SECURITIES PURCHASE AGREEMENT 

dated January 15, 2009 

between 

BANK OF AMERICA CORPORATION, as Issuer 

and 

UNITED STATES DEPARTMENT OF THE TREASURY 

 

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TABLE OF CONTENTS 

Page

Article I 

Purchase; Closing 

1.1 Purchase .................................................................................................................................1 

1.2 Closing ...................................................................................................................................1 

1.3 Interpretation..........................................................................................................................4 

Article II 

Representations and Warranties 

2.1 Disclosure ..............................................................................................................................4 

2.2 Representations and Warranties of the Company..................................................................5 

Article III 

Covenants 

3.1 Commercially Reasonable Efforts .........................................................................................13 

3.2 Expenses ................................................................................................................................13 

3.3 Sufficiency of Authorized Common Stock; Exchange Listing..............................................13 

3.4 Certain Notifications Until Closing .......................................................................................13 

3.5 Access, Information and Confidentiality ...............................................................................14 

3.6 Internal Controls ....................................................................................................................15 

ARTICLE IV 

Additional Agreements 

4.1 Purchase for Investment.........................................................................................................15 

4.2 Legends..................................................................................................................................16 

4.3 Certain Transactions ..............................................................................................................17 

 

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4.4 Transfer of Purchased Securities and Warrant Shares; Restrictions on Exercise of 

the Warrant.............................................................................................................................17 

4.5 Registration Rights.................................................................................................................17 

4.6 Voting of Warrant Shares ......................................................................................................29 

4.7 Depositary Shares ..................................................................................................................29 

4.8 Restriction on Dividends and Repurchases............................................................................29 

4.9 Repurchase of Investor Securities..........................................................................................31 

4.10 Executive Compensation .......................................................................................................32 

4.11 Qualified Equity Offering......................................................................................................36 

4.12 Bank Holding Company Status..............................................................................................36 

4.13 Certain Tax Matters ...............................................................................................................36 

Article V 

Miscellaneous 

5.1 Termination............................................................................................................................36 

5.2 Survival of Representations and Warranties..........................................................................37 

5.3 Amendment............................................................................................................................37 

5.4 Waiver of Conditions.............................................................................................................37 

5.5 Governing Law: Submission to Jurisdiction, Etc. .................................................................37 

5.6 Notices ...................................................................................................................................38 

5.7 Definitions..............................................................................................................................38 

5.8 Assignment ............................................................................................................................39 

5.9 Entire Agreement, Etc............................................................................................................39 

5.10 Counterparts and Facsimile....................................................................................................39 

5.11 Severability ............................................................................................................................39 

5.12 No Third Party Beneficiaries .................................................................................................39 

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iii 

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LIST OF ANNEXES 

ANNEX A: FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK 

ANNEX B: FORM OF WAIVER 

ANNEX C: FORM OF OPINION 

ANNEX D: FORM OF WARRANT 

LIST OF SCHEDULES 

SCHEDULE A: CAPITALIZATION 

SCHEDULE B: LITIGATION 

SCHEDULE C: COMPLIANCE WITH LAWS 

SCHEDULE D: REGULATORY AGREEMENTS 

SCHEDULE E: OTHER SENIOR MANAGERS 

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INDEX OF DEFINED TERMS 

Term Location of Definition

Affiliate....................................................................................................................................5.7(b) 

Agreement.......................................................................................................................... Preamble 

Appraisal Procedure............................................................................................................. 4.9(c)(i) 

Appropriate Federal Banking Agency ..................................................................................... 2.2(s) 

Bank Holding Company ............................................................................................................ 4.12 

Bankruptcy Exceptions ............................................................................................................2.2(d) 

Benefit Plans ......................................................................................................................1.2(d)(iv) 

Board of Directors.................................................................................................................... 2.2(f) 

Bonus Compensation ......................................................................................................... 4.10(c)(i) 

Bonus Pool Cap.................................................................................................................. 4.10(c)(i) 

Business Combination ................................................................................................................. 5.8 

business day ................................................................................................................................. 1.3 

by means of..........................................................................................................................4.5(g)(i) 

Capitalization Date...................................................................................................................2.2(b) 

Certificate of Designations ................................................................................................1.2(d)(iii) 

Charter................................................................................................................................1.2(d)(iii) 

Closing .....................................................................................................................................1.2(a) 

Closing Date.............................................................................................................................1.2(a) 

Code .........................................................................................................................................2.2(n) 

Common Stock..................................................................................................................... Recitals 

Company............................................................................................................................ Preamble 

Company Financial Statements................................................................................................2.2(h) 

Company Material Adverse Effect ..........................................................................................2.1(a)

Company Reports..................................................................................................................2.2(i)(i) 

Company Subsidiaries ..........................................................................................................2.2(i)(i) 

Company Subsidiary.............................................................................................................2.2(i)(i) 

Company’s knowledge.............................................................................................................5.7(c) 

controlled by ............................................................................................................................5.7(b) 

EESA..................................................................................................................................1.2(d)(iv) 

ERISA......................................................................................................................................2.2(n) 

Exchange Act...........................................................................................................................2.1(b) 

Expense Policy.......................................................................................................................4.10(e) 

Fair Market Value...............................................................................................................4.9(c)(ii) 

Federal Reserve.......................................................................................................................... 4.12 

free writing prospectus.........................................................................................................4.5(g)(i) 

GAAP.......................................................................................................................................2.1(a) 

Governmental Entities .............................................................................................................1.2(c) 

Holder ..................................................................................................................................4.5(k)(i) 

Holders’ Counsel ................................................................................................................4.5(k)(ii) 

Indemnitee............................................................................................................................4.5(g)(i) 

Information ..............................................................................................................................3.5(c) 

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095331-0002-11807-NY03.2705836.8

Investor .............................................................................................................................. Preamble 

Junior Stock .............................................................................................................................4.8(d) 

knowledge of the Company .....................................................................................................5.7(c) 

Last Fiscal Year .......................................................................................................................2.1(b) 

multiemployer plan ..................................................................................................................2.2(n) 

officers .....................................................................................................................................5.7(c) 

Original Purchase Agreement.................................................................................................... 4.11 

Other Senior Managers ..........................................................................................................4.10(b) 

Parity Stock..............................................................................................................................4.8(d) 

Pending Underwritten Offering .......................................................................................4.5(k)(viii) 

Permitted Repurchases........................................................................................................ 4.8(a)(ii) 

Piggyback Registration ...................................................................................................... 4.5(a)(iv) 

Plan ..........................................................................................................................................2.2(n) 

Preferred Shares................................................................................................................... Recitals 

Preferred Stock.........................................................................................................................2.2(c) 

Previously Disclosed................................................................................................................2.1(b) 

Prior Year Bonus Compensation ....................................................................................... 4.10(c)(i) 

Proprietary Rights ....................................................................................................................2.2(u) 

Purchase ............................................................................................................................... Recitals 

Purchase Price.............................................................................................................................. 1.1 

Purchased Securities ............................................................................................................ Recitals 

Register, registered, and registration ..................................................................................4.5(k)(ii) 

Registrable Securities.........................................................................................................4.5(k)(iv) 

Registration Expenses......................................................................................................... 4.5(k)(v) 

Regulatory Agreement............................................................................................................. 2.2(s) 

road shows .......................................................................................................................... 4.5(c)(x) 

Rules 144, 144A, 159A, 404 and 415................................................................................4.5(k)(vi) 

SEC ..........................................................................................................................................2.1(b) 

Securities Act...........................................................................................................................2.2(a) 

SECURITIES ACT..................................................................................................................4.2(b) 

Selling Expenses ...............................................................................................................4.5(k)(vii) 

Senior Executive Officers......................................................................................................4.10(a) 

Share Dilution Amount....................................................................................................... 4.8(a)(ii) 

Shelf Registration Statement............................................................................................... 4.5(a)(ii) 

Signing Date.............................................................................................................................2.1(a) 

Special Registration ..................................................................................................................4.5(i) 

subsidiary .................................................................................................................................5.7(a) 

TARP ................................................................................................................................... Recitals 

Tax ...........................................................................................................................................2.2(o) 

Transfer........................................................................................................................................ 4.4 

U.S. Lobbying Policy............................................................................................................4.10(d) 

under common control with.....................................................................................................5.7(b) 

Vested Benefits ......................................................................................................................4.10(a) 

Warrant ................................................................................................................................ Recitals 

Warrant Shares.........................................................................................................................2.2(d) 
SECURITIES PURCHASE AGREEMENT, dated January 15, 2009 (this 

“Agreement”), between Bank of America Corporation, a Delaware corporation (the 

“Company”), and the United States Department of the Treasury (the “Investor”). 

Recitals: 

WHEREAS, the Investor may from time to time agree to purchase shares of 

preferred stock and warrants from eligible financial institutions under the Troubled Asset Relief 

Program (“TARP”); 

WHEREAS, the Company agrees to expand the flow of credit to U.S. consumers 

and businesses on competitive terms to promote the sustained growth and vitality of the U.S. 

economy; 

WHEREAS, the Company agrees to work diligently, under existing programs, to 

modify the terms of residential mortgages as appropriate to strengthen the health of the U.S. 

housing market; 

WHEREAS, the Company intends to issue in a private placement 800,000 shares 

of its preferred stock designated as “Fixed Rate Cumulative Perpetual Preferred Stock, Series R” 

(the “Preferred Shares”) and a warrant to purchase 150,375,940 shares of its Common Stock 

(“Common Stock”) (the “Warrant” and, together with the Preferred Shares, the “Purchased 

Securities”), and the Investor intends to purchase (the “Purchase”) from the Company the 

Purchased Securities under TARP. 

NOW, THEREFORE, in consideration of the premises, and of the 

representations, warranties, covenants and agreements set forth herein, the parties agree as 

follows: 

ARTICLE I 

Purchase; Closing 

1.1 Purchase. On the terms and subject to the conditions set forth in this 

Agreement, the Company agrees to sell to the Investor, and the Investor agrees to purchase from 

the Company, at the Closing (as hereinafter defined), the Purchased Securities for an aggregate 

purchase price of $20,000,000,000 (the “Purchase Price”). For the avoidance of doubt, the 

parties agree that the full Purchase Price represents a capital contribution by the Investor solely 

in exchange for the Purchased Securities. 

1.2 Closing. 

(a) On the terms and subject to the conditions set forth in this Agreement, the 

closing of the Purchase (the “Closing”) will take place at the offices of Simpson Thacher & 

Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, at 9:00 a.m., New York 

time, on January 16, 2009 or as soon as practicable thereafter, or at such other place, time and 

date as shall be agreed between the Company and the Investor. The time and date on which the 

Closing occurs is referred to in this Agreement as the “Closing Date”. 

 

095331-0002-11807-NY03.2705836.8
(b) Subject to the fulfillment or waiver of the conditions to the Closing in this 

Section 1.2, at the Closing the Company will deliver the Preferred Shares and the Warrant, in 

each case as evidenced by one or more certificates dated the Closing Date and bearing 

appropriate legends as hereinafter provided for, in exchange for payment in full of the Purchase 

Price by wire transfer of immediately available United States funds to a bank account that has 

been designated by the Company in writing to the Investor at least one business day prior to the 

Closing Date. 

(c) The respective obligations of each of the Investor and the Company to 

consummate the Purchase are subject to the fulfillment (or waiver by the Investor and the 

Company, as applicable) prior to the Closing of the conditions that (i) any approvals or 

authorizations of all United States and other governmental, regulatory or judicial authorities 

(collectively, “Governmental Entities”) required for the consummation of the Purchase shall 

have been obtained or made in form and substance reasonably satisfactory to each party and shall 

be in full force and effect and all waiting periods required by United States and other applicable 

law, if any, shall have expired and (ii) no provision of any applicable United States or other law 

and no judgment, injunction, order or decree of any Governmental Entity shall prohibit the 

purchase and sale of the Purchased Securities as contemplated by this Agreement. 

(d) The obligation of the Investor to consummate the Purchase is also subject 

to the fulfillment (or waiver by the Investor) at or prior to the Closing of each of the following 

conditions: 

(i) (A) the representations and warranties of the Company set forth in 

(x) Section 2.2(g) of this Agreement shall be true and correct in all respects as 

though made on and as of the Closing Date, (y) Sections 2.2(a) through (f) shall 

be true and correct in all material respects as though made on and as of the 

Closing Date (other than representations and warranties that by their terms speak 

as of another date, which representations and warranties shall be true and correct 

in all material respects as of such other date) and (z) Sections 2.2(h) through (v) 

(disregarding all qualifications or limitations set forth in such representations and 

warranties as to “materiality”, “Company Material Adverse Effect” and words of 

similar import) shall be true and correct as though made on and as of the Closing 

Date (other than representations and warranties that by their terms speak as of 

another date, which representations and warranties shall be true and correct as of 

such other date), except to the extent that the failure of such representations and 

warranties referred to in this Section 1.2(d)(i)(A)(z) to be so true and correct, 

individually or in the aggregate, does not have and would not reasonably be 

expected to have a Company Material Adverse Effect and (B) the Company shall 

have performed in all material respects all obligations required to be performed by 

it under this Agreement at or prior to the Closing; 

(ii) the Investor shall have received a certificate signed on behalf of 

the Company by a senior executive officer certifying to the effect that the 

conditions set forth in Section 1.2(d)(i) have been satisfied; 

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(iii) the Company shall have duly adopted and filed with the Secretary 

of State of the State of Delaware the amendment to its certificate of incorporation 

(“Charter”) in substantially the form attached hereto as Annex A (the “Certificate 

of Designations”) and such filing shall have been accepted; 

(iv) (A) the Company shall have effected such changes to its 

compensation, bonus, incentive and other benefit plans, arrangements and 

agreements (including golden parachute, severance and employment agreements) 

(collectively, “Benefit Plans”) with respect to its Senior Executive Officers and 

Other Senior Managers (and to the extent necessary for such changes to be legally 

enforceable, each of its Senior Executive Officers and Other Senior Managers 

shall have duly consented in writing to such changes), as may be necessary, 

during the period that the Investor owns any debt or equity securities of the 

Company acquired pursuant to this Agreement or the Warrant, in order to comply 

with Section 111(b) of the Emergency Economic Stabilization Act of 2008 

(“EESA ”) as implemented by guidance or regulation thereunder that has been 

issued and is in effect as of the Closing Date, and Section 4.10 of this Agreement, 

and (B) the Investor shall have received a certificate signed on behalf of the 

Company by a senior executive officer certifying to the effect that the condition 

set forth in Section 1.2(d)(iv)(A) has been satisfied; 

(v) each of the Company’s Senior Executive Officers and Other Senior 

Managers shall have delivered to the Investor a written waiver in the form 

attached hereto as Annex B releasing the Investor from any claims that such 

Senior Executive Officer or Other Senior Managers may otherwise have as a 

result of the issuance, on or prior to the Closing Date, of any regulations which 

require the modification of, and the agreement of the Company hereunder to 

modify, the terms of any Benefit Plans with respect to its Senior Executive 

Officers and Other Senior Managers, as applicable, to eliminate any provisions of 

such Benefit Plans that would not be in compliance with the requirements of 

Section 111(b) of the EESA as implemented by guidance or regulation thereunder 

that has been issued and is in effect as of the Closing Date and Section 4.10 of this 

Agreement; 

(vi) the Company shall have delivered to the Investor a written opinion 

from counsel to the Company (which may be internal counsel), addressed to the 

Investor and dated as of the Closing Date, in substantially the form attached 

hereto as Annex C; 

(vii) the Company shall have delivered certificates in proper form or, 

with the prior consent of the Investor, evidence of shares in book-entry form, 

evidencing the Preferred Shares to Investor or its designee(s); and 

(viii) the Company shall have duly executed the Warrant in substantially 

the form attached hereto as Annex D and delivered such executed Warrant to the 

Investor or its designee(s). 

3 
1.3 Interpretation. When a reference is made in this Agreement to “Recitals,” 

“Articles,” “Sections,” “Annexes” or “Schedules” such reference shall be to a Recital, Article or 

Section of, or Annex or Schedule to, this Agreement, unless otherwise indicated. The terms 

defined in the singular have a comparable meaning when used in the plural, and vice versa. 

References to “herein”, “hereof”, “hereunder” and the like refer to this Agreement as a whole 

and not to any particular section or provision, unless the context requires otherwise. The table of 

contents and headings contained in this Agreement are for reference purposes only and are not 

part of this Agreement. Whenever the words “include,” “includes” or “including” are used in 

this Agreement, they shall be deemed followed by the words “without limitation.” No rule of 

construction against the draftsperson shall be applied in connection with the interpretation or 

enforcement of this Agreement, as this Agreement is the product of negotiation between 

sophisticated parties advised by counsel. All references to “$” or “dollars” mean the lawful 

currency of the United States of America. Except as expressly stated in this Agreement, all 

references to any statute, rule or regulation are to the statute, rule or regulation as amended, 

modified, supplemented or replaced from time to time (and, in the case of statutes, include any 

rules and regulations promulgated under the statute) and to any section of any statute, rule or 

regulation include any successor to the section. References to a “business day” shall mean any 

day except Saturday, Sunday and any day on which banking institutions in the State of New 

York generally are authorized or required by law or other governmental actions to close. 

ARTICLE II 

Representations and Warranties 

2.1 Disclosure. 

(a) “Company Material Adverse Effect” means a material adverse effect on (i) 

the business, results of operation or financial condition of the Company and its consolidated 

subsidiaries taken as a whole; provided, however, that Company Material Adverse Effect shall 

not be deemed to include the effects of (A) changes after the date of this Agreement (the 

“Signing Date”) in general business, economic or market conditions (including changes 

generally in prevailing interest rates, credit availability and liquidity, currency exchange rates 

and price levels or trading volumes in the United States or foreign securities or credit markets), 

or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in 

each case generally affecting the industries in which the Company and its subsidiaries operate, 

(B) changes or proposed changes after the Signing Date in generally accepted accounting 

principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative 

interpretations thereof, (C) changes or proposed changes after the Signing Date in securities, 

banking and other laws of general applicability or related policies or interpretations of 

Governmental Entities (in the case of each of these clauses (A), (B) and (C), other than changes 

or occurrences to the extent that such changes or occurrences have or would reasonably be 

expected to have a materially disproportionate adverse effect on the Company and its 

consolidated subsidiaries taken as a whole relative to comparable U.S. banking or financial 

services organizations), or (D) changes in the market price or trading volume of the Common 

Stock or any other equity, equity-related or debt securities of the Company or its consolidated 

subsidiaries (it being understood and agreed that the exception set forth in this clause (D) does 

not apply to the underlying reason giving rise to or contributing to any such change); or (ii) the 

ability of the Company to consummate the Purchase and the other transactions contemplated by 

4 
this Agreement and the Warrant and perform its obligations hereunder or thereunder on a timely 

basis. 

(b) “Previously Disclosed” means information set forth or incorporated in the 

(i) Company’s Annual Report on Form 10-K for the most recently completed fiscal year of the 

Company filed with the Securities and Exchange Commission (the “SEC”) prior to the Signing 

Date (the “Last Fiscal Year”) or in its other reports and forms filed with or furnished to the SEC 

under Sections 13(a), 14(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange 

Act”) on or after the last day of the Last Fiscal Year and prior to the Signing Date or (ii) 

comparable reports and forms of Merrill Lynch & Co., Inc. 

2.2 Representations and Warranties of the Company. Except as Previously 

Disclosed, the Company represents and warrants to the Investor that as of the Signing Date and 

as of the Closing Date (or such other date specified herein): 

(a) Organization, Authority and Significant Subsidiaries. The Company has 

been duly incorporated and is validly existing and in good standing under the laws of its 

jurisdiction of organization, with the necessary power and authority to own its properties and 

conduct its business in all material respects as currently conducted, and except as has not, 

individually or in the aggregate, had and would not reasonably be expected to have a Company 

Material Adverse Effect, has been duly qualified as a foreign corporation for the transaction of 

business and is in good standing under the laws of each other jurisdiction in which it owns or 

leases properties or conducts any business so as to require such qualification; each subsidiary of 

the Company that is a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation 

S-X under the Securities Act of 1933 (the “Securities Act”) has been duly organized and is 

validly existing in good standing under the laws of its jurisdiction of organization. The Charter 

and bylaws of the Company, copies of which have been provided to the Investor prior to the 

Signing Date, are true, complete and correct copies of such documents as in full force and effect 

as of the Signing Date. 

(b) Capitalization. The authorized capital stock of the Company, and the 

outstanding capital stock of the Company (including securities convertible into, or exercisable or 

exchangeable for, capital stock of the Company) as of the most recent fiscal month-end 

preceding the Signing Date (the “Capitalization Date”) is set forth on Schedule A. The 

outstanding shares of capital stock of the Company have been duly authorized and are validly 

issued and outstanding, fully paid and nonassessable, and subject to no preemptive rights (and 

were not issued in violation of any preemptive rights). Except as provided in the Warrant, as of 

the Signing Date, the Company does not have outstanding any securities or other obligations 

providing the holder the right to acquire Common Stock that is not reserved for issuance as 

specified on Schedule A, and the Company has not made any other commitment to authorize, 

issue or sell any Common Stock. Since the Capitalization Date, the Company has not issued any 

shares of Common Stock, other than (i) shares issued upon the exercise of stock options or 

delivered under other equity-based awards or other convertible securities or warrants which were 

issued and outstanding on the Capitalization Date and disclosed on Schedule A and (ii) shares 

disclosed on Schedule A. 

5 
(c) Preferred Shares. The Preferred Shares have been duly and validly 

authorized, and, when issued and delivered pursuant to this Agreement, such Preferred Shares 

will be duly and validly issued and fully paid and non-assessable, will not be issued in violation 

of any preemptive rights, and will rank pari passu with or senior to all other series or classes of 

preferred stock of the Company ( “Preferred Stock”), whether or not issued or outstanding, with 

respect to the payment of dividends and the distribution of assets in the event of any dissolution, 

liquidation or winding up of the Company. 

(d) The Warrant and Warrant Shares. The Warrant has been duly authorized 

and, when executed and delivered as contemplated hereby, will constitute a valid and legally 

binding obligation of the Company enforceable against the Company in accordance with its 

terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, 

moratorium or similar laws affecting the enforcement of creditors’ rights generally and general 

equitable principles, regardless of whether such enforceability is considered in a proceeding at 

law or in equity (“Bankruptcy Exceptions”). The shares of Common Stock issuable upon 

exercise of the Warrant (the “Warrant Shares”) have been duly authorized and reserved for 

issuance upon exercise of the Warrant and when so issued in accordance with the terms of the 

Warrant will be validly issued, fully paid and non-assessable. 

(e) Authorization, Enforceability. 

(i) The Company has the corporate power and authority to execute 

and deliver this Agreement and the Warrant and to carry out its obligations 

hereunder and thereunder (which includes the issuance of the Preferred Shares, 

Warrant and Warrant Shares). The execution, delivery and performance by the 

Company of this Agreement and the Warrant and the consummation of the 

transactions contemplated hereby and thereby have been duly authorized by all 

necessary corporate action on the part of the Company and its stockholders, and 

no further approval or authorization is required on the part of the Company. This 

Agreement is a valid and binding obligation of the Company enforceable against 

the Company in accordance with its terms, subject to the Bankruptcy Exceptions. 

(ii) The execution, delivery and performance by the Company of this 

Agreement and the Warrant and the consummation of the transactions 

contemplated hereby and thereby and compliance by the Company with the 

provisions hereof and thereof, will not (A) 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 Company Subsidiary under any of the terms, conditions or 

provisions of (i) its organizational documents or (ii) any note, bond, mortgage, 

indenture, deed of trust, license, lease, agreement or other instrument or 

obligation to which the Company or any Company Subsidiary is a party or by 

which it or any Company Subsidiary may be bound, or to which the Company or 

any Company Subsidiary or any of the properties or assets of the Company or any 

6 
Company Subsidiary may be subject, or (B) subject to compliance with the 

statutes and regulations referred to in the next paragraph, violate any statute, rule 

or regulation or any judgment, ruling, order, writ, injunction or decree applicable 

to the Company or any Company Subsidiary or any of their respective properties 

or assets except, in the case of clauses (A)(ii) and (B), for those occurrences that, 

individually or in the aggregate, have not had and would not reasonably be 

expected to have a Company Material Adverse Effect. 

(iii) Other than the filing of the Certificate of Designations with the 

Secretary of State of the State of Delaware, any current report on Form 8-K 

required to be filed with the SEC, such filings and approvals as are required to be 

made or obtained under any state “blue sky” laws and such as have been made or 

obtained, no notice to, filing with, exemption or review by, or authorization, 

consent or approval of, any Governmental Entity is required to be made or 

obtained by the Company in connection with the consummation by the Company 

of the Purchase except for any such notices, filings, exemptions, reviews, 

authorizations, consents and approvals the failure of which to make or obtain 

would not, individually or in the aggregate, reasonably be expected to have a 

Company Material Adverse Effect. 

(f) Anti-takeover Provisions and Rights Plan. The Board of Directors of the 

Company (the “Board of Directors”) has taken all necessary action to ensure that the transactions 

contemplated by this Agreement and the Warrant and the consummation of the transactions 

contemplated hereby and thereby, including the exercise of the Warrant in accordance with its 

terms, will be exempt from any anti-takeover or similar provisions of the Company’s Charter and 

bylaws, and any other provisions of any applicable “moratorium”, “control share”, “fair price”, 

“interested stockholder” or other anti-takeover laws and regulations of any jurisdiction. The 

Company has taken all actions necessary to render any stockholders’ rights plan of the Company 

inapplicable to this Agreement and the Warrant and the consummation of the transactions 

contemplated hereby and thereby, including the exercise of the Warrant by the Investor in 

accordance with its terms. 

(g) No Company Material Adverse Effect. Since September 30, 2008, no 

fact, circumstance, event, change, occurrence, condition or development has occurred that, 

individually or in the aggregate, has had or would reasonably be expected to have a Company 

Material Adverse Effect. 

(h) Company Financial Statements. Each of the consolidated financial 

statements of the Company and its consolidated subsidiaries (collectively the “Company 

Financial Statements”) included or incorporated by reference in the Company Reports filed with 

the SEC since December 31, 2006, present fairly in all material respects the consolidated 

financial position of the Company and its consolidated subsidiaries as of the dates indicated 

therein (or if amended prior to the Signing Date, as of the date of such amendment) and the 

consolidated results of their operations for the periods specified therein; and except as stated 

therein, such financial statements (A) were prepared in conformity with GAAP applied on a 

consistent basis (except as may be noted therein), (B) have been prepared from, and are in 

accordance with, the books and records of the Company and the Company Subsidiaries and (C) 

7 
complied as to form, as of their respective dates of filing with the SEC, in all material respects 

with the applicable accounting requirements and with the published rules and regulations of the 

SEC with respect thereto. 

(i) Reports. 

(i) Since December 31, 2006, the Company and each subsidiary of the 

Company (each a “Company Subsidiary” and, collectively, the “Company 

Subsidiaries”) has timely filed all 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”) and has paid all fees and assessments due and payable in 

connection therewith, except, in each case, as would not, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect. 

As of their respective dates of filing, the Company Reports complied in all 

material respects with all statutes and applicable rules and regulations of the 

applicable Governmental Entities. In the case of each such Company Report filed 

with or furnished to the SEC, such Company Report (A) did not, as of its date or 

if amended prior to the Signing Date, as of the date of such amendment, contain 

an untrue statement of a material fact or omit to state a material fact necessary in 

order to make the statements made therein, in light of the circumstances under 

which they were made, not misleading, and (B) complied as to form in all 

material respects with the applicable requirements of the Securities Act and the 

Exchange Act. With respect to all other Company Reports, the Company Reports 

were complete and accurate in all material respects as of their respective dates. 

No executive officer of the Company or any Company Subsidiary 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. 

(ii) The records, systems, controls, data and information of the 

Company and the Company Subsidiaries 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 Company Subsidiaries or their accountants 

(including all means of access thereto and therefrom), except for any nonexclusive ownership and non-direct control that would not reasonably be expected 

to have a material adverse effect on the system of internal accounting controls 

described below in this Section 2.2(i)(ii). The Company (A) 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 the consolidated Company Subsidiaries, is made known to the chief 

executive officer and the chief financial officer of the Company by others within 

those entities, and (B) has disclosed, based on its most recent evaluation prior to 

the Signing Date, 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 controls over financial reporting (as defined in 

Rule 13a-15(f) of the Exchange Act) that are reasonably likely to adversely affect 

8 
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. 

(j) No Undisclosed Liabilities. Neither the Company nor any of the 

Company Subsidiaries has any liabilities or obligations of any nature (absolute, accrued, 

contingent or otherwise) which 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 (A) liabilities that have arisen since the last fiscal year end in the 

ordinary and usual course of business and consistent with past practice and (B) liabilities that, 

individually or in the aggregate, have not had and would not reasonably be expected to have a 

Company Material Adverse Effect. 

(k) Offering of Securities. Neither the Company nor any person acting on its 

behalf has taken any action (including any offering of any securities of the Company under 

circumstances which would require the integration of such offering with the offering of any of 

the Purchased Securities under the Securities Act, and the rules and regulations of the SEC 

promulgated thereunder), which might subject the offering, issuance or sale of any of the 

Purchased Securities to Investor pursuant to this Agreement to the registration requirements of 

the Securities Act. 

(l) Litigation and Other Proceedings. Except (i) as set forth on Schedule B or 

(ii) as would not, individually or in the aggregate, reasonably be expected to have a Company 

Material Adverse Effect, there is no (A) pending or, to the knowledge of the Company, 

threatened, claim, action, suit, investigation or proceeding, against the Company or any 

Company Subsidiary or to which any of their assets are subject nor is the Company or any 

Company Subsidiary subject to any order, judgment or decree or (B) 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 Company Subsidiaries. 

(m) Compliance with Laws. Except as would not, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company 

and the Company Subsidiaries have all permits, licenses, franchises, authorizations, orders and 

approvals of, and have made all filings, applications and registrations with, 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 and that are material to the business of the 

Company or such Company Subsidiary. Except as set forth on Schedule C, the Company and the 

Company Subsidiaries have complied in all respects 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, have been threatened to be charged with or given 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 would 

not, individually or in the aggregate, reasonably be expected to have a Company Material 

Adverse Effect. Except for statutory or regulatory restrictions of general application or as set 

forth on Schedule C, no Governmental Entity has placed any restriction on the business or 

9 
properties of the Company or any Company Subsidiary that would, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect. 

(n) Employee Benefit Matters. Except as would not reasonably be expected 

to have, either individually or in the aggregate, a Company Material Adverse Effect: (A) each 

“employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement 

Income Security Act of 1974, as amended (“ERISA”)) providing benefits to any current or 

former employee, officer or director of the Company or any member of its “Controlled Group” 

(defined as any organization which is a member of a controlled group of corporations within the 

meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) that is 

sponsored, maintained or contributed to by the Company or any member of its Controlled Group 

and for which the Company or any member of its Controlled Group would have any liability, 

whether actual or contingent (each, a “Plan”) has been maintained in compliance with its terms 

and with the requirements of all applicable statutes, rules and regulations, including ERISA and 

the Code; (B) with respect to each Plan subject to Title IV of ERISA (including, for purposes of 

this clause (B), any plan subject to Title IV of ERISA that the Company or any member of its 

Controlled Group previously maintained or contributed to in the six years prior to the Signing 

Date), (1) no “reportable event” (within the meaning of Section 4043(c) of ERISA), other than a 

reportable event for which the notice period referred to in Section 4043(c) of ERISA has been 

waived, has occurred in the three years prior to the Signing Date or is reasonably expected to 

occur, (2) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or 

Section 412 of the Code), whether or not waived, has occurred in the three years prior to the 

Signing Date or is reasonably expected to occur, (3) the fair market value of the assets under 

each Plan exceeds the present value of all benefits accrued under such Plan (determined based on 

the assumptions used to fund such Plan) and (4) neither the Company nor any member of its 

Controlled Group has incurred in the six years prior to the Signing Date, or reasonably expects to 

incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to 

the PBGC in the ordinary course and without default) in respect of a Plan (including any Plan 

that is a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (C) 

each Plan that is intended to be qualified under Section 401(a) of the Code has received a 

favorable determination letter from the Internal Revenue Service with respect to its qualified 

status that has not been revoked, or such a determination letter has been timely applied for but 

not received by the Signing Date, and nothing has occurred, whether by action or by failure to 

act, which could reasonably be expected to cause the loss, revocation or denial of such qualified 

status or favorable determination letter. 

(o) Taxes. Except as would not, individually or in the aggregate, reasonably 

be expected to have a Company Material Adverse Effect, (i) the Company and the Company 

Subsidiaries have filed all federal, state, local and foreign income and franchise Tax returns 

required to be filed through the Signing Date, subject to permitted extensions, and have paid all 

Taxes due thereon, and (ii) no Tax deficiency has been determined adversely to the Company or 

any of the Company Subsidiaries, nor does the Company have any knowledge of any Tax 

deficiencies. “Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, 

property, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or 

add on minimum, ad valorem, transfer or excise tax, or any other tax, custom, duty, 

governmental fee or other like assessment or charge of any kind whatsoever, together with any 

interest or penalty, imposed by any Governmental Entity. 

10 
(p) Properties and Leases. Except as would not, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company 

and the Company 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 affect the value thereof or interfere with the use made or to be made thereof 

by them. Except as would not, individually or in the aggregate, reasonably be expected to have a 

Company Material Adverse Effect, the Company and the Company Subsidiaries hold all leased 

real or personal property under valid and enforceable leases with no exceptions that would 

interfere with the use made or to be made thereof by them. 

(q) Environmental Liability. Except as would not, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect: 

(i) there is no legal, administrative, or other proceeding, claim or 

action of any nature seeking to impose, or that would reasonably be expected to 

result in the imposition of, on the Company or any Company Subsidiary, any 

liability relating to the release of hazardous substances as defined under any local, 

state or federal environmental statute, regulation or ordinance, including the 

Comprehensive Environmental Response, Compensation and Liability Act of 

1980, pending or, to the Company’s knowledge, threatened against the Company 

or any Company Subsidiary; 

(ii) to the Company’s knowledge, there is no reasonable basis for any 

such proceeding, claim or action; and 

(iii) neither the Company nor any Company Subsidiary is subject to 

any agreement, order, judgment or decree by or with any court, Governmental 

Entity or third party imposing any such environmental liability. 

(r) Risk Management Instruments. Except as would not, individually or in 

the aggregate, reasonably be expected to have a Company Material Adverse Effect, all derivative 

instruments, including, swaps, caps, floors and option agreements, whether entered into for the 

Company’s own account, or for the account of one or more of the Company Subsidiaries or its or 

their customers, were entered into (i) only in the ordinary course of business, (ii) in accordance 

with prudent practices and in all material respects with all applicable laws, rules, regulations and 

regulatory policies and (iii) with counterparties believed to be financially responsible at the time; 

and each of such instruments constitutes the valid and legally binding obligation of the Company 

or one of the Company Subsidiaries, enforceable in accordance with its terms, except as may be 

limited by the Bankruptcy Exceptions. Neither the Company or the Company Subsidiaries, nor, 

to the knowledge of the Company, any other party thereto, is in breach of any of its obligations 

under any such agreement or arrangement other than such breaches that would not, individually 

or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. 

(s) Agreements with Regulatory Agencies. Except as set forth on Schedule 

D, neither the Company nor any Company Subsidiary is subject to any material cease-and-desist 

or other similar order or enforcement action issued by, or is a party to any material written 

agreement, consent agreement or memorandum of understanding with, or is a party to any 

11 
commitment letter or similar undertaking to, or is subject to any capital directive by, or since 

December 31, 2006, has adopted any board resolutions at the request of, any Governmental 

Entity (other than the Appropriate Federal Banking Agencies with jurisdiction over the Company 

and the Company Subsidiaries) that currently restricts in any material respect the conduct of its 

business or that in any material manner relates to its capital adequacy, its liquidity and funding 

policies and practices, its ability to pay dividends, its credit, risk management or compliance 

policies or procedures, its internal controls, its management or its operations or business (each 

item in this sentence, a “Regulatory Agreement”), nor has the Company or any Company 

Subsidiary been advised since December 31, 2006 by any such Governmental Entity that it is 

considering issuing, initiating, ordering, or requesting any such Regulatory Agreement. The 

Company and each Company Subsidiary are in compliance in all material respects with each 

Regulatory Agreement to which it is party or subject, and neither the Company nor any 

Company Subsidiary has received any notice from any Governmental Entity indicating that 

either the Company or any Company Subsidiary is not in compliance in all material respects with 

any such Regulatory Agreement. “Appropriate Federal Banking Agency” means the 

“appropriate Federal banking agency” with respect to the Company or such Company 

Subsidiaries, as applicable, as defined in Section 3(q) of the Federal Deposit Insurance Act (12 

U.S.C. Section 1813(q)). 

(t) Insurance. The Company and the Company Subsidiaries are insured with 

reputable insurers against such risks and in such amounts as the management of the Company 

reasonably has determined to be prudent and consistent with industry practice. The Company 

and the Company Subsidiaries are in material compliance with their insurance policies and are 

not in default under any of the material terms thereof, each such policy is outstanding and in full 

force and effect, all premiums and other payments due under any material policy have been paid, 

and all claims thereunder have been filed in due and timely fashion, except, in each case, as 

would not, individually or in the aggregate, reasonably be expected to have a Company Material 

Adverse Effect. 

(u) Intellectual Property. Except as would not, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company 

and each Company Subsidiary owns or otherwise has the right to use, all intellectual property 

rights, including all trademarks, trade dress, trade names, service marks, domain names, patents, 

inventions, trade secrets, know-how, works of authorship and copyrights therein, that are used in 

the conduct of their existing businesses and all rights relating to the plans, design and 

specifications of any of its branch facilities (“Proprietary Rights”) free and clear of all liens and 

any claims of ownership by current or former employees, contractors, designers or others and (ii) 

neither the Company nor any of the Company Subsidiaries is materially infringing, diluting, 

misappropriating or violating, nor has the Company or any or the Company Subsidiaries received 

any written (or, to the knowledge of the Company, oral) communications alleging that any of 

them has materially infringed, diluted, misappropriated or violated, any of the Proprietary Rights 

owned by any other person. Except as would not, individually or in the aggregate, reasonably be 

expected to have a Company Material Adverse Effect, to the Company’s knowledge, no other 

person is infringing, diluting, misappropriating or violating, nor has the Company or any or the 

Company Subsidiaries sent any written communications since January 1, 2006 alleging that any 

person has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned 

by the Company and the Company Subsidiaries. 

12 
(v) Brokers and Finders. No broker, finder or investment banker is entitled to 

any financial advisory, brokerage, finder’s or other fee or commission in connection with this 

Agreement or the Warrant or the transactions contemplated hereby or thereby based upon 

arrangements made by or on behalf of the Company or any Company Subsidiary for which the 

Investor could have any liability. 

ARTICLE III 

Covenants 

3.1 Commercially Reasonable Efforts. Subject to the terms and conditions of 

this Agreement, each of the parties will use its commercially reasonable efforts in good faith to 

take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper 

or desirable, or advisable under applicable laws, so as to permit consummation of the Purchase 

as promptly as practicable and otherwise to enable consummation of the transactions 

contemplated hereby and shall use commercially reasonable efforts to cooperate with the other 

party to that end. 

3.2 Expenses. Unless otherwise provided in this Agreement or the Warrant, 

each of the parties hereto will bear and pay all costs and expenses incurred by it or on its behalf 

in connection with the transactions contemplated under this Agreement and the Warrant, 

including fees and expenses of its own financial or other consultants, investment bankers, 

accountants and counsel. 

3.3 Sufficiency of Authorized Common Stock; Exchange Listing. 

(a) During the period from the Closing Date until the date on which the 

Warrant has been fully exercised, the Company shall at all times have reserved for issuance, free 

of preemptive or similar rights, a sufficient number of authorized and unissued Warrant Shares to 

effectuate such exercise. Nothing in this Section 3.3 shall preclude the Company from satisfying 

its obligations in respect of the exercise of the Warrant by delivery of shares of Common Stock 

which are held in the treasury of the Company. As soon as reasonably practicable following the 

Closing, the Company shall, at its expense, cause the Warrant Shares to be listed on the same 

national securities exchange on which the Common Stock is listed, subject to official notice of 

issuance, and shall maintain such listing for so long as any Common Stock is listed on such 

exchange. 

(b) If requested by the Investor, the Company shall promptly use its 

reasonable best efforts to cause the Preferred Shares to be approved for listing on a national 

securities exchange as promptly as practicable following such request. 

3.4 Certain Notifications Until Closing. From the Signing Date until the 

Closing, the Company shall promptly notify the Investor of (i) any fact, event or circumstance of 

which it is aware and which would reasonably be expected to cause any representation or 

warranty of the Company contained in this Agreement to be untrue or inaccurate in any material 

respect or to cause any covenant or agreement of the Company contained in this Agreement not 

to be complied with or satisfied in any material respect and (ii) except as Previously Disclosed, 

any fact, circumstance, event, change, occurrence, condition or development of which the 

13 
Company is aware and which, individually or in the aggregate, has had or would reasonably be 

expected to have a Company Material Adverse Effect; provided, however, that delivery of any 

notice pursuant to this Section 3.4 shall not limit or affect any rights of or remedies available to 

the Investor; provided, further, that a failure to comply with this Section 3.4 shall not constitute a 

breach of this Agreement or the failure of any condition set forth in Section 1.2 to be satisfied 

unless the underlying Company Material Adverse Effect or material breach would independently 

result in the failure of a condition set forth in Section 1.2 to be satisfied. 

3.5 Access, Information and Confidentiality. 

(a) From the Signing Date until the date when the Investor holds an amount of 

Preferred Shares having an aggregate liquidation value of less than 10% of the Purchase Price, 

the Company will permit the Investor and its agents, consultants, contractors and advisors (x) 

acting through the Appropriate Federal Banking Agency, to examine the corporate books and 

make copies thereof and to discuss the affairs, finances and accounts of the Company and the 

Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and 

at such reasonable times and as often as the Investor may reasonably request and (y) to review 

any information material to the Investor’s investment in the Company provided by the Company 

to its Appropriate Federal Banking Agency. 

(b) From the Signing Date until the date when the Investor holds an amount of 

Preferred Shares having an aggregate liquidation value of less than 10% of the Purchase Price, 

the Company will and will permit and will cause the Company Subsidiaries to permit (x) the 

Investor and its agents, consultants, contractors, (y) the Special Inspector General of the 

Troubled Asset Relief Program, and (z) the Comptroller General of the United States access to 

personnel and any books, papers, records or other data, in each case, to the extent relevant to 

ascertaining compliance with the financing terms and conditions; provided that prior to 

disclosing any information pursuant to clause (y) or (z), the Special Inspector General of the 

Troubled Asset Relief Program and the Comptroller General of the United States shall have 

agreed, with respect to documents obtained under this agreement in furtherance of its function, to 

follow applicable law and regulation (and the applicable customary policies and procedures) 

regarding the dissemination of confidential materials, including redacting confidential 

information from the public version of its reports and soliciting the input from the Company as to 

information that should be afforded confidentiality, as appropriate. 

(c) The Investor will use reasonable best efforts to hold, and will use 

reasonable best efforts to cause its agents, consultants, contractors, advisors, and United States 

executive branch officials and employees, to hold, in confidence all non-public records, books, 

contracts, instruments, computer data and other data and information (collectively, 

“Information”) concerning the Company furnished or made available to it by the Company or its 

representatives pursuant to this Agreement (except to the extent that such information can be 

shown to have been (i) previously known by such party on a non-confidential basis, (ii) in the 

public domain through no fault of such party or (iii) later lawfully acquired from other sources 

by the party to which it was furnished (and without violation of any other confidentiality 

obligation)); provided that nothing herein shall prevent the Investor from disclosing any 

Information to the extent required by applicable laws or regulations or by any subpoena or 

similar legal process. The Investor understands that the Information may contain commercially 

14 
sensitive confidential information entitled to an exception from a Freedom of Information Act 

request. 

(d) The Investor represents that it has been informed by the Special Inspector 

General of the Troubled Asset Relief Program and the Comptroller General of the United States 

that they, before making any request for access or information pursuant to their audit function 

under this Agreement, will establish a protocol to avoid, to the extent reasonably possible, 

duplicative requests pursuant to this Agreement. Nothing in this section shall be construed to 

limit the authority that the Special Inspector General of the Troubled Asset Relief Program or the 

Comptroller General of the United States have under law. 

3.6 Internal Controls. 

(a) The Company agrees to (i) promptly establish appropriate internal controls 

with respect to compliance with each of the Company’s covenants and agreements set forth in 

Sections 4.8 through 4.12; (ii) report to Investor on a quarterly basis regarding the 

implementation of those controls and the Company’s compliance (including any instances of 

non-compliance) with such covenants and agreements; and (iii) provide a signed certification 

from a senior officer to Investor that such report is accurate to the best of his or her knowledge, 

which certification shall be made subject to the requirements and penalties set forth in Title 18, 

United States Code, Section 1001. 

(b) The Company agrees to (i) use its reasonable best efforts to account for its 

use of the Purchase Price, (ii) set up internal controls with respect to compliance with applicable 

requirements regarding the use of the Purchase Price, (iii) report to Investor on a quarterly basis 

until all of the Purchase Price has been accounted for regarding the use of the Purchase Price, the 

implementation of those controls and the Company’s compliance (including any instances of 

non-compliance) with such requirements applicable to the Purchase Price; and (iv) provide a 

signed certification from a senior officer to Investor that such report is accurate to the best of his 

or her knowledge, which certification shall be made subject to the requirements and penalties set 

forth in Title 18, United States Code, Section 1001. 

(c) The Company’s management shall monitor the use of the Purchase Price 

and will report to the Company’s Board of Directors on a quarterly basis until all of the Purchase 

Price has been accounted for regarding the use of the Purchase Price. 

ARTICLE IV 

Additional Agreements 

4.1 Purchase for Investment. The Investor acknowledges that the Purchased 

Securities and the Warrant Shares have not been registered under the Securities Act or under any 

state securities laws. The Investor (a) is acquiring the Purchased Securities pursuant to an 

exemption from registration under the Securities Act solely for investment with no present 

intention to distribute them to any person in violation of the Securities Act or any applicable U.S. 

state securities laws, (b) will not sell or otherwise dispose of any of the Purchased Securities or 

the Warrant Shares, except in compliance with the registration requirements or exemption 

provisions of the Securities Act and any applicable U.S. state securities laws, and (c) has such 

15 
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 the Purchase and of making an informed 

investment decision. 

4.2 Legends. 

(a) The Investor agrees that all certificates or other instruments representing 

the Warrant and the Warrant Shares will bear a legend substantially to the following effect: 

“THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT 

BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS 

AMENDED, OR THE 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) In addition, the Investor agrees that all certificates or other instruments 

representing the Preferred Shares will bear a legend substantially to the following effect: 

“THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT 

SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK 

AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE 

CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY. THE 

SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN 

REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED 

(THE “SECURITIES ACT”), OR THE 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. EACH 

PURCHASER OF THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON 

THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT 

PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE 

SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS 

ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED 

INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE 

SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL OR 

OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION 

STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES 

ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 

TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED 

16 
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 

SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR 

THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM 

NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE 

ON RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER 

AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS 

OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO 

EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO 

THE EFFECT OF THIS LEGEND.” 

(c) In the event that any Purchased Securities or Warrant Shares (i) become 

registered under the Securities Act or (ii) are eligible to be transferred without restriction in 

accordance with Rule 144 or another exemption from registration under the Securities Act (other 

than Rule 144A), the Company shall issue new certificates or other instruments representing 

such Purchased Securities or Warrant Shares, which shall not contain the applicable legends in 

Sections 4.2(a) and (b) above; provided that the Investor surrenders to the Company the 

previously issued certificates or other instruments. 

4.3 Certain Transactions. The Company will not merge or consolidate with, 

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 (or its ultimate parent entity), as the case may be (if not 

the Company), expressly assumes the due and punctual performance and observance of each and 

every covenant, agreement and condition of this Agreement to be performed and observed by the 

Company. 

4.4 Transfer of Purchased Securities and Warrant Shares; Restrictions on 

Exercise of the Warrant. Subject to compliance with applicable securities laws, the Investor 

shall be permitted to transfer, sell, assign or otherwise dispose of (“Transfer”) all or a portion of 

the Purchased Securities or Warrant Shares at any time, and the Company shall take all steps as 

may be reasonably requested by the Investor to facilitate the Transfer of the Purchased Securities 

and the Warrant Shares. 

4.5 Registration Rights. 

(a) Registration. 

(i) Subject to the terms and conditions of this Agreement, the 

Company covenants and agrees that as promptly as practicable after the Closing 

Date (and in any event no later than 30 days after the Closing Date), the Company 

shall prepare and file with the SEC a Shelf Registration Statement covering all 

Registrable Securities (or otherwise designate an existing Shelf Registration 

Statement filed with the SEC to cover the Registrable Securities), and, to the 

extent the Shelf Registration Statement has not theretofore been declared effective 

or is not automatically effective upon such filing, the Company shall use 

reasonable best efforts to cause such Shelf Registration Statement to be declared 

or become effective and to keep such Shelf Registration Statement continuously 

17 
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). So long as the Company is a wellknown seasoned issuer (as defined in Rule 405 under the Securities Act) at the 

time of filing of the Shelf Registration Statement with the SEC, such Shelf 

Registration Statement shall be designated by the Company as an automatic Shelf 

Registration Statement. Notwithstanding the foregoing, if on the Signing Date the 

Company is not eligible to file a registration statement on Form S-3, then the 

Company shall not be obligated to file a Shelf Registration Statement unless and 

until requested to do so in writing by the Investor. 

(ii) Any registration pursuant to Section 4.5(a)(i) shall be effected by 

means of a shelf registration on an appropriate form under Rule 415 under the 

Securities Act (a “Shelf Registration Statement”). If the Investor or any other 

Holder intends to distribute any Registrable Securities by means of an 

underwritten offering it shall promptly so advise the Company and the Company 

shall take all reasonable steps to facilitate such distribution, including the actions 

required pursuant to Section 4.5(c); provided that the Company shall not be 

required to facilitate an underwritten offering of Registrable Securities unless the 

expected gross proceeds from such offering exceed 2% of the initial aggregate 

liquidation preference of the Preferred Shares. The lead underwriters in any such 

distribution shall be selected by the Holders of a majority of the Registrable 

Securities to be distributed; provided that to the extent appropriate and permitted 

under applicable law, such Holders shall consider the qualifications of any brokerdealer Affiliate of the Company in selecting the lead underwriters in any such 

distribution. 

(iii) The Company shall not be required to effect a registration 

(including a resale of Registrable Securities from an effective Shelf Registration 

Statement) or an underwritten offering pursuant to Section 4.5(a): (A) with 

respect to securities that are not Registrable Securities; or (B) if the Company has 

notified the Investor and all other Holders that in the good faith judgment of the 

Board of Directors, it would be materially detrimental to the Company or its 

securityholders for such registration or underwritten offering to be effected at 

such time, in which event the Company shall have the right to defer such 

registration for a period of not more than 45 days after receipt of the request of the 

Investor or any other Holder; provided that such right to delay a registration or 

underwritten offering shall be exercised by the Company (1) only if the Company 

has generally exercised (or is concurrently exercising) similar black-out rights 

against holders of similar securities that have registration rights and (2) not more 

than three times in any 12-month period and not more than 90 days in the 

aggregate in any 12-month period. 

(iv) If during any period when an effective Shelf Registration 

Statement is not available, the Company proposes to register any of its equity 

18 
securities, other than a registration pursuant to Section 4.5(a)(i) or a Special 

Registration, and the registration form to be filed may be used for the registration 

or qualification for distribution of Registrable Securities, the Company will give 

prompt written notice to the Investor and all other Holders of its intention to effect 

such a registration (but in no event less than ten days prior to the anticipated filing 

date) and will include in such registration all Registrable Securities with respect to 

which the Company has received written requests for inclusion therein within ten 

business days after the date of the Company’s notice (a “Piggyback 

Registration”). Any such person that has made such a written request may 

withdraw its Registrable Securities from such Piggyback Registration by giving 

written notice to the Company and the managing underwriter, if any, on or before 

the fifth business day prior to the planned effective date of such Piggyback 

Registration. The Company may terminate or withdraw any registration under 

this Section 4.5(a)(iv) prior to the effectiveness of such registration, whether or 

not Investor or any other Holders have elected to include Registrable Securities in 

such registration. 

(v) If the registration referred to in Section 4.5(a)(iv) is proposed to be 

underwritten, the Company will so advise Investor and all other Holders as a part 

of the written notice given pursuant to Section 4.5(a)(iv). In such event, the right 

of Investor and all other Holders to registration pursuant to Section 4.5(a) will be 

conditioned upon such persons’ participation in such underwriting and the 

inclusion of such person’s Registrable Securities in the underwriting if such 

securities are of the same class of securities as the securities to be offered in the 

underwritten offering, and each such person will (together with the Company and 

the other persons distributing their securities through such underwriting) enter 

into an underwriting agreement in customary form with the underwriter or 

underwriters selected for such underwriting by the Company; provided that the 

Investor (as opposed to other Holders) shall not be required to indemnify any 

person in connection with any registration. If any participating person 

disapproves of the terms of the underwriting, such person may elect to withdraw 

therefrom by written notice to the Company, the managing underwriters and the 

Investor (if the Investor is participating in the underwriting). 

(vi) If either (x) the Company grants “piggyback” registration rights to 

one or more third parties to include their securities in an underwritten offering 

under the Shelf Registration Statement pursuant to Section 4.5(a)(ii) or (y) a 

Piggyback Registration under Section 4.5(a)(iv) relates to an underwritten 

offering on behalf of the Company, and in either case the managing underwriters 

advise the Company that in their reasonable opinion the number of securities 

requested to be included in such offering exceeds the number which can be sold 

without adversely affecting the marketability of such offering (including an 

adverse effect on the per share offering price), the Company will include in such 

offering only such number of securities that in the reasonable opinion of such 

managing underwriters can be sold without adversely affecting the marketability 

of the offering (including an adverse effect on the per share offering price), which 

securities will be so included in the following order of priority: (A) first, in the 

19 
case of a Piggyback Registration under Section 4.5(a)(iv), the securities the 

Company proposes to sell, (B) then the Registrable Securities of the Investor and 

all other Holders who have requested inclusion of Registrable Securities pursuant 

to Section 4.5(a)(ii) or Section 4.5(a)(iv), as applicable, pro rata on the basis of 

the aggregate number of such securities or shares owned by each such person and 

(C) lastly, any other securities of the Company that have been requested to be so 

included, subject to the terms of this Agreement; provided, however, that if the 

Company has, prior to the Signing Date, entered into an agreement with respect to 

its securities that is inconsistent with the order of priority contemplated hereby 

then it shall apply the order of priority in such conflicting agreement to the extent 

that it would otherwise result in a breach under such agreement. 

(b) Expenses of Registration. All Registration Expenses incurred in 

connection with any registration, qualification or compliance hereunder shall be borne by the 

Company. All Selling Expenses incurred in connection with any registrations hereunder shall be 

borne by the holders of the securities so registered pro rata on the basis of the aggregate offering 

or sale price of the securities so registered. 

(c) Obligations of the Company. The Company shall use its reasonable best 

efforts, for so long as there are Registrable Securities outstanding, to take such actions as are 

under its control to not become an ineligible issuer (as defined in Rule 405 under the Securities 

Act) and to remain a well-known seasoned issuer (as defined in Rule 405 under the Securities 

Act) if it has such status on the Signing Date or becomes eligible for such status in the future. In 

addition, whenever required to effect the registration of any Registrable Securities or facilitate 

the distribution of Registrable Securities pursuant to an effective Shelf Registration Statement, 

the Company shall, as expeditiously as reasonably practicable: 

(i) Prepare and file with the SEC a prospectus supplement with 

respect to a proposed offering of Registrable Securities pursuant to an effective 

registration statement, subject to Section 4.5(d), keep such registration statement 

effective and keep such prospectus supplement current until the securities 

described therein are no longer Registrable Securities. 

(ii) Prepare and file with the SEC 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. 

20 
(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 of Registrable Securities 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 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 

4.5(a) or any amendment thereto has been filed with the SEC (except for 

any amendment effected by the filing of a document with the SEC 

pursuant to the Exchange Act) and when such registration statement or 

any post-effective amendment thereto has become effective; 

(B) of any request by the SEC for amendments or supplements 

to any registration statement or the prospectus included therein or for 

additional information; 

(C) of the issuance by the SEC of any stop order suspending 

the effectiveness of any registration statement or the initiation of any 

proceedings for that purpose; 

(D) 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; 

(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); and 

21 
(F) if at any time the representations and warranties of the 

Company contained in any underwriting agreement contemplated by 

Section 4.5(c)(x) cease to be true and correct. 

(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 4.5(c)(vi)(C) at the earliest practicable time. 

(viii) Upon the occurrence of any event contemplated by Section 

4.5(c)(v) or 4.5(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 4.5(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 Holders’ or underwriters’ possession. The total number of days that any 

such suspension may be in effect in any 12-month period shall not exceed 90 

days. 

(ix) Use reasonable best efforts to procure the cooperation of the 

Company’s transfer agent in settling any offering or sale of Registrable Securities, 

including with respect to the transfer of physical stock certificates into book-entry 

form in accordance with any procedures reasonably requested by the Holders or 

any managing underwriter(s). 

(x) If an underwritten offering is requested pursuant to Section 

4.5(a)(ii), 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 expedite or facilitate the underwritten 

disposition of such Registrable Securities, and in connection therewith in any 

underwritten offering (including making members of management and executives 

of the Company available to participate in “road shows”, similar sales events and 

other marketing activities), (A) make such representations and warranties to the 

Holders that are selling stockholders and the managing underwriter(s), if any, 

with respect to the business of the Company and its subsidiaries, and the Shelf 

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) use 

its reasonable best efforts to furnish the underwriters with 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, 

22 
(C) use its 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 

Shelf Registration Statement) who have certified the financial statements included 

in such Shelf 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) if an underwriting 

agreement is entered into, the same shall contain indemnification provisions and 

procedures customary in underwritten offerings (provided that the Investor shall 

not be obligated to provide any indemnity), and (E) deliver such documents and 

certificates as may be reasonably requested by the Holders of a majority of the 

Registrable Securities being sold in connection therewith, their counsel and the 

managing underwriter(s), if any, to evidence the continued validity of the 

representations and warranties made pursuant to clause (i) above and to evidence 

compliance with any customary conditions contained in the underwriting 

agreement or other agreement entered into by the Company. 

(xi) 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 (and of the type customarily provided in 

connection with due diligence conducted in connection with a registered public 

offering of securities) by any such representative, managing underwriter(s), 

attorney or accountant in connection with such Shelf Registration Statement. 

(xii) Use reasonable best efforts to cause all such Registrable Securities 

to be listed on each national securities exchange on which similar securities issued 

by the Company are then listed or, if no similar securities issued by the Company 

are then listed on any national securities exchange, use its reasonable best efforts 

to cause all such Registrable Securities to be listed on such securities exchange as 

the Investor may designate. 

(xiii) 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 practicable after the Company has received such 

request. 

23 
(xiv) Timely provide to its security holders earning statements satisfying 

the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. 

(d) Suspension of Sales. 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 or may omit 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, the Investor and each Holder of Registrable Securities shall forthwith discontinue 

disposition of Registrable Securities until the Investor and/or Holder has received copies of a 

supplemented or amended prospectus or prospectus supplement, or until the Investor and/or such 

Holder is advised in writing by the Company that the use of the prospectus and, if applicable, 

prospectus supplement may be resumed, and, if so directed by the Company, the Investor and/or 

such Holder shall deliver to the Company (at the Company’s expense) all copies, other than 

permanent file copies then in the Investor and/or such Holder’s possession, of the prospectus 

and, if applicable, prospectus supplement covering such Registrable Securities current at the time 

of receipt of such notice. The total number of days that any such suspension may be in effect in 

any 12-month 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. 

(i) Neither the Investor 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 4.5(c) that Investor and/or the 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. 

(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 (each, an “Indemnitee”), against 

any and all losses, claims, damages, actions, liabilities, costs and expenses 

(including reasonable fees, expenses and disbursements of attorneys and other 

professionals incurred in connection with investigating, defending, settling, 

compromising or paying any such losses, claims, damages, actions, liabilities, 

costs and expenses), joint or several, arising out of or based upon any untrue 

24 
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) 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 Indemnitee in 

any such case to the extent that any such loss, claim, damage, liability (or action 

or proceeding in respect thereof) or expense arises out of or is based upon (A) 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) 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 Indemnitee or 

its plan of distribution or ownership interests which was furnished in writing to 

the Company by such 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 (B) 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) If the indemnification provided for in Section 4.5(g)(i) is 

unavailable to an Indemnitee with respect to any losses, claims, damages, actions, 

liabilities, costs or expenses referred to therein or is insufficient to hold the 

Indemnitee harmless as contemplated therein, then the Company, in lieu of 

indemnifying such Indemnitee, shall contribute to the amount paid or payable by 

such Indemnitee as a result of such losses, claims, damages, actions, liabilities, 

costs or expenses in such proportion as is appropriate to reflect the relative fault 

of the 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 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 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 4.5(g)(ii) 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 4.5(g)(i). No Indemnitee guilty of fraudulent misrepresentation (within 

the meaning of Section 11(f) of the Securities Act) shall be entitled to 

25 
contribution from the Company if the Company was not guilty of such fraudulent 

misrepresentation. 

(h) Assignment of Registration Rights. The rights of the Investor to 

registration of Registrable Securities pursuant to Section 4.5(a) may be assigned by the Investor 

to a transferee or assignee of Registrable Securities with a liquidation preference or, in the case 

of Registrable Securities other than Preferred Shares, a market value, no less than an amount 

equal to 2% of the initial aggregate liquidation preference of the Preferred Shares; provided, 

however, the transferor shall, within ten days after such transfer, furnish to the Company written 

notice of the name and address of such transferee or assignee and the number and type of 

Registrable Securities that are being assigned. For purposes of this Section 4.5(h), “market 

value” per share of Common Stock shall be the last reported sale price of the Common Stock on 

the national securities exchange on which the Common Stock is listed or admitted to trading on 

the last trading day prior to the proposed transfer, and the “market value” for the Warrant (or any 

portion thereof) shall be the market value per share of Common Stock into which the Warrant (or 

such portion) is exercisable less the exercise price per share. 

(i) Clear Market. With respect to any underwritten offering of Registrable 

Securities by the Investor or other Holders pursuant to this Section 4.5, the Company agrees not 

to effect (other than pursuant to such registration or pursuant to a Special Registration) any 

public sale or distribution, or to file any Shelf Registration Statement (other than such 

registration or a Special Registration) covering, in the case of an underwritten offering of 

Common Stock or Warrants, any of its equity securities or, in the case of an underwritten 

offering of Preferred Shares, any Preferred Stock of the Company, or, in each case, any securities 

convertible into or exchangeable or exercisable for such securities, during the period not to 

exceed ten days prior and 60 days following the effective date of such offering or such longer 

period up to 90 days as may be requested by the managing underwriter for such underwritten 

offering. The Company also agrees to cause such of its directors and senior executive officers to 

execute and deliver customary lock-up agreements in such form and for such time period up to 

90 days as may be requested by the managing underwriter. “Special Registration” means the 

registration of (A) equity securities and/or options or other rights in respect thereof solely 

registered on Form S-4 or Form S-8 (or successor form) or (B) shares of equity securities and/or 

options or other rights in respect thereof to be offered to directors, members of management, 

employees, consultants, customers, lenders or vendors of the Company or Company Subsidiaries 

or in connection with dividend reinvestment plans. 

(j) Rule 144; Rule 144A. With a view to making available to the Investor 

and Holders the benefits of certain rules and regulations of the SEC 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 Signing Date; 

(ii) (A) file with the SEC, in a timely manner, all reports and other 

documents required of the Company under the Exchange Act, and (B) if at any 

26 
time the Company is not required to file such reports, make available, upon the 

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); 

(iii) so long as the Investor or a Holder owns any Registrable 

Securities, furnish to the Investor or such Holder forthwith upon request: a written 

statement by the Company as to its compliance with the reporting requirements of 

Rule 144 under the Securities Act, and of the Exchange Act; a copy of the most 

recent annual or quarterly report of the Company; and such other reports and 

documents as the Investor or Holder may reasonably request in availing itself of 

any rule or regulation of the SEC allowing it to sell any such securities to the 

public without registration; and 

(iv) take such further action as any Holder may reasonably request, all 

to the extent required from time to time to enable such Holder to sell Registrable 

Securities without registration under the Securities Act. 

(k) As used in this Section 4.5, the following terms shall have the following 

respective meanings: 

(i) “Holder” means the Investor and any other holder of Registrable 

Securities to whom the registration rights conferred by this Agreement have been 

transferred in compliance with Section 4.5(h) hereof. 

(ii) “Holders’ Counsel” means one counsel for the selling Holders 

chosen by Holders holding a majority interest in the Registrable Securities being 

registered. 

(iii) “Register,” “registered,” and “registration” shall refer to a 

registration effected by preparing and (A) filing a registration statement in 

compliance with the Securities Act and applicable rules and regulations 

thereunder, and the declaration or ordering of effectiveness of such registration 

statement or (B) filing a prospectus and/or prospectus supplement in respect of an 

appropriate effective registration statement on Form S-3. 

(iv) “Registrable Securities” means (A) all Preferred Shares, (B) the 

Warrant (subject to Section 4.5(p)) and (C) any equity securities issued or 

issuable directly or indirectly with respect to the securities referred to in the 

foregoing clauses (A) or (B) by way of conversion, exercise or exchange thereof, 

including the Warrant Shares, or share dividend or share split or in connection 

with a combination of shares, recapitalization, reclassification, merger, 

amalgamation, arrangement, consolidation or other reorganization, provided that, 

once issued, such securities will not be Registrable Securities when (1) they are 

sold pursuant to an effective registration statement under the Securities Act, (2) 

except as provided below in Section 4.5(o), they may be sold pursuant to Rule 

144 without limitation thereunder on volume or manner of sale, (3) they shall 

27 
have ceased to be outstanding or (4) they have been sold in a private transaction 

in which the transferor’s rights under this Agreement are not assigned to the 

transferee of the securities. No Registrable Securities may be registered under 

more than one registration statement at any one time. 

(v) “Registration Expenses” mean all expenses incurred by the 

Company in effecting any registration pursuant to this Agreement (whether or not 

any registration or prospectus becomes effective or final) or otherwise complying 

with its obligations under this Section 4.5, including all registration, filing and 

listing fees, printing expenses, fees and disbursements of counsel for the 

Company, blue sky fees and expenses, expenses incurred in connection with any 

“road show”, the reasonable fees and disbursements of Holders’ Counsel, and 

expenses of the Company’s independent accountants in connection with any 

regular or special reviews or audits incident to or required by any such 

registration, but shall not include Selling Expenses. 

(vi) “Rule 144”, “Rule 144A”, “Rule 159A”, “Rule 405” and “Rule 

415” mean, in each case, such rule promulgated under the Securities Act (or any 

successor provision), as the same shall be amended from time to time. 

(vii) “Selling Expenses” mean all discounts, selling commissions and 

stock transfer taxes applicable to the sale of Registrable Securities and fees and 

disbursements of counsel for any Holder (other than the fees and disbursements of 

Holders’ Counsel included in Registration Expenses). 

(l) At any time, any holder of Securities (including any Holder) may elect to 

forfeit its rights set forth in this Section 4.5 from that date forward; provided, that a Holder 

forfeiting such rights shall nonetheless be entitled to participate under Section 4.5(a)(iv) – (vi) in 

any Pending Underwritten Offering to the same extent that such Holder would have been entitled 

to if the holder had not withdrawn; and provided, further, that no such forfeiture shall terminate a 

Holder’s rights or obligations under Section 4.5(f) with respect to any prior registration or 

Pending Underwritten Offering. “Pending Underwritten Offering” means, with respect to any 

Holder forfeiting its rights pursuant to this Section 4.5(l), any underwritten offering of 

Registrable Securities in which such Holder has advised the Company of its intent to register its 

Registrable Securities either pursuant to Section 4.5(a)(ii) or 4.5(a)(iv) prior to the date of such 

Holder’s forfeiture. 

(m) Specific Performance. The parties hereto acknowledge that there would 

be no adequate remedy at law if the Company fails to perform any of its obligations under this 

Section 4.5 and that the Investor and the Holders from time to time may be irreparably harmed 

by any such failure, and accordingly agree that the Investor and such Holders, in addition to any 

other remedy to which they may be entitled at law or in equity, to the fullest extent permitted and 

enforceable under applicable law shall be entitled to compel specific performance of the 

obligations of the Company under this Section 4.5 in accordance with the terms and conditions 

of this Section 4.5. 

28 
(n) No Inconsistent Agreements. The Company shall not, on or after the 

Signing Date, enter into any agreement with respect to its securities that may impair the rights 

granted to the Investor and the Holders under this Section 4.5 or that otherwise conflicts with the 

provisions hereof in any manner that may impair the rights granted to the Investor and the 

Holders under this Section 4.5. In the event the Company has, prior to the Signing Date, entered 

into any agreement with respect to its securities that is inconsistent with the rights granted to the 

Investor and the Holders under this Section 4.5 (including agreements that are inconsistent with 

the order of priority contemplated by Section 4.5(a)(vi)) or that may otherwise conflict with the 

provisions hereof, the Company shall use its reasonable best efforts to amend such agreements to 

ensure they are consistent with the provisions of this Section 4.5. 

(o) Certain Offerings by the Investor. In the case of any securities held by the 

Investor that cease to be Registrable Securities solely by reason of clause (2) in the definition of 

“Registrable Securities,” the provisions of Sections 4.5(a)(ii), clauses (iv), (ix) and (x)-(xii) of 

Section 4.5(c), Section 4.5(g) and Section 4.5(i) shall continue to apply until such securities 

otherwise cease to be Registrable Securities. In any such case, an “underwritten” offering or 

other disposition shall include any distribution of such securities on behalf of the Investor by one 

or more broker-dealers, an “underwriting agreement” shall include any purchase agreement 

entered into by such broker-dealers, and any “registration statement” or “prospectus” shall 

include any offering document approved by the Company and used in connection with such 

distribution. 

(p) Registered Sales of the Warrant. The Holders agree to sell the Warrant or 

any portion thereof under the Shelf Registration Statement only beginning 30 days after 

notifying the Company of any such sale, during which 30-day period the Investor and all Holders 

of the Warrant shall take reasonable steps to agree to revisions to the Warrant to permit a public 

distribution of the Warrant, including entering into a warrant agreement and appointing a warrant 

agent. 

4.6 Voting of Warrant Shares. Notwithstanding anything in this Agreement to 

the contrary, the Investor shall not exercise any voting rights with respect to the Warrant Shares. 

4.7 Depositary Shares. Upon request by the Investor at any time following the 

Closing Date, the Company shall promptly enter into a depositary arrangement, pursuant to 

customary agreements reasonably satisfactory to the Investor and with a depositary reasonably 

acceptable to the Investor, pursuant to which the Preferred Shares may be deposited and 

depositary shares, each representing a fraction of a Preferred Share as specified by the Investor, 

may be issued. From and after the execution of any such depositary arrangement, and the 

deposit of any Preferred Shares pursuant thereto, the depositary shares issued pursuant thereto 

shall be deemed “Preferred Shares” and, as applicable, “Registrable Securities” for purposes of 

this Agreement. 

4.8 Restriction on Dividends and Repurchases. 

(a) Prior to the earlier of (x) the third anniversary of the Closing Date and (y) 

the date on which the Preferred Shares have been redeemed in whole or the Investor has 

29 
transferred all of the Preferred Shares to third parties which are not Affiliates of the Investor, 

neither the Company nor any Company Subsidiary shall, without the consent of the Investor: 

(i) declare or pay any dividend or make any distribution on the 

Common Stock (other than (A) regular quarterly cash dividends of not more than 

$0.01 per share, (B) dividends payable solely in shares of Common Stock and (C) 

dividends or distributions of rights or Junior Stock in connection with a 

stockholders’ rights plan); or 

(ii) redeem, purchase or acquire any shares of Common Stock or other 

capital stock or other equity securities of any kind of the Company, or any trust 

preferred securities issued by the Company or any Affiliate of the Company, other 

than (A) redemptions, purchases or other acquisitions of the Preferred Shares, (B) 

redemptions, purchases or other acquisitions of shares of Common Stock or other 

Junior Stock, in each case in this clause (B) in connection with the administration 

of any employee benefit plan in the ordinary course of business (including 

purchases to offset the Share Dilution Amount (as defined below) pursuant to a 

publicly announced repurchase plan) and consistent with past practice; provided

that any purchases to offset the Share Dilution Amount shall in no event exceed 

the Share Dilution Amount, (C) purchases or other acquisitions by a broker-dealer 

subsidiary of the Company solely for the purpose of market-making, stabilization 

or customer facilitation transactions in Junior Stock or Parity Stock in the 

ordinary course of its business, (D) purchases by a broker-dealer subsidiary of the 

Company of capital stock of the Company for resale pursuant to an offering by 

the Company of such capital stock underwritten by such broker-dealer subsidiary, 

(E) any redemption or repurchase of rights pursuant to any stockholders’ rights 

plan, (F) the acquisition by the Company or any of the Company Subsidiaries of 

record ownership in Junior Stock or Parity Stock for the beneficial ownership of 

any other persons (other than the Company or any other Company Subsidiary), 

including as trustees or custodians, and (G) the exchange or conversion of Junior 

Stock for or into other Junior Stock or of Parity Stock or trust preferred securities 

for or into other Parity Stock (with the same or lesser aggregate liquidation 

amount) or Junior Stock, in each case set forth in this clause (G), solely to the 

extent required pursuant to binding contractual agreements entered into prior to 

the Signing Date or any subsequent agreement for the accelerated exercise, 

settlement or exchange thereof for Common Stock (clauses (C) and (F), 

collectively, the “Permitted Repurchases”). “Share Dilution Amount” means the 

increase in the number of diluted shares outstanding (determined in accordance 

with GAAP, and as measured from the date of the Company’s most recently filed 

Company Financial Statements prior to the Closing Date) resulting from the grant, 

vesting or exercise of equity-based compensation to employees and equitably 

adjusted for any stock split, stock dividend, reverse stock split, reclassification or 

similar transaction. 

(b) In determining whether to consent to the actions set forth in Section 

4.8(a)(i), the Investor shall consider, among other factors, the Company’s ability to complete an 

offering of its Common Stock of an appropriate size. 

30 
(c) Until such time as the Investor ceases to own any Preferred Shares, the 

Company shall not repurchase any Preferred Shares from any holder thereof, whether by means 

of open market purchase, negotiated transaction, or otherwise, other than Permitted Repurchases, 

unless it offers to repurchase a ratable portion of the Preferred Shares then held by the Investor 

on the same terms and conditions. 

(d) “Junior Stock” means Common Stock and any other class or series of 

stock of the Company the terms of which expressly provide that it ranks junior to the Preferred 

Shares as to dividend rights and/or as to rights on liquidation, dissolution or winding up of the 

Company. “Parity Stock” means any class or series of stock of the Company the terms of which 

do not expressly provide that such class or series will rank senior or junior to the Preferred 

Shares as to dividend rights and/or as to rights on liquidation, dissolution or winding up of the 

Company (in each case without regard to whether dividends accrue cumulatively or noncumulatively). 

4.9 Repurchase of Investor Securities. 

(a) Following the redemption in whole of the Preferred Shares held by the 

Investor or the Transfer by the Investor of all of the Preferred Shares to one or more third parties 

not affiliated with the Investor, the Company may repurchase, in whole or in part, at any time the 

Warrant or the Warrant Shares then held by the Investor, upon notice given as provided in clause 

(b) below, at the Fair Market Value of the Warrant or Warrant Shares. 

(b) Notice of every repurchase of the Warrant or the Warrant Shares held by 

the Investor shall be given at the address and in the manner set forth for such party in Section 

5.6. Each notice of repurchase given to the Investor shall state: (i) the number and type of 

securities to be repurchased, (ii) the Board of Director’s determination of Fair Market Value of 

such securities and (iii) the place or places where certificates representing such securities are to 

be surrendered for payment of the repurchase price. The repurchase of the securities specified in 

the notice shall occur as soon as practicable following the determination of the Fair Market 

Value of the securities. 

(c) As used in this Section 4.9, the following terms shall have the following 

respective meanings: 

(i) “Appraisal Procedure” means a procedure whereby two 

independent appraisers, one chosen by the Company and one by the Investor, 

shall mutually agree upon the Fair Market Value. Each party shall deliver a 

notice to the other appointing its appraiser within 10 days after the Appraisal 

Procedure is invoked. If within 30 days after appointment of the two appraisers 

they are unable to agree upon the Fair Market Value, a third independent 

appraiser shall be chosen within 10 days thereafter by the mutual consent of such 

first two appraisers. The decision of the third appraiser so appointed and chosen 

shall be given within 30 days after the selection of such third appraiser. If three 

appraisers shall be appointed and the determination of one appraiser is disparate 

from the middle determination by more than twice the amount by which the other 

determination is disparate from the middle determination, then the determination 

31 
of such appraiser shall be excluded, the remaining two determinations shall be 

averaged and such average shall be binding and conclusive upon the Company 

and the Investor; otherwise, the average of all three determinations shall be 

binding upon the Company and the Investor. The costs of conducting any 

Appraisal Procedure shall be borne by the Company. 

(ii) “Fair Market Value” means, with respect to any security, the fair 

market value of such security as determined by the Board of Directors, acting in 

good faith in reliance on an opinion of a nationally recognized independent 

investment banking firm retained by the Company for this purpose and certified in 

a resolution to the Investor. If the Investor does not agree with the Board of 

Director’s determination, it may object in writing within 10 days of receipt of the 

Board of Director’s determination. In the event of such an objection, an 

authorized representative of the Investor and the chief executive officer of the 

Company shall promptly meet to resolve the objection and to agree upon the Fair 

Market Value. If the chief executive officer and the authorized representative are 

unable to agree on the Fair Market Value during the 10-day period following the 

delivery of the Investor’s objection, the Appraisal Procedure may be invoked by 

either party to determine the Fair Market Value by delivery of a written 

notification thereof not later than the 30th day after delivery of the Investor’s 

objection. 

4.10 Executive Compensation. 

(a) Senior Executive Officers. Until such time as the Investor ceases to own 

any debt or equity securities of the Company acquired pursuant to this Agreement or the 

Warrant, the Company shall take all necessary action to ensure that its Benefit Plans with respect 

to the Senior Executive Officers comply in all respects with Section 111(b) of the EESA, 

including the provisions for the Capital Purchase Program, as implemented by any guidance or 

regulation thereunder that has been issued and is in effect as of the Closing Date, including the 

rules set forth in 31 CFR Part 30 and the provisions prohibiting severance payments to Senior 

Executive Officers, and shall not adopt any new Benefit Plan with respect to its Senior Executive 

Officers that does not comply therewith. For purposes of applying section 111(b) of the EESA 

with respect to this Section 4.10(a), a “golden parachute payment” means any payment in the 

nature of compensation to (or for the benefit of) a Senior Executive Officer made on account of 

an applicable severance from employment. “Senior Executive Officers” means the Company’s 

“senior executive officers” as defined in subsection 111(b)(3) of the EESA and regulations 

issued thereunder that have been issued and are in effect as of the Closing Date, including the 

rules set forth in 31 CFR Part 30. For the avoidance of doubt, a “golden parachute payment” for 

purposes of this Agreement, the EESA and any guidance, rules or requirements issued 

thereunder, including, without limitation, the rules set forth in 31 CFR Part 30, shall not include 

payments or benefits (including qualified and non-qualified/supplemental retirement benefits and 

deferred compensation) in which a Senior Executive Officer or Other Senior Manager is fully 

vested, or to which a Senior Executive Officer or Other Senior Manager is otherwise entitled, as 

of the date of termination (other than due to vesting resulting from an applicable severance from 

employment) (collectively referred to as “Vested Benefits”) and, as such, Vested Benefits shall 

not be prohibited from payment or delivery or count towards any limitation on payments. 

32 
Investor and the Company agree that for purposes of the form of waiver attached hereto as 

Annex B, the foregoing exclusions for Vested Benefits shall apply. 

(b) Other Senior Managers. Until such time as the Investor ceases to own any 

debt or equity securities of the Company acquired pursuant to this Agreement or the Warrant, the 

Company shall take all necessary action to limit any “golden parachute payments” to the 

employees of the Company and the Company Subsidiaries who are senior management 

employees of the Company listed on Schedule E (the “Other Senior Managers”) to the amounts 

permitted by the regulations relating to participants in the EESA Capital Purchase Program and 

the guidelines and rules relating thereto that have been issued and are in effect as of the Closing 

Date, including the rules set forth in 31 CFR Part 30, as if such Other Senior Managers were 

Senior Executive Officers for purposes of the EESA (except that equity denominated awards 

settled solely in equity shall not be included in such limit on “golden parachute payments” to 

Other Senior Managers). 

(c) Bonus Compensation. (i) Unless the Investor ceases to own any debt 

or equity securities of the Company acquired pursuant to this Agreement or the Warrant, the 

aggregate amount of Bonus Compensation that may be paid to the Senior Executive Officers and 

Other Senior Managers with respect to each of fiscal years 2008 and 2009 shall in no event 

exceed an amount equal to 60% of the aggregate Prior Year Bonus Compensation for the Senior 

Executive Officer and Other Senior Manager positions (the “Bonus Pool Cap”); provided, that, 

with respect to fiscal year 2009, the Bonus Pool Cap may be increased by the Company if, and to 

the extent that, such increase is approved by the Investor following the submission by the 

Company of a written detailed recommendation (with all applicable supporting documentation) 

to the Treasury Assistant Secretary for the Office of Financial Stability describing the basis for 

any proposed change to the 2009 bonus pool. The Investor shall have the authority to reject any 

change in the 2009 bonus pool if the Company fails to demonstrate to the reasonable satisfaction 

of the Investor that the proposed change is warranted by the Company’s demonstrated 

profitability, adequacy of risk-adjusted capital, market factors, compliance with the repayment 

terms of any investment and/or loan by the Investor, the Federal Reserve Bank of Richmond, the 

Federal Deposit Insurance Corporation or any other Governmental Entity, compliance with loan 

terms and covenants, compensation plan designs, Company performance in managing any asset 

pool supported by the Investor, the Federal Reserve Bank of Richmond and/or the Federal 

Deposit Insurance Corporation, changes to the size or composition of the Other Senior 

Managers, and any other factors the Investor deems relevant in its discretion. “Bonus 

Compensation” means all payments (whether in cash or other assets) in excess of the individual’s 

base salary paid with respect to a fiscal year (including any bonuses relating to such fiscal year 

that are paid in the following fiscal year or satisfied in the form of equity awards or deferred 

compensation), including any incentive or retention compensation; provided that “Bonus 

Compensation” does not include (i) any perquisites, to the extent that the applicable Senior 

Executive Officer or Other Senior Manager is receiving such perquisites as of the Closing Date 

or, if such Senior Executive Officer or Other Senior Manager is hired after the Closing Date, 

such perquisites are customarily made available to an employee holding such Senior Executive 

Officer or Other Senior Manager’s position as of the Closing Date, (ii) employee benefits 

generally made available to all employees employed within the same jurisdiction, (iii) 

supplemental retirement benefits provided under a plan in which the applicable Senior Executive 

Officer or Other Senior Manager participates on the Closing Date or, if such Senior Executive 

33 
Officer or Other Senior Manager is hired after the Closing Date, such supplemental retirement 

benefits are provided under a plan in which such Senior Executive Officer or Other Senior 

Manager would have been a participant if such individual had been employed in such position as 

of the Closing Date (provided that such individual’s service shall be credited for all purposes 

under the plan only from the date such individual actually commences employment with the 

Company or a Company Subsidiary, as applicable), (iv) benefits provided under generally 

available expatriate programs, (v) any long-term incentive compensation award granted prior to 

the Closing Date that is subject to time- or performance-based vesting and payable in 2009 or 

2010, (vi) any sign-on award granted to a Senior Executive Officer or Other Senior Manager 

who commences employment with the Company in fiscal years prior to and through 2009 that is 

intended to make such Senior Executive Officer or Other Senior Manager whole for unvested or 

otherwise forfeitable awards that are actually forfeited by the Senior Executive Officer or Other 

Senior Manager’s prior employer in connection with such Senior Executive Officer or Other 

Senior Manager’s departure from such prior employer and acceptance of employment with the 

Company; provided that the portion of any such sign-on award that serves as a “make whole” 

award for any such forfeited awards that were forfeited because the applicable vesting conditions 

were not achieved prior to the date of termination shall be granted subject to substantially similar 

vesting conditions or, if such sign-on award is paid to the Senior Executive Officer or Other 

Senior Manager upon such individual’s commencement of employment with the Company, shall 

be subject to a repayment obligation that reasonably reflects the vesting conditions applicable to 

such forfeited awards or (vii) any retention award committed to prior to the Closing Date. “Prior 

Year Bonus Compensation” means, with respect to each position during the 2007 fiscal year that 

is held by a Senior Executive Officer or Other Senior Manager as of the Closing Date (or, to the 

extent such position has been restructured since 2007, the position during the 2007 fiscal year 

(including at an applicable predecessor entity) that is the nearest equivalent to the position held 

by the Senior Executive Officer or Other Senior Managers as of the Closing Date), the Bonus 

Compensation paid with respect to fiscal year 2007 or if no Bonus Compensation was paid for 

such position with respect to fiscal year 2007, the most recently preceding fiscal year for which 

Bonus Compensation was awarded for such position. For the avoidance of doubt, “Prior Year 

Bonus Compensation” does not include any retention awards granted during or with respect to 

the applicable fiscal year. 

(ii) To the extent that any Bonus Compensation is paid in respect of the 2008 fiscal year 

to the Senior Executive Officers and the Other Senior Managers who reported directly to the 

Chief Executive Officer of the Company in 2008, at least 60% of any such Bonus Compensation 

shall be payable, at the Company’s discretion, in a combination of (x) deferred or restricted stock 

awards or (y) deferred cash awards. At least 40% of any Bonus Compensation payable to the 

Senior Executive Officers and the Other Senior Managers in respect of the 2008 fiscal year shall 

be either (i) awarded based on performance or (ii) paid in the form of deferred or restricted stock 

awards.

(d) Restrictions on Lobbying. Until the date on which the Preferred Shares 

have been redeemed in whole or the Investor has transferred all of the Preferred Shares to third 

parties which are not Affiliates of the Investor, the Company shall continue to maintain and 

implement its comprehensive written policy (the “U.S. Lobbying Policy”) on lobbying, 

governmental ethics and political activity and distribute such U.S. Lobbying Policy to all 

Company employees and lobbying firms involved in any such activity. Until the date on which 

34 
the Preferred Shares have been redeemed in whole or the Investor has transferred all of the 

Preferred Shares to third parties which are not Affiliates of the Investor, any material 

amendments to the U.S. Lobbying Policy shall require the prior written consent of the Investor, 

and any material deviations from the U.S. Lobbying Policy, whether in contravention thereof or 

pursuant to waivers provided for thereunder, shall promptly be reported to the Investor. The 

U.S. Lobbying Policy shall, at a minimum: (i) require compliance with all applicable law; (ii) 

apply to the Company, the Company Subsidiaries that constitute the Company’s consolidated 

subsidiaries and affiliated foundations; (iii) govern (A) the provision of items of value to any 

U.S. government officials; (B) lobbying of U.S. government officials and (C) U.S. political 

activities and contributions; and (iv) provide for (x) internal reporting and oversight and (y) 

mechanisms for addressing non-compliance with the U.S. Lobbying Policy. 

(e) Restrictions on Expenses. Until the date on which the Preferred Shares 

have been redeemed in whole or the Investor has transferred all of the Preferred Shares to third 

parties which are not Affiliates of the Investor, the Company shall continue to maintain and 

implement its comprehensive written policy (the “Expense Policy”, it being understood that the 

Expense Policy may be comprised of more than one written policy) on corporate expenses and 

distribute the Expense Policy to all Company employees. Until the date on which the Preferred 

Shares have been redeemed in whole or the Investor has transferred all of the Preferred Shares to 

third parties which are not Affiliates of the Investor, any material amendments to the Expense 

Policy shall require the prior written consent of the Investor, and any material deviations from 

the Expense Policy, whether in contravention thereof or pursuant to waivers provided for 

thereunder, shall promptly be reported to the Investor. The Expense Policy shall, at a minimum: 

(i) require compliance with all applicable law; (ii) apply to the Company and the Company 

Subsidiaries that constitute the Company’s consolidated subsidiaries; (iii) govern (A) the hosting, 

sponsorship or other payment for conferences and events, (B) the use of corporate aircraft, (C) 

travel accommodations and expenditures, (D) consulting arrangements with outside service 

providers, (E) any new lease or acquisition of real estate, (F) expenses relating to office or 

facility renovations or relocations and (G) expenses relating to entertainment or holiday parties; 

and (iv) provide for (x) internal reporting and oversight and (y) mechanisms for addressing noncompliance with the Expense Policy. 

(f) Risk Management Report. Within 30 days of making the certification 

required for compliance with section 111(b)(2)(A) of EESA and the regulations issued 

thereunder set forth in 31 CFR Part 30 regarding the compensation committee review of 

compensation arrangements with the Company’s senior risk officers, the Company will provide a 

report to the Investor detailing (i) the risks identified during that review, (ii) the steps to be taken 

to mitigate those risks and (iii) the Company’s recommendations for amending compensation 

arrangements to reduce the risk through implementation of long term performance metrics or 

other mechanisms. 

(g) Clawback. In the event that any Senior Executive Officer or Other Senior 

Manager receives a payment in contravention of the provisions of this Section 4.10, the 

Company shall promptly provide such individual with written notice that the amount of such 

payment must be repaid to the Company in full within fifteen business days following receipt of 

such notice and shall promptly inform the Investor (i) upon discovering that a payment in 

35 
contravention of this Section 4.10 has been made and (ii) following the repayment to the 

Company of such amount. 

(h) Compliance. Until such time as the Investor ceases to own any debt or 

equity securities of the Company acquired pursuant to this Agreement or the Warrant, the 

Company shall submit a certification on the last day of each fiscal quarter beginning with the 

first fiscal quarter of 2009 certifying that the Company has complied with and is in compliance 

with the provisions set forth in Sections 4.10(a) through 4.10(g). Such certification shall be 

made to the TARP Compliance Office by a senior executive officer of the Company, subject to 

the requirements and penalties set forth in Title 18, United States Code, Section 1001. 

4.11 Qualified Equity Offering. The Company and the Investor hereby agree 

that this Purchase shall not be deemed a Qualified Equity Offering (i) under the Securities 

Purchase Agreement – Standard Terms incorporated into the Letter Agreement, dated as of 

October 26, 2008 (the “Original Purchase Agreement”), as amended from time to time, between 

the Company and the Investor, including all annexes and schedules thereto or any of the 

documents related thereto, including the Certificate of Designations of the Company’s Fixed 

Rate Cumulative Perpetual Preferred Stock, Series Q, the Certificate of Designations of the 

Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series N or the Warrant (as 

defined in the Original Purchase Agreement) or (ii) in respect of any other securities issued by 

the Company under the Troubled Asset Relief Program. 

4.12 Bank Holding Company Status. The Company shall maintain its status as 

a Bank Holding Company for as long as the Investor owns any Purchased Securities or Warrant 

Shares. The Company shall redeem all Purchased Securities and Warrant Shares held by the 

Investor prior to terminating its status as a Bank Holding Company. “Bank Holding Company”

means a company registered as such with the Board of Governors of the Federal Reserve System 

(the “Federal Reserve”) pursuant to 12 U.S.C. §1842 and the regulations of the Federal Reserve 

promulgated thereunder. 

4.13 Certain Tax Matters. The Investor agrees that the Purchased Securities 

shall be treated, and the Company shall be entitled to treat the Purchased Securities, for purposes 

of Notice 2008-100, as having been issued under the Capital Purchase Program pursuant to the 

Emergency Economic Stabilization Act of 2008, P.L. 110-343. 

ARTICLE V 

Miscellaneous 

5.1 Termination. This Agreement may be terminated at any time prior to the 

Closing: 

(a) by either the Investor or the Company if the Closing shall not have 

occurred by the 30th calendar day following the Signing Date; provided, however, that in the 

event the Closing has not occurred by such 30th calendar day, the parties will consult in good 

faith to determine whether to extend the term of this Agreement, it being understood that the 

parties shall be required to consult only until the fifth day after such 30th calendar day and not be 

under any obligation to extend the term of this Agreement thereafter; provided, further, that the 

36 
right to terminate this Agreement under this Section 5.1(a) shall not be available to any party 

whose breach of any representation or warranty or failure to perform any obligation under this 

Agreement shall have caused or resulted in the failure of the Closing to occur on or prior to such 

date; or 

(b) by either the Investor or the Company in the event that any Governmental 

Entity shall have issued an order, decree or ruling or taken any other action restraining, enjoining 

or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, 

ruling or other action shall have become final and nonappealable; or 

(c) by the mutual written consent of the Investor and the Company. 

In the event of termination of this Agreement as provided in this Section 5.1, this Agreement 

shall forthwith become void and there shall be no liability on the part of either party hereto 

except that nothing herein shall relieve either party from liability for any breach of this 

Agreement. 

5.2 Survival of Representations and Warranties. All covenants and 

agreements, other than those which by their terms apply in whole or in part after the Closing, 

shall terminate as of the Closing. The representations and warranties of the Company made 

herein or in any certificates delivered in connection with the Closing shall survive the Closing 

without limitation. 

5.3 Amendment. No amendment of any provision of this Agreement will be 

effective unless made in writing and signed by an officer or a duly authorized representative of 

each party; provided that the Investor may unilaterally amend any provision of this Agreement to 

the extent required to comply with any changes after the Signing Date in applicable federal 

statutes. 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 of any other right, power or privilege. The rights and remedies herein 

provided shall be cumulative of any rights or remedies provided by law. 

5.4 Waiver of Conditions. The conditions to each party’s obligation to 

consummate the Purchase 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 will be effective unless 

it is in a writing signed by a duly authorized officer of the waiving party that makes express 

reference to the provision or provisions subject to such waiver. 

5.5 Governing Law: Submission to Jurisdiction, Etc. This Agreement will 

be governed by and construed in accordance with the federal law of the United States if 

and to the extent such law is applicable, and otherwise in accordance with the laws of the 

State of New York applicable to contracts made and to be performed entirely within such 

State. Each of the parties hereto agrees (a) to submit to the exclusive jurisdiction and 

venue of the United States District Court for the District of Columbia and the United States 

Court of Federal Claims for any and all civil actions, suits or proceedings arising out of or 

relating to this Agreement or the Warrant or the transactions contemplated hereby or 

thereby, and (b) that notice may be served upon (i) the Company at the address and in the 

37 
manner set forth for notices to the Company in Section 5.6 and (ii) the Investor in 

accordance with federal law. To the extent permitted by applicable law, each of the parties 

hereto hereby unconditionally waives trial by jury in any civil legal action or proceeding 

relating to this Agreement or the Warrant or the transactions contemplated hereby or 

thereby. 

5.6 Notices. Any notice, request, instruction or other document to be given 

hereunder by any party to the other will be in writing and will be deemed to have been duly 

given (a) on the date of delivery if delivered personally, or by facsimile, upon confirmation of 

receipt, or (b) on the second business day following the date of dispatch if delivered by a 

recognized next day courier service. All notices hereunder shall be delivered as set forth below 

or pursuant to such other instructions as may be designated in writing by the party to receive 

such notice. 

(a) If to the Investor: 

United States Department of the Treasury 

1500 Pennsylvania Avenue, NW, Room 2312 

Washington, D.C. 20220 

Attention: Assistant General Counsel (Banking and Finance) 

Facsimile: (202) 622-1974 

(b) If to the Company: 

Bank of America Corporation 

100 North Tryon Street 

Charlotte, North Carolina 28255 

Attention: Brian T. Moynihan 

 General Counsel 

Telephone: (980) 386-2400 

Facsimile: (704) 370-3515 

Bank of America Corporation 

100 North Tryon Street 

Charlotte, North Carolina 28255 

Attention: Treasurer 

Telephone: (704) 387-3390 

Facsimile: (704) 386-6699 

5.7 Definitions. 

(a) When a reference is made in this Agreement to a subsidiary of a person, 

the term “subsidiary” means any corporation, partnership, joint venture, limited liability 

company or other entity (x) of which such person or a subsidiary of such person is a general 

partner or (y) of which a majority of the voting securities or other voting interests, or a majority 

of the securities or other interests of which having by their terms ordinary voting power to elect a 

majority of the board of directors or persons performing similar functions with respect to such 

entity, is directly or indirectly owned by such person and/or one or more subsidiaries thereof. 

38 
(b) The term “Affiliate” means, with respect to any person, any person 

directly or indirectly controlling, controlled by or under common control with, such other person. 

For purposes of this definition, “control” (including, with correlative meanings, the terms 

“controlled by” and “under common control with”) when used with respect to any person, means 

the possession, directly or indirectly, of the power to cause the direction of management and/or 

policies of such person, whether through the ownership of voting securities by contract or 

otherwise. 

(c) The terms “knowledge of the Company” or “Company’s knowledge” 

mean the actual knowledge after reasonable and due inquiry of the “officers” (as such term is 

defined in Rule 3b-2 under the Exchange Act, but excluding any Vice President or Secretary) of 

the Company. 

5.8 Assignment. Neither this Agreement nor any right, remedy, obligation nor 

liability arising hereunder or by reason hereof shall be assignable by any party hereto without the 

prior written consent of the other party, and any attempt to assign any right, remedy, obligation 

or liability hereunder without such consent shall be void, except (a) an assignment, in the case of 

a Business Combination where such party is not the surviving entity, or a sale of substantially all 

of its assets, to the entity which is the survivor of such Business Combination or the purchaser in 

such sale and (b) as provided in Section 4.5. “Business Combination” means a merger, 

consolidation, statutory share exchange or similar transaction that requires the approval of the 

Company’s stockholders. 

5.9 Entire Agreement, Etc. This Agreement (including the Annexes and 

Schedules hereto) and the Warrant constitute the entire agreement, and supersede all other prior 

agreements, understandings, representations and warranties, both written and oral, between the 

parties, with respect to the subject matter hereof. 

5.10 Counterparts and Facsimile. For the convenience of the parties hereto, 

this Agreement may be executed in any number of separate counterparts, each such counterpart 

being 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. 

5.11 Severability. If any provision of this Agreement or the Warrant, or the 

application thereof to any person or circumstance, 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, will 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 materially 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. 

5.12 No Third Party Beneficiaries. Nothing contained in this Agreement, 

expressed or implied, is intended to confer upon any person or entity other than the Company 

39 
40 

and the Investor any benefit, right or remedies, except that the provisions of Section 4.5 shall 

inure to the benefit of the persons referred to in that Section. 

* * * 


ANNEX A 

FORM OF CERTIFICATE OF DESIGNATIONS

[SEE ATTACHED]

095331-0002-11807-NY03.2705836.8 
ANNEX B 

FORM OF WAIVER 

To Whom It May Concern: 

In consideration for the benefits I will receive as a result of my employer’s participation 

in the United States Department of the Treasury’s (hereafter, the “Treasury”) Troubled Asset 

Relief Program, including, without limitation, the Treasury’s purchases of preferred stock of my 

employer pursuant to the Securities Purchase Agreement dated as of October 26, 2008 and the 

Securities Purchase Agreement to be executed on or about January 16, 2009 (the “Subsequent 

Agreement”) (collectively, the “Programs”), I hereby voluntarily waive any claim against the 

United States or my employer or its directors, officers, employees and agents for any changes to 

my compensation or benefits that are required to comply with (i) the Emergency Economic 

Stabilization Act of 2008 and regulations or other guidance or requirements issued thereunder, 

including, without limitation, the regulation issued by the Treasury as published in the Federal 

Register on October 20, 2008, and (ii) as applicable to me, the provisions of the Subsequent 

Agreement (all such changes are collectively referred to as the “Limitations”). 

 I acknowledge that the Limitations may require modification of the employment, 

compensation, bonus, incentive, severance and other benefit plans, arrangements, policies and 

agreements (including, without limitation, any so-called “golden parachute” agreements), 

whether or not in writing, that I have with my employer or in which I participate as they relate to 

the period the United States holds any equity or debt securities of my employer acquired through 

the Programs and I hereby consent to all such modifications. I further acknowledge and agree 

that if my employer notifies me in writing that I have received payments in violation of the 

Limitations, I shall repay the aggregate amount of such payments to the employer no later than 

fifteen business days following my receipt of such notice. I further acknowledge and agree that 

with respect to fiscal years 2008 and 2009 (i) the amount of any threshold, target or maximum 

bonus I will be eligible to earn and (ii) the performance goals that must be satisfied to earn such 

bonus, shall continue to be established, and subject to adjustment by, my employer in its 

discretion, consistent with the requirements of the Programs. 

This waiver includes all claims I may have under the laws of the United States or any 

state related to the requirements imposed by the Limitations (including without limitation, any 

claim for any compensation or other payments I would otherwise receive absent the Limitations, 

any challenge to the process by which the Limitations were adopted and any tort or constitutional 

claim about the effect of the foregoing on my employment relationship) and I hereby agree that I 

will not at any time initiate, or cause or permit to be initiated on my behalf, any such claim 

against the United States, my employer or its directors, officers, employees and agents in any 

local, state or federal agency, court or other body. 

In witness whereof, I execute this waiver on my own behalf, thereby communicating my 

acceptance and acknowledgement to the provisions herein. 

095331-0002-11807-NY03.2705836.8 
 Respectfully, 

____________________________ 

Name: 

Title: 

Date: 

095331-0002-11807-NY03.2705836.8 
ANNEX C 

FORM OF OPINION

The Company has been duly incorporated and is validly existing as a corporation in good 

standing under the laws of the state of its incorporation. 

The Preferred Shares have been duly and validly authorized, and, when issued and 

delivered pursuant to the Agreement, the Preferred Shares will be duly and validly issued and 

fully paid and non-assessable, will not be issued in violation of any preemptive rights, and will 

rank pari passu with or senior to all other series or classes of Preferred Stock issued on the 

Closing Date with respect to the payment of dividends and the distribution of assets in the event 

of any dissolution, liquidation or winding up of the Company. 

The Warrant has been duly authorized and, when executed and delivered as contemplated 

by the Agreement, will constitute a valid and legally binding obligation of the Company 

enforceable against the Company in accordance with its terms, except as the same may be 

limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws 

affecting the enforcement of creditors’ rights generally and general equitable principles, 

regardless of whether such enforceability is considered in a proceeding at law or in equity. 

The shares of Common Stock issuable upon exercise of the Warrant have been duly 

authorized and reserved for issuance upon exercise of the Warrant and when so issued in 

accordance with the terms of the Warrant will be validly issued, fully paid and non-assessable. 

The Company has the corporate power and authority to execute and deliver the 

Agreement and the Warrant and to carry out its obligations thereunder (which includes the 

issuance of the Preferred Shares, Warrant and Warrant Shares). 

The execution, delivery and performance by the Company of the Agreement and the 

Warrant and the consummation of the transactions contemplated thereby have been duly 

authorized by all necessary corporate action on the part of the Company and its stockholders, and 

no further approval or authorization is required on the part of the Company. 

The Agreement is a valid and binding obligation of the Company enforceable against the 

Company in accordance with its terms, except as the same may be limited by applicable 

bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of 

creditors’ rights generally and general equitable principles, regardless of whether such 

enforceability is considered in a proceeding at law or in equity; provided, however, such counsel 

need express no opinion with respect to Section 4.5(g) or the severability provisions of the 

Agreement insofar as Section 4.5(g) is concerned. 

095331-0002-11807-NY03.2705836.8 
ANNEX D 

FORM OF WARRANT

[SEE ATTACHED]

095331-0002-11807-NY03.2705836.8 
SCHEDULE A 

CAPITALIZATION

Capitalization Date: December 31, 2008

Common Stock

Par value: $0.01 

Total Authorized: 10,000,000,000 

Issued: 5,017,435,592 

Subject to warrants, options, convertible 

securities, etc.: 

1,985,224,9411

Reserved for benefit plans and other issuances: 474,613,423 

Remaining authorized but unissued: 2,518,726,044 

 Shares Issued after Capitalization Date (other 

than pursuant to warrants, options, convertible 

securities, etc. as set forth above): 

1,375,522,0071

Preferred Stock

 

Par value: $0.01 

Total Authorized: 100,000,000 

Outstanding (by series): 

Series B 

Series D 

Series E 

Series H 

Series I 

Series J 

Series K 

Series L 

Series M 

Series N 

 Total Outstanding 

7,667 

33,000 

81,000 

117,000 

22,000 

41,400 

240,000 

6,900,000 

160,000 

600,000 

8,202,067 

Reserved for issuance: 23,818,0802

Remaining authorized but unissued: 67,979,853 

1

 On January 2, 2009, pursuant to the terms of the Merger Agreement with Merrill Lynch & Company, Bank 

of America issued approximately 1,375,522,007 shares of its Common Stock to Merrill Lynch shareholders. This 

reflects the exchange ratio of .8595 shares of Bank of America Common Stock for each share of Merrill Lynch 

Common Stock. On January 9, 2009, Bank of America Corporation issued warrants to purchase an additional 

48,717,116 shares of its Common Stock to the U.S. Treasury. These shares will be issued from this reserve. 2

 On January 2, 2009, Bank of America Corporation issued 359,100 shares of Preferred Stock to replace 8 

series of Merrill Lynch Preferred Stock. The replacement securities carried substantially similar terms as the Merrill 

Lynch Preferred Stock. On October 15, 2008, Bank of America Corporation reserved 400,000 shares of preferred 

stock for issuance to the U.S. Treasury. On January 9, 2009, Bank of America Corporation issued 400,000 shares of 

Fixed Rate Cumulative Perpetual Preferred Stock, Series Q to the U.S. Treasury. 

095331-0002-11807-NY03.2705836.8
SCHEDULE B 

LITIGATION

List any exceptions to the representation and warranty in Section 2.2(l) of the Agreement. 

If none, please so indicate by checking the box: . 

 

095331-0002-11807-NY03.2705836.8
SCHEDULE C 

COMPLIANCE WITH LAWS

List any exceptions to the representation and warranty in the second sentence of Section 2.2(m) 

of the Agreement. 

If none, please so indicate by checking the box: . 

List any exceptions to the representation and warranty in the last sentence of Section 2.2(m) of 

the Agreement. 

If none, please so indicate by checking the box: . 

 

095331-0002-11807-NY03.2705836.8
 

095331-0002-11807-NY03.2705836.8

SCHEDULE D 

REGULATORY AGREEMENTS

List any exceptions to the representation and warranty in Section 2.2(s) of the Agreement. 

If none, please so indicate by checking the box: . 
SCHEDULE E 

OTHER SENIOR MANAGERS

Alphin, Steele Chief Administrative Officer 

Curl, Greg Vice Chairman of Corporate Development 

Struthers, Richard President, Card Services 

Thain, John President, Global Banking, Securities & Wealth Management 

Banks, Keith Head of US Trust and Asset Management 

Bowman, Charles Chief Compliance Officer 

Brown, Jeff Treasurer 

Chai, Nelson President of Asia Pacific Region 

Cotty, Neil Chief Financial Officer, Global Banking, Securities & Wealth 

Management 

Donohoe, Noel Co-head of Risk Management, Global Markets 

Eggers, Helen Risk Management Executive, Global Consumer & Small 

Business Banking, Card and Mortgage 

Finucane, Anne Chief Marketing Officer 

Gagnon, Kris Co-head of Risk Management, Global Markets 

Gordon, Marc Enterprise Technology Executive 

Mogensen, Lauren Risk Management Executive, Wealth Management 

Montag, Thomas Head of Global Markets 

Morrison, Paul Corporate General Auditor 

Moulds, Jonathan President, Europe, Middle East & Africa 

O'Doherty, John Card Services Executive, Europe 

Rosato, Craig Chief Accounting Officer 

Sontag, Dan Head of Merrill Lynch Global Wealth Management 

Vacant (formerly 

Fleming) 

Head of Global Corporate and Investment Banking 

Vacant Head of Global Wealth and Investment Management 

Vacant (formerly 

Weaver) 

Card Services Executive, US & Canada 

 

095331-0002-11807-NY03.2705836.8