
letter from, or since January 1, 2007 has adopted any board resolutions at
the request or suggestion of, any Governmental Entity (each item in this
sentence, a “Regulatory Agreement”), nor
has the Company or any of its subsidiaries been advised since January 1,
2007 by any Governmental Entity that it is considering issuing in writing,
initiating, ordering or requesting any such Regulatory Agreement, other than in
each case Regulatory Agreements that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.


 


(iv)          The Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended (“BHC Act”).


 


(v)           The Company has no transactions with
affiliates within the meaning of Sections 23A and 23B of the Federal Reserve
Act, as amended, that are not in compliance with such act or the rules promulgated
thereunder.


 


13

















 


(vi)          Other than with respect to the Company
SEC Documents, since December 31, 2007, the Company and each of its
subsidiaries has timely filed all material reports, registrations, documents,
filings, statements and submissions, together with any amendments thereto, that
it was required to file with any Governmental Entity (the foregoing,
collectively, the “Company Reports”).  As of their respective dates of filing, the
Company Reports complied in all material respects with all applicable statutes,
rules and regulations of the applicable Governmental Entities.


 


(r)            Environmental Matters. 
Except as, individually or in the aggregate, has not had or would not be
reasonably expected to have a Material Adverse Effect, the Company and its
subsidiaries are in compliance with all applicable Environmental Laws and, to
the knowledge of the Company, (i) no real property currently or formerly
owned or operated by the Company or any of its subsidiaries is or has been
contaminated with any Hazardous Substance at any time; (ii) neither the
Company nor any of its subsidiaries could be deemed the owner or operator under
any Environmental Law of any property which is or has been contaminated with
any Hazardous Substance; and (iii) no Hazardous Substance has been
transported from any of the properties owned or operated by the Company or one
of its subsidiaries, other than as permitted under applicable Environmental
Law.  Since January 1, 2007, neither
the Company nor any of its subsidiaries has received any written notice from
any Governmental Entity or any third party indicating that the Company or any
of its subsidiaries is in material violation of any Environmental Law, other
than with respect to any matter that has been resolved, and such violation, if
any, would not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect.  The
Company and its subsidiaries are not subject to any court order, administrative
order or decree or any indemnity or other agreement arising under or related to
any Environmental Law.


 


(s)           Anti-takeover Provisions Not Applicable. 
The Company has opted out of the provisions of Section 203 of the
Delaware General Corporation Law and the Board of Directors has taken all other
necessary action to ensure that any other similar “moratorium,”
“control share,” “fair price,” “takeover” or “interested stockholder” law does
not and will not apply to this Agreement or to any of the transactions
contemplated hereby.


 


(t)            Labor. No employees of the Company or any of its
subsidiaries are represented by any labor union, nor are any collective
bargaining agreements otherwise in effect with respect to such employees.  No labor organization or group of employees
of the Company or any of its subsidiaries has made a pending demand for
recognition or certification, and there are no representation or certification
proceedings or petitions seeking a representation proceeding presently pending
or, to the knowledge of the Company, threatened to be brought or filed with the
National Labor Relations Board or any other labor relations tribunal or
authority.  There are no organizing
activities, strikes, work stoppages, slowdowns, lockouts, material arbitrations
or material grievances, or other material labor disputes pending or threatened
against or involving the Company or any of its subsidiaries.


 


(u)           Insurance.  The Company
and each of its material subsidiaries are presently insured, and since January 1,
2008 have been insured, for reasonable amounts with financially sound and
reputable insurance companies against such risks as companies engaged in a
similar business would, in accordance with good business practice, customarily
be insured.  As 


 


14

















 


of the date hereof, all
such insurance policies are in full force and effect and no written notice of
cancellation has been received.  There is
no existing material default by any insured thereunder.


 


(v)           No Integration. 
Neither the Company nor its subsidiaries or any Affiliates, nor any
Person acting on its or their behalf, has issued any securities of the Company
which would be integrated with the sale of the shares of Convertible Preferred
Stock for purposes of the Securities Act, nor will the Company or its
subsidiaries or Affiliates take any action or steps (and neither have they
taken any action or steps) that would require registration of any of the shares
of Convertible Preferred Stock under the Securities Act or cause the offering
of the Convertible Preferred Stock to be integrated with other offerings.  Assuming the accuracy of the representations
and warranties of each Investor, the offer and sale of the shares of
Convertible Preferred Stock by the Company to the Investors pursuant to this
Agreement will be exempt from the registration requirements of the Securities
Act.


 


(w)          Loan Portfolio. Except as has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect:


 


(i)             All of the written and oral loan
agreements, notes or borrowing arrangements (including all leases, credit
enhancements, commitments, guarantees and interest-bearing assets) originated
or purchased and held by the Company or any of its subsidiaries were solicited,
originated and exist in compliance with all applicable loan policies and
procedures of the Company and the subsidiaries of the Company.  The information (including electronic
information and information contained on tapes and computer disks) with respect
to all loans of the Company and the subsidiaries of the Company furnished to
the Investors by the Company is, as of the respective dates indicated therein,
accurate in all material respects; provided, that
such information excludes information as would identify the names and addresses
or other similar personal information of any customer.


 


(ii)            The Company and each of its subsidiaries
has complied with, and all documentation in connection with the origination,
processing, underwriting and credit approval of any mortgage loan originated,
purchased or serviced by the Company or any subsidiary of the Company
satisfied, (A) all applicable federal, state and local laws, rules and
regulations with respect to the origination, insuring, purchase, sale, pooling,
servicing, subservicing or filing of claims in connection with mortgage loans,
including all laws relating to real estate settlement procedures, consumer
credit protection, truth in lending laws, usury limitations, fair housing,
transfers of servicing, collection practices, equal credit opportunity and
adjustable rate mortgages; (B) the responsibilities and obligations
relating to mortgage loans set forth in any agreement between the Company or
any subsidiary of the Company and any Agency, Loan Investor or Insurer; (C) the
applicable rules, regulations, guidelines, handbooks and other requirements of
any Agency, Loan Investor or Insurer; and (D) the terms and provisions of
any mortgage or other collateral documents and other loan documents with
respect to each mortgage loan.


 


For purposes of this Section 3(w):


 


“Agency” shall mean the
Federal Housing Administration, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, the Government National


 


15
















 


Mortgage Association, or any other federal or state agency with
authority to (i) determine any investment, origination, lending or
servicing requirements with regard to mortgage loans originated, purchased or
serviced by the Company or any subsidiary of the Company or (ii) originate,
purchase, or service mortgage loans, or otherwise promote mortgage lending,
including state and local housing finance authorities.


 


“Insurer” means a person who
insures or guarantees for the benefit of the mortgagee all or any portion of
the risk of loss upon borrower default on any of the mortgage loans originated,
purchased or serviced by the Company or any subsidiary of the Company,
including, the Federal Housing Administration, the United States Department of
Veterans’ Affairs, the Rural Housing Service of the U.S. Department of
Agriculture and any private mortgage insurer, and providers of hazard, title or
other insurance with respect to such mortgage loans or the related collateral.


 


“Loan Investor” shall mean any
person (including an Agency) having a beneficial interest in any mortgage loan
originated, purchased or serviced by the Company or any subsidiary of the
Company or a security backed by or representing an interest in any such
mortgage loan.


 


(x)            Brokers and Finders. 
Except for Castle Creek and Keefe, Bruyette & Woods, Inc.,
none of the Company, any of its subsidiaries and, to the knowledge of the
Company, any of the employees or agents of the Company or its subsidiaries, has
employed any broker or finder or incurred any liability for any financial
advisory fees, brokerage fees, commissions or finder’s fees, and no broker or
finder has acted directly or indirectly for the Company or any subsidiary of
the Company in connection with this Agreement or the transactions contemplated
by this Agreement.


 


(y)           No Change of Control. 
The issuance of Convertible Preferred Stock and Conversion Securities to
the Investors as contemplated by this Agreement will not trigger any rights
under any “change of control” provision in any of the agreements to which the
Company or any of its subsidiaries is a party, including any employment, “change
in control,” severance or other compensatory agreements and any Benefit Plan,
which results in payments to the counterparty or the acceleration of vesting of
benefits.


 


Section 4.              Representations and Warranties of Investors. 
Each Investor, severally and not jointly, represents and warrants to the
Company, as of the date hereof, as follows:


 


(a)           Organization. 
Such Investor is duly organized, validly existing and in good standing
under the laws of its state of organization, and except as has not had or would
not reasonably be expected to have a material adverse effect on such Investor’s
ability to perform its obligations under the Agreement or to consummate the
transactions contemplated hereby on a timely basis, such Investor is duly
qualified to do business and is in good standing in all jurisdictions where its
ownership or leasing of property or the conduct of its business requires it to
be so qualified.


 


(b)           Authorization. 
This Agreement has been duly and validly authorized, executed and
delivered by such Investor and, assuming the due authorization, execution and
delivery by the Company, constitutes a valid and binding obligation of such
Investor enforceable 


 


16

















 


against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in
equity).


 


(c)           No Affiliates. 
Such Investor is not an Affiliate of any other stockholder of the
Company or, to the knowledge of such Investor, any other Investor, is not
acting in concert with any other Person and is not a member of a “group”
(within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to the Company’s securities, and has no current intention to act in the
future in a manner that would make it a member of such a group; provided that
Patriot Financial Partners, L.P. and Patriot Financial Partners Parallel, L.P.
are Affiliates and Relational Investors Mid-Cap Fund I, L.P. and Relational
Investors Mid-Cap Fund II, L.P. are Affiliates.


 


(d)           Purchase for Investment. 
Such Investor acknowledges that neither the Convertible Preferred Stock
nor the Conversion Securities have been registered under the Securities Act or
under any state securities laws.  Such
Investor (i) is acquiring the Convertible Preferred Stock, and will
acquire the Conversion Securities, if any, pursuant to an exemption from
registration under the Securities Act solely for investment with no present
intention to distribute any of the Convertible Preferred Stock or the
Conversion Securities to any Person, (ii) will not sell or otherwise
dispose of any of the Convertible Preferred Stock or the Conversion Securities,
except in compliance with the registration requirements or exemption provisions
of the Securities Act and any other applicable securities laws, (iii) has
such knowledge and experience in financial and business matters and in
investments of this type that it is capable of evaluating the merits and risks
of its investment in the Convertible Preferred Stock and the Conversion
Securities, and of making an informed investment decision, and (iv) is an “accredited
investor” (as that term is defined by Rule 501 of the Securities Act).


 


(e)           Knowledge as to Conditions. 
As of the date of this Agreement, such Investor has not been advised by
any Governmental Entity that, and has no reasonable basis to believe why, any
regulatory approvals, consents or statements of non-objection required or
otherwise a condition to the consummation of the transactions contemplated by
this Agreement will not be obtained.


 


(f)            Sufficient Funds. 
Such Investor has or will have prior to the Closing Date, sufficient
cash, available lines of credit or other sources of immediately available funds
to enable it to timely deliver to the Company the purchase price payable
hereunder by such Investor.


 


(g)           Ownership.  As of the
close of business on the Business Day immediately preceding the date hereto,
such Investor beneficially owns (as determined in accordance with Rule 13d-3
under the Exchange Act) the number of shares of Common Stock set forth next to
such Investor’s name on Annex A
and, other than as set forth on Annex A
hereof, does not beneficially own (as determined in accordance with Rule 13d-3
under the Exchange Act) or have the right to vote with respect to any equity
securities of the Company.


 


(h)           No Conflicts. 
The execution, delivery and performance by such Investor of this Agreement,
the compliance by such Investor with all of the provisions of this Agreement 


 


17

















 


and the consummation of
the transactions herein contemplated will not (i) violate, conflict with,
or result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration of, or result in the creation
of, any lien, security interest, charge or encumbrance upon any of the
properties or assets of such Investor under any of the terms, conditions or
provisions of (A) its certificate of incorporation or by-laws or other
organizational documents, as applicable, or (B) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which such Investor is a party or by which it may be bound, or to
which such Investor or any of its properties or assets may be subject, or (ii) violate
any statute, rule or regulation or any judgment, ruling, order, writ,
injunction or decree applicable to such Investor or any of its properties or
assets except, in the case of clauses (i)(B) and (ii), for those
occurrences that, individually or in the aggregate, have not had or would not
reasonably be expected to have a material adverse effect on such Investor’s
ability to perform its obligations under the Agreement or to consummate the
transactions contemplated hereby on a timely basis.


 


(i)            Brokers and Finders. 
Except as disclosed in writing by such Investor to the Company prior to
such Investor’s entering into this Agreement (by way of Joinder or otherwise),
neither such Investor nor its Affiliates, any of their respective officers,
directors, employees or agents has employed any broker or finder or incurred
any liability for any financial advisory fees, brokerage fees, commissions or
finder’s fees, and no broker or finder has acted directly or indirectly for
such Investor, in connection with the transactions contemplated by this
Agreement.


 


(j)            Non-Reliance. 
Such Investor is not relying upon, and has not relied upon, any
statement, representation or warranty made by any Person, except for the
representations and warranties by the Company contained in this Agreement.


 


Section 5.              Deliveries at Closing.


 


(a)           Company Deliverables. 
At the Closing, the Company shall deliver to each Investor the
following:


 


(i)            certificates representing the number of
shares of Convertible Preferred Stock to be purchased at the Closing by such
Investor as specified in the attached Annex A,
against payment of the purchase price therefor by wire transfer of immediately
available funds made payable to the order of the Company; and


 


(ii)           a certificate of a senior officer of the
Company on its behalf to the effect that the closing conditions in Section 7(a)(i) and
(ii) are met as of the Closing.


 


(b)           Investor Deliverables. 
At the Closing, each Investor shall deliver to the Company the
following:


 


(i)            payment of the Purchase Price in United
States dollars by wire transfer of immediately available funds to an account
specified in writing by the Company; and


 


18

















 


(ii)           a certificate of a senior officer of each
Investor on its behalf to the effect that the closing conditions in Section 7(b)(i) and
(ii) are met as of the Closing.


 


Section 6.              Covenants.


 


(a)           Public Statements. 
Neither the Company nor any Investor shall issue or cause the
publication of any press release or other public announcement with respect to,
or otherwise make any public statement concerning, the transactions
contemplated by this Agreement without the prior consent (which shall not be
unreasonably withheld or delayed) of the other; provided,
however, that any party may, without the
prior consent of the other parties issue or cause the publication of any press
release or other public announcement to the extent required by law or by the rules and
regulations of the NASDAQ Stock Market.


 


(b)           Regulatory Approvals. 
Each Investor shall use its reasonable best efforts to obtain, as
promptly as practicable, all governmental, quasi-governmental, court or
regulatory approvals, consents or statements of non-objection necessary to
allow it to acquire the Convertible Preferred Stock and Conversion Securities
it will or may acquire or to own or control the Convertible Preferred Stock and
Conversion Securities it will or may own or control following the date hereof,
including any approvals, consents or statements of non-objection required by
any state or federal banking regulatory authority (and in each case taking into
account Sections 8(c), 9(g) and 9(h) of the Certificate of
Designations).  In performing its
obligations under this Section 6(b), each Investor shall cooperate
with the Company, shall reasonably consult with the Company concerning all
regulatory filings, applications and support materials to the extent not filed
prior to the date hereof and shall keep the Company promptly apprised of the
status of matters referred to in this Section 6(b).  Without limiting the foregoing, each
Institutional Investor and any other Investor intending to rely on a
non-control determination from the Federal Reserve Board in order to consummate
the transactions contemplated by this Agreement (each, a “Requesting
Investor”) agree (i) that it will promptly, and in any
event within ten calendar days of this Agreement (or in the case of any
Requesting Investor that is an Additional Investor, ten calendar days after
such Requesting Investor executes a Joinder) submit to the Federal Reserve
Board a request for determination that it shall not be deemed to “control” the
Company or any subsidiary of the Company after the Closing for purposes of Sections
3 or 4 of the BHC Act by reason of the purchase of the Convertible Preferred
Stock or any Conversion Securities or the consummation of the other
transactions contemplated by this Agreement (a “Non-Control
Determination”), and (ii) it will provide (and, if and as
required by the Federal Reserve Board, will cause any of its general partners,
managers, managing members or management companies or other controlling
entities, as applicable) customary passivity commitments in connection with its
request to obtain such determination.


 


(c)           Cooperation. 
Each Investor and the Company will, and will cause its Affiliates to,
cooperate with the other and use reasonable best efforts to take, or cause to
be taken, all actions in order to facilitate the successful consummation of the
transactions contemplated hereby.  Each
Investor and the Company shall execute and deliver both before and after the
Closing such further certificates, agreements and other documents and take such
other actions as the other may reasonably request to consummate or implement
such transactions or to evidence such events or matters.  In particular, each Investor will use its
reasonable best efforts to promptly obtain or submit, and the Company will
cooperate as may reasonably be requested 


 


19

















 


by such Investor to
assist such Investor to promptly obtain or submit, as the case may be, as
promptly as practicable, all notices to and, to the extent required by
applicable law or regulation, consents, approvals or exemptions from, and
assist in any appearances and proceedings before, bank regulatory authorities
in connection with the transactions contemplated by this Agreement.  Each Investor and the Company will have the
right to review in advance, and to the extent practicable each will consult
with the other, in each case subject to applicable laws relating to the
exchange of information, all the information relating to such other party, and
any of their respective Affiliates, which appears in any filing made with, or
written materials submitted to, any third party (other than a state or federal
banking regulatory authority) in connection with the transactions contemplated
by this Agreement.  In exercising the
foregoing right, each agrees to act reasonably and as promptly as
practicable.  Each such party agrees to
keep the other party apprised of the status of matters referred to in this Section 6(c).
To the extent permitted by applicable law and to the extent such communications
do not contain confidential information, each Investor shall promptly furnish
the Company, and the Company shall promptly furnish each Investor, with copies
of material written communications received by it or its subsidiaries from, or
delivered by any of the foregoing to, any Governmental Entity in respect of the
transactions contemplated by this Agreement.


 


(d)           Legends.  (i) Each
Investor agrees that all certificates or other instruments representing the
Convertible Preferred Stock and the Conversion Securities subject to this Agreement
will bear a legend substantially to the following effect:


 


(A)          THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED
OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS.


 


(B)           THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN AN INVESTMENT
AGREEMENT, DATED AS OF MAY 6, 2009, COPIES OF WHICH ARE ON FILE WITH THE
SECRETARY OF THE ISSUER.


 


(ii)           Upon request of any Investor, upon
receipt by the Company of an opinion of counsel reasonably satisfactory to the
Company to the effect that such legend is no longer required under the
Securities Act and applicable state laws, the Company shall promptly cause
clause (A) of the legend to be removed from any certificate for any
Convertible Preferred Stock or Conversion Securities held by such Investor to
be transferred in accordance with the terms of this Agreement and clause (B) of
the legend shall be removed upon the expiration of such transfer and other
restrictions set forth in this Agreement. 
Each Investor acknowledges that the Convertible Preferred Stock and
Conversion Securities have not been registered under the Securities Act or
under any state securities laws and agrees that it will not sell or otherwise 


 


20

















 


dispose of any of the
Convertible Preferred Stock or the Conversion Securities, except in compliance
with the registration requirements or exemption provisions of the Securities
Act and any other applicable securities laws.


 


(e)           Transfer Restrictions.


 


(i)            For a period of eighteen (18) months
following the Closing Date, each Investor shall not sell, transfer, assign or
otherwise dispose of any shares of Convertible Preferred Stock or the
Conversion Securities.  In addition, any
Requesting Investor who intends to sell, transfer, assign or otherwise dispose
of, in whole or in part, shares of Convertible Preferred Stock or the
Conversion Securities may do so only in accordance with and as permitted by
guidance and policies established by the Federal Reserve Board as applicable
and in effect at the time of transfer.


 


(ii)           Notwithstanding the first sentence of Section 6(e)(i),
an Investor shall be permitted to transfer any portion or all of its
Convertible Preferred Stock or Conversion Securities upon prior written notice
to the Company under the following circumstances:


 


(A)          Transfers to (x) any Affiliate of such Investor
that is under common control with such Investor’s ultimate parent, general
partner or investment advisor or (y) any limited partner or shareholder of
such Investor; provided, that in either case
such transfer shall only be permitted prior to the date that is eighteen (18)
months following the Closing Date if (I) the transferee executes and
delivers a Joinder to the Company and (II) such transfer does not result
in the requirement that the transferee register as a bank holding company under
the BHC Act with respect to the Bank or the Company (any such transferee shall
then be included in the term “Investor”);


 


(B)           Transfers pursuant to a merger, tender offer, exchange
offer or other business combination, an acquisition of substantially all of the
assets of the Company or any of its subsidiaries or similar transaction or a
change of control involving the Company or any of its subsidiaries; provided, that such transaction has been approved by the
Board of Directors; and


 


(C)           In the event that, as a result of (I) any share
repurchases, recapitalizations, redemptions or similar actions by the Company
not caused by such Investor or (II) any change in the amount of
Convertible Preferred Stock or Conversion Securities held by such Investor
resulting from adjustment or exchange provisions or other terms of the
Convertible Preferred Stock or Conversion Securities, such Investor reasonably
determines, based on the advice of legal counsel and following consultation
with the Company and, if the Company reasonably so requests, the Federal
Reserve Board, that unless such Investor disposes of all or a portion of its
Convertible Preferred Stock or Conversion Securities, it or any of its
Affiliates could reasonably be deemed to 


 


21

















 


“control” the Company for
purposes of the BHC Act or any rules or regulations promulgated thereunder
(or any successor provision), then such Investor shall be permitted to transfer
that portion of the Convertible Preferred Stock or Conversion Securities
reasonably necessary to avoid such control determination; provided,
that any such transfer may only be made in the manner described in the second
sentence of Section 6(e)(i).


 


(f)            Conversion Restriction. 
No Investor shall convert any shares of Convertible Preferred Stock if
such conversion would result in such Investor owning, together with its Affiliates,
more than 14.9% (or, in the cases of Castle Creek and Patriot only, 19.9%) of
the issued and outstanding shares of Common Stock of the Company after giving
effect to such conversion.


 


(g)           No Change of Control. 
The Company shall use reasonable best efforts to obtain all necessary
irrevocable waivers and make all appropriate determinations so that the
issuance of Convertible Preferred Stock and Conversion Securities to the
Investors, collectively, will not trigger a “change of control” or other
similar provision in any of the agreements to which the Company or any of its
subsidiaries is a party, including without limitation any employment, “change
in control,” severance or other agreements and any Benefit Plan, which results
in payments to the counterparty or the acceleration of vesting of benefits.


 


(h)           Certificate of Designations. 
The Company shall file the Certificate of Designations in the form
attached to this Agreement as Exhibit A
with the Delaware Secretary of State, and such Certificate of Designations
shall be in full force and effect as of the Closing Date.


 


(i)            Access, Information and Confidentiality.


 


(i)            For so long as any Institutional Investor
owns Convertible Preferred Stock convertible into, or Conversion Securities
representing, at least 4.9% of the outstanding shares of Common Stock (in each
case treating each Conversion Security that is not a share of Common Stock as
if it had converted into Common Stock), the Company will (A) permit such
Institutional Investor to visit and inspect, at such Institutional Investor’s
expense, the properties of the Company and its subsidiaries, to examine the
corporate books and to discuss the affairs, finances and accounts of the
Company and its subsidiaries with personnel of the Company, all upon reasonable
notice and at such reasonable times and as often as such Institutional Investor
may reasonably request, and (B) make appropriate officers of the Company
and its subsidiaries available periodically and at such times as reasonably
requested by such Institutional Investor for consultation with such
Institutional Investor or its designated representative with respect to matters
relating to the business and affairs of the Company and subsidiaries of the
Company. Any investigation pursuant to this Section 6(i) shall
be conducted during normal business hours and in such manner as not to
interfere unreasonably with the conduct of the business of the Company, and
nothing herein shall require the Company or any of its subsidiaries to disclose
any information to the extent (x) prohibited by applicable law or
regulation, (y) that the Company reasonably believes to be competitively
sensitive proprietary information (except to the extent such Institutional
Investor provides assurances reasonably acceptable to the Company that such
information shall not be used by such Institutional Investor 


 


22

















 


or its Affiliates to
compete with the Company and the subsidiaries of the Company), or (z) that
such disclosure would reasonably be expected to cause a violation of any
agreement to which the Company or any subsidiary of the Company is a party or
would cause a risk of a loss of privilege to the Company or any subsidiary of
the Company (provided that the Company shall use commercially reasonable
efforts to make appropriate substitute disclosure arrangements under
circumstances where the restrictions in this clause (z) apply).


 


(ii)           Each Institutional Investor covenants and
agrees to hold all such information obtained under this Section 6(i) in
confidence pursuant to the Confidentiality Agreement.


 


(j)            No Senior Preferred. 
While any shares of Convertible Preferred Stock are outstanding and held
by any of Castle Creek, Patriot or Relational, or any of their respective
Affiliates to whom such shares have been transferred in accordance with Section 6(e)(ii)(A)(x),
the Company shall not issue any Senior Securities (as defined in the
Certificate of Designations) without the prior written consent of each such
Investor that then owns shares of Convertible Preferred Stock.


 


(k)           Passivity and Standstill.


 


(i)            Each Investor and any Person who becomes
an Investor as contemplated by Section 6(e)(ii)(A)(x) and who
is required to enter into a passivity commitment with the Federal Reserve Board
hereby agrees with the Company that it shall not, directly or indirectly, from
the Closing Date and until the earlier of (1) the fifth anniversary of the
Closing Date and (2) the first to occur of either (i) the date on
which Patriot receives approval as required from any regulatory authority to
acquire shares of Common Stock, or securities convertible into or exchangeable
for Common Stock, that would result in Patriot (together with its Affiliates)
having beneficial ownership of in excess of 19.9% of the then outstanding
shares of Common Stock after giving effect to such transaction or (ii) the
date on which Relational receives approval as required from any regulatory
authority to acquire shares of Common Stock, or securities convertible into or
exchangeable for Common Stock, that would result in Relational (together with
its Affiliates) having beneficial ownership of in excess of 14.9% of the then
outstanding shares of Common Stock after giving effect to such transaction (the
“Termination Date”), take any action that would be prohibited under the
passivity commitments contained in Exhibit C
hereto.


 


(ii)           Each Institutional Investor and any
Person who becomes an Investor as contemplated by Section 6(e)(ii)(A)(x) hereby
agrees with the Company that it shall not, directly or indirectly, from the
Closing Date and until the Termination Date purchase or otherwise acquire
ownership of any shares of Common Stock, or securities convertible into or
exchangeable for Common Stock, that would result in such Person (together with
its Affiliates) having beneficial ownership of in excess of 14.9% (or, in the
case of Patriot only, 19.9%) of the then outstanding shares of Common Stock
after giving effect to such transaction.


 


(l)            Certain Transactions. 
The Company will not merge or consolidate into, or sell, transfer or
lease all or substantially all of its property or assets to, any other party
unless the successor, transferee or lessee party, as the case may be (if not
the Company), expressly assumes 


 


23

















 


the due and punctual
performance and observance of each and every covenant and condition of this
Agreement to be performed and observed by the Company.


 


(m)          Tax Treatment. 
The Company shall not treat the Convertible Preferred Stock as “preferred
stock” for purposes of Section 305 of the Code (and any similar provision
of state or local Tax law), shall prepare and file all of its Tax Returns on a
basis consistent with such treatment, and shall take no action and cause
Persons under its control to take no position inconsistent with such treatment
for Tax purposes, unless otherwise required pursuant to a “determination”
within the meaning of Section 1313 of the Code.


 


Section 7.              Conditions to Closing.


 


(a)           The respective obligations of each Investor to
severally consummate the purchase of the shares of Convertible Preferred Stock
at the Closing as contemplated hereunder are subject to the fulfillment, prior
to or on the Closing Date, of the following conditions:


 


(i)            The representations and warranties of the
Company in Section 3 shall be true and correct as of the date
hereof and at and as of the Closing Date as if made on such date, provided, however, that notwithstanding anything herein to
the contrary, the condition set forth in this Section 7(a)(i) shall
be deemed to have been satisfied other than with respect to Section 3(q)(iii) even
if any representations and warranties of the Company are not so true and
correct (without giving effect to any materiality or Material Adverse Effect or
similar qualifier set forth therein) unless the failure of such representations
and warranties of the Company to be so true and correct, individually or in the
aggregate, has not had and would not reasonably be expected to have a Material
Adverse Effect.


 


(ii)           The Company shall have complied in all
material respects with its obligations hereunder that are required to be
complied with at or prior to the Closing.


 


(iii)          No
judgment, injunction, decree or other legal restraint shall prohibit or enjoin
the consummation of the transactions contemplated by this Agreement.


 


(iv)          Such Investor shall have obtained all
necessary regulatory approvals applicable to it or, in the case of a Requesting
Investor, such Requesting Investor shall have received written confirmation
from the Federal Reserve Board of its Non-Control Determination as to such
Requesting Investor; provided, however, that no such regulatory approval or Non-Control
Determination shall (A) impose any condition or requirement that would
reasonably be expected to be materially burdensome to the Investor (including
any material constraints or restrictions on the Requesting Investor’s current
business or investments but excluding, for the avoidance of doubt, any
passivity commitments required as contemplated by Section 6(b)(ii)),
or (B) impose any restraint or condition on any limited partner of the
Requesting Investor (including a requirement to file any application or notice
under the BHC Act, the Change in Bank Control Act or any other federal or state
banking law) (each a “Burdensome Condition”);
and provided  further
that the imposition of a Burdensome Condition in connection with a regulatory
approval or Non-Control Determination shall constitute a denial of such
regulatory approval or Non-Control Determination and such regulatory approval
or Non-Control 


 


24

















 


Determination
shall be deemed not received for all purposes in this Agreement, including but
not limited to Section 8(c).


 


(v)           The Company shall simultaneously issue
and deliver at such Closing to Investors hereunder in the aggregate at least
50,000 shares of Convertible Preferred Stock against payment of an aggregate
Purchase Price of at least $50 million and no more than 60,000 shares of
Convertible Preferred Stock against payment of an aggregate Purchase Price of
no more than $60 million.


 


(vi)          The Company shall have obtained the
Stockholder Approval described in clause (i) of Section 9(e).


 


(vii)         From
the date hereof until the Closing Date, John M. Eggemeyer shall continue to
serve as the Chairman of the Board of Directors and Daniel M. Quinn shall
continue to serve as the President and Chief Executive Officer of the Company,
and neither person shall have announced their intention to resign from such position.


 


(b)           The obligations of the Company to
consummate the sale of the shares of Convertible Preferred Stock with respect
to each Investor at the Closing as contemplated hereunder are subject to the
fulfillment, prior to or on the Closing Date, of the following conditions:


 


(i)            The representations and warranties of
such Investor in Section 4 shall be true and correct in all
material respects as of the date hereof and at and as of the Closing Date as if
made as of such date, except for representations and warranties made as of a
specified date, which shall be true and correct in all material respects as of
such specified date.


 


(ii)           Such Investor shall have complied in all
material respects with its obligations hereunder that are required to be
complied with at or prior to the Closing.


 


(iii)          No
judgment, injunction, decree or other legal restraint shall prohibit, or have
the effect of rendering unachievable, the consummation of the transactions
contemplated by this Agreement.


 


(iv)          Such Investor shall have obtained all
necessary regulatory approvals applicable to it and, in the case of a
Requesting Investor only, such Requesting Investor shall have received written
confirmation from the Federal Reserve Board of its Non-Control Determination as
to such Requesting Investor.


 


(v)           The Company shall have obtained the
Stockholder Approval described in clause (i) of Section 9(e).


 


Section 8.              Termination.


 


(a)           This Agreement may be terminated at any
time prior to the Closing Date by the Company on the one hand or any of the
Investors on the other hand, by written notice to the other if there is a
material breach of this Agreement by the other party such that Section 7(a) (in
the case of a breach by the Company) or Section 7(b) (in the case of
breach by an Investor)


 


25




















 


would not be satisfied and such breach or condition is not curable or,
if curable, is not cured within thirty (30) days after written notice thereof
is given by the non-breaching party to the breaching party.


 


(b)                                 This
Agreement may be terminated at any time prior to the Closing Date by the
Company on the one hand or any of the Investors on the other hand by written
notice thereof to the other at any time following the date that is 180 days
from the date hereof if the Closing shall not have occurred on or prior to such
date; provided, however, that the right to terminate this Agreement pursuant to
this Section 8(b) shall not be available to any party whose failure
to fulfill any obligation under this Agreement shall have been the cause of, or
shall have resulted in, the failure of the Closing to occur on or prior to such
date.


 


(c)                                  If
an Investor or any of such Investor’s Affiliates receives written notice from
or is otherwise advised by a Governmental Entity that it will not grant (or
intends to rescind or revoke if previously approved) any regulatory approval or
receives written notice from such Governmental Entity that it will not grant
such regulatory approval on the terms contemplated by this Agreement or, in the
case of a Requesting Investor, such Requesting Investor receives written notice
from or is otherwise advised by the Federal Reserve Board that it will not
grant a Non-Control Determination, then this Agreement as between the Company
and such Investor may be terminated by the Company or such Investor by written
notice to the other; provided, that the termination right provided in this Section 8(c) shall
not be available to any party who shall have breached its obligations under
this Agreement in any manner that shall have proximately contributed to such
approval or Non-Control Determination not to be obtained.


 


(d)                                 In
the event of any termination of this Agreement as between the Company and any
Investor as provided in Sections 8(a), (b) or (c), this Agreement
(other than Sections 6(i)(ii), 8, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 25
which shall remain in full force and effect) shall forthwith become wholly void
and of no further force and effect as between the Company and such Investor;
provided, that nothing herein shall relieve any party from liability for a
prior willful material breach of this Agreement.


 


Section 9.                                            Additional
Covenants.


 


(a)                                  Governance
Matters.


 


(i)                                     Upon
the written request of an Institutional Investor, the Company will,
concurrently with the Closing or thereafter in case of a later request, cause
one person nominated by such Institutional Investor (with respect to each
Institutional Investor so requesting, a “Board Representative”)
to be elected or appointed to the Board of Directors, subject to satisfaction
of all legal and governance requirements regarding service as a director of the
Company and to the reasonable approval of the Compensation, Nominating and
Governance Committee of the Board of Directors (such approval not to be
unreasonably withheld or delayed).  After
such appointment or election of a Board Representative, so long as the
Institutional Investor that nominated such Board Representative beneficially
owns (as determined in accordance with Rule 13d-3 under the Exchange Act)
Convertible Preferred Stock convertible into at least 4.9% of the outstanding
shares of Common Stock or 4.9% of the outstanding shares of Common Stock
whether acquired upon conversion of the Convertible 


 


26

















 


Preferred
Stock or otherwise (and treating each Conversion Security that is not a share
of Common Stock as if it had converted into Common Stock), the Company will be
required to recommend to its stockholders the election of the Board
Representative at the Company’s annual meeting, subject to satisfaction of all
legal and governance requirements regarding service as a director of the
Company and to the reasonable approval of the Compensation, Nominating and
Governance Committee of the Board of Directors (such approval not to be
unreasonably withheld or delayed).  If
such Institutional Investor no longer beneficially owns (as determined in
accordance with Rule 13d-3 under the Exchange Act) the minimum number of
shares of the Convertible Preferred Stock or the Common Stock specified in the
prior sentence, such Institutional Investor will have no further rights under
this Section 9(a), and, at the written request of the Board of
Directors, shall use all reasonable best efforts to cause its Board
Representative to resign from the Board of Directors as promptly as possible
thereafter.


 


(ii)                                  Any
Board Representative (including any successor nominee) duly selected in
accordance with Section 9(a)(i) shall, subject to applicable
law, be the Company’s and the Company’s Compensation, Nominating and Governance
Committee’s nominee to serve on the Board of Directors.  The Company shall use all reasonable best
efforts to have the Board Representative elected as a director of the Company
and the Company shall solicit proxies for each such person to the same extent
as it does for any of its other nominees to the Board of Directors.


 


(iii)                               For only so long as any
Institutional Investor has the right to nominate a Board Representative
pursuant to Section 9(a)(i), such Institutional Investor shall have
the power to designate the Board Representative’s replacement upon the death,
resignation, retirement, disqualification or removal from office of such
director.  The Board of Directors will
use its reasonable best efforts to take all action required to fill the vacancy
resulting therefrom with such person (including such person, subject to
applicable law, being the Company’s and the Compensation, Nominating and
Governance Committee’s nominee to serve on the Board of Directors, using all
reasonable best efforts to have such person elected as director of the Company
and the Company soliciting proxies for such person to the same extent as it
does for any of its other nominees to the Board of Directors).


 


(iv)                              Any
Board Representative shall be entitled to the same compensation and same
indemnification in connection with his or her role as a director as the other
members of the Board of Directors, and each Board Representative shall be
entitled to reimbursement for documented, reasonable out-of-pocket expenses
incurred in attending meetings of the Board of Directors or any committees
thereof, to the same extent as the other members of the Board of
Directors.  The Company shall notify each
Board Representative of all regular and special meetings of the Board of
Directors and shall notify each Board Representative of all regular and special
meetings of any committee of the Board of Directors of which the Board
Representative is a member in accordance with the Company’s by-laws as then in
effect.  The Company shall provide each
Board Representative with copies of all notices, minutes, consents and other
materials provided to all other members of the Board of Directors concurrently
as such materials are provided to the other members.


 


(v)                                 At
all times when any Institutional Investor has the right to a Board
Representative as provided in Section 9(a)(i), upon the written
request of such Institutional 


 


27

















 


Investor
and in lieu of such Institutional Investor’s nomination of a Board Representative,
such Institutional Investor may appoint one individual to attend all meetings
of the Board of Directors and all committees thereof (the “Observer”)
and pursuant to subsection (vi) hereof the board of directors of the Bank
and all committees thereof, which individual shall be reasonably acceptable to
the Board of Directors (such approval not to be unreasonably withheld or
delayed); provided that the appointment by an
Institutional Investor of an Observer shall not prevent such Institutional
Investor from nominating a Board Representative in lieu of an Observer at a
future time.  No Observer shall have any
right to vote on any matter presented to the Board of Directors or any
committee thereof.  The Company shall
give each Observer written notice of each meeting thereof at the same time and
in the same manner as the members of the Board of Directors, shall provide each
Observer with all written materials and other information given to members of
the Board of Directors at the same time such materials and information are
given to the members of the Board of Directors and shall permit each Observer
to attend as an observer at all meetings thereof, and in the event the Company
proposes to take any action by written consent in lieu of a meeting, the
Company shall give written notice thereof to such Observer prior to the
effective date of such consent describing the nature and substance of such
action and including the proposed text of such written consents; provided, however, that (A) any
Observer may be excluded from executive sessions comprised solely of
independent directors by the lead or presiding independent director if, in his
good faith judgment, such exclusion is to facilitate candid discussion of
particularly sensitive matters (it being understood that it is not expected
that Observers would be excluded from routine executive sessions), (B) the
Company or the Board of Directors shall have the right to withhold any
information and to exclude any Observer from any meeting or portion thereof (1) if
doing so is, in the reasonable good faith judgment of the Company, after
consultation with counsel, advisable or necessary to protect the
attorney-client privilege between the Company and counsel or (2) if the
Board of Directors reasonably determines in good faith, after consultation with
counsel, that attendance by such Observer would conflict with fiduciary
requirements under applicable law and (C) such Institutional Investor
shall cause its Observer to agree to hold in confidence and trust and to act in
a fiduciary manner with respect to all information provided to such
Observer.  Each Institutional Investor
covenants and agrees to hold all such information obtained from its Observer as
provided in the prior sentence in confidence pursuant to the Confidentiality
Agreement.


 


(vi)                              So
long as any Institutional Investor has the right to appoint a Board
Representative pursuant to Section 9(a)(i), such Institutional
Investor shall have the right to either nominate one person (the “Bank Board Representative”) to be
elected or appointed as director to the board of directors of the Bank (the “Bank Board”) or to appoint one
person to attend all meetings of the Bank Board and all committees thereof as
an observer (the “Bank Board Observer”); provided that the appointment by an Institutional Investor
of a Bank Board Observer shall not prevent such Institutional Investor from
nominating a Bank Board Representative in lieu of a Bank Board Observer at a
future time.  The obligations of the
Company otherwise with respect to, and the conditions on the appointment and,
if applicable, directorship of, the Bank Board Representative and the Bank
Board Observer shall be substantially the same as those with respect to or
applicable to the Board Representative and Observer, respectively.


 


(vii)                           The rights provided by this Section 9(a) are
personal to each Institutional Investor and in no event shall such rights be
assignable.


 


28

















 


(b)                                 Reservation
for Issuance.  The Company shall at
all times reserve and keep available, out of its authorized but unissued
Conversion Securities, solely for the purpose of effecting the conversion of
shares of the Convertible Preferred Stock, the full number of Conversion
Securities issuable upon the conversion of all the shares of the Convertible
Preferred Stock from time to time outstanding.


 


(c)                                  Indemnification.


 


(i)                                     The
Company agrees to indemnify, defend and hold harmless each Investor and its
Affiliates and each of their respective officers, directors, partners, members
and employees, and each Person who controls such Investor within the meaning of
the Exchange Act and the regulations thereunder, to the fullest extent lawful,
from and against any and all actions, suits, claims, proceedings, costs,
losses, liabilities, damages, expenses (including reasonable attorneys’ fees
and disbursements), amounts paid in settlement and other costs (collectively, “Losses”) arising out of or resulting
from (1) any inaccuracy in or breach of the Company’s representations or
warranties in this Agreement, (2) any breach of agreements or covenants in
this Agreement (other than any Losses to the extent attributable to the acts,
errors or omissions on the part of such Investor), and (3) any action, suit, claim, proceeding or investigation by any
Governmental Entity, stockholder of the Company or any other person (other than
the Company) relating to this Agreement or the transactions contemplated hereby
(other than any Losses to the extent attributable to the acts, errors or
omissions on the part of such Investor).


 


(ii)                                  Each
Investor agrees to indemnify and hold harmless the Company and its Affiliates
and each of their respective officers, directors, partners, members and
employees, and each Person who controls the Company within the meaning of the
Exchange Act and the regulations thereunder, to the fullest extent lawful, from
and against any and all Losses arising out of or resulting from (1) any
inaccuracy in or breach of such Investor’s representations or warranties in
this Agreement, and (2) any breach of such Investor’s agreements or
covenants in this Agreement (other than any Losses to the extent attributable
to the acts, errors or omissions on the part of the Company).


 


(iii)                               A party entitled to
indemnification hereunder (each, an “Indemnified Party”)
shall give written notice to the party indemnifying it (the “Indemnifying Party”) of any claim
with respect to which it seeks indemnification promptly after the discovery by
such Indemnified Party of any matters giving rise to a claim for
indemnification; provided, however, that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 9(c) unless
and to the extent that the Indemnifying Party shall have been actually
prejudiced by the failure of such Indemnified Party to so notify such
party.  Such notice shall describe in
reasonable detail such claim.  In case
any such action, suit, claim or proceeding is brought against an Indemnified
Party, the Indemnified Party shall be entitled to hire, at its own expense,
separate counsel and participate in the defense thereof; provided,
however, that the Indemnifying Party shall be entitled to assume and
conduct the defense thereof, unless the counsel to the Indemnified Party
advises such Indemnifying Party in writing that such claim involves a conflict
of interest (other than one of a monetary nature) that would reasonably be
expected to make it inappropriate for the same counsel to represent both the
Indemnifying Party and the Indemnified Party, in which case the Indemnified
Party shall be entitled to retain its own counsel at the cost and expense of 


 


29

















 


the
Indemnifying Party (except that the Indemnifying Party shall only be liable for
the legal fees and expenses of one law firm for all Indemnified Parties, taken
together with respect to any single action or group of related actions).  If the Indemnifying Party assumes the defense
of any claim, all Indemnified Parties shall thereafter deliver to the
Indemnifying Party copies of all notices and documents (including court papers)
received by the Indemnified Party relating to the claim, and each Indemnified
Party shall cooperate in the defense or prosecution of such claim.  Such cooperation shall include the retention
and (upon the Indemnifying Party’s request) the provision to the Indemnifying
Party of records and information that are reasonably relevant to such claim,
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.  The Indemnifying Party shall not be liable
for any settlement of any action, suit, claim or proceeding effected without
its written consent; provided, however,
that the Indemnifying Party shall not unreasonably withhold or delay its
consent.  The Indemnifying Party further
agrees that it will not, without the Indemnified Party’s prior written consent
(which shall not be unreasonably withheld or delayed), settle or compromise any
claim or consent to entry of any judgment in respect thereof in any pending or
threatened action, suit, claim or proceeding in respect of which
indemnification has been sought hereunder unless such settlement or compromise
includes an unconditional release of such Indemnified Party from all liability
arising out of such action, suit, claim or proceeding.


 


(iv)                              The
Company shall not be required to indemnify the Indemnified Parties pursuant to Section 9(c)(i)(1),
(1) with respect to any claim for indemnification if the amount of Losses
with respect to such claim (including a series of related claims) are less than
$50,000 (any claim involving Losses less than such amount being referred to as
a “De Minimis Claim”) and (2) unless
and until the aggregate amount of all Losses incurred with respect to all
claims (including De Minimis Claims) pursuant to Section 9(c)(i)(1) exceed
$500,000 (the “Deductible”), in which event
the Company shall be responsible for only the amount of such Losses in excess
of the Deductible.  No Investor shall be
required to indemnify the Indemnified Parties pursuant to Section 9(c)(ii)(1),
(1) with respect to any De Minimis Claim and (2) unless and until the
aggregate amount of all Losses incurred with respect to all claims (including
De Minimis Claims) pursuant to Section 9(c)(ii)(1) exceed the
Deductible, in which event such Investor shall be responsible for only the
amount of such Losses in excess of the Deductible.  The cumulative indemnification obligation of (1) the
Company to each Investor and all of the Indemnified Parties affiliated with (or
whose claims are permitted by virtue of their relationship with) such Investor
or (2) an Investor to the Company and the Indemnified Parties affiliated
with (or whose claims are permitted by virtue of their relationship with) the
Company, in each case for inaccuracies in or breaches of representations and
warranties, shall in no event exceed the Purchase Price for such Investor.


 


(v)                                 Any
claim for indemnification pursuant to Section 9(c)(i)(1) or 9(c)(ii)(1) for
breach of any representation or warranty can only be brought on or prior to the
date that is twelve (12) months after the Closing Date; provided that if
notice of a claim for indemnification pursuant to Section 9(c)(i)(1) or
9(c)(ii)(1) for breach of any representation or warranty is brought
prior to such date, then the obligation to indemnify in respect of such breach
shall survive as to such claim, until such claim has been finally resolved.


 


30

















 


(vi)                              The
indemnity provided for in this Section 9(c) shall be the sole
and exclusive remedy of the Indemnified Parties after the Closing for any
inaccuracy of any representation or warranty or any other breach of any covenant
or agreement contained in this Agreement; provided that
nothing herein shall limit in any way any such party’s remedies in respect of
fraud by any other party in connection with the transactions contemplated
hereby. No party to this Agreement (or any of its Affiliates) shall, in any
event, be liable or otherwise responsible to any other party (or any of its
Affiliates) for any consequential or punitive damages of such other party (or
any of its Affiliates) arising out of or relating to this Agreement or the
performance or breach hereof.


 


(vii)                           Any indemnification payments
pursuant to this Section 9(c) shall be treated as an
adjustment to the Purchase Price for the Convertible Preferred Stock for U.S.
federal income and applicable state and local Tax purposes, unless a different
treatment is required by applicable law.


 


(d)                                 Exchange
Listing.  The Company shall promptly
use its reasonable best efforts to cause the shares of Common Stock reserved
for issuance pursuant to the conversion of the shares of the Convertible
Preferred Stock to be approved for listing on the NASDAQ Stock Market or other
national securities exchange that, at such time, is the Company’s primary
listing exchange as promptly as practicable.


 


(e)                                  Stockholder
Meeting.  The Company shall call a
special meeting of its stockholders, as promptly as reasonably practicable
following the date hereof, to approve (i) the conversion of the shares of
the Convertible Preferred Stock and the Series B Preferred Stock, subject
to the limitations set forth below, into Common Stock at the Conversion Price,
including any adjustments thereto, pursuant to the terms specified in the
Certificate of Designations; and (ii) an amendment to the Certificate of
Incorporation authorizing the creation of a separate series or class of common
stock identical in all respects to the Common Stock provided that such series
or class shall expressly state that it has no voting rights and for conversion
of such shares of non-voting Common Stock into shares of Common Stock upon transfer
to any Person other than Castle Creek, Patriot or Relational or one of their
respective Affiliates on a share for share basis (subject to customary
anti-dilution adjustments) (such approvals collectively, the “Stockholder Approval”).  The Board of Directors, to the extent it is
consistent with their fiduciary duties, shall recommend to the Company’s
stockholders that such stockholders vote in favor of the proposals required by
this Section 9(e).  In
connection with such meeting, the Company shall promptly, but in any event no
later than 30 days after the date hereof, prepare and file with the Commission
a preliminary proxy statement, shall use its reasonable best efforts to respond
to any comments of the Commission or its staff and to cause a definitive proxy
statement related to such stockholders’ meeting to be mailed to the Company’s
stockholders as soon as practicable after clearance thereof by the Commission
staff, and, subject to the fiduciary duties of the Board of Directors, shall
use its reasonable best efforts to solicit proxies for such Stockholder
Approval.  No filing of, or amendment or
supplement to, or correspondence with the Commission or its staff with respect
to, the proxy statement will be made by the Company without providing the
Investors a reasonable opportunity to review and comment thereon (provided that
this sentence shall not apply to any current or periodic report filed by the
Company under the Exchange Act). As soon as reasonably practicable following
the date hereof, the Company, Castle Creek, Patriot and Relational shall
negotiate in good faith and agree upon the form of amendment to the 


 


31

















 


Certificate
of Incorporation to give effect to clause (ii) above and, in the event
that Stockholder Approval of such amendment is not obtained at the special
meeting of stockholders, a form of Certificate of Designations with respect to
a Series B preferred stock of the Company that shall provide (w) expressly
that such Series B preferred stock has no voting rights; (x) for
participation by the holders of such Series B preferred stock together
with the holders of Common Stock in any dividend declared with respect to the
Common Stock or any distribution upon liquidation, winding-up or dissolution of
the Company; (y) to the extent the parties reasonably determine that a
preference right is required under the DGCL, for a liquidation preference of no
more than $0.01 per share; and (z) for conversion of such shares of Series B
preferred stock into shares of Common Stock upon transfer to any Person other
than Castle Creek, Patriot or Relational or one of their respective Affiliates
on a share-for-share basis (subject to customary anti-dilution
adjustments).  In the event that the
Stockholder Approval of the amendment to the Certificate of Incorporation
contemplated by clause (ii) above is not obtained at the special meeting
of stockholders, the Company shall promptly thereafter file with the Delaware
Secretary of State the Certificate of Designations contemplated by the
immediately preceding sentence.


 


Section 10.                                      Registration
Rights.


 


(a)                                  Registration.


 


(i)                                     Subject
to the terms and conditions of this Agreement, the Company covenants and agrees
that no later than the date that is six months after the initial Closing Date,
the Company shall have prepared and filed with the Commission a Shelf
Registration Statement covering all Registrable Securities, and, to the extent
the Shelf Registration Statement has not theretofore been declared effective,
the Company shall use reasonable best efforts to cause such Shelf Registration
Statement to be declared or become effective not later than the date that is
one year after the initial Closing Date and to keep such Shelf Registration
Statement continuously effective and in compliance with the Securities Act and
usable for resale of such Registrable Securities for a period from the date of
its initial effectiveness until such time as there are no Registrable
Securities remaining (including by refiling such Shelf Registration Statement
(or a new Shelf Registration Statement) if the initial Shelf Registration
Statement expires).  If the Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities
Act) at the time of filing of the Shelf Registration Statement with the
Commission, such Shelf Registration Statement shall be designated by the
Company as an automatic Shelf Registration Statement.


 


(ii)                                  Any
registration pursuant to this Section 10 shall be effected by means
of a shelf registration under the Securities Act (a “Shelf
Registration Statement”) in accordance with the methods and
distribution set forth in the Shelf Registration Statement and Rule 415.
If any Investor or any other Holder to whom the registration rights conferred
by this Agreement have been transferred in compliance with this Agreement
intends to distribute any Registrable Securities by means of an underwritten
offering (a “Registration Demand”) it
shall promptly so advise the Company in writing and the Company shall take all
reasonable steps to facilitate such distribution, including the actions
required pursuant to Section 10(c)(iii); provided,
that the Holders collectively will not be entitled to initiate more than two
such Registration Demands, and the Company will not be obligated to facilitate
an underwritten 


 


32

















 


offering
of Registrable Securities unless the expected gross proceeds from such offering
exceed $7,500,000.  The managing
underwriters in any such offering shall be selected by the holders of a
majority of the Registrable Securities to be distributed.


 


(iii)                               The Company shall not be
required to effect a registration or a resale of Registrable Securities from an
effective Shelf Registration Statement pursuant to this Section 10
(it being understood that the obligation to file and cause the Shelf
Registration to become and remain effective shall remain in effect and shall
not be affected by this paragraph (iii)): (1) with respect to any
Registrable Securities that cannot be sold under a registration statement as a
result of the transfer restrictions set forth herein; (2) with respect to
securities that are not Registrable Securities; (3) during any Scheduled
Black-out Period; or (4) if the Company has notified the Investors that in
the good faith judgment of the Board of Directors, it would be materially
detrimental to the Company or its stockholders for such registration to be
effected at such time, in which event the Company shall have the right to defer
such registration; provided,  that the Company’s right to delay or otherwise not effect a
registration pursuant to clauses (3) or (4) shall be exercised by the
Company (A) to the extent the Company has extended registration rights to
holders of similar securities, only if the Company has generally exercised (or
is concurrently exercising) similar black-out rights against such holders and (B) not
more than twice in any 12-month period and not more than 90 days in the
aggregate in any 12-month period.


 


(iv)                              In
addition to the provisions contained in Sections 10(a)(ii), if the
Company shall at any time after the expiration of transfer restrictions set
forth herein seek to register under the Securities Act for sale to the public
in an underwritten offering any of its equity securities (other than a
registration on Form S-4 or Form S-8, or any successor or other forms
promulgated for similar purposes), whether for its own account or for the
account of the Company’s stockholders, and if the form of registration
statement proposed to be used may be used for the registration of Registrable
Securities, on each such occasion it shall promptly furnish each Holder with
prior written notice thereof (but in no event less than five Business Days
prior to the anticipated filing date). 
At the written request of any Holder, given (i) at a time when such
Holder beneficially owns 5% or more of the outstanding shares of Common Stock
or 5% or more of the outstanding shares of Convertible Preferred Stock and (ii) within
five days after the receipt of such notice, to register any of such Holder’s
Registrable Securities, the Company will cause such Registrable Securities, for
which registration shall have been requested, to be included in such
registration statement in an amount so as to permit the sale or other
disposition by such Holder as part of such underwritten public offering of such
Registrable Securities as are registered, provided, that
if the managing underwriter shall advise the Company in writing that, in its
opinion, the number of securities requested and otherwise proposed to be
included in such offering exceeds the number that can be sold without adversely
affecting the marketability of the offering, the Company will include in such
registration to the extent of the number which the Company is so advised can be
sold in such offering, first, the securities the Company or its stockholders
propose to sell in such registration and second, the Registrable Securities of
any Holders that are requested to be included in such registration, pro rata on
the basis of the aggregate number of securities owned by each such Holder,
which, in the opinion of such managing underwriter, can be sold without having
the adverse effect referred to above.  In
the event of a registration pursuant to this Section 10(a)(iv), the
right of any Holder to registration shall be conditioned upon such Holder’s
completion and execution of all questionnaires, powers 


 


33

















 


of
attorney, indemnities, lock-up letters, underwriting agreements and other
documents and requests for information required under the terms of such
underwriting arrangements.


 


(b)                                 Expenses.  All expenses incurred by the Company in
complying with this Section 10, including all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company and the Holders, fees of the
Financial Industry Regulatory Authority, listing or quotation fees, and fees of
transfer agents and registrars, shall be borne in full by the Company.  Each Holder shall be responsible for all of
its expenses, including fees and disbursements of its counsel and underwriting
commissions, transfer taxes, discounts and fees with respect to Registrable Securities.


 


(c)                                  Obligations
of the Company. Whenever required to effect the registration of any
Registrable Securities or facilitate the distribution of Registrable Securities
pursuant to an effective registration statement, the Company shall, as
expeditiously as practicable:


 


(i)                                     Prepare
and file with the Commission a prospectus supplement with respect to a proposed
offering of Registrable Securities pursuant to an effective registration
statement and, subject to Section 10(d), keep such registration
statement effective or such prospectus supplement current;


 


(ii)                                  Prepare
and file with the Commission such amendments and supplements to the applicable
registration statement and the prospectus or prospectus supplement used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;


 


(iii)                               Furnish to the Holders
and any underwriters such number of copies of the applicable registration
statement and each such amendment and supplement thereto (including in each
case all exhibits) and of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned or to be distributed by them;


 


(iv)                              Use
its reasonable best efforts to register and qualify the securities covered by
such registration statement under such other securities or blue sky laws of
such jurisdictions as shall be reasonably requested by the Holders or any
managing underwriter(s), to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and to take any
other action which may be reasonably necessary to enable such seller to
consummate the disposition in such jurisdictions of the securities owned by
such Holder; provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions;


 


(v)                                 Notify
each Holder at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a result of
which the applicable prospectus, as then in effect, includes an untrue
statement of a material fact 


 


34

















 


or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;


 


(vi)                              Give
written notice to the Holders:


 


(A)                              when
any registration statement filed pursuant to Section 10(a) or
any amendment thereto has been filed with the Commission and when such registration
statement or any post-effective amendment thereto has become effective;


 


(B)                                of
the issuance by the Commission of any stop order suspending the effectiveness
of any registration statement or the initiation of any proceedings for that
purpose;


 


(C)                                of
the receipt by the Company or its legal counsel of any notification with
respect to the suspension of the qualification of the Common Stock for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose;


 


(D)                               of
any request by the Commission for amendments or supplements to any registration
statement or the prospectus included therein or for additional information; and


 


(E)                                 of
the happening of any event that requires the Company to make changes in any
effective registration statement or the prospectus related to the registration
statement in order to make the statements therein not misleading (which notice
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made);


 


(vii)                           Use its reasonable best
efforts to prevent the issuance or obtain the withdrawal of any order
suspending the effectiveness of any registration statement referred to in Section 10(c)(vi)(B) at
the earliest practicable time;


 


(viii)                        Upon the occurrence of any
event contemplated by Section 10(c)(v) or Section 10(c)(vi)(E),
promptly prepare a post-effective amendment to such registration statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to the Holders and any underwriters, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company
notifies the Holders in accordance with Section 10(c)(v) or Section 10(c)(vi)(E) to
suspend the use of the prospectus until the requisite changes to the prospectus
have been made, then the Holders and any underwriters shall suspend use of such
prospectus and use their reasonable best efforts to return to the Company all
copies of such prospectus (at the Company’s expense) other than permanent file
copies then in such Holder’s or underwriter’s possession.  The
total number of days that any such suspension may be in effect in any one-year
period shall not exceed 90 days;


 


35
















 


(ix)                                With
respect to any underwritten offering effected pursuant to the terms of this Section 10,
enter into an underwriting agreement in customary form, scope and substance and
take all such other actions reasonably requested by the Holders of a majority
of the Registrable Securities being sold in connection therewith or by the
managing underwriter(s), if any, to use reasonable best efforts to expedite or
facilitate the underwritten disposition of such Registrable Securities,
including (A) making such representations
and warranties to the managing underwriter(s), if any, with respect to the
business of the Company and its subsidiaries, and the registration statement,
prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in customary form, substance and scope, and,
if true, confirm the same if and when requested; (B) using its
commercially reasonable best efforts to furnish underwriters opinions of
counsel to the Company, addressed to the managing underwriter(s), if any,
covering the matters customarily covered in such opinions requested in
underwritten offerings; (C) using its commercially reasonable best efforts
to obtain “cold comfort” letters from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any business acquired by the Company for which financial
statements and financial data are included in the registration statement) who
have certified the financial statements included in such registration
statement, addressed to each of the managing underwriter(s), if any, such
letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters; (D) agreeing to such indemnification provisions
and procedures as are customary in underwritten offerings; and (E) delivering
such documents and certificates as may be reasonably requested by the managing
underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (A) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company;


 


(x)                                   Make
available for inspection by a representative of Holders that are selling
stockholders, the managing underwriter(s), if any, and any attorneys or
accountants retained by such Holders or managing underwriter(s), at the offices
where normally kept, during reasonable business hours, financial and other
records, pertinent corporate documents and properties of the Company, and cause
the officers, directors and employees of the Company to supply all information
in each case reasonably requested by any such representative, managing
underwriter(s), attorney or accountant in connection with such registration
statement;


 


(xi)                                If
requested by Holders of a majority of the Registrable Securities being
registered and/or sold in connection therewith, or the managing underwriter(s),
if any, promptly include in a prospectus supplement or amendment such
information as the Holders of a majority of the Registrable Securities being
registered and/or sold in connection therewith or managing underwriter(s), if
any, may reasonably request in order to permit the intended method of distribution
of such securities and make all required filings of such prospectus supplement
or such amendment as soon as reasonably practicable after the Company has
received such request; and


 


(xii)                             Cause all such Registrable
Securities (other than Preferred Stock and non-voting Common Stock) to be
listed on the NASDAQ Stock Market or such other securities exchange on which
similar securities issued by the Company are then listed other than Preferred
Stock and non-voting Common Stock.


 


36

















 


(d)                                 Suspension
of Sales. During any Scheduled Black-out Period and upon receipt of written
notice from the Company that a registration statement, prospectus or prospectus
supplement contains or may contain an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that circumstances exist that
make inadvisable use of such registration statement, prospectus or prospectus
supplement, each Holder shall forthwith discontinue disposition of Registrable
Securities until termination of such Scheduled Black-out Period or until the
Investors and/or such Holder has received copies of a supplemented or amended
prospectus or prospectus supplement, or until such Holder is advised in writing
by the Company that the use of the prospectus and, if applicable, prospectus
supplement may be resumed. The total
number of days that any such suspension may be in effect in any one-year period
shall not exceed 90 days.


 


(e)                                  Termination
of Registration Rights. A Holder’s registration rights as to any securities
held by such Holder (and its Affiliates, partners, members and former members)
shall not be available unless such securities are Registrable Securities.


 


(f)                                    Furnishing
Information; “Market Stand-Off” Agreement.


 


(i)                                     Neither
the Investors nor any Holder shall use any “free writing prospectus” (as
defined in Rule 405) in connection with the sale of Registrable Securities
without the prior written consent of the Company.


 


(ii)                                  It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to Section 10(c) that the Investors and/or the
other selling Holders and the underwriters, if any, shall furnish to the
Company such information regarding themselves, the Registrable Securities held
by them and the intended method of disposition of such securities as shall be
required to effect the registered offering of their Registrable Securities.


 


(iii)                               Each Investor and each
Holder hereby agrees: (A) that it shall not sell, transfer, make any short
sale of, grant any option for the purchase of, or enter into any hedging or
similar transaction with the same economic effect as a sale with respect to any
common equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any common equity securities of the Company
held by it (other than those included in the registration) for a period
specified by the representatives of the underwriters of the common equity or
equity-related securities not to exceed a period beginning ten days prior to
and ending 90 days following the effective date of any firm commitment
underwritten registered sale of common equity securities of the Company or any
securities convertible into or exchangeable or exercisable for any common
equity securities of the Company by the Company for the Company’s own account
in which the Company gave Investor an opportunity to participate in accordance
with Section 10(a)(iv); provided, that
the executive officers and directors of the Company enter into similar
agreements and only if such persons remain subject thereto (and are not
released from such agreement) for such period; and (B) to execute and
deliver such other agreements as may be reasonably requested by the Company or
the representatives of the underwriters which are consistent with the foregoing
obligation in Section 10(f) or which are necessary to give
further effect thereto.  Notwithstanding
anything to the contrary in this Section 10(f)(iii), nothing herein
will prevent any such Investor or Holder from making any distribution of
Registrable Securities to the partners or shareholders thereof or 


 


37

















 


a
transfer to an Affiliate that is otherwise in compliance with applicable
securities laws and Section 6(e)(ii)(A).


 


(g)                                 Indemnification.


 


(i)                                     The
Company agrees to indemnify each Holder and, if a Holder is a person other than
an individual, such Holder’s officers, directors, employees, agents,
representatives and Affiliates, and each Person, if any, that controls a Holder
within the meaning of the Securities Act (a “Registration
Indemnitee”), against any and all Losses, joint or several,
arising out of or based upon any untrue statement or alleged untrue statement
of material fact contained in any registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto or any documents incorporated therein by reference or
contained in any free writing prospectus (as such term is defined in Rule 405
under the Securities Act) prepared by the Company or authorized by it in
writing for use by such Holder (or any amendment or supplement thereto); or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, that
the Company shall not be liable to such Registration Indemnitee in any such
case to the extent that any such Loss is based upon (i) an untrue
statement or omission made in such registration statement, including any such
preliminary prospectus or final prospectus contained therein or any such
amendments or supplements thereto or contained in any free writing prospectus
(as such term is defined in Rule 405 under the Securities Act) prepared by
the Company or authorized by it in writing for use by such Holder (or any
amendment or supplement thereto), in reliance upon and in conformity with
information regarding such Registration Indemnitee or its plan of distribution
or ownership interests which was furnished in writing to the Company by such
Registration Indemnitee for use in connection with such registration statement,
including any such preliminary prospectus or final prospectus contained therein
or any such amendments or supplements thereto or (ii) offers or sales
effected by or on behalf of such Indemnitee “by means of” (as defined in Rule 159A)
a “free writing prospectus” (as defined in Rule 405) that was not
authorized in writing by the Company.


 


(ii)                                  Each
Investor agrees to indemnify the Company and its officers, directors,
employees, agents, representatives and Affiliates, and each Person, if any,
that controls the Company within the meaning of the Securities Act (a “Company Registration Indemnitee”)
against any and all Losses, joint or several, arising out of or based (i) any
untrue statement or omission made in any registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto or contained in any free writing prospectus (as such
term is defined in Rule 405 under the Securities Act) prepared by the
Company or authorized by it in writing for use by such Investor (or any
amendment or supplement thereto), in reliance upon and in conformity with
information regarding such Investor or its plan of distribution or ownership
interests which was furnished in writing to the Company by such Investor for
use in connection with such registration statement, including any such
preliminary prospectus or final prospectus contained therein or any such
amendments or supplements thereto or (ii) offers or sales effected by or
on behalf of such Investor “by means of” (as defined in Rule 159A) a “free
writing prospectus” (as defined in Rule 405) that was not authorized in
writing by the Company; provided, however, that
the total amounts payable in 


 


38

















 


indemnity by an Investor under this Section in
respect of any Losses shall not exceed the net proceeds received by such
Investor in the registered offering out of which such Losses arise.


 


(iii)                               If the indemnification
provided for in Section 10(g)(i) is unavailable to a
Registration Indemnitee with respect to any Losses referred to therein or is
insufficient to hold the Registration Indemnitee harmless as contemplated
therein, then the Company, in lieu of indemnifying such Registration
Indemnitee, shall contribute to the amount paid or payable by such Registration
Indemnitee as a result of such Losses in such proportion as is appropriate to
reflect the relative fault of the Registration Indemnitee, on the one hand, and
the Company, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, actions, liabilities, costs or
expenses as well as any other relevant equitable considerations. The relative
fault of the Company, on the one hand, and of the Registration Indemnitee, on
the other hand, shall be determined by reference to, among other factors,
whether the untrue statement of a material fact or omission to state a material
fact relates to information supplied by the Company or by the Registration
Indemnitee and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; the Company
and each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 10(g)(iii) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 10(g)(i). No
Registration Indemnitee guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Company if the Company was not guilty of such fraudulent
misrepresentation.


 


(iv)                              If
the indemnification provided for in Section 10(g)(ii) is
unavailable to the Company Registration Indemnitee with respect to any Losses
referred to therein or is insufficient to hold the Company Registration
Indemnitee harmless as contemplated therein, then any such Investor who would
have been required to Indemnify the Company under Section 10(g)(ii),
in lieu of indemnifying the Company Registration Indemnitee, shall contribute
to the amount paid or payable by such Company Registration Indemnitee as a
result of such Losses in such proportion as is appropriate to reflect the
relative fault of such Investor, on the one hand, and the Company Registration
Indemnitee, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, actions, liabilities, costs or
expenses as well as any other relevant equitable considerations; provided, however, that
the total amounts payable in contribution by an Investor under this Section in
respect of any Losses shall not exceed the net proceeds received by such
Investor in the registered offering out of which such Losses arise. The
relative fault of such Investor, on the one hand, and of the Company
Registration Indemnitee, on the other hand, shall be determined by reference
to, among other factors, whether the untrue statement of a material fact or
omission to state a material fact relates to information supplied by such
Investor or by the Company Registration Indemnitee and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; such Investor and each Company Registration
Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 10(g)(iv) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 10(g)(ii). No
Company Registration Indemnitee guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from such Investor if the Company Registration Indemnitee was
not guilty of such fraudulent misrepresentation.


 


39

















 


(h)                                 Assignment
of Registration Rights. The rights of each Investor with respect to the
registration of Registrable Securities pursuant to Section 10 may
be assigned by such Investor in connection with a transfer of shares of Common
Stock representing at least 3% of the Company’s then outstanding shares of
Common Stock (or shares of Convertible Preferred Stock representing at least 3%
of the Company’s then outstanding shares of Common Stock, giving effect to the
conversion thereof and treating each Conversion Security that is not a share of
Common Stock as if it had converted into Common Stock); provided,
however, that the Company shall have no obligations with respect to
such transferee or assignee until such time as such Investor or such transferee
or assignee shall have furnished to the Company written notice of the name and
address of such transferee or assignee and the number and type of Registrable
Securities that were assigned.


 


(i)                                     Rule 144
Reporting. With a view to making available to the Investors and other
Holders the benefits of certain rules and regulations of the Commission
which may permit the sale of the Registrable Securities to the public without registration,
the Company agrees to use its reasonable best efforts to:


 


(i)                                     make
and keep public information available, as those terms are understood and
defined in Rule 144(c)(1) or any similar or analogous rule promulgated
under the Securities Act, at all times after the effective date of this
Agreement;


 


(ii)                                  (A) file
with the Commission, in a timely manner, all reports and other documents
required of the Company under the Exchange Act and (B) if at any time the
Company is not required to file such reports, make available, upon request of
any Holder, such information necessary to permit sales pursuant to Rule 144A
(including the information required by Rule 144A(d)(4) under the
Securities Act); and


 


(iii)                               so long as an Investor
or any other Holder owns any Registrable Securities, furnish to any such
Investor or such Holder promptly upon written request: a written statement by
the Company as to its compliance with the reporting requirements of (A) Rule 144
under the Securities Act and (B) the Exchange Act; a copy of the most
recent annual or quarterly report of the Company; and such other reports and
documents as such Investor or such Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing it to sell any
such securities without registration.


 


Section 11.                                      Survival.  The representations and warranties of the
Company contained in this Agreement or in any certificate delivered hereunder
shall survive the Closing only for the period set forth in Section 9(c) (or until final resolution of any claim or
action arising from the breach of any such representation and warranty, if
notice of such breach was provided prior to the end of such period in
accordance with the terms of this Agreement), and thereafter each
representation and warranty shall expire and have no further force and effect.


 


Section 12.                                      Notices.  All notices, communications and deliveries
required or permitted by this Agreement shall be made in writing signed by the
party making the same, shall specify the Section of this Agreement
pursuant to which it is given or being made and shall be deemed given or made (i) on
the date delivered if delivered by telecopy or in person, (ii) on the
third (3rd) Business Day after it is mailed if mailed by registered or certified
mail (return receipt 


 


40

















 


requested)
(with postage and other fees prepaid) or (iii) on the day after it is
delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:


 


	
  (a)

  	
  if to the Company, at:

  
	
   

  	
   

  
	
   

  	
  Guaranty Bancorp

  
	
   

  	
  1331 17th Street Suite 300

  
	
   

  	
  Denver, CO 80202-1566

  
	
   

  	
  Attention: Paul Taylor

  
	
   

  	
  Facsimile: (303) 675-1179

  
	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Sullivan & Cromwell LLP

  
	
   

  	
  1888 Century Park East, Suite 2100

  
	
   

  	
  Los Angeles, CA 90067

  
	
   

  	
  Attention: Patrick S. Brown, Esq.

  
	
   

  	
  Facsimile: (310) 712-8800

  
	
   

  	
   

  
	
  (b)

  	
  if to the Investors, at the addresses designated in Annex A

  
	
   

  	
   

  
	
   

  	
  with a copy in the case of Patriot (which shall not
  constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Elias, Matz,
  Tiernan & Herrick L.L.P.

  
	
   

  	
  734 15th Street, N.W., 11th Floor

  
	
   

  	
  Washington, D.C. 20005

  
	
   

  	
  Attention: 

  	
  Raymond A.
  Tiernan, Esq.

  
	
   

  	
   

  	
  Philip R. Bevan, Esq.

  
	
   

  	
  Facsimile: (202) 347-2172

  
	
   

  	
   

  
	
   

  	
  with a copy in the case of Relational (which copy
  shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Latham & Watkins LLP

  
	
   

  	
  12636 High Bluff Drive, Suite 400

  
	
   

  	
  San Diego, California
  92130

  
	
   

  	
  Attention: Craig M.
  Garner, Esq.

  
	
   

  	
  Facsimile: (858) 523-5450

  



 


or to such other representative or at such other address of a party as
such party hereto may furnish to the other parties in writing in accordance
with this Section 12.  If
notice is given pursuant to this Section 12 of any assignment to a
permitted successor or assign of a party hereto, the notice shall be given as
set forth above to such successor or permitted assign of such party.


 


Section 13.                                      Assignment.  This Agreement shall not be assigned by
operation of law or otherwise, except that each Investor may assign all or any
portion of its rights under this 


 


41

















 


Agreement
to any of its Affiliates under common control with such Investor’s ultimate
parent, general partner or investment advisor; provided,
that any such assignment shall not relieve such Investor of any liability or
other obligation under this Agreement; provided  further, that nothing in this Section 13 shall
interfere with the right of such Investor to assign its registration rights in
accordance with Section 10(b). 
This Agreement will be binding upon, and will inure to the benefit of
and be enforceable by, the parties hereto and their respective successors and
assigns.


 


Section 14.                                      Entire
Agreement.  This Agreement embodies
the entire agreement and understanding between the parties hereto in respect of
the subject matter contained herein. 
This Agreement supersedes all prior written and prior or contemporaneous
oral agreements and understandings between the parties with respect to the
subject matter of this Agreement.


 


Section 15.                                      Governing
Law.  This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
Colorado, without giving effect to conflicts of law principles or other
principles that would require the application of any other law.


 


Section 16.                                      Severability.  If any provision of this Agreement or the
application thereof to any Person or circumstances is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner adverse
to any party.  Upon such determination,
the parties shall negotiate in good faith in an effort to agree upon a suitable
and equitable substitute provision to effect the original intent of the
parties.


 


Section 17.                                      Expenses.  With respect to any Institutional Investor,
in the event (i) the Closing occurs, or (ii) the transactions
contemplated hereof with respect to such Institutional Investor are not
consummated other than due to a breach by such Institutional Investor of any of
its obligations under this Agreement or the failure of such Institutional
Investor to receive a Non-Control Determination from the Federal Reserve Board,
the Company will reimburse such Institutional Investor for its reasonable
documented out-of-pocket expenses incurred in connection with its due diligence
and the preparation and negotiation of this Agreement and the transactions
contemplated thereby including, but not limited to, the reasonable fees and
expenses of counsel incurred by such Institutional Investor and its Affiliates
in connection with the transactions contemplated hereby; provided,
that the Company shall not be obligated to reimburse either Institutional
Investor for amounts in excess of $170,000.


 


Section 18.                                      Disclosure
Schedule.  The parties agree that the
disclosure of any item in any section or subsection of the Disclosure Schedule
shall be deemed disclosure with respect to any other section or subsection to
which the relevance of such item is reasonably apparent.


 


Section 19.                                      Several
and Not Joint Obligations.  For the
avoidance of doubt, the
obligations of each Investor under this Agreement are several and not joint
with the obligations of any other Investor, and no Investor shall be
responsible for the performance of the obligations of any other Investor under
this Agreement.  Each Investor shall be
entitled to independently 


 


42

















 


enforce its rights under this Agreement and the
Company shall be entitled to independently enforce its rights under this
Agreement with respect to each Investor.


 


Section 20.                                    Construction.  The following principles shall apply:


 


(a)                                  the
word “or” will not be exclusive;


 


(b)                                 inclusion
of items in a list will not be deemed to exclude other terms of similar import;


 


(c)                                  all
parties will be considered to have drafted this Agreement together, with the
benefit of counsel, and no provision will be strictly construed against any
Person by reason of having drafted such provision;


 


(d)                                 the
word “include” and its correlatives means to include without limitation;


 


(e)                                  terms
that imply gender will include all genders;


 


(f)                                    defined
terms will have their meanings in the plural and singular case;


 


(g)                                 references
to Sections, Articles, Annexes and Exhibits are to the Sections, Articles,
Annexes and Exhibits to this Agreement;


 


(h)                                 the
use of “will” as an auxiliary will not be deemed to be a mere prediction of
future occurrences; and


 


(i)                                     the
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning of this Agreement.


 


Section 21.                                      Counterparts
and Facsimiles.  For the convenience
of the parties hereto, this Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument, and
all such counterparts will together constitute the same agreement.  Executed signature pages to this
Agreement may be delivered by facsimile and such facsimiles will be deemed as
sufficient as if actual signature pages had been delivered.


 


Section 22.                                      [Intentionally
Reserved.]


 


Section 23.                                      Joinder.  This Agreement contemplates that additional
Persons may execute a Joinder subsequent to the date hereof and become
Additional Investors.  The terms of this
Agreement shall be binding upon each Additional Investor as of the date on
which such Additional Investor executes a Joinder and delivers it to the
Company.


 


Section 24.                                      Specific
Performance.  The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms.  It is accordingly agreed that the parties
shall be entitled to seek specific performance of the terms hereof, this being
in addition to any other remedies to which they are entitled at law or equity.


 


43

















 


Section 25.                                      Amendment;
Waiver.  No amendment or waiver of
any provision of this Agreement will be effective with respect to any party
unless made in writing and signed by a duly authorized representative of such
party.  No failure or delay by any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.  The conditions to each party’s
obligation to consummate the Closing are for the sole benefit of such party and
may be waived by such party in whole or in part to the extent permitted by
applicable law.  No waiver of any party
to this Agreement, as the case may be, will be effective unless it is in a
writing signed by a duly authorized representative of the waiving party that
makes express reference to the provision or provisions subject to such waiver.


 


[Remainder of this page intentionally
left blank.]


 


44

















 


IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.


 


 


	
   

  	
  Guaranty Bancorp

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel M. Quinn

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Daniel M. Quinn

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Patriot Financial Partners, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. Kirk Wycoff

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  W. Kirk Wycoff

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Patriot Financial Partners Parallel, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. Kirk Wycoff

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  W. Kirk Wycoff

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Castle Creek Capital Partners III, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Eggemeyer

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John Eggemeyer

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Member

  



 


 


Investment Agreement


 
















 


	
   

  	
  Relational Investors Mid-Cap Fund I, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David H. Batchelder

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David H. Batchelder

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Principal

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Relational Investors Mid-Cap Fund II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David H. Batchelder

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David H. Batchelder

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Principal

  



 


 


Investment Agreement


 

















 


ANNEX A


 


SCHEDULE
OF INVESTORS


 


	
  NAME OF INVESTOR

  	
   

  	
  ADDRESS OF INVESTOR

  	
   

  	
  NUMBER OF SHARES

  OF COMMON STOCK

  CURRENTLY HELD

  	
   

  	
  NUMBER OF SHARES

  OF CONVERTIBLE

  PREFERRED STOCK TO

  BE PURCHASED

  	
   

  	
  AGGREGATE PURCHASE

  PRICE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Castle Creek
  Capital Partners III, L.P.

  	
   

  	
  P.O. Box 1329

  Rancho Santa Fe, California

  92067

  	
   

  	
  2,644,963

  	
   

  	
  10,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Patriot Financial
  Partners, L.P.

  	
   

  	
  Cira Centre

  2929 Arch Street, 27th Floor

  Philadelphia, Pennsylvania

  19104-2868

  	
   

  	
  0

  	
   

  	
  17,054

  	
   

  	
  $

  	
  17,054,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Patriot Financial
  Partners Parallel, L.P.

  	
   

  	
  Cira Centre

  2929 Arch Street, 27th Floor

  Philadelphia, Pennsylvania

  19104-2868

  	
   

  	
  0

  	
   

  	
  2,946

  	
   

  	
  $

  	
  2,946,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Relational Investors
  Mid-Cap Fund I, L.P.

  	
   

  	
  12400 High Bluff Drive

  Suite 600

  San Diego, California 92130

  	
   

  	
  0

  	
   

  	
  10,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Relational Investors
  Mid-Cap Fund II, L.P.

  	
   

  	
  12400 High Bluff Drive

  Suite 600

  San Diego, California 92130

  	
   

  	
  0

  	
   

  	
  10,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  



 


A-1
















EXHIBIT A


 


FORM OF CERTIFICATE OF
DESIGNATIONS FOR 

SERIES A CONVERTIBLE NON-CUMULATIVE PREFERRED STOCK

OF GUARANTY BANCORP


 






 


Pursuant
to Section 151 of the

General Corporation Law of the State of Delaware


 






 


Guaranty
Bancorp (the “Company”), a corporation organized and existing under the
General Corporation Law of the State of Delaware (the “DGCL”), does
hereby certify that, pursuant to authority conferred upon its Board of
Directors by the Company’s Amended and Restated Certificate of Incorporation,
and pursuant to the provisions of Section 151 of the DGCL, its Board of
Directors, at a meeting duly called and held on [·],
2009, duly approved and adopted the following resolution:


 


RESOLVED,
that, pursuant to the authority vested in the Board of Directors by the Company’s
Amended and Restated Certificate of Incorporation, the Board of Directors does
hereby create, authorize and provide for the issuance of Series A
Convertible Preferred Stock, par value $0.001 per share, with a stated value of
$1,000 per share, consisting of up to [·] shares, having the designations,
preferences, relative, participating, optional and other special rights and the
qualifications, limitations and restrictions that are set forth in the Company’s
Amended and Restated Certificate of Incorporation and in this Resolution as
follows:


 


Section 1.               Designation.  There is hereby created out of the
authorized and unissued shares of preferred stock of the Company a series of
preferred stock designated as the “Series A Convertible Non-Cumulative
Preferred Stock” (the “Series A Preferred Stock”).  The number of shares constituting such series
shall be not more than [·]. 
Such series shall have a par value per share of $0.001.


 


Section 2.               Definitions.  The
following terms have the meanings set forth below or in the section
cross-referenced below, as applicable, whether used in the singular or the
plural:


 


“Affiliate”
means, with respect to any Person, any Person directly or indirectly
controlling, controlled by or under common control with such other Person.


 


“Applicable
Regulatory Approval” means, with respect to a particular Holder, all
governmental, quasi-governmental, court or regulatory approvals, consents or
statements of non-objection necessary to allow such Holder to acquire the
shares of Common Stock issuable upon conversion of the Series A Preferred
Stock held by it or to own or control such shares of 


 


A-1

















 


Common Stock (taking into account Section 8(c), Section 9(g) and
Section 9(h)) and the expiration or earlier termination of any required
waiting period, including any approvals, consents or statements of
non-objection required by any state or federal banking regulatory authority.


 


“Board
of Directors” means the board of directors of the Company or, with respect
to any action to be taken by such board of directors, any committee of the
board of directors duly authorized to take such action.


 


“Business
Day” means any day other than a Saturday, a Sunday or a day on which banks
are required or permitted by law or executive order to be closed in the State
of New York or Colorado.


 


“Castle
Creek” means Castle Creek Capital Partners III, L.P.


 


“Certificate
of Designations” means this Certificate of Designations of the Series A
Preferred Stock.


 


“Certificate
of Incorporation” means the Amended and Restated Certificate of
Incorporation of the Company, as amended prior to the Issue Date and as amended
by this Certificate of Designations and as may be further amended.


 


“Closing
Price” of the Common Stock (or any other securities, cash or other property
into which the Series A Preferred Stock becomes convertible in connection
with any Reorganization Event) on any Trading Day means the reported last sale
price per share (or, if no last sale price is reported, the average of the bid
and ask prices per share or, if more than one in either case, the average of
the average bid and the average ask prices per share) on such date as reported
by the NASDAQ Stock Market, or, if the Common Stock (or such other property) is
not listed on the NASDAQ Stock Market, then as reported by the principal
national securities exchange on which the Common Stock (or such other property)
is listed, or if the Common Stock (or such other property) is not so listed or
quoted on a U.S. national securities exchange, or, if no closing price for the
Common Stock (or such property) is so reported, the last quoted bid price for
the Common Stock (or such property) in the over-the-counter market as reported
by Pink Sheets LLC or similar organization, or, if that bid price is not
available, the market price of the Common Stock (or such property) on that date
as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company. For the purposes of this Certificate
of Designations, all references herein to the closing sale price and the last
sale price reported of the Common Stock (or other property) on the NASDAQ Stock
Market shall be the closing sale price and last reported sale price as reflected
on the website of the NASDAQ Stock Market (www.nasdaq.com) and as reported by
Bloomberg Professional Service; provided that in the event that there is a
discrepancy between the closing price and the last reported sale price as
reflected on the website of the NASDAQ Stock Market and as reported by
Bloomberg Professional Service, the closing sale price and the last reported
sale price on the website of the NASDAQ Stock Market shall govern.


 


“Common
Stock” means the Company’s common stock, par value $0.001 per share.


 


“Company”
has the meaning set forth in the preamble.


 


A-2

















 


“Conversion
Date” has the meaning set forth in Section 10(a).


 


“Conversion
Notice” has the meaning set forth in Section 9(b).


 


“Conversion
Price” means, for each share of Series A Preferred Stock, $1.80;
provided, however, that in the event the Company fails to declare and pay
dividends (including PIK Dividends or cash dividends) for any calendar quarter
on the applicable Dividend Payment Date for any reason, including but not
limited to restrictions under the DGCL or imposed by federal or state banking
regulations or as may be imposed in writing by the Company’s primary federal or
state banking regulators, and the Company does not pay such dividends within
twelve months after such Dividend Payment Date, then the Conversion Price shall
decrease to $1.50 per share of Series A Preferred Stock.


 


“Conversion
Rate” means that number of Conversion Securities into which one share of Series A
Preferred Stock shall be convertible pursuant to Section 8(a) or
9(a), determined by dividing the Liquidation Preference by the Conversion
Price.


 


“Conversion
Securities” means shares of Common Stock, Non-Voting Common Stock or Series B
Preferred Stock, as the case may be, as determined pursuant to Section 9(h).


 


“Current
Market Price” means, on any date, the average of the daily Closing Price
per share of the Common Stock or other securities on each of the five
consecutive Trading Days preceding the earlier of the day before the date in
question and the day before the Ex-Date with respect to the issuance or
distribution giving rise to an adjustment to the Conversion Price pursuant to Section 13.


 


“DGCL”
has the meaning set forth in the preamble.


 


“Dividend
Payment Date” has the meaning set forth in Section 4(a)(i).


 


“Dividend
Period” has the meaning set forth in Section 4(a).


 


“Exchange
Property” has the meaning set forth in Section 16(a).


 


“Ex-Date”,
when used with respect to any issuance or distribution, means the first date on
which the Common Stock or other securities trade without the right to receive
the issuance or distribution giving rise to an adjustment to the Conversion
Price pursuant to Section 13.


 


“Holder”
means a Person in whose name the shares of the Series A Preferred Stock
are registered, which may be treated by the Company and the Transfer Agent as
the absolute owner of the shares of Series A Preferred Stock for the
purpose of making payment and settling conversions and for all other purposes.


 


“Investment
Agreement” means the Investment Agreement, dated as of May 6, 2009, by
and among the Company, Castle Creek, Patriot, Relational and the other
investors that may become party thereto from time to time, as it may be amended
from time to time.


 


A-3

















 


“Issue
Date” means [·], 2009, the original date of issuance of
the Series A Preferred Stock.


 


“Junior
Securities” has the meaning set forth in Section 3.


 


“Liquidation
Preference” means, as to the Series A Preferred Stock, $1,000 per
share, plus all accrued but unpaid dividends thereon.


“Mandatory
Conversion Date” means the fifth anniversary of the Issue Date.


 


“Market
Disruption Event” means the occurrence or existence for more than one half
hour period in the aggregate on any Scheduled Trading Day for the Common Stock
(or any other securities, cash or other property into which the Series A
Preferred Stock becomes convertible in connection with any Reorganization
Event) of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the NASDAQ Stock Market or
otherwise) in the Common Stock (or such other property) or in any options,
contracts or future contracts relating to the Common Stock (or such other property),
and such suspension or limitation occurs or exists at any time before 1:00 p.m.
(New York City time) on such day.


 


“Non-Voting
Common Stock” means the non-voting Common Stock of the Company, par value
$0.001 per share, contemplated by Section 9(e) of the Investment
Agreement.


 


“Option
Dividend Termination Date” has the meaning set forth in Section 4(a)(i).


 


“Optional
Conversion Date” has the meaning set forth in Section 9(e).


 


“Optional
Convertibility Inception Date” means the earlier to occur of (i) the
date of the second anniversary of the Issue Date and (ii) the date of
consummation of a Reorganization Event.


 


“Parity
Securities” has the meaning set forth in Section 3.


 


“Patriot”
means, collectively, Patriot Financial Partners, L.P. and Patriot Financial
Partners Parallel, L.P.


 


“Person”
means an individual, corporation, partnership, association, joint stock
company, limited liability company, joint venture, trust, governmental entity,
unincorporated organization or other legal entity.


 


“PIK
Dividends” has the meaning set forth in Section 4(a)(i)(B).


 


“Relational”
means collectively Relational Investors Mid-Cap Fund I, L.P. and Relational
Investors Mid-Cap Fund II, L.P.


 


“Reorganization
Event” has the meaning set forth in Section 16(a)(iv).


 


“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on the
primary U.S. national securities exchange or market on which the Common Stock
is listed or, if 


 


A-4

















 


the Common Stock is not listed on a U.S. national
securities exchange, on the principal other market on which the Common Stock is
then traded.


 


“Senior
Securities” means any shares or securities that rank, with respect to
dividend rights and rights on liquidation, winding up and dissolution of the
Company, senior to the Series A Preferred Stock.


 


“Series A
Preferred Stock” has the meaning set forth in Section 1.


 


“Series B
Preferred Stock” means the series of the Company’s preferred stock as
contemplated by Section 9(e) of the Investment Agreement.


 


“Trading
Day” means any day on which (i) there is no Market Disruption Event
and (ii) the NASDAQ Stock Market is open for trading, or, if the Common
Stock (or any other securities, cash or other property into which the Series A
Preferred Stock becomes convertible in connection with any Reorganization
Event) is not listed on the NASDAQ Stock Market, any day on which the principal
national securities exchange on which the Common Stock (or such other property)
is listed is open for trading, or, if the Common Stock (or such other property)
is not listed on a national securities exchange, any Business Day. A “Trading
Day” only includes those days that have a scheduled closing time of 4:00 p.m.
(New York City time) or the then standard closing time for regular trading on
the relevant exchange or trading system.


 


“Transfer
Agent” means Computershare Investor Services, LLC, the Company’s duly
appointed transfer agent, registrar, conversion and dividend disbursing agent
for the Series A Preferred Stock, or such other successor entity as the
Company may, in its sole discretion, appoint from time to time.


 


Section 3.               Ranking.  The Series A
Preferred Stock will, with respect to dividend rights and rights on
liquidation, winding-up and dissolution of the Company, rank (i) on a
parity with each other class or series of preferred stock established after the
Issue Date by the Company the terms of which expressly provide that such class
or series will rank on a parity with the Series A Preferred Stock as to
dividend rights and rights on liquidation, winding-up and dissolution of the
Company (collectively referred to as “Parity Securities”) and (ii) senior
to the Common Stock and each other class or series of capital stock outstanding
or established after the Issue Date by the Company the terms of which do not
expressly provide that it ranks on a parity with or senior to the Series A
Preferred Stock as to dividend rights and rights on liquidation, winding-up and
dissolution of the Company (collectively referred to as “Junior Securities”).  The Company has the right to authorize or
issue additional shares or classes or series of Junior Securities or Parity
Securities without the consent of the Holders subject to Section 6(b).


 


Section 4.               Dividends.


 


(a)           The Holders shall be entitled to
receive with respect to each share of Series A Preferred Stock:


 


(i)            from
and after the Issue Date until the first Dividend Payment Date (as defined
below) following the second anniversary of the Issue Date (the “Option
Dividend Termination Date”), when, as and if declared by the Board of
Directors, but only out of funds


A-5

















 


legally available
therefor, non-cumulative dividends on each February 15, May 15, August 15
and November 15, beginning on the first such date following the Issue Date
(each, a “Dividend Payment Date”), at a rate per annum equal to 9.0% of
the Liquidation Preference of each such share, payable at the Company’s option
with respect to each Dividend Period either in (A) cash or (B) additional
shares of Series A Preferred Stock (“PIK Dividends”) (provided
that, to the extent payment of PIK Dividends on any Holder’s shares of Series A
Preferred Stock, taken as a whole, would result in the payment of a fractional
share of Series A Preferred Stock to such Holder, such fractional share
shall instead be paid in cash); and


 


(ii)           from and after the Option Dividend
Termination Date, when, as and if declared by the Board of Directors, but only
out of funds legally available therefor, non-cumulative cash dividends at a
rate per annum equal to 9.0% of the Liquidation Preference of each such share,
payable in arrears on each Dividend Payment Date.  If any Dividend Payment Date is not a
Business Day, then dividends will be payable on the first Business Day
following such date and dividends shall accrue to the actual payment date.


 


 


 


The term “Dividend Period” means each period from and including
a Dividend Payment Date (or the Issue Date in the case of the first Dividend
Period) to but excluding the next Dividend Payment Date. The amount of
dividends payable for any Dividend Period shall be computed on the basis of a
360-day year consisting of twelve 30-day months.


 


(b)           Dividends payable on shares of Series A
Preferred Stock shall be non-cumulative. To the extent that any such dividends
payable on the shares of Series A Preferred Stock on any Dividend Payment
Date are not declared and paid, in full or otherwise, on such Dividend Payment
Date, then such unpaid dividends shall not cumulate and shall cease to accrue
and be payable and the Company shall have no obligation to pay, and the Holders
shall have no right to receive, dividends accrued for the Dividend Period
ending immediately prior to such Dividend Payment Date after such Dividend
Payment Date, whether or not dividends are declared for any subsequent Dividend
Period with respect to Series A Preferred Stock, Parity Securities, Junior
Securities or any other class or series of capital stock or authorized
preferred stock of the Company.  Holders
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full dividends for each Dividend Period on the Series A
Preferred Stock. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or failure to make any dividend
payment.


 


(c)           Each dividend will be payable to
Holders of record as they appear in the records of the Company at the close of
business on the January 31, April 30, July 31 and October 31
immediately preceding the corresponding Dividend Payment Date.


 


Section 5.               Payment Restrictions.  During any time that any shares of Series A
Preferred Stock are outstanding, the Company shall not (i) declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, or pay or make
available monies for the redemption of, any Common Stock or other Junior
Securities, or (ii) redeem, purchase or acquire, or make a liquidation
payment with respect to, or pay or make available monies for the redemption of,
any Parity Securities (otherwise than pursuant to pro rata offers to purchase
all or any pro rata portion of such Parity Securities and the Series A
Preferred Stock), unless in each case full dividends on all outstanding shares
of the 


 


A-6

















 


Series A
Preferred Stock have been paid or (in the case of current dividends) declared
and set aside for payment (except for (w) dividends or distributions paid
in shares of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock or other Junior Securities, (x) redemptions or
purchases by conversion or exchange of Junior Securities for or into other
Junior Securities, or of Parity Securities for or into other Parity Securities
or Junior Securities, (y) purchases by the Company or its Affiliates as a
broker, dealer, advisor, fiduciary, trustee or comparable capacity in
connection with transactions effected by or for the account of customers of the
Company or customers of any of its subsidiaries or in connection with the
distribution or trading of such capital stock and (z) acquisitions of
shares of Common Stock in respect of exercises of employee equity awards or any
related tax withholding).  When dividends
are not paid in full (or declared and a sum sufficient for such full payment is
not so set apart) for any Dividend Period on the Series A Preferred Stock
and any Parity Securities, dividends declared on the Series A Preferred
Stock and Parity Securities (whether cumulative or non-cumulative) shall only
be declared pro rata so that the amount of dividends declared per share on the Series A
Preferred Stock and such Parity Securities shall in all cases bear to each
other the same ratio that accrued dividends per share on the shares of the Series A
Preferred Stock (but without, in the case of any non-cumulative preferred
stock, accumulation of unpaid dividends for prior Dividend Periods) and such
Parity Securities bear to each other.


 


Section 6.               Voting
Rights.


 


(a)           The Holders of the Series A
Preferred Stock shall vote together with the holders of Common Stock on all
matters upon which the holders of Common Stock are entitled to vote. Each share
of Series A Preferred Stock shall be entitled to such number of votes as
the number of shares of Common Stock into which such share of Series A
Preferred Stock is convertible pursuant to the Conversion Rate at the time of
the record date for any such vote (taking into account Section 9(h) hereof,
provided that solely for the purposes of determining the number of votes to
which each share of Series A Preferred Stock is entitled pursuant to this
Section 6(a), the Conversion Price utilized in the definition of Conversion
Rate shall be deemed to be $2.00, subject to adjustment under Section 13), and
for the purpose of such calculation, shares of Common Stock sufficient for the
full conversion of all shares of Series A Preferred Stock shall be deemed
to be authorized for issuance under the Certificate of Incorporation on such
date and shall be included in such calculation.


 


(b)           So long as any shares of Series A
Preferred Stock are outstanding, the vote or consent of the Holders of a
majority of the shares of Series A Preferred Stock at the time
outstanding, voting as a single class with all other classes and series of
Parity Securities having similar voting rights then outstanding and with each
series or class having a number of votes proportionate to the aggregate
liquidation preference of the outstanding shares of such class or series, given
in person or by proxy, either in writing without a meeting or by vote at any
meeting called for the purpose, will be necessary to effect or validate:


 


A-7

















 


(i)            any amendment, alteration or repeal of
any provision of the Certificate of Incorporation (including this Certificate
of Designations) that would alter or change the voting powers, preferences or
special rights of the Series A Preferred Stock or any Parity Security;


 


(ii)           any amendment or alteration of the
Certificate of Incorporation (including this Certificate of Designations) to
authorize, create or increase, or to obligate the Company to authorize, issue
or increase, the authorized amount of any Senior Securities that are convertible
into shares of Common Stock; or


 


(iii)          any merger or consolidation of the
Company with or into any entity other than a corporation, or any merger or
consolidation of the Company with or into any other corporation unless the
surviving or resulting corporation, or a corporation controlling such
corporation that issues shares or other securities in such merger or
consolidation, will thereafter have no class or series of shares or other
securities either authorized or outstanding ranking prior to the Series A
Preferred Stock in the payment of dividends or in the distribution of assets on
any liquidation, dissolution or winding up, except the same number of shares
and the same amount of other securities with the same voting powers,
preferences and special rights as the shares and securities of the Company
respectively authorized and outstanding immediately before such merger or
consolidation, and each share of Series A Preferred Stock outstanding
immediately before such merger or consolidation is changed thereby into the
same number of shares, with the same voting powers, preferences and special
rights, of such corporation;


 


provided, however, that if any such amendment, alteration or repeal
described above would adversely affect one or more but not all series of
preferred stock with like voting rights (including the Series A Preferred
Stock for this purpose), then only the series affected and entitled to vote
shall vote as a class in lieu of all such series of preferred stock.


 


(c)           Notwithstanding anything to the
contrary herein, Holders shall not have any voting rights if, at or prior to
the effective time of the act with respect to which such vote would otherwise
be required, all outstanding shares of Series A Preferred Stock shall have
been converted in accordance with the terms of this Certificate of
Designations.


 


Section 7.               Liquidation.


 


(a)           In the event the Company voluntarily
or involuntarily liquidates, dissolves or winds up, subject to the rights of
any creditors of the Company or any holders of Senior Securities or Parity
Securities, the Holders at the time shall be entitled to receive liquidating
distributions per share of Series A Preferred Stock in an amount equal to
the greater of (i) the amount of the Liquidation Preference per share of Series A
Preferred Stock and (ii) the amount that the Holders would have received
in respect of the Conversion Securities issuable upon conversion of such share
of Series A Preferred Stock had they converted such share of Series A
Preferred Stock immediately prior to such event, in each case out of assets
legally available for distribution to the Company’s stockholders, before any
distribution of assets is made to the holders of the Common Stock, any other
Conversion Securities or any other Junior Securities.  After payment of the full amount of such
liquidating distributions, Holders of the Series A Preferred Stock shall
have no right or claim to any of the remaining assets of the Company.


 


A-8

















 


(b)           In the event the assets of the
Company available for distribution to stockholders upon any liquidation,
dissolution or winding-up of the affairs of the Company, whether voluntary or
involuntary, shall be insufficient to pay in full the amounts payable with
respect to all outstanding shares of the Series A Preferred Stock and the
corresponding amounts payable on any Parity Securities, Holders and the holders
of such Parity Securities shall share ratably in any distribution of assets of
the Company in proportion to the full respective liquidating distributions to
which they would otherwise be respectively entitled.


 


(c)           The Company’s consolidation or merger
with or into any other entity, the consolidation or merger of any other entity
with or into the Company, or the sale of all or substantially all of the
Company’s property or business will not constitute its liquidation, dissolution
or winding up.


 


Section 8.               Automatic Conversion.


 


(a)           Subject to Sections 8(b) and
8(c), each share of Series A Preferred Stock shall automatically convert
(unless previously converted at the option of the Holder in accordance with Section 9)
on the Mandatory Conversion Date into a number of shares of Common Stock equal
to the Conversion Rate.


 


(b)           Notwithstanding anything to the
contrary in this Certificate of Designations, no conversion pursuant to this Section 8
with respect to shares of the Series A Preferred Stock of any Holder shall
occur unless, with respect to such Holder, the Applicable Regulatory Approval
has been obtained and remains in effect.


 


(c)           Notwithstanding anything to the
contrary in this Certificate of Designations, no conversion pursuant to this Section 8
with respect to shares of Series A Preferred Stock held by any Holder
shall be permitted to the extent such conversion would result in such Holder
owning, together with its Affiliates, more than 14.9% (or, in the cases of
Castle Creek and Patriot only, 19.9%) of the outstanding shares of Common Stock
after giving effect to such conversion. 
Those shares of Series A Preferred Stock which are not convertible
pursuant to the preceding sentence shall remain outstanding.


 


Section 9.               Early Conversion at the Option of the Holder.


 


(a)           Subject to Sections 9(f) and
9(g), beginning from the Optional Convertibility Inception Date until the
Mandatory Conversion Date, shares of the Series A Preferred Stock are
convertible, in whole or in part (unless previously converted at the option of
the Holder thereof pursuant to a notice delivered in accordance with Section 9(b)),
on the Optional Conversion Date into shares of Common Stock at the Conversion
Rate.


 


(b)           Any written notice of conversion (“Conversion
Notice”) pursuant to this Section 9 shall be duly executed by the
Holder, and specify:


 


(i)            the number of shares of Series A
Preferred Stock to be converted;


 


(ii)           the name(s) in which such Holder
desires the shares of Common Stock issuable upon conversion to be registered
and whether such shares of Common Stock are to be


 


A-9
















 


issued in
book-entry or certificated form (subject to compliance with applicable legal
requirements if any of such certificates are to be issued in a name other than
the name of the Holder);


 


(iii)                               if certificates are to be issued, the
address to which such Holder wishes delivery to be made of such new
certificates to be issued upon such conversion; and


 


(iv)                              any other transfer forms, tax forms or
other relevant documentation required and specified by the Transfer Agent, if
necessary, to effect the conversion.


 


(c)                                  If specified by the Holder in the
Conversion Notice that shares of Common Stock issuable upon conversion of the Series A
Preferred Stock shall be issued to a Person other than the Holder surrendering
the shares of Series A Preferred Stock being converted, then the Holder
shall pay or cause to be paid any transfer or similar taxes payable in
connection with the shares of Common Stock so issued.


 


(d)                                 Upon receipt by the Transfer Agent of a
completed and duly executed Conversion Notice, payment in compliance with Section 9(c),
if applicable, and surrender of a certificate representing share(s) of Series A
Preferred Stock to be converted (if held in certificated form), the Company
shall, within three Business Days or as soon as possible thereafter, issue and
shall instruct the Transfer Agent to register the number of shares of Common
Stock to which such Holder shall be entitled upon conversion in the name(s) specified
by such Holder in the Conversion Notice. 
If a Holder elects to hold its shares of Common Stock issuable upon
conversion of the Series A Preferred Stock in certificated form, the
Company shall promptly send or cause to be sent, by hand delivery (with receipt
to be acknowledged) or by first-class mail, postage prepaid, to the Holder
thereof, at the address designated by such Holder in the Conversion Notice, a
certificate or certificates representing the number of shares of Common Stock
to which such Holder shall be entitled upon conversion.  In the event that there shall have been
surrendered a certificate or certificates representing shares of Series A
Preferred Stock, only part of which are to be converted, the Company shall
issue and deliver to such Holder or such Holder’s designee in the manner
provided in the immediately preceding sentence a new certificate or
certificates representing the number of shares of Series A Preferred Stock
that shall not have been converted.


 


(e)                                  The issuance by the Company of shares of
Common Stock upon a conversion of shares of Series A Preferred Stock
pursuant to this Section 9 shall be deemed effective immediately prior to
the close of business on the day (the “Optional Conversion Date”) of
receipt by the Transfer Agent of the Conversion Notice and other documents, if
any, set forth in Section 9(b), payment in compliance with Section 9(c),
if applicable, and the surrender by such Holder or such Holder’s designee of
the certificate or certificates representing the shares of Series A
Preferred Stock to be converted (if held in certificated form), duly assigned or
endorsed for transfer to the Company (or accompanied by duly executed stock
powers relating thereto).


 


(f)                                    Notwithstanding anything to the contrary
in this Certificate of Designations, no conversion pursuant to this Section 9
with respect to shares of the Series A Preferred Stock of any Holder shall
occur unless, with respect to such Holder, the Applicable Regulatory Approval
has been obtained and remains in effect.


 


A-10

















 


(g)                                 Notwithstanding anything to the contrary
in this Certificate of Designations, no conversion pursuant to this Section 9
with respect to shares of Series A Preferred Stock held by any Holder
shall be permitted to the extent such conversion would result in such Holder
owning, together with its Affiliates, more than 14.9% (or, in the cases of
Castle Creek and Patriot only, 19.9%) of the outstanding shares of Common Stock
after giving effect to such conversion. 
Those shares of Series A Preferred Stock which are not convertible
pursuant to the preceding sentence shall remain outstanding.


 


(h)                                 In the event that, as a result of the
payment or potential payment of any PIK Dividend contemplated by Section 4(a)(i)(B) or
the application of the proviso contained in the definition of Conversion Price,
the shares of Series A Preferred Stock held by any Holder and its
Affiliates would represent upon conversion more than 14.9% (or, in the cases of
Castle Creek and Patriot only, 19.9%) of the outstanding shares of Common Stock
after giving effect to such conversion and taking into consideration any shares
of Common Stock otherwise beneficially owned by such Holder or any of its
Affiliates (the number of shares of Series A Preferred Stock representing
shares of Common Stock upon conversion in excess of such percentage, the “Excess
Shares”), then for all purposes of Section 8 and this Section 9
such Excess Shares shall be convertible into a number of shares of Non-Voting
Common Stock or, if at such time the Company is not authorized pursuant to the
Certificate of Incorporation to issue shares of Non-Voting Common Stock, a
number of shares of Series B Preferred Stock in each case equivalent to
the number of shares of Common Stock into which such Excess Shares would
otherwise have been convertible (including, without limitation, taking into
account any adjustments to such number of shares of Common Stock that would
have been issuable in respect of the Excess Shares required by Section 13).  In such event, (i) each reference in Section 8
or this Section 9 to shares of Common Stock issuable upon conversion of
the Series A Preferred Stock shall be deemed a reference to the applicable
Conversion Security and (ii) for purposes of the adjustment provisions in Section 13,
the number of shares of Common Stock outstanding at any given point of time
shall include the number of shares of Non-Voting Common Stock or Series B
Preferred Stock then outstanding.


 


Section 10.                                      Conversion Procedures.


 


(a)                                  On the Mandatory Conversion Date or any
Optional Conversion Date (each, a “Conversion Date”), any shares of Series A
Preferred Stock converted to Conversion Securities shall cease to be
outstanding, in each case, subject to the right of Holders of such shares to
receive Conversion Securities into which such shares of Series A Preferred
Stock are convertible.


 


(b)                                 The Person or Persons entitled to receive
the Conversion Securities issuable upon any such conversion shall be treated
for all purposes as the record holder(s) of such Conversion Securities as
of the close of business on the applicable Conversion Date. No allowance or
adjustment, except as set forth in Section 13, shall be made in respect of
dividends payable to holders of Conversion Securities of record as of any date
prior to such applicable Conversion Date. Prior to such applicable Conversion
Date, Conversion Securities issuable upon conversion of any shares of Series A
Preferred Stock shall not be deemed outstanding for any purpose, and Holders of
shares of Series A Preferred Stock shall have no rights with respect to
Conversion Securities (including voting rights as applicable, rights to respond
to tender offers for the 


 


A-11

















 


Conversion
Securities and rights to receive any dividends or other distributions on the
Conversion Securities) by virtue of holding shares of Series A Preferred
Stock.


 


(c)                                  Shares of Series A Preferred Stock
duly converted in accordance herewith, or otherwise reacquired by the Company,
shall resume the status of authorized and unissued preferred stock of the
Company, undesignated as to series and available for future issuance.


 


(d)                                 In the event that a Holder of shares of Series A
Preferred Stock shall not by written notice designate the name in which
Conversion Securities to be issued upon conversion of such Series A
Preferred Stock should be registered or the address to which the certificate or
certificates representing such Conversion Securities should be sent, the
Company shall be entitled to register such shares, and make such payment, in
the name of the Holder of such Series A Preferred Stock as shown on the
records of the Company and to send the certificate or certificates representing
such Conversion Securities to the address of such Holder shown on the records
of the Company.


 


Section 11.                                      Reservation of Conversion Securities.


 


(a)                                  The Company shall at all times reserve
and keep available out of its authorized and unissued Conversion Securities or
shares held in the treasury of the Company, solely for issuance upon the
conversion of shares of Series A Preferred Stock as provided in this
Certificate of Designations, free from any preemptive or other similar rights,
such number of applicable Conversion Securities as shall from time to time be
issuable upon the conversion of all the shares of Series A Preferred Stock
then outstanding.  For purposes of this Section 11(a),
the number of Conversion Securities that shall be deliverable upon the
conversion of all outstanding shares of Series A Preferred Stock shall be
computed as if at the time of computation all such outstanding shares were held
by a single Holder.


 


(b)                                 Notwithstanding the foregoing, the
Company shall be entitled to deliver upon conversion of shares of Series A
Preferred Stock, as herein provided, Conversion Securities held in the treasury
of the Company (in lieu of the issuance of authorized and unissued Conversion
Securities), so long as any such treasury shares are free and clear of all
liens, charges, security interests or encumbrances (other than liens, charges,
security interests and other encumbrances created by the Holders).


 


(c)                                  All Conversion Securities delivered upon
conversion of the Series A Preferred Stock shall be duly authorized,
validly issued, fully paid and non-assessable, free and clear of all liens,
claims, security interests and other encumbrances (other than liens, charges,
security interests and other encumbrances created by the Holders).


 


(d)                                 Prior to the delivery of any securities
that the Company shall be obligated to deliver upon conversion of the Series A
Preferred Stock, the Company shall use its reasonable best efforts to comply
with all federal and state laws and regulations thereunder requiring the
registration of such securities with, or any approval of or consent to the
delivery thereof by, any governmental authority.


 


(e)                                  The Company hereby covenants and agrees
that, if at any time the Common Stock shall be listed on the NASDAQ Stock
Market or any other national securities exchange or 


 


A-12

















 


automated
quotation system, the Company shall, if permitted by the rules of such
exchange or automated quotation system, list and keep listed, so long as the
Common Stock shall be so listed on such exchange or automated quotation system,
all Common Stock issuable upon conversion of the Series A Preferred Stock;
provided, however, that if the rules of such exchange or automated
quotation system permit the Company to defer the listing of such Common Stock
until the first conversion of Series A Preferred Stock into Common Stock
in accordance with the provisions hereof, the Company covenants to list such
Common Stock issuable upon conversion of the Series A Preferred Stock in
accordance with the requirements of such exchange or automated quotation system
at such time.


 


Section 12.                                      Fractional Shares.


 


(a)                                  No fractional Conversion Securities shall
be issued as a result of any conversion of shares of Series A Preferred
Stock.


 


(b)                                 In lieu of any fractional Conversion
Security otherwise issuable to a Holder in respect of any conversion pursuant
to Section 8 or Section 9, the Company shall at its option either (i) issue
to such Holder a whole Conversion Security, or (ii) pay an amount in cash
(computed to the nearest cent) equal to such fraction times the average Closing
Price of the Common Stock for the five consecutive Trading Days ending on the
second Trading Day immediately preceding the applicable Conversion Date.


 


(c)                                  If more than one share of the Series A
Preferred Stock is surrendered for conversion at one time by or for the same
Holder, the number of full Conversion Securities issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares of the
Series A Preferred Stock so surrendered.


 


Section 13.                                      Anti-Dilution Adjustments.


 


(a)                                  Except as provided in Section 13(c),
the Conversion Price shall be subject to the following adjustments:


 


(i)                                     Stock Dividends and Distributions. 
If the Company pays dividends or other distributions on the Common Stock
in shares of Common Stock, then the Conversion Price in effect immediately
prior to the Ex-Date for such dividend or distribution will be multiplied by
the following fraction:


 


     OS0      

OS1


 


Where,


 


OS0 =  the number of shares of Common Stock
outstanding immediately prior to Ex-Date for such dividend or distribution.


 


OS1 =  the sum of the number of shares of
Common Stock outstanding immediately prior to the Ex-Date for such dividend or
distribution plus the total number of shares of Common Stock constituting such
dividend or distribution.


 


A-13

















 


For the purposes of this clause (i), the number of shares of Common
Stock at the time outstanding shall not include treasury shares.  If any dividend or distribution described in
this clause (i) is declared but not so paid or made, the Conversion Price
shall be readjusted, effective as of the date the Board of Directors publicly
announces its decision not to make such dividend or distribution, to such
Conversion Price that would be in effect if such dividend or distribution had
not been declared.


 


(ii)                                  Subdivisions, Splits and Combination of
the Common Stock.  If the Company subdivides, splits or combines
the shares of Common Stock, then the Conversion Price in effect immediately
prior to the effective date of such share subdivision, split or combination
will be multiplied by the following fraction:


 


     OS0      

OS1


 


Where,


 


OS0 =
the number of shares of Common Stock outstanding immediately prior to the
effective date of such share subdivision, split or combination.


 


OS1 =
the number of shares of Common Stock outstanding immediately after the opening
of business on the effective date of such share subdivision, split or
combination.


 


For the purposes of this clause (ii), the number of shares of Common
Stock at the time outstanding shall not include treasury shares.  If any subdivision, split or combination
described in this clause (ii) is announced but the outstanding shares of
Common Stock are not subdivided, split or combined, the Conversion Price shall
be readjusted, effective as of the date the Board of Directors publicly
announces its decision not to subdivide, split or combine the outstanding
shares of Common Stock, to such Conversion Price that would be in effect if
such subdivision, split or combination had not been announced.


 


(iii)                               Debt or Asset Distributions. 
If the Company distributes to all holders of shares of Common Stock
evidences of indebtedness, shares of capital stock, securities, cash or other
assets (excluding any dividend or distribution referred to in clause (i) above,
any dividend or distribution paid exclusively in cash, any consideration
payable in connection with a tender or exchange offer made by the Company or
any of its subsidiaries, and any dividend of shares of capital stock of any
class or series, or similar equity interests, of or relating to a subsidiary or
other business unit in the case of certain spin-off transactions as described
below), in exchange for consideration in an amount less than the fair market
value of the property so distributed then the Conversion Price in effect
immediately prior to the Ex-Date for such distribution will be multiplied by
the following fraction:


 


     SP0 –
FMV     

SP0


 


Where,


 


SP0 =
the Current Market Price per share of Common Stock on such date.


 


A-14

















 


FMV = the fair market value of the portion of the distribution
applicable to one share of Common Stock on such date as determined by the Board
of Directors.


 


In a “spin-off,” where the Company makes a distribution to all holders
of shares of Common Stock consisting of capital stock of any class or series,
or similar equity interests of, or relating to, a subsidiary or other business
unit, the Conversion Price will be adjusted on the 15th Trading Day after the effective date of
the distribution by multiplying such Conversion Price in effect immediately
prior to such 15th Trading Day by the following fraction:


 


MP0      

MP0 +
MPS


 


Where,


 


MP0 =
the average of the Closing Prices of the Common Stock over the first ten
Trading Days commencing on and including the fifth Trading Day following the
effective date of such distribution.


 


MPS =
the average of the Closing Prices of the capital stock or equity interests
representing the portion of the distribution applicable to one share of Common
Stock over the first ten Trading Days commencing on and including the fifth
Trading Day following the effective date of such distribution, or, if not
traded on a national or regional securities exchange or over-the-counter market,
the fair market value of the capital stock or equity interests representing the
portion of the distribution applicable to one share of Common Stock on such
date as determined by the Board of Directors.


 


In the event that such distribution described in this clause (iii) is
not so paid or made, the Conversion Price shall be readjusted, effective as of
the date the Board of Directors publicly announces its decision not to pay or
make such dividend or distribution, to the Conversion Price that would then be in
effect if such dividend or distribution had not been declared.


 


(iv)                              Cash Distributions. 
If the Company makes a distribution consisting exclusively of cash to
all holders of the Common Stock, excluding (a) any cash dividend on the
Common Stock to the extent a corresponding cash dividend is paid on the Series A
Preferred Stock pursuant to Section 4(a)(ii), (b) any cash that is
distributed in a Reorganization Event or as part of a “spin-off” referred to in
clause (iii) above, (c) any dividend or distribution in connection
with the Company’s liquidation, dissolution or winding up, and (d) any
consideration payable in connection with a tender or exchange offer made by the
Company or any of its subsidiaries, then in each event, the Conversion Price in
effect immediately prior to the Ex-Date for such distribution will be
multiplied by the following fraction:


 


      SP0 –
DIV     

SP0


 


Where,


 


A-15

















 


SP0 =
the Closing Price per share of Common Stock on the Trading Day immediately
preceding the Ex-Date.


 


DIV = the amount per share of Common Stock of the dividend or
distribution, as determined pursuant to the following paragraph.


 


In the event that any distribution described in this clause (iv) is
not so made, the Conversion Price shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to pay such
distribution, to the Conversion Price which would then be in effect if such
distribution had not been declared.


 


(v)                                 Self Tender Offers and Exchange Offers. 
If the Company or any of its subsidiaries successfully completes a
tender or exchange offer for the Common Stock where the cash and the value of
any other consideration included in the payment per share of the Common Stock exceeds
the Closing Price per share of the Common Stock on the Trading Day immediately
succeeding the expiration of the tender or exchange offer, then the Conversion
Price in effect at the close of business on such immediately succeeding Trading
Day will be multiplied by the following fraction:


 


       OS0 x SP 0        

AC + (SP0 x
OS1)


 


Where,


 


SP0 =
the Closing Price per share of Common Stock on the Trading Day immediately
succeeding the expiration of the tender or exchange offer.


 


OS0 =
the number of shares of Common Stock outstanding immediately prior to the
expiration of the tender or exchange offer, including any shares validly
tendered and not withdrawn.


 


OS1 =
the number of shares of Common Stock outstanding immediately after the
expiration of the tender or exchange offer.


 


AC = the aggregate cash and fair market value of the other
consideration payable in the tender or exchange offer, as determined by the
Board of Directors.


 


In the event that the Company, or one of its subsidiaries, is obligated
to purchase shares of Common Stock pursuant to any such tender offer or
exchange offer, but the Company, or such subsidiary, is permanently prevented
by applicable law from effecting any such purchases, or all such purchases are
rescinded, then the Conversion Price shall be readjusted to be such Conversion
Price that would then be in effect if such tender offer or exchange offer had
not been made.


 


(b)                                 The Company may make such decreases in
the Conversion Price, in addition to any other decreases required by this Section 13,
if the Board of Directors deems it advisable to avoid or diminish any income
tax to holders of the Common Stock resulting from any dividend or distribution
of shares of Common Stock (or issuance of rights or warrants to acquire shares
of 


 


A-16

















 


Common Stock) or
from any event treated as such for income tax purposes or for any other reason.


 


(c)                                  (i) All adjustments to the
Conversion Price shall be calculated to the nearest 1/10 of a cent.  No adjustment in the Conversion Price shall
be required if such adjustment would be less than $0.01; provided, that any adjustments which
by reason of this subparagraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further, that on the
Mandatory Conversion Date adjustments to the Conversion Price will be made with
respect to any such adjustment carried forward and which has not been taken
into account before such date.


 


(ii)                                  No adjustment to the Conversion Price
shall be made if Holders may participate in the transaction that would
otherwise give rise to an adjustment, as a result of holding the Series A
Preferred Stock (including without limitation pursuant to Section 4(a)),
without having to convert the Series A Preferred Stock, as if they held
the full number of shares of Common Stock into which a share of the Series A
Preferred Stock may then be converted.


 


(iii)                               The Conversion Price shall not be
adjusted:


 


(A)                              upon the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on the Company’s securities and the investment of
additional optional amounts in shares of Common Stock under any plan;


 


(B)                                upon the issuance of any shares of Common
Stock or rights or warrants to purchase those shares pursuant to any present or
future employee, director or consultant benefit plan or program of or assumed
by the Company or any of its subsidiaries;


 


(C)                                upon the issuance of any shares of Common
Stock pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the Issue Date and not amended
thereafter;


 


(D)                               for a change in the par value or no par
value of Common Stock; or


 


(E)                                 for accrued and unpaid dividends on the Series A
Preferred Stock.


 


(d)                                 Whenever the Conversion Price is to be
adjusted in accordance with Section 13(a) or Section 13(b), the
Company shall:  (i) compute the
Conversion Price in accordance with Section 13(a) or Section 13(b),
taking into account the one-cent threshold set forth in Section 13(c); (ii) as
soon as reasonably practicable following the occurrence of an event that
requires an adjustment to the Conversion Price pursuant to Section 13(a) or
Section 13(b), taking into account the one cent threshold set forth in Section 13(c) (or
if the Company is not aware of such occurrence, as soon as reasonably
practicable after becoming so aware), provide, or cause to be provided, a
written notice to the Holders of the occurrence of such event; and (iii) as
soon as reasonably practicable following the determination of the revised
Conversion Price in accordance with Section 13(a) or Section 13(b),
provide, or cause to be provided, a written notice to the Holders setting forth
in reasonable detail the method by which the adjustment to the Conversion Price
was determined and setting forth the revised Conversion Price.


 


A-17
















 


(e)                                  Notwithstanding anything to the contrary
in this Section 13 or otherwise in this Certificate of Designations, the
Company shall not take any action that would result in the Conversion Price
being adjusted to below the then par value (if any) of the Conversion
Securities deliverable upon conversion of the Series A Preferred
Stock.  Additionally, under no
circumstances will the number of Conversion Securities deliverable upon
conversion of the Series A Preferred Stock exceed (when taken together
with all other outstanding shares of Common Stock) the applicable number of
Conversion Securities that the Company is authorized to issue.


 


Section 14.                                      Replacement Certificates.


 


(a)                                  The Company shall replace any mutilated
stock certificate at the Holder’s expense upon surrender of such stock
certificate to the Company.  The Company
shall replace stock certificates that become destroyed, stolen or lost at the
Holder’s expense upon delivery to the Company of satisfactory evidence that the
stock certificate has been destroyed, stolen or lost, together with any
indemnity that may be required by the Company.


 


(b)                                 The Company shall not be required to
issue any stock certificates representing the Series A Preferred Stock on
or after the Mandatory Conversion Date, except for shares held by any Holder
pursuant to Section 8(c) or 9(g). 
In place of the delivery of a replacement certificate following the
Mandatory Conversion Date, the Company, upon delivery of the evidence and
indemnity described in clause (a) above, shall deliver the Conversion
Securities, or evidence of book-entry record ownership of such Conversion
Securities, pursuant to the terms of the Series A Preferred Stock formerly
evidenced by the certificate.


 


Section 15.                                      Redemptions. 
The Series A Preferred Stock shall not be redeemable either at the
Company’s option or at the option of any Holder.


 


Section 16.                                      Reorganization Events.


 


(a)                                  In the event of:


 


(i)                                     any consolidation or merger of the
Company with or into another Person, in each case pursuant to which the Common
Stock will be converted into cash, securities or other property of the Company
or another Person,


 


(ii)                                  any sale, transfer, lease or conveyance
to another Person of all or substantially all of the property and assets of the
Company, in each case pursuant to which the Common Stock will be converted into
cash, securities or other property of the Company or another Person,


 


(iii)                               any reclassification of the Common Stock
into securities including securities other than the Common Stock or


 


(iv)                              any statutory exchange of the outstanding
shares of Common Stock for securities of another Person (other than in
connection with a merger or acquisition) (any such event specified in
clauses (i) through (iv), a “Reorganization Event”),


 


A-18

















 


each share of Series A Preferred Stock outstanding immediately
prior to such Reorganization Event shall, without the consent of Holders,
remain outstanding but shall become convertible, at the option of the Holders,
into the kind of securities, cash and other property receivable in such
Reorganization Event by the holder (excluding the counterparty to the
Reorganization Event or an affiliate of such counterparty) of that number of
shares of Common Stock into which the share of Series A Preferred Stock
would then be convertible assuming that on the date such option is exercised
the Applicable Regulatory Approval has been obtained and remains in effect and
disregarding for these purposes Section 9(h) (such securities, cash
and other property, the “Exchange Property”).


 


(b)                                 In the event that holders of the shares
of Common Stock have the opportunity to elect the form of consideration to be
received in such transaction, the consideration that the Holders are entitled
to receive shall be deemed to be the types and amounts of consideration
received by the majority of the holders of the shares of Common Stock that
affirmatively make an election.  The
amount of Exchange Property receivable upon conversion of any Series A
Preferred Stock in accordance with Section 8 shall be an amount equal to
the Conversion Price in effect on the Mandatory Conversion Date.


 


(c)                                  The above provisions of this Section 16
shall similarly apply to successive Reorganization Events and the provisions of
Section 13 shall apply to any shares of capital stock of the Company (or
any successor) received by the holders of the Common Stock in any such
Reorganization Event.


 


(d)                                 The Company (or any successor) shall,
within 20 days of the occurrence of any Reorganization Event, provide
written notice to the Holders of such occurrence of such event and of the kind
and amount of the cash, securities or other property that constitutes the
Exchange Property.  Failure to deliver
such notice shall not affect the operation of this Section 16.


 


Section 17.                                      No Impairment. 
The Company shall not amend its Certificate of Incorporation or
participate in any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action for the
purpose of avoiding or seeking to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but shall at
all times in good faith assist in carrying out all such action as may be
reasonably necessary or appropriate in order to protect the conversion rights
of the holders of the Series A Preferred Stock against dilution or other
impairment as provided herein.


 


Section 18.                                      Miscellaneous.


 


(a)                                  All notices referred to herein shall be
in writing, and, unless otherwise specified herein, all notices hereunder shall
be deemed to have been given upon the earlier of receipt thereof or three
Business Days after the mailing thereof if sent by registered or certified mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this Certificate of Designations) with postage prepaid,
addressed:  (i) if to the Company,
to its office at 1331 17th Street Suite 300, Denver, CO 80202-1566,
Attention:  Chief Financial Officer, or (ii) if
to any Holder, to such Holder at the address of such Holder as listed in the
stock record


 


A-19

















 


books of the
Company, or (iii) to such other address as the Company or any such Holder,
as the case may be, shall have designated by notice similarly given.


 


(b)                                 The Company shall pay any and all stock
transfer and documentary stamp taxes that may be payable in respect of any
issuance or delivery of shares of Series A Preferred Stock or Conversion
Securities or other securities issued on account of Series A Preferred
Stock pursuant hereto or certificates representing such shares or
securities.  The Company shall not,
however, be required to pay any such tax that may be payable in respect of any
transfer involved in the issuance or delivery of shares of Series A
Preferred Stock or Conversion Securities or other securities in a name other
than that in which the shares of Series A Preferred Stock with respect to
which such shares or other securities are issued or delivered were registered,
or in respect of any payment to any Person other than a payment to the
registered holder thereof, and shall not be required to make any such issuance,
delivery or payment unless and until the Person otherwise entitled to such
issuance, delivery or payment has paid to the Company the amount of any such
tax or has established, to the satisfaction of the Company, that such tax has
been paid or is not payable.


 


[Signature page follows]


 


A-20

















 


IN
WITNESS WHEREOF, the Company has caused this Resolution to be signed by its
duly authorized officer, on [·], 2009.


 


 


	
   

  	
  GUARANTY BANCORP

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to
Certificate of Designations]


 


A-21
















 


EXHIBIT B


 


FORM OF VOTING AGREEMENT


 


This
Voting Agreement (this “Agreement”), dated as of May 6, 2009, is by
and among the stockholders listed on the signature page hereto (each, a “Stockholder”
and, collectively, the “Stockholders”) and each of Patriot Financial
Partners, L.P., Patriot Financial Partners Parallel, L.P., Relational Investors
Mid-Cap Fund I, L.P. and Relational Investors Mid-Cap Fund II, L.P. (each, an “Investor”
and, collectively, the “Investors”).


 


WHEREAS,
simultaneously with the execution of this Agreement, Guaranty Bancorp, a
Delaware corporation (the “Company”), and the investors listed on the
signature pages thereto are entering into an Investment Agreement (the “Investment
Agreement”), dated as the date hereof, providing, among other things, for
the purchase by such investors from the Company of Series A Convertible
Non-Cumulative Preferred Stock, convertible into shares of Company Common
Stock;


 


WHEREAS,
the Board of Directors of the Company has approved the Investment Agreement and
the transactions contemplated thereby; and


 


WHEREAS,
as a condition and inducement to the Investors’ willingness to enter into the
Investment Agreement, each Investor has required that the Stockholders enter
into this Agreement.


 


NOW
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein and in
the Investment Agreement, the parties hereto, intending to be legally bound,
hereby agree as follows:


 


1.            Certain Definitions.


 


(a)           For
purposes of this Agreement, all capitalized terms used but not otherwise
defined herein shall have the respective meanings given to such terms in the
Investment Agreement.


 


(b)           For
purposes of this Agreement, “beneficially own” or “beneficial ownership”
with respect to any securities shall mean having “beneficial ownership” of such
securities (as determined pursuant to Rule 13d-3 under the Exchange Act).


 


(c)           For
purposes of this Agreement, the following terms shall have the following
meanings:


 


“Company
Common Stock” means the Company’s shares of common stock, par value $0.001
per share.


 


“Stockholder’s
Subject Shares” shall mean, with respect to a particular Stockholder, all
shares of Company Common Stock beneficially owned by such Stockholder as 


 


B-1

















 


of the date hereof and as set forth opposite such
Stockholder’s name on the schedule attached hereto as Exhibit A and
any and all such other shares of Company Common Stock acquired or otherwise
beneficially owned from time to time by such Stockholder after the date of this
Agreement.


 


2.            Representations, Warranties and Covenants of
Stockholder.  Each Stockholder hereby
represents and warrants to each Investor as follows:


 


(a)           Title.  Set forth opposite such Stockholder’s name on
Exhibit A hereto is a true and complete list of all of the shares
of Company Common Stock of which such Stockholder is the record or beneficial
owner as of the date hereof.  Except as
set forth on Exhibit A, as of the date hereof, such Stockholder is
the sole record or beneficial owner of such Stockholder’s Subject Shares, and
such Stockholder is the lawful owner of such Stockholder’s Subject Shares, free
and clear of all liens except such liens as would not reasonably be expected to
materially impair such Stockholder’s ability to perform its obligations
hereunder.


 


(b)           Right
to Vote.  Except as set forth on Exhibit A,
such Stockholder has, with respect to all such Stockholder’s Subject Shares,
sole voting power and sole power to issue instructions with respect to the
matters set forth in Section 3, in each case with no limitations,
qualifications or restrictions on such rights other than pursuant to the terms
of this Agreement.


 


(c)           Authority.  Such Stockholder has the requisite power and
authority to execute and deliver, and to perform such Stockholder’s obligations
under, this Agreement.  This Agreement
has been duly and validly executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder enforceable
against such Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).


 


(d)           Conflicting
Instruments.  Neither the execution
and delivery of this Agreement nor the performance by such Stockholder of such
Stockholder’s agreements and obligations hereunder will result in any breach or
violation of, or be in conflict with or constitute a default under, any term of
any contract, agreement, voting agreement, stockholders’ agreement, trust
agreement, voting trust, proxy, power of attorney, pooling arrangement, note,
mortgage, indenture, instrument, arrangement or other obligation or restriction
of any kind to which the Stockholder is a party or to or by which the
Stockholder or the Stockholder’s Subject Shares are subject or bound.


 


3.            Grant of Proxy.


 


(a)           Each
Stockholder hereby grants to, and appoints, the Investors, such
Stockholder’s proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote such Stockholder’s
Subject Shares, or grant a 


 


B-2

















 


consent or approval in respect of such shares, at
any meeting of Stockholders of the Company or at any adjournment thereof or in
any other circumstances in which their vote, consent or other approval is
sought, in favor of approval of any
and all of the matters contemplated by Section 9(e) of the Investment
Agreement.


 


(b)           Each
Stockholder represents that any proxies heretofore given in respect of such
Stockholder’s Subject Shares and still in effect are not irrevocable, and, to
the extent inconsistent with the provisions of this Agreement, that any such
proxies are hereby revoked.


 


(c)           Each
Stockholder hereby affirms that the proxy set forth in this Section 3
is given in connection with the execution of the Investment Agreement, and that
such proxy is given to secure the performance of the duties of such Stockholder
under this Agreement.  Such Stockholder
hereby further affirms that the proxy is coupled with an interest and may under
no circumstances be revoked, subject to Section 5(e) herein.  Such Stockholder hereby ratifies and confirms
all that such proxy may lawfully do or cause to be done by virtue hereof.  Such proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of
the General Corporation Law of the State of Delaware, subject to Section 5(e) herein.


 


4.            Fiduciary
Duties of Directors.  Each Stockholder
that is a director or officer of the Company is entering this Agreement in his
or her capacity as the record or beneficial owner of the Stockholder’s Subject
Shares, and not in his or her capacity as a director or officer of the
Company.  Nothing in this Agreement shall
be deemed in any manner to limit the discretion of any such Stockholder to take
any action, or fail to take any action, in his or her capacity as a director or
officer of the Company.


 


5.            Miscellaneous.


 


(a)           Entire
Agreement.  This Agreement (including
Exhibit A hereto) embodies the entire agreement and understanding
between the parties hereto in respect of the subject matter contained
herein.  This Agreement supersedes all
prior written and prior or contemporaneous oral agreements and understandings
between the parties with respect to the subject matter of this Agreement.


 


(b)           Invalid
Provisions.  If any provision of this
Agreement or the application thereof to any person (including the officers and
directors parties hereto) or circumstances is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or unenforceable,
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party.  Upon such determination, the
parties shall negotiate in good faith in an effort to agree upon a suitable and
equitable substitute provision to effect the original intent of the parties.


 


B-3

















 


(c)           Counterparts
and Facsimiles.  For the convenience
of the parties hereto, this Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument, and
all such counterparts will together constitute the same agreement.  Executed signature pages to this
Agreement may be delivered by facsimile and such facsimiles will be deemed as
sufficient as if actual signature pages had been delivered.


 


(d)           Specific
Performance.  Each Stockholder agrees
that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific terms.
It is accordingly agreed by each Stockholder that each Investor shall be
entitled to seek specific performance of the terms hereof, this being in
addition to any other remedies to which it is entitled at law or equity.


 


(e)           Amendments; Termination.


 


(i)            This Agreement may not be modified,
amended, altered or supplemented, except that this Agreement may be modified,
amended, altered or supplemented, as between either Investor and any particular
Stockholder, upon the execution and delivery of a written agreement executed by
such Investor and such Stockholder.


 


(ii)           The provisions of this Agreement
including the proxy granted pursuant to Section 3 shall terminate
upon the earliest to occur of (A) receipt of the Stockholder Approval and (B) the
termination of the Investment Agreement in accordance with its terms.


 


(iii)          The proxy granted pursuant to Section 3
shall also automatically terminate with respect to any Stockholder’s Subject
Shares which are sold, transferred, assigned or otherwise disposed of by a
Stockholder to a third party.


 


(f)            Governing
Law.  This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
Colorado, without giving effect to conflicts of law principles or other
principles that would require the application of any other law.


 


(g)           Successors
and Assigns.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal successors (including, in the case of each
Stockholder, any executors, administrators, estates, legal representatives and
heirs of such Stockholder) and permitted assigns; provided that, except as
otherwise provided in this Agreement, no party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement.


 


(h)           Notices.  All notices, communications and deliveries
required or permitted by this Agreement shall be made in writing signed by the
party making the same, shall specify the Section of this Agreement
pursuant to which it is given or being made and shall be deemed given or made (i) on
the date delivered if delivered by telecopy or in person, (ii) on the
third (3rd) Business Day after it is mailed if mailed by registered or
certified mail (return receipt requested) (with postage and other fees prepaid)
or (iii) on the day after it is delivered, prepaid, 


 


B-4

















 


to
an overnight express delivery service that confirms to the sender delivery on
such day, as follows:


 


(i)            if to a Stockholder, at the address
of such Stockholder set forth on Exhibit A attached hereto or at
such other address that such Stockholder may have provided in writing to the
Investors; and


 


(ii)           if to an Investor, to the address in
Annex A to the Investment Agreement, with copies (which copy alone shall not
constitute notice) as set forth in the Investment Agreement.


 


(i)            Individual
Obligations.  Each Stockholder’s
obligations under this Agreement are individual and not joint or several
obligations and no Stockholder shall have any liability to either Investor for
the performance or non-performance by any other Stockholder under this
Agreement.


 


[Signature Pages Follow]


 


B-5

















 


IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date first written above.


 


	
   

  	
  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  Patriot Financial Partners, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Patriot Financial Partners Parallel, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Relational Investors Mid-Cap Fund I, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Relational Investors Mid-Cap Fund II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Voting Agreement


 

















 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
  Mutual Shares Fund

  
	
   

  	
  Mutual Qualified Fund

  
	
   

  	
  Mutual Financial Services Fund

  
	
   

  	
  Mutual Shares Securities Fund

  
	
   

  	
  Franklin Mutual Beacon Fund

  
	
   

  	
  Franklin Mutual Shares Fund

  
	
   

  	
  EQ/Mutual Shares Portfolio

  
	
   

  	
  JNL/Franklin Templeton Mutual Shares Fund

  
	
   

  	
  Mutual Shares Trust

  
	
   

  	
  ING Franklin Mutual Shares Portfolio

  
	
   

  	
   

  
	
   

  	
  By: Franklin Mutual Advisers, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Bradley Takahashi

  
	
   

  	
   

  
	
   

  	
  Title:  Vice
  President

  



 


Voting Agreement


 

















 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
  Andrea N. DeVos 1003 Trust

  
	
   

  	
  Elisabeth L. DeVos 1003 Trust

  
	
   

  	
  Ryan E. DeVos 1003 Trust

  
	
   

  	
  Richard M. DeVos III 1003 Trust

  
	
   

  	
  Richard M. DeVos Charitable Lead Annuity Trust
  No. 2

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Jerry L. Tubergen

  
	
   

  	
  Title:  Trustee
  (and not in any individual capacity)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RDV Capital Management LP

  
	
   

  	
   

  
	
   

  	
  By: RDV Corporation, its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Jerry L. Tubergen

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Heritage Capital Management, LP

  
	
   

  	
   

  
	
   

  	
  By: Buttonwood Capital, Inc., its General
  Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Jerry L. Tubergen

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Harbour Point Investors, LLC

  
	
   

  	
   

  
	
   

  	
  By: RDV Corporation, its Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Jerry L. Tubergen

  
	
   

  	
  Title: President

  



 


Voting Agreement


 

















 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
  Castle Creek Capital Partners III, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: John M. Eggemeyer, III

  
	
   

  	
   

  
	
   

  	
  Title: President

  



 


Voting Agreement


 

















 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: John M. Eggemeyer

  



 


Voting Agreement


 

















 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: 

  	
  John M. Eggemeyer, Trustee

  
	
   

  	
   

  	
  Eggemeyer Family Trust

  
	
   

  	
   

  



 


Voting Agreement


 
















 


Exhibit A


 


	
  Name of Stockholder

  	
   

  	
  Number of Shares 

  of Company

  Common Stock

  	
   

  	
  Nature of 

  Ownership

  	
   

  	
  Notice Information

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Castle Creek Capital
  Partners III, L.P.

  	
   

  	
  2,644,963

  	
   

  	
  Direct

  	
   

  	
  P.O. Box 1329 

  Rancho Santa Fe, 

  California 92067 

  

  Phone: (858) 756-8300 

  Fax: (858) 756-8301

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John Eggemeyer

  	
   

  	
  76,120

  	
   

  	
  Direct

  	
   

  	
  P.O. Box 1329 

  Rancho Santa Fe, 

  California 92067 

  

  Phone: (858) 756-8300 

  Fax: (858) 756-8301

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eggemeyer Family Trust

  	
   

  	
  352,500

  	
   

  	
  Direct

  	
   

  	
  P.O. Box 1329 

  Rancho Santa Fe, 

  California 92067 

  

  Phone: (858) 756-8300 

  Fax: (858) 756-8301

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mutual Shares Fund

  	
   

  	
  5,731,834

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mutual Qualified Fund

  	
   

  	
  1,735,639

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mutual Financial
  Services Fund

  	
   

  	
  1,333,807

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  



 


A-1

















 


	
  Mutual Shares
  Securities Fund

  	
   

  	
  1,288,316

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Franklin Mutual Beacon
  Fund

  	
   

  	
  91,672

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Franklin Mutual Shares
  Fund

  	
   

  	
  26,327

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EQ/Mutual Shares
  Portfolio

  	
   

  	
  91,672

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JNL/Franklin Templeton
  Mutual Shares Fund

  	
   

  	
  48,548

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  



 


A-2

















 


	
  Mutual Shares Trust

  	
   

  	
  21,927

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ING Franklin Mutual
  Shares Portfolio

  	
   

  	
  47,924

  	
   

  	
  Beneficial*

  	
   

  	
  c/o Franklin Mutual 

  Advisers, LLC 

  101 John F. Kennedy Pkwy 

  Short Hills, NJ 07078 

  

  Bradley Takahashi 

  Phone: (973) 912-2152 

  Fax: (973) 912-0646

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Andrea N. DeVos 1003
  Trust

  	
   

  	
  125,000

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Elisabeth L. DeVos 1003
  Trust

  	
   

  	
  125,000

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ryan E. DeVos 1003
  Trust

  	
   

  	
  125,000

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Richard M. DeVos III
  1003 Trust

  	
   

  	
  125,000

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Richard M. DeVos
  Charitable Lead Annuity Trust No. 2

  	
   

  	
  1,000,000

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW,

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RDV Capital Management
  LP

  	
   

  	
  879,167

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  



 


A-3

















 


	
  Heritage Capital
  Management, LP

  	
   

  	
  160,000

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Harbour Point
  Investors, LLC

  	
   

  	
  33,390

  	
   

  	
  Direct

  	
   

  	
  126 Ottawa Ave. NW, 

  Suite 500 

  Grand Rapids, MI 49503 

  Phone: (616) 454-4114 

  Fax: (616) 454-4654

  



 






*All voting discretion
held pursuant to investment management contracts by Franklin Mutual Advisers,
LLC.


 


A-4
















 


EXHIBIT C


 


PASSIVITY COMMITMENTS


 


(Name and Location) (“Investor”), will not, without the
prior approval of the Federal Reserve System or its staff, directly or
indirectly:


 


1.                                       Exercise or attempt to exercise a
controlling influence over the management or policies of Guaranty Bancorp (“Company”)
or any of its subsidiaries;


 


2.                                       Have or seek to have more than one
representative of Investor and their subsidiaries (the “Investor Group”) serve
on the board of directors of Company or any of its subsidiaries;


 


3.                                       Permit any representative of the Investor
Group who serves on the board of directors of Company or any of its
subsidiaries to serve (i) as the chairman of the board of directors of
Company or any of its subsidiaries, (ii) as the chairman of any committee of
the board of directors of Company or any of its subsidiaries, or (iii) 
serve as a member of any committee of the board of directors of Company or any
of its subsidiaries if the Investor Group representative occupies more than 25
percent of the seats on the committee;


 


4.                                       Have or seek to have any employee or
representative of the Investor Group serve as an officer, agent, or employee of
Company or any of its subsidiaries;


 


5.                                       Take any action that would cause Company
or any of its subsidiaries to become a subsidiary of Investor;


 


6.                                       Own, control, or hold with power to vote
securities that (when aggregated with securities that the officers and
directors of the Investor Group own, control, or hold with power to vote)
represent 25 percent or more of any class of voting securities of Company or
any of its subsidiaries;


 


7.                                       Own or control equity interests that
would cause the combined voting and nonvoting equity interests of the Investor
Group and its officers and directors to equal or exceed 25 percent of the total
equity capital of Company or any of its subsidiaries;


 


8.                                       Propose a
director or slate of directors in opposition to a nominee or slate of nominees
proposed by the management or board of directors of Company or any of its
subsidiaries;


 


9.                                       Enter into any agreement with Company or
any of its subsidiaries that substantially limits the discretion of Company’s
management over major policies and decisions, including, but not limited to,
policies or decisions about employing and compensating executive officers;
engaging in new business lines; raising additional debt or equity capital;
merging or consolidating with another firm; or 


 

















 


acquiring, selling, leasing, transferring, or
disposing of material assets, subsidiaries, or other entities;


 


10.                                 Solicit or participate in soliciting
proxies with respect to any matter presented to the shareholders of Company or
any of its subsidiaries;


 


11.                                 Dispose or threaten to dispose
(explicitly or implicitly) of equity interests of  Company
or any of its subsidiaries in any manner as a condition or inducement of
specific action or non-action by Company or any of its subsidiaries;
or


 


12.                                 Enter into any other banking or
nonbanking transactions with Company or any of its subsidiaries, except that
Investor Group may establish and maintain deposit accounts with Company,
provided that the aggregate balance of all such deposit accounts does not
exceed $500,000 and that the accounts are maintained on substantially the same
terms as those prevailing for comparable accounts of persons unaffiliated with
Company.


 


The terms used in these commitments have the same meanings as set forth
in the Bank Holding Company Act of 1956, as amended, and the Board’s Regulation
Y.


 
















 


EXHIBIT D


 


FORM OF JOINDER


 


[Date]


 


Reference is made to the Investment Agreement (as
amended, supplemented or otherwise modified from time to time, the “Investment Agreement”), dated as of May 6,
2009, by and among Guaranty Bancorp, a Delaware corporation (the “Company”), and each investor listed
on Annex A attached thereto and such
other investors that may become party thereto from time to time (each, an “Investor” and collectively, the “Investors”). Capitalized terms used
but not otherwise defined herein shall have the meanings assigned to such terms
in the Investment Agreement.


 


This Joinder supplements the Investment Agreement
and is delivered by the undersigned (the “Additional Investor”)
pursuant to Section 23 of the Investment Agreement.  The Additional Investor hereby agrees to be
bound as an Investor party to the Investment Agreement by all of the terms,
covenants and conditions set forth in the Investment Agreement to the same
extent that it would have been bound if it had been a signatory to the Investment
Agreement as an Investor thereunder on the date of the Investment Agreement.


 


For the convenience of the parties hereto, this
Joinder may be executed in any number of counterparts, each of which shall be
deemed to be an original instrument, and all such counterparts will together
constitute the same agreement.  Executed
signature pages to this Joinder may be delivered by facsimile and such
facsimiles will be deemed as sufficient as if actual signature pages had
been delivered.


 


This Joinder shall be governed by, construed and
enforced in accordance with the laws of the State of Colorado, without giving
effect to conflicts of law principles or other principles that would require
the application of any other law.


 


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IN WITNESS WHEREOF, the Additional Investor has
caused this Joinder to be duly executed and delivered as of the date first
above written.


 


	
   

  	
  [Additional
  Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


AGREED
TO AND ACCEPTED:


 


Guaranty
Bancorp


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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