UNITED STATES DEPARTMENT OF THE TREASURY

1500 PENNSYLVANIA AVENUE, NW

WASHINGTON, D.C. 20220

Dear Ladies and Gentlemen:

The company set forth on the signature page hereto (the "Company") intends to issue in a

private placement the number ofshares of a series ofits preferred stock set forth on Schedule A

hereto (the "Preferred Shares") and a warrant to purchase the number ofshares ofits, common

stock set forth Qn Schedule A hereto (the "Warrant" and, together with the Preferred Shares, the

"Purchased Securities") and the United States Department ofthe Treasury (the "!nve$tor")

intends to purchase from the Company the Purchased Securities.

The purpose ofthis letter agreement is to confirm the terms and conditions of'the

purchase by the Investor ofthe Purchased Securities. Except to the extent supplemented or

superseded by the terms set forth herein or in the Schedules hereto, the provisions co~tained in

the Securities Purchase Agreement - Standard Terms attached hereto as Exhibit A (the

"Securities Purchase Agreement") are incorporated by reference herein. Terms that are defined

in the Securities Purchase Agreement are used in this letter agreement as so defined. In the event

orany inconsistency between this letter agreement and the Securities Purchase Agreement, the

terms ofthis letter agreement shall govern.

Each ofthe Company and the Investor hereby confirms its agreement with the other party

with respect to the issuance by the Company ofthe Purchased Securities and the purchase by the

Investor ofthe Purchased Securities pursuant to this letter agreement and the Securities Purchase

Agreement on the terms specified on Schedule A hereto.

This letter agreement (including the Schedules hereto) and the Securities Purchase

Agreement (including the Annexes thereto) 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. This letter

agreement constitutes the "Letter Agreement" referred to in the Securities Purchase Pigreement.

This letter agreement may be executed in any number ofseparate counterp~, 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 letter agreement may be

delivered by facsimile and such facsimiles will be deemed as sufficient as if actual si!fnature

pages had been delivered.

* * *

095331-0002-IOO33-NY02.2689570.6
In witness whereof; this letter agreement has been duly executed and delivered by the

duly authorized representatives ofthe patties hereto as ofthe date writlr:n below.

By: ----t----~'--......;;;;::o--,..

Name:

Title:
095331-0002-10033-NY02.2689570.6

SECURITIES PURCHASE AGREEMENT

EXHIBIT A
SCHEDULE A

ADDITIONAL TERMS AND CONDITIONS

Company Infonnation:

Name ofthe Company:

Corporate or other organizational fonn:

Jurisdiction of Organization:

Appropriate Federal Banking Agency:

Notice Infonnation:

Terms ofthe Purchase:

Series of Preferred Stock Purchased:

Per Share Liquidation Preference of Preferred Stock:

Number ofShares of Preferred Stock Purchased:

Dividend Payment Dates on the Preferred Stock:

Number of Initial Warrant Shares:

Exercise Price ofthe Warrant:

Purchase Price:

Closing:

Location ofClosing:

Time ofClosing:

Date ofClosing:

DCBR HoLdings, Inc.

Corporation

Delaware

Board of Governors ofthe Federal Reserve System

Dennis A. Lee

Senior Vice President and Corporate Counsel

VCBR Holdings, Inc.

555 Montgomery Street

San Francisco, CA 94111

Phone: (415)315-2832

Facsimile: (415) 986-0729

Fixed Rate Cumulative Perpetual Preferred Stock, Series C

$1,000

298,737

February 15, May 15, August 15, November 15

7,847,732

$5.71

$298,737,000

Hughes Hubbard and Reed LLP

One Battery Park Plaza

New York, New York 10004-1482

9:00am,EST

November 14,2008

Wire Information for Closing: ABA Number:

Bank:

Account Name:

Account Number:

Beneficiary:

[REDACTED]
CAPITALIZATION

Capitalization Date:

Common Stock

Par value:

Total Authorized:

Outstanding:

Subject to warrants, options, convertible

securities, etc.:

Reserved for benefit plans and other

Issuances:

Remaining authorized but unissued:

Shares issued after Capitalization Date

(other than pursuant to warrants, options,

convertible securities, etc. as set forth

above):

Preferred Stock

Par value:

Total Authorized:

Outstanding (by series):

Reserved for issuance:

Remaining authorized but unissued:

095331-0002-1 0033-NY02.2689570.6

October 31, 2008

$0.01

180,000,000

111,092,733

41,499,890

6,164,766

21,242,611

o

$0.01

10,000,000

Series A: None

Series B: 132,335

120,250

9,747,415

SCHEDULEB
S~HEDULEC

REQUIRED STOCKHOLDER APPROVALS

1

Required

Warrants -- Common Stock Issuance

Charter Amendment

Stock Exchange Rules

% Vote Required

Ifno stockholder approvals are required, please so indicate by checking the box: [gJ.

I Ifstockholder approval is required, indicate applicable class/series of capital stock that are requiIjed to vote.

095331-0002-I0033-NY02.2689570.6
LITIGATION

List any exceptions to the representation and warranty in Section 2.2(1) ofthe Securities

Purchase Agreement - Standard Terms.

If none, please so indicate by checking the box: [gJ.

095331-0002-1 0033-NY02.2689570.6

SCHEDULED
SrHEDULEE

COMPLIANCE WITH LAWS

List any exceptions to the representation and warranty in the second sentence of Section 2.2(m) of the

Securities Purchase Agreement - Standard Terms.

If none, please so indicate by checking the box: 1:8:1.

List any exceptions to the representation and warranty in the last sentence of Section 2.2(m) of the

Securities Purchase Agreement - Standard Terms.

Ifnone, please so indicate by checking the box: 1:8:1.
SCHEDULEF

REGULATORY AGREEMENTS

List any exceptions to the representation and warranty in Section 2.2(s) ofthe Securities Purchase

Agreement - Standard Terms.

If none, please so indicate by checking the box: 12].
09533I-0002-IOO13-NY02.2689565.11

SECURITIES PURCHASE AGREEMENT

STANDARD TERMS

EXHIBIT A
TABLE OF CONTENTS

Page

Article I

Purchase; Closing

1.1 Purchase ..., 1

1.2 Closing 2

1.3 Interpretation 4

Article II

Representations and Wartanties

2.1 Disclosure , 4

2.2 Representations and Warranties ofthe Company 5

Article III

Covenants

3.1 Commercially Reasonable Efforts 13

3.2 Expenses 14

3.3 Sufficiency ofAuthorized Common Stock; Exchange Listing 14

3.4 Certain Notifications Until Closing 15

3.5 Access, Information and Confidentiality 15

Article IV

Additional Agreements

4.1 Purchase for Investment 16

4.2 Legends 16

4.3 Certain Transactions 18

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

the Warrant. 18

4.5 Registration Rights " 19

4.6 Voting of Warrant Shares : 30

4.7 Depositary Shares 31

4.8 Restriction on Dividends and Repurchases 31

4.9 Repurchase ofInvestor Securities 32

4.10 Executive Compensation 33

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095331-0002-IOO33-NY02.2689565.ll
Article V

Miscellaneous

5.1 Tennination 34

5.2 Survival ofRepresentations and Warranties , .34

5.3 Amendment 34

5.4 Waiver ofConditions 34

5.5 Governing Law: Submission to Jurisdiction, Etc .35

5.6 Notices 35

5.7 Definitions 35

5.8 Assignment 36

5.9 Severability 36

5.10 No Third Party Beneficiaries 36

-ii095331-0002-IOO13-NY02.2689565.11
ANNEXA:

ANNEXB:

ANNEXC:

ANNEXD:

LIST OF ANNEXES

FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRJED STOCK

FORM OF WAIVER

FORM OF OPINION

FORM OF WARRANT

-iii095331-ooo2-10033·NY02.2689565.11
INDEX OF DEFINED TERMS

Term

Affiliate

Agreement

Appraisal Procedure

Appropriate Federal Banking Agency

Bankruptcy Exceptions

Benefit Plans

Board ofDirectors

Business Combination

business day

Capitalization Date

Certificate of Designations

Charter

Closing

Closing Date

Code

Common Stock

Company

Company Financial Statements

Company Material Adverse Effect

Company Reports

Company Subsidiary; Company Subsidiaries

control; controlled by; under common control with

Controlled Group

CPP

EESA

ERISA

Exchange Act

Fair Market Value

GAAP

Governmental Entities

Holder

Holders' Counsel

Indemnitee

Information

Initial Warrant Shares

Investor

Junior Stock

knowledge ofthe Company; Company's knowledge

Last Fiscal Year

Letter Agreement

officers

-iv095331-OO02-IOO33-NY02.2689565.11

Locat~on of

Definition I

5.7(b);

Recit~s

4.9(c)(i)

2.2(s)

2.2(d}

1.2(d)(iv)

2.2(f)

4.4

1.3

2.2(b)

1.2(d)(iii)

1.2(d)(iii)

1.2(a)

1.2(a)

2.2(n)

Recitals

Recitals

2.2(h)

2.1(a)

2.2(i)(i)

2.2(i)(b

5.7(b)

2.2(n)

Recitals

1.2(d)~iv)

2.2(n)

2.1(b)

4.9(c)Cii)

2. 1(a) ,

1.2(c) ,

4.5(k)~i)

4.5(k)dii)

4.5(g)~i)

3.5(b)

Recitals

RecitaJ,s

4.8(c)

5.7(c)

2.1(b)

Recitals

5.7(c) I
Term

Parity Stock

Pending Underwritten Offering

Permitted Repurchases

Piggyback Registration

Plan

Preferred Shares

Preferred Stock

Previously Disclosed

Proprietary Rights

Purchase

Purchase Price

Purchased Securities

Qualified Equity Offering

register; registered; registration

Registrable Securities

Registration Expenses

Regulatory Agreement

Rule 144; Rule 144A; Rule 159A; Rule 405; Rule415

Schedules

SEC

Securities Act

Selling Expenses

Senior Executive Officers

Share Dilution Amount

ShelfRegistration Statement

Signing Date

Special Registration

Stockholder Proposals

subsidiary

Tax; Taxes

Transfer

Warrant

Warrant Shares

-y09533I-0002-IOO33-NY02.2689565.11

Location of

Definition

4.8(c)

4.5(1)

4.8(a)(ii)

4.5(a)(iv)

2.2(n)

Recitals

Recitals

2.1(b)

2.2(u)

Recitals

1.1

ReciWs

4.4

4.5(k)(iii)

4.5(k)(iv)

4.5(k){v)

2.2(s)

4.5(k)~vi)

Recitals

2.1(b)

2.2(a)

4.5(k)(vii)

4.10

4.8(a)(ii)

4.5(a)(ii)

2. 1(a)

4.5(i)

3.1(b)

5.8(a)

2.2(0)

4.4

Recitals

2.2(d)
SECURITIES PURCHASE AGREEMENT - STANDARD TERMS

Recitals:

WHEREAS, the United States Department ofthe Treasury (the "Investor") may from

time to time agree to purchase shares of preferred stock and warrants from eligible financial

institutions which elect to participate in the Troubled Asset ReliefProgram Capital Purchase

Program ("CPP");

WHEREAS, an eligible financial institution electing to participate in the C»P and issue

securities to the Investor (referred to herein as the "Company") shall enter into a letter agreement

(the "Letter Agreemenf') with the Investor which incorporates this Securities Purchase

Agreement - Standard Terms;

WHEREAS, the Company agrees to expand the flow of credit to U.S. cons~ers and

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

economy;

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

the terms ofresidential mortgages as appropriate to strengthen the health ofthe U.S. housing

market;

WHEREAS, the Company intends to issue in a private placement the number ofshares of

the series ofits Preferred Stock ("Preferred StoclC') set forth on Schedule A to the Letter

Agreement (the "Preferred Shares") and a warrant to purchase the number ofshares ofits

Common Stock ("Common StoclC') set forth on Schedule A to the Letter Agreement (the "Initial

Warrant Shares") (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; and

WHEREAS, the Purchase will be governed by this Securities Purchase Agreement -

Standard Terms and the Letter Agreement, including the schedules thereto (the "Schedules"),

specifying additional terms ofthe Purchase. This Securities Purchase Agreement - Standard

Terms (including the Annexes hereto) and the Letter Agreement (including the Schedules

thereto) are together referred to as this "Agreement". All references in this Securities Purchase

Agreement - Standard Terms to "Schedules" are to the Schedules attached to the U~tter

Agreement.

NOW, THEREFORE, in consideration ofthe premises, and ofthe 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 the pnce set forth

on Schedule A (the "Purchase Price").

095331-QOO2-IOO33-NY02.2689565.J I
1.2 Closing.

(a) On the tenns and subject to the conditions set forth in this Agreem~nt, the closing

ofthe Purchase (the "Closing') will take place at the location specified in Schedule A, at the

time and on the date set forth in Schedule A or as soon as practicable thereafter, orr 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".

(b) Subject to the fulfillment or waiver ofthe 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 ofthe Purchase Price by wire

transfer ofimmediately available United States funds to a bank account designated. by the

Company on Schedule A.

(c) The respective obligations of each ofthe 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 ofthe conditions that (i) any approv~s or

authorizations of all United States and other governmental, regulatory orjudicial a]..lthorities

(collectively, "Governmental Entities") required for the consummation ofthe Purcp.ase shall

have been obtained or made in fonn 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 ofthe Purchased Securities as contemplated by this Agreement.

(d) The obligation ofthe Investor to consummate the Purchase is also s~bject to the

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

conditions:

(i) (A) the representations and warranties ofthe Company set fqrth in (x)

Section 2.2(g) ofthis Agreement shall be true and correct in all respects as ,hough made

on and as ofthe Closing Date, (y) Sections 2.2(a) through (f) shall be true $d correct in

all material respects as though made on and as ofthe Closing Date (other tI¥m

representations and warranties that by their tenns speak as of another date, which

I

representations and warranties shall be true and correct in all material resp~ts as ofsuch

other date) and (z) Sections 2.2(h) through (v) (disregarding all qualificatioI!J.s or

limitations set forth in such representations and warranties as to "materialitY", "Company

Material Adverse Effect" and words ofsimilar import) shall be true and correct as though

made on and as ofthe Closing Date (other than representations and warranties that by

their tenns speak as of another date, which representations and warranties shall be true

and correct as ofsuch other date), except to the extent that the failure ofsuch

representations and warranties referred to in this Section 1.2(d)(i)(A)(z) to ~e so true and

corr.ect, individually or in the aggregate, does not have and would not reasOIjI.a.bly be

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

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09533I-0002-IOO33-NY02.2689565.11
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 behlilf ofthe

Company by a senior executive officer certifying to the effect that the conditions set forth

in Section 1.2(d)(i) have been satisfied;

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

ofits jurisdiction of organization or other applicable Governmental Entity the amendment

to its certificate or articles ofincorporation, articles of association, or simi;Iar

organizational document ("Charter") in substantially the form attached hereto as Annex

A (the "Certificate ofDesignations") and such filing shall have been acc~pted;

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

bonus, incentive and other benefit plans, arrangements and agreements (iI1;cluding golden

parachute, severance and employment agreements) (collectively, "Benefit ~lans") with

respect to its Senior Executive Officers (and to the extent necessary for such changes to

be legally enforceable, each ofits Senior Executive Officers 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 ofthe Company acquired pursuant to this AgFeement or the

Warrant, in order to comply with Section 111(b) ofthe Emergency Economic

Stabilization Act of 2008 ("EESA") as implemented by guidance or regulation thereunder

that has been issued and is in effect as ofthe Closing Date, and (B) the Investor shall

have received a certificate signed on behalf ofthe Company by a senior executive officer

certifying to the effect that the condition set forth in Section 1.2(d)(iv)(A) ):las been

satisfied;

(v) each ofthe Company's Senior Executive Officers shall have delivered to

the Investor a written waiver in the fonn attached hereto as Annex B releasing the

Investor from any claims that such Senior Executive Officers may otherwise have as a

result ofthe issuance, on or prior to the Closing Date, of any regulations wl1ich require

the modification of, and the agreement ofthe Company hereunder to modify, the terms of

any Benefit Plans with respect to its Senior Executive Officers to eliminate any

provisions ofsuch Benefit Plans that would not be in compliance with the Fequirements

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

has been issued and is in effect as ofthe Closing Date;

(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 ~nvestor and

dated as ofthe 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 ofthe Investor, evidence ofshares in book-entry form, evidencing the

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

-3-

09533I-0002-IOO33-NY02.2689565.11
(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).

1.3 Interpretation. When a reference is made in this Agreement to "Recitals,"

"Articles," "Sections," or "Annexes" such reference shall be to a Recital, Article or Section of,

or Annex to, this Securities Purchase Agreement - Standard Terms, and a reference to

"Schedules" shall be to a Schedule to the Letter Agreement, in each case, unless Qtherwise

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 tol 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 ofthis 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 ofthis Agreement, as this Agreement is the prod/uct of

negotiation between sophisticated parties advised by counsel. All references to "$" or "dollars"

mean the lawful currency ofthe United States ofAmerica. 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 ofstatutes,

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 ofNew 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 ofthe Company and its consol~dated

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

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

"Signing Date") in general business, economic or market conditions (including chkges

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

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

or any outbreak or escalation of hostilities, declared or undeclared acts ofwar 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 acco1mting

principles in the United States ("GAAP") or regulatory accounting requirements, o~ authoritative

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

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

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

I

-4-

09533I-0002-10033-NY02.2689565.1 I
or occurrences.. to t.he extent thatsuch changes or occurrences have or would reaso~ably 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 orifinancial

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

Stock or any other equity, equity-related or debt securities ofthe Company or its ~onsolidated

subsidiaries (it being understood and agreed that the exception set forth in this c1aliIse (D) does

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

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

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

basis.

(b) "Previously Disclosed" means infonnation set forth or incorporated in the

Company's Annual Report on Form lO-K for the most recently completed fiscal y~ar ofthe

Company filed with the Securities and Exchange Commission (the "SEC') prior td the Signing

Date (the "Last Fiscal Year") or in its other reports and forms filed with or furnish~d to the SEC

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

Act") on or after the last day ofthe Last Fiscal Year and prior to the Signing Date.

2.2 Representations and Warranties ofthe Company. Except as Previo~sly Disclosed,

the Company represents and warrants to the Investor that as ofthe Signing Date an;d as ofthe

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 ofits,jurisdiction of

organization, with the necessary power and authority to own its properties and con~uct 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 ofthe Co;mpany that is

a "significant subsidiary" within the meaning ofRule 1-02(w) ofRegulation S-X l$der the

Securities Act of 1933 (the "Securities Ad') has been duly organized and is validl}1 existing in

good standing under the laws ofitsjurisdiction of organization. The Charter and bylaws ofthe

Company, copies ofwhich have been provided to the Investor prior to the Signing Date, are true,

complete and correct copies ofsuch documents as in full force and effect as ofthe Signing Date.

(b) Capitalization. The authorized capital stock ofthe Company, and th~ outstanding

capital stock ofthe Company (including securities convertible into, or exercisable qr

exchangeable for, capital stock ofthe Company) as ofthe most recent fiscal month-\end

preceding the Signing Date (the "Capitalization Date") is set forth on Schedule B. fThe

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

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

providing the holder the right to acquire Common Stock that is not reserved for iss~ance as

-5-

09533I-0002-IOO33-NY02.2689565.11
specified on Schedule B, and the Company has not made any other commitment tQ authorize,

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

shares ofCommon Stock, other than (i) shares issued upon the exercise ofstock 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 Band (ii) shares

disclosed on Schedule B.

(c) Preferred Shares. The Preferred Shares have been duly and validly ~uthorized,

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 violatior, of any

preemptive rights, and will rank pari passu with or senior to all other series or cl~ses of

Preferred Stock, whether or not issued or outstanding, with respect to the paymentlof dividends

and the distribution of assets in the event of any dissolution, liquidation or winding up ofthe

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 l~gally binding

obligation ofthe 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 ofwhether such enforceability is considered in a proceeding :at law or in

equity ("Bankruptcy Exceptions"). The shares ofCommon Stock issuable upon exercise ofthe

Warrant (the "Warrant Shares") have been duly authorized and reserved for iss~ce upon

exercise ofthe Warrant and when so issued in accordance with the terms ofthe W~ant will be

validly issued, fully paid and non-assessable, subject, if applicable, to the approval~ ofits

stockholders set forth on Schedule C.

(e) Authorization, Enforceability.

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

deliver this Agreement and the Warrant and, subject, if applicable, to the approvals ofits

stockholders set forth on Schedule C, to carry out its obligations hereunder and

thereunder (which includes the issuance ofthe Preferred Shares, Warrant all-d Warrant

Shares). The execution, delivery and performance by the Company ofthis Agreement and

the Warrant and the consummation ofthe transactions contemplated hereb)1 and thereby

have been duly authorized by all necessary corporate action on the part oftlile Company

and its stockholders, and no further approval or authorization is required onl the part of

the Company, subject, in each case, ifapplicable, to the approvals ofits sto¢kholders set

forth on Schedule C. This Agreement is a valid and binding obligation of t~e Company

enforceable against the Company in accordance with its terms, subject to the Bankruptcy

Exceptions.

(ii) The execution, delivery and performance by the Company o:ff this

Agreement and the Warrant and the consummation ofthe transactions cont~mplated

hereby and thereby and compliance by the Company with the provisions he*eofand

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095331-QOO2-10033-NY022689565.11
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 oftime or both, would

constitute a default) under, or result in the tennination of, or accelerate the performance

required by, or result in a right oftermination or acceleration of, or result in the creation

of, any lien, security interest, charge or encumbrance upon any ofthe properties or assets

ofthe Company or any Company Subsidiary under any ofthe terms, conditions or

provisions of(i) subject, if applicable, to the approvals ofthe Company's stockholders set

forth on Schedule C, its organizational documents or (ii) any note, bond, mortgage,

indenture, deed oftrust, license, lease, agreement or other instrument or o}jligation 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 ofthe properties or assets ofthe Company or any 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 oftheir respective properties or assets except, in the case of clauses (A)(ii) and

(8), 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 ofthe Certificate ofDesignations with the Secretary

of State ofits jurisdiction oforganization or other applicable Governmental Entity, 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, the 'filing of any

proxy statement contemplated by Section 3.1 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 ofthe 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 ofDirectors ofthe

Company (the "Board ofDirectors") has taken all necessary action to ensure that the transactions

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

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

terms, will be exempt from any anti-takeover or similar provisions ofthe Companyl'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 ofthe Company

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

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

accordance with its terms.

(g) No Company Material Adverse Effect. Since the last day ofthe last yompleted

fiscal period for which the Company has filed a Quarterly Report on Form lO-Q or Annual

-7-

095331-OOO2-10033-NY02.2689565.11
Report on Fonn 10-K with the SEC prior to the Signing Date, 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 Ef1fect.

(h) Company Financial Statements. Each ofthe 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 ofthe Company and its consolidated subsidiaries as ofthe dates indicated therein (or if

amended priorto the Signing Date, as ofthe date ofsuch amendment) and the conl)olidated

results oftheir operations for the periods specified therein; and except as stated therein, such

financial statements (A) were prepared in conformity with GAAP applied on a coq.sistent basis

(except as may be noted therein), (B) have been prepared from, and are in accordap.ce with, the

books and records ofthe Company and the Company Subsidiaries and (C) complied as to fonn,

as oftheir respective dates offiling with the SEC, in all material respects with the ~pplicable

accounting requirements and with the published rules and regulations ofthe SEC with respect

thereto.

(i) Reports.

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

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 aIll 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 oftheir respective dates offiling, the Company Reports complied in

all material respects with all statutes and applicable rules and regulations ofthe

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 ofits date or ifamended

prior to the Signing Date, as ofthe date ofsuch amendment, contain an untfue statement

of a material fact or omit to state a material fact necessary in order to make the statements

made therein, in light ofthe circumstances under which they were made, not misleading,

and (B) complied as to form in all material respects with the applicable req~irements 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 ofltheir

respective dates. No executive officer ofthe Company or any Company Subsidiary has I

failed in any respect to make the certifications required ofhim or her under Section 302

or 906 ofthe Sarbanes-Oxley Act of 2002.

(ii) The records, systems, controls, data and infonnation ofthe 90mpany and

the Company Subsidiaries are recorded, stored, maintained and operated un<ler means

(including any electronic, mechanical or photographic process, whether computerized or

not) that are under the exclusive ownership and direct control ofthe Compc$y or the

-8-

095331-0002-10033-NY02.2689565.11
Company Subsidiaries or their accountants (including all means of access thereto and

therefrom), except for any hon-exclusive ownership and non-direct controt that would not

reasonably be expected to have a material adverse effect on the system ofinternal

accounting controls described below in this Section 2.2(i)(ii). The Company (A) has

implemented and maintains disclosure controls and procedures (as defmed; in

Rule 13a-15(e) ofthe Exchange Act) to ensure that material information r~lating to the

Company, including the consolidated Company Subsidiaries, is made known to the chief

executive officer and the chieffinancial officer ofthe Company by others i-vithin those

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

Date, to the Company's outside auditors and the audit committee ofthe Bo.ard of

Directors (x) any significant deficiencies and material weaknesses in the design or

operation ofinternal controls over financial reporting (as defined in Rule I ~3a-15(f) ofthe

Exchange Act) that are reasonably likely to adversely affect the Company's ability to

record, process, summarize and report financial information and (y) any fraud, whether or

not material, that involves management or other employees who have a sigpificant role in

the Company's internal controls over financial reporting.

G) No Undisclosed Liabilities. Neither the Company nor any ofthe Company

Subsidiaries has any liabilities or obligations of any nature (absolute, accrued, con~ingent or

otherwise) which are not properly reflected or reserved against in the Company Fi~ancial

Statements to the extent required to be so reflected or reserved against in accordan~e with

GAAP, except for (A) liabilities that have arisen since the last fiscal year end in th~ 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 actingIon its behalf

has taken any action (including any offering of any securities ofthe Company und~r

circumstances which would require the integration ofsuch offering with the offeriJiIg ofany of

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

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

Purchased Securities to Investor pursuant to this Agreement to the registration req~irements of

the Securities Act.

(1) Litigation and Other Proceedings. Except (i) as set forth on Schedulle D or (ii) as

would not, individually or in the aggregate, reasonably be expected to have a Com~any Material

Adverse Effect, there is no (A) pending or, to the knowledge ofthe Company, thre~tened, claim,

action, suit, investigation or proceeding, against the Company or any Company Supsidiary or to

which any oftheir 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 b~ any

Governmental Entity with respect to any report or relating to any examinations or ~spectionsof

the Company or any Company Subsidiaries.

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

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

-9-

095331-0002-I0033-NY02.2689565.11
Company Subsidiaries have all permits, licenses, franchises, authorizations, ordersIand 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 ofthe Company or such

Company Subsidiary. Except as set forth on Schedule E, the Company and the Company

Subsidiaries have complied in all respects and are not in default or violation of, andl none ofthem

is, to the knowledge ofthe Company, under investigation with respect to or, to the iknowledge 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 orjudgment 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 E, no Governmental Entity has placed any restriction on the business or 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 exp~cted 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) ofthe Employee Retirement Incqme Security

Act of 1974, as amended ("ERISA")) providing benefits to any current or former employee,

officer or director ofthe Company or any member ofits "Controlled Group" (defmed as any

organization which is a member of a controlled group of corporations Within the meaning of

Section 414 ofthe Internal Revenue Code of 1986, as amended (the "Code")) that ~s sponsored,

maintained or contributed to by the Company or any member ofits Controlled Group and for

which the Company or any member ofits Controlled Group would have any liability, whether

actual or contingent (each, a "PZan") has been maintained in compliance with its terms and with

the requirements of all applicable statutes, rules and regulations, including ERISA ~d the Code;

(B) with respect to each Plan subject to Title IV of ERISA (including, for purposesIofthis clause

(B), any plan subject to Title IV ofERISA that the Company or any member ofits 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) ofERISA), other than 3; reportable

event for which the notice period referred to in Section 4043(c) ofERISA has beelliwaived, has

occurred in the three years prior to the Signing Date or is reasonably expected to oqcur, (2) no

"accumulated funding deficiency" (within the meaning of Section 302 ofERISA 01' Section 412

ofthe 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 ofthe 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 ofits Controlled Group

has incurred in the six years prior to the Signing Date, or reasonably expects to incl).r, any

liability under Title IV ofERISA (other than contributions to the Plan or premiumsl 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) ofERISA); and «(1:) each Plan

that is intended to be qualified under Section 401(a) ofthe Code has received a fav~rable

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095331-0002-10033-NY02.2689565.11
detennination letter from the Internal Revenue Service with respect to its qualifie4 status that has

not been revoked, or such a detennination letter has been timely applied for but nQt 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 ofsuch qualified s~tus or

favorable detennination letter.

(0) 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 Th returns

required to be filed through the Signing Date, subject to penni.tted extensions, andlhave paid all

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

any ofthe Company Subsidiaries, nor does the Company have any knowledge of ~y Tax

deficiencies. "Tax" or "Taxes" means any federal, state, local or foreign income, fOSS receipts,

property, sales, use, license, excise, franchise, employment, payroll, withholding, ~lternative 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.

(P) Properties and Leases. Except as would not, individually or in the aggregate,

reasonably be expected to have a Company Material Adverse Effect, the Compan)f 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 ~ade 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 h~ld all leased

real or personal property under valid and enforceable leases with no exceptions th~t 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 r~lating to the

release ofhazardous substances as defmed under any local, state or federal environmental

statute, regulation or ordinance, including the Comprehensive Environmen~l Response,

Compensation and Liability Act of 1980, pending or, to the Company's knqwledge,

threatened against the Company or any Company Subsidiary;

(ii) to the Company's knowledge, there is no reasonable basis fo;I' any such

proceeding, claim or action; and

(iii) neither the Company nor any Company Subsidiary is subjec~ to any

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

party imposing any such environmental liability.

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09533I-QOO2-IOO33-NY02.2689565.11
(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 ofone or more ofthe 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 ofsuch instruments constitutes the valid and legally binding obligation ofthe Company

or one ofthe 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 ofthe Company, any other party thereto, is in breach of any ofits 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 F, 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 ~greement,

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

or similar undertaking to, or is subject to any capital directive by, or since DecemQer 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 ofits 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 pdlicies or

procedures, its internal controls, its management or its operations or business (eacH item in this

sentence, a "Regulatory Agre.ement"), 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 Subsidi¥y 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 Re~latory

Agreement. "Appropriate Federal Banking Agency" means the "appropriate FederW banking

agency" with respectto the Company or such Company Subsidiaries, as applicable~ as defined in

Section 3(q) ofthe Federal Deposit Insurance Act (12 U.S.c. Section 1813(q».

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

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

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

and the Company Subsidiaries are inmaterial compliance with their insurance policies and are

not in default under any ofthe material terms th.ereof.' each such policy is outstand~iI g and in full

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

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

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

Adverse Effect. I

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09533l-QOO2-10033-NY02.268956S.lI
(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 oftheir existing businesses and all rights relating to the plans, design and

specifications of any ofits branch facilities ("Proprietary Rights") free and clear of all liens and

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

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

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

any written (or, to the knowledge ofthe Company, oral) communications alleging1that any of

them has materially infringed, diluted, misappropriated or violate~ any ofthe 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 ofthe Proprietary Rights owned

by the Company and the Company Subsidiaries.

(v) Brokers and Finders. No broker, finder or investment banker is ent~tled 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 bas~d upon

arrangements made by or on behalf ofthe Company or any Company Subsidiary for whiCh the

Investor could have any liability.

Article III

Covenants

3.1 Commercially Reasonable Efforts.

(a) Subject to the terms and conditions ofthis Agreement, each ofthe ~arties will use

its commercially reasonable efforts in good faith to take, or cause to be taken, all a~tions, and to

do, or cause to be done, all things necessary, proper or desirable, or advisable under applicable

laws, so as to permit consummation ofthe Purchase as promptly as practicable and! otherwise to

enable consummation ofthe transactions contemplated hereby and shall use comm~rcially

reasonable efforts to cooperate with the other party to that end.

(b) Ifthe Company is required to obtain any stockholder approvals set (orth on

Schedule C, then the Company shall comply with this Section 3.1(b) and Section 311 (c). The

Company shall call a special meeting of its stockholders, as promptly as practicabl¢ following

the Closing, to vote on proposals (collectively, the "Stockholder Proposals"). to (i) fPprove the

exercise ofthe Warrant for Common Stock for purposes ofthe rules ofthe nationall security

exchange on which the Common Stock is listed and/or (ii) amend the Company's qharter to

increase the number of authorized shares ofCommon Stock to at least such numbe~ as shall be

sufficient to permit the full exercise ofthe Warrant for Common Stock and complyIwith the

-13-

09533 1"()()()2-1 0033-NY02.2689565.11
other provisions ofthis Section 3.1(b) and Section 3.1 (c). The Board ofDirectors shall

recommend to the Company's stockholders that such stockholders vote in favor ofthe

Stockholder Proposals. In connection with such meeting, the Company shall prepare (and the

Investor will reasonably cooperate with the Company to prepare) and file with the SEC as

promptly as practicable (but in no event more than ten business days after the Clos~ng) a

preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of

the SEC or its staffthereon and to cause a definitive proxy statement related to sucb

stockholders' meeting to be mailed to the Company's stockholders not more than mve business

days after clearance thereof by the SEC, and shall use its reasonable best efforts to Isolicit proxies

for such stockholder approval ofthe Stockholder Proposals. The Company shall nptify the

Investor promptly ofthe receipt of any comments from the SEC or its staffwith re$pect to the

proxy statement and of any request by the SEC or its stafffor amendments or supplements to

such proxy statement or for additional information and will supply the Investor with copies of all

correspondence between the Company or any of its representatives, on the one harili, and the

SEC or its staff, on the other hand, with respect to such proxy statement. If at any ~ime prior to

such stockholders' meeting there shall occur any event that is required to be set forth in an

amendment or supplement to the proxy statement, the Company shall as promptly as practicable

prepare and mail to its stockholders such an amendment or supplement. Each oftHe Investor and

the Company agrees promptly to correct any information provided by it or on its b~half for use in

the proxy statement if and to the extent that such information shall have become false or

misleading in any material respect, and the Company shall as promptly as practicaqle prepare

and mail to its stockholders an amendment or supplement to correct such informatibn to the

extent required by applicable laws and regulations. The Company shall consult with the Investor

prior to filing any proxy statement, or any amendment or supplement thereto, and p,rovide the

Investor with a reasonable opportunity to comment thereon. In the event that the a~proval of any

ofthe Stockholder Proposals is not obtained at such special stockholders meeting, the Company

shall include a proposal to approve (and the Board ofDirectors shall recommend a~proval of)

each such proposal at a meeting ofits stockholders no less than once in each subsequentsixmonth period beginning on January 1, 2009 until all such approvals are obtained o~ made.

(c) None ofthe information supplied by the Company or any ofthe Company

Subsidiaries for inclusion in any proxy statement in connection with any such stocIfuolders

meeting ofthe Company will, at the date it is filed with the SEC, when first mailed!to the

Company's stockholders and at the time of any stockholders meeting, and at the tiQIe of any

amendment or supplement thereof, contain any untrue statement of a material fact 6r omit to

state any material fact necessary in order to make the statements therein,in light ofIthe

circumstances under which they are made, not misleading.

3.2 Expenses. Unless otherwise provided in this Agreement or the Warr~t, each of

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

connection with the transactions contemplated under this Agreement and the Warrart, including

fees and expenses ofits own fmancial or other consultants, investment bankers, accbuntants and

counsel.

3.3 Sufficiency ofAuthorized Common Stock; Exchange Listing.

-14-

09533 I-0002-IOO33-NY02.2689565. I I
(a) During the period from the Closing Date (or, ifthe approval ofthe Stockholder

Proposals is required, the date ofsuch approval) until the date on which the Warrant has been

fully exercised, the Company shall at all times have reserved for issuance, free ofpreemptive 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 ofthe exercise ofthe Warrant by delivery ofshares ofCommon Stock which are held

in the treasury ofthe 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 ofissuance,

and shall maintain such listing for so long as any Common Stock is listed on such exchange.

(b) Ifrequested 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 secur~ties exchange

as promptly as practicable following such request.

3.4 Certain Notifications Until Closing. From the Signing Date until th~ 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 watranty ofthe

Company contained in this Agreement to be untrue or inaccurate in any material respect or to

cause any covenant or agreement ofthe 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 ofwhich the 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 availcJ,ble to the

Investor;provided,/urther, that a failure to comply with this Section 3.4 shall not eonstitute a

breach ofthis 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 iindependently

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 ampunt of

Preferred Shares having an aggregate liquidation value ofless than 10% ofthe Pur¢hase 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 ibooks and

make copies thereof and to discuss the affairs, finances and accounts ofthe Compap.y and the

Company Subsidiaries with the principal officers ofthe Company, all upon reason~ble notice and

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

any information material to the Investor's investment in the Company provided by ~he Company

to its Appropriate Federal Banking Agency. Any investigation pursuant to this Sectiion 3.5 shall

be conducted during normal business hours and in such manner as not to interfere Jm.easonably

I

with the conduct ofthe business ofthe Company, and nothing herein shall require tre Company

or any Company Subsidiary to disclose any information to the Investor to the extent (i)

prohibited by applicable law or regulation, or (ii) that such disclosure would reaso~ably be

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095331-0002-IOO33-NY02.26119565.11
expected to cause a violation of any agreement to which the Company or any Conwany

Subsidiary is a party or would cause a risk of a loss ofprivilege to the Company ot any Company

Subsidiary (provided that the Company shall use commercially reasonable efforts to make

appropriate substitute disclosure arrangements under circumstances where the restrictions in this

clause (ii) apply).

(b) The Investor will use reasonable best efforts to hold, and will use r,asonable best

efforts to cause its agents, consultants, contractors and advisors to hold, in confidep.ce all nonpublic records, books, contracts, instruments, computer data and other data and information

(collectively, "Information") concerning the Company furnished or made aVailabl¢ to it by the

Company or its representatives pursuant to this Agreement (except to the extent tl$t 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 ofsuch party or (iii) later lawfully lacquired from

other sources by the party to which it was furnished (and without violation of any 9ther

confidentiality obligation)); provided that nothing herein shall prevent the Investoj from

disclosing any Infonnation to the extent required by applicable laws or regulation~or by any

subpoena or similar legal process.

Article IV

Additional Agreements

4.1 Purchase for Investment. The Investor acknowledges that the PurchflSed 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 a,n exemption

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

distribute them to any person in violation ofthe Securities Act or any applicable UIS. state

securities laws, (b) will ~ot sell o.r othe~se dispo~e of:my of t~e Purchased Secwi~ties or ~e.

Warrant Shares, except 10 complIance WIth the regIstratIOn reqUIrements or exemptIon proVISIons

ofthe Securities Act and any applicable U.S. state securities laws, and (c) has suchlknowledge

and experience in financial and business matters and in investments ofthis type t~t it is capable

of evaluating the merits and risks ofthe Purchase and ofmaking an informed invespnent

decision. '

4.2 Legends.

(a) The Investor agrees that all certificates or other instruments represe*ing the

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

I

"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 TRANSFE$D, SOLD

OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION I

STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH AaT AND I

APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN E~MPTION I

FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS."

-16-

09533I-0002-IOO33-NY02.2689565.ll
(b) The Investor agrees that all certificates or other instruments repre~enting the

Warrant will also bear a legend substantially to the following effect:

"THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTION~ON

TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCfLt\SE

AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES ~D THE

INVESTOR REFERRED TO THEREIN, A COpy OF WHICH IS ON FILE WITH THE I

ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMEN1f MAY NOT

BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIA~CE WITH

SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN CPMPLIANCE

WITH SAID AGREEMENT WILL BE VOID."

(c) In addition, the Investor agrees that all certificates or other instruments

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

"THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE N(>T SAVINGS

ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT

INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATIQN 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 ~ND MAY

NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE I

A REGISTRATION STATEMENT RELATING THERETO IS IN EFFE<CT UNDER

SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO

AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR StiCH 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 I

144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REfRESENTED

BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT I

IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RllJLE 144A

UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT dFFER, SELL

OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY lrHIS

INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT

WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FqR SO LONG

AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE I

FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY

BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINEb IN RULE

144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OfN

ACCOUNT OR FOR THE ACCOUNT OF A QUALIF.IED INSTITUTIO~AL BUYER

TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MApE IN

RELIANCE ON RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT'\TO ANY

OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION

I

-17-

09533 1-OO02-IOO33-NY02.2689565. 11
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL

GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENl'ED BY THIS

INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE

EFFECT OF THIS LEGEND."

(d) 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 8cccordance

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 leg~nds in

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

previously issued certificates or other instruments. Upon Transfer of all or a portiQn ofthe

Warrant in compliance with Section 4.4, the Company shall issue new certificates or other

instruments representing the Warrant, which shall not contain the applicable legend in Section

4.2(b) above; provided that the Investor surrenders to the Company the previouslyiissued

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 ofits 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 ofthis 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 sIlall be

permitted to transfer, sell, assign or otherwise dispose of("Transfer") all or a porti~n ofthe

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

be reasonably requested by the Investor to facilitate the Transfer ofthe Purchased Securities and

the Warrant Shares; provided that the Investor shall not Transfer a portion or portidns ofthe

Warrant with respect to, and/or exercise the Warrant for, more than one-half oftheIInitial

Warrant Shares (as such number may be adjusted from time to time pursuant to Seytion 13

thereof) in the aggregate until the earlier of(a) the date on which the Company (or any successor

by Business Combination) has received aggregate gross proceeds ofnot less than ~e Purchase

Price (and the purchase price paid by the Investor to any such successor for securit~es ofsuch

successor purchased underthe CPP) from one or more Qualified Equity Offerings (including

Qualified Equity Offerings ofsuch successor) and (b) December 31, 2009. "Qualijied Equity

Offering" means the sale and issuance for cash by the Company to persons other thfm the

Company or any ofthe Company Subsidiaries after the Closing Date ofshares of perpetual

Preferred Stock, Common Stock or any combination ofsuch stock, that, in each ca~e, qualify as

and may be included in Tier 1 capital ofthe Company at the time ofissuance unde~ the

applicable risk-based capital guidelines ofthe Company's Appropriate Federal Batiking Agency

(other than any such sales and issuances made pursuant to agreements or arrangembnts entered I

into, or pursuant to financing.. plans which were publicly announced, on or prior to October 13, I

-18-

09533 1-OQ02-10033-NY02.2689565.1 I
2008). "Business Combination" means a merger, consolidation, statutory share exchange or

similar transaction that requires the approval ofthe Company's stockholders.

4.5 Registration Rights.

(a) Registration.

(i) Subject to the terms and conditions ofthis 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 pre,pare and file

with the SEC a ShelfRegistration Statement covering all Registrable Securities (or

otherwise designate an existing ShelfRegistration Statement filed with the SEC to cover

the Registrable Securities), and, to the extent the ShelfRegistration 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 ShelfRegistration. Statement to

be declared or become effective and to keep such ShelfRegistration Statement

continuously effective and in compliance with the Securities Act and usable for resale of

such Registrable Securities for a period from the date ofits initial effectiveness until such

time as there are no Registrable Securities remaining (including by refiling such Shelf

Registration Statement (or a new ShelfRegistration Statement) ifthe initial Shelf

Registration Statement expires). So long as the Company is a well-known seasoned

issuer (as defined in Rule 405 under the Securities Act) at the time offiling ofthe Shelf

Registration Statement with the SEC, such ShelfRegistration Statement shall be

designated by the Company as an automatic ShelfRegistration 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 oblig'l-ted to file a

ShelfRegistration 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 shelfregistration on an appropriate form under Rule 415 under the Securities Act (a

"ShelfRegistration Statement"). Ifthe 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 fac,litate such

distribution, including the actions required pursuant to Section 4.5(c); prov(ded that the

Company shall not be required to facilitate an underwritten offering of Reg~strable

Securities unless the expected gross proceeds from such offering exceed (012% ofthe

initial aggregate liquidation preference ofthe Preferred Shares ifsuch initi~ aggregate

liquidation preference is less than $2 billion and (ii) $200 million ifthe initIal aggregate

liquidation preference ofthe Preferred Shares is equal to or greater than $2 billion. The

lead underwriters in any such distribution shall be selected by the Holders 9f a majority

ofthe Registrable Securities to be distributed; provided that to the extent appropriate and

permitted under applicable law, such Holders shall consider the qualificatiors of any

broker-dealer Affiliate ofthe Company in selecting the lead underwriters in! any such

distribution.

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09533I-0002-IOO33-NY02.2689565.11
(iii) The Company shall not be required to effect a registration (including a

resale ofRegistrable Securities from an effective ShelfRegistration Statement) or an

underwritten offering pursuant to Section 4.5(a): (A) with respect to securities that are

not Registrable Securities; or (B) ifthe Company has notified the Investor and all other

Holders that in the good faith judgment ofthe Board of Directors, it would be materially

detrimental to the Company or its securityholders for such registration or u1lderwritten

offering to be effected at such time, in which event the Company shall have the right to

defer such registration for a period ofnot more than 45 days after receipt off 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 ifthe Co~pany has

generally exercised (or is concurrently exercising) similar black-out rights ~gainst holders

ofsimilar 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-monith period.

(iv) If during any period when an effective ShelfRegistration Statement is not

available, the Company proposes to register any ofits equity securities, oth¢r than a

registration pursuant to Section 4.5(a)(i) or a Special Registration, and the r~gistration

form to be filed may be used for the registration or qualification for distribtition of

Registrable Securities, the Company will give prompt written notice to the Investor and

all other Holders ofits 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 registratioQ. all

Registrable Securities with respect to which the Company has received writiten requests

for inclusion therein within ten business days after the date ofthe Companyi's notice (a

"Piggyback Registration"). Any such person that has made such a written ~quest 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 ofsuch Piggyback Registrat~on. The

Company may terminate or withdraw any registration under this Section 4.5(a)(iv) prior

to the effectiveness ofsuch registration, whether or not Investor or any other Holders

have elected to include Registrable Securities in such registration.

(v) Ifthe registration referred to in Section 4.5(a)(iv) is proposeq to be

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

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

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 ofsuch p¢rson's

Registrable Securities in the underwriting ifsuch securities are ofthe same tlass of

securities as the securities to be offered in the underwritten offering, and eadh such

person will (together with the Company and the other persons distributing qeir securities

through such underwriting) enter into an underwriting agreement in custom¥y form with

the underwriter or underwriters selected for such underwriting by the Compby; provided

that the Investor (as opposed to other Holders) shall not be required to inde~fy any

person in connection with any registration. If any participating person disap~roves ofthe

terms ofthe underwriting, such person may elect to withdraw therefrom by written notice I

I

-20-

095331-0002-10033-NY02.2689565 .11
to the Company, the managing underwriters and the Investor (ifthe 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 un~er 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 behalfofthe Company,

and in either case the managing underwriters advise the Company that in t1;J.eir reasonable

opinion the number ofsecurities requested to be included in such offering exceeds the

number which can be sold without adversely affecting the marketability ofsuch offering

(including an adverse effect on the per share offering price), the Company will include in

such offering only such number ofsecurities that in the reasonable opiniolll ofsuch

managing underwriters can be sold without adversely affecting the marketability ofthe

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

will be so included in the following order ofpriority: (A) first, in the case of a Piggyback

Registration under Section 4.5(a)(iv), the securities the Company proposesIto sell, (B)

then the Registrable Securities ofthe Investor and all other Holders who have requested

inclusion ofRegistrable Securities pursuant to Section 4.5(a)(ii) or SectionI4.5(a)(iv), as

applicable,pro rata on the basis ofthe aggregate number ofsuch securities

l

or shares

owned by each such person and (C) lastly, any other securities ofthe Company that have

been requested to be so included, subject to the terms ofthis Agreement; p~ovided,

however, that ifthe Company has, prior to the Signing Date, entered into agreement

with respect to its securities that is inconsistent with the order of priority cd,ntemplated

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 ofRegistration. 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 ofthe securities so registered pro rata on the basis ofthe aggregate offerin~ or sale price

ofthe securities so registered. I

(c) Obligations ofthe Company, The Company shall use its reasonablel 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 Securittes Act) and

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

has such status on the Signing Date or becomes eligible for such status in the futur~. In addition,

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

distribution ofRegistrable Securities pursuant to an effective ShelfRegistration St~tement, the

Company shall, as expeditiously as reasonably practicable: I

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

proposed offering ofRegistrable Securities pursuant to an effective registratlion

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

I

-21-

095331-0002-10033-NY02.2689565.11
such prospectus supplement current until the securities described therein ate 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 ofthe Securities Act with respect to the disposition of all securi~ies covered by

such registration statement.

(iii) Furnish to the Holders and any underwriters such number of copies ofthe

applicable registration statement and each such amendment and supplemen:t thereto

(including in each case all exhibits) and of a prospectus, including a prelim~nary

prospectus, in conformity with the requirements ofthe Securities Act, and such other I

documents as they may reasonably request in order to facilitate the disposit;ion of

Registrable Securities owned or to be distributed by them.

(iv) Use its reasonable best efforts to register and qualify the secprities covered

by such registration statement under such other securities or Blue Sky lawsIofsuch

jurisdictions as shall be reasonably requested by the Holders or any managip.g

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 Ptay be

reasonably necessary to enable such seller to consummate the disposition in such

jurisdictions ofthe securities owned by such Holder; provided that the CoDipany 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 ofRegistrable Securities at any time whtl:n a

prospectus relating thereto is required to be delivered under the Securities4ct ofthe

happening of any event as a result ofwhich the applicable prospectus, as then in effect,

includes an untrue statement of a material fact or omits to state a material f~ct 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 E~change Act)

and when such registration statement or any post-effective amendm4nt thereto has

become effective;

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

registration statement or the prospectus included therein or for addit~onal

information;

-22-

095331-oo02-10033-NY02.268956S.11
(C) ofthe issuance by the SEC of any stop order suspe4ding the

effectiveness of any registration statement or the initiation of any proceedings for

that purpose; . . I

(D) ofthe receipt by the Company or its legal counsel oifany

notification with respect to the suspension ofthe qualification oftlie Common

Stock for sale in any jurisdiction or the initiation or threatening of ~y proceeding

for such purpose;

(E) ofthe happening of any event that requires the Cortipany to make

changes in any effective registration statement or the prospectus refated to the

registration statement in order to make the statements therein not ~isleading

(which notice shall be accompanied by an instruction to suspend tHe use ofthe

prospectus until the requisite changes have been made); and I

I

(F) if at any time the representations and warranties oftre Company

contained in any underwriting agreement contemplated by Section r.5(c)(x) cease

to be true and correct.

(vii) Use its reasonable best efforts to prevent the issuance or ob~in the

withdrawal of any order suspending the effectiveness of any registration sfutement

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 registrJtion statement

or a supplement to the related prospectus or file any other required docum~ht so that, as

thereafter delivered to the Holders and any underwriters, the prospectus wiP not contain

an untrue statement of a material fact or omit to state any material fact nec~ssary to make

the statements therein, in light ofthe circumstances under which they were Imade, not

misleading. Ifthe Company notifies the Holders in accordance with Sectiob 4.5(c)(vi)(E)

to suspend the use ofthe prospectus until the requisite changes to the prospbctus have

been made, then the Holders and any underwriters shall suspend use ofsuch prospectus

and use their reasonable best efforts to return to the Company all copies of kuch

prospectus (at the Company's expense) other than permanent file copies th~n in such

Holders' or underwriters' possession. The total number ofdays that any such suspension

may be in effect in any 12-month period shall not exceed 90 days. I

(ix) Use reasonable best efforts to procure the cooperation oftheICompany's

transfer agent in settling any offering or sale ofRegistrable Securities, inclJding with

respect to the transfer of physical stock certificates into book-entry form in r

l

ccordance

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 I

into an underwriting agreement in customary form, scope and substance an, take all such

-23- !

0953J1-OOO2-IOO33-NY02.2689565.I I
other actions reasonably requested by the Holders of a majority ofthe Registrable

Securities being sold in connection therewith or by the managing underwriter(s), if any,

to expedite or facilitate the underwritten disposition ofsuch Registrable Sequrities, and in

connection therewith in any underwritten offering (including making members of

management and executives ofthe 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 ofthe 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 fonn, substance and scope,

and, iftrue, confirm the same if and when requested, (B) use its reasonable best efforts to

furnish the underwriters with opinions of counsel to the Company, address~ to the

managing underwriter(s), if any, covering the matters customarily covered in such

opinions requested in underwritten offerings, (C) use its reasonable best eff~rts to obtain

"cold comfort" letters from the independent certified public accountants ofthe Company

(and, ifnecessary, any other independent certified public accountants of anX business

acquired by the Company for which financial statements and financial data are included

in the ShelfRegistration Statement) who have certified the financial statem~nts included

in such ShelfRegistration Statement, addressed to each ofthe managing un~erwriter(s), if

any, such letters to be in customary form and covering matters ofthe 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 :underwritien

offerings (provided that the Investor shall not be obligated to provide any in'demnity), and

(E) deliver such documents and certificates as may be reasonably requested1by the

Holders of a majority ofthe Registrable Securities being sold in connection jtherewith,

their counsel and the managing underwriter(s), if any, to evidence the contiBued validity

ofthe representations and warranties made pursuant to clause (i) above and ito 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 representativ:e ofHoldersIthat are

selling stockholders, the managing underwriter(s), ifany, and any attorneyslOf

accountants retained by such Holders or managing underwriter(s), at the ofryces where

normally kept, during reasonable business hours, financial and other record~, pertinent

corporate documents and properties ofthe Company, and cause the officers, directors and

employees ofthe Company to supply all information in each case reasonably requested

(and ofthe type customarily provided in connection with due diligence con4ucted in

connection with a registered public offering ofsecurities) by any such representative,

managing underwriter(s), attorney or accountant in connection with such SHelf

Registration Statement. I

(xii) Use reasonable best efforts to cause all such Registrable SecUrities to be

listed on each national securities exchange on which similar securities issue~ by the

Company are then listed or, ifno similar securities issued by the Company fe then listed

on any national securities exchange, use its reasonable best efforts to cause ~ll such

-24-

095331-OO02-10033-NY02.2689565.11
Registrable Securities to be listed on such securities exchange as the Investor may

designate.

(xiii) Ifrequested by Holders of a majority ofthe Registrable Securities being

registered and/or sold in connection therewith, or the managing underwriter(s), ifany,

promptly include in a prospectus supplement or amendment such information as the

Holders of a majority ofthe 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 ofsuch securities and make a111 required

filings ofsuch prospectus supplement or such amendment as soon as practicable after the

Company has received such request.

(xiv) Timely provide to its security holders earning statements sa~isfying the

provisions of Section 11(a) ofthe Securities Act and Rule 158 thereunder.

(d) Suspension of Sales. Upon receipt ofwritten 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 circums$.nces exist

that make inadvisable use ofsuch registration statement, prospectus or prospectus ~upplement,

the Investor and each Holder ofRegistrable 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 ofthe prospectus and, if applicable~prospectus

supplement may be resumed, and, ifso directed by the Company, the Investor and/pr 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, ofthe prospectus

and, if applicable, prospectus supplement covering such Registrable Securities current at the time

ofreceipt ofsuch notice. The total number ofdays that any such suspension may ~e in effect in

any 12-month period shall not exceed 90 days.

(e) Termination ofRegistration Rights. A Holder's registration rights to any

securities held by such Holder (and its Affiliates, partners, members and former m~mbers) 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 defmed in Rule 405) in connection with the sale ofRegistrable Securitie~ without the

prior written consent ofthe Company. I

(ii) It shall be a condition precedent to the obligations ofthe Co~pany to take

any action pursuant to Section 4.5(c) that Investor and/or the selling Holders and the

underwriters, ifany, shall furnish to the Company such information regardirlg

themselves, the Registrable Securities held by them and the intended metho~ of

-25-

095331-0002-10033-NY02.268956H I
disposition ofsuch securities as shall be required to effect the registered offering oftheir

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 ofthe 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, daims,

damages, actions, liabilities, costs and expenses), j oint or several, arising out of or based

upon any untrue statement or alleged untrue statement ofmaterial 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 sucb 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 ofthe

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 orsupplements thereto or contained in any free writing

prospectus (as suchterm 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

ofdistribution 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 suoh

amendments or supplements thereto, or (B) offers or sales effected by or on! behalfof

such Indemnitee "by means of' (as definedin Rule I59A) a "free writing prpspectus" (as

defined in Rule 405) that was not authorized in writing by the Company.

(ii) Ifthe indemnification provided for in Section 4.5(g)(i) is unavailable to an

Indemnitee with respect to any losses, claims, damages, actions, liabilities, qosts or

expenses referred to therein or is insufficient to hold the Indemnitee harmless as

contemplated therein, then the Company, in lieu ofindemnifying such Indertmitee, shall

contribute to the amount paid or payable by such Indemnitee as a result of s~ch losses,

claims, damages, actions, liabilities, costs or expenses in such proportion as is appropriate

to reflect the relative fault ofthe Indemnitee, on the one hand, and the ComRany, on the

other hand, in connection with the statements or omissions which resulted iol such losses,

claims, damages, actions, liabilities, costs or expenses as well as any other rJlevant

I

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09533\-0002-\0033-NY02.2689565.\\
equitable considerations. The relative fault ofthe Company, on the one hand, and ofthe

Indemnitee, on the other hand, shall be determined by reference to, among 9ther factors,

whether the untrue statement of a material fact or omission to state a materi,al 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 ofthe equitable

considerations referred to in Section 4.5(g)(i). No Indemnitee guilty offraudulent

misrepresentation (within the meaning of Section 11 (t) ofthe Securities Ad:) shall be

entitled to contribution from the Company ifthe Company was not guilty ofsuch

fraudulent misrepresentation.

(h) Assignment ofRegistration Rights. The rights ofthe Investor to registration of

Registrable Securities pursuant to Section 4.5(a) may be assigned by the Investor tQ a transferee

or assignee ofRegistrable Securities with a liquidation preference or, in the case otRegistrable

Securities otherthan Preferred Shares, a market value, no less than an amount eqrnil to (i) 2% of

the initial aggregate liquidation preference ofthe Preferred Shares ifsuch initial aggregate

liquidation preference is less than $2 billion and (ii) $200 million ifthe initial aggregate

liquidation preference ofthe Preferred Shares is equal to or greater than $2 billion;:provided,

however, the transferor shall, within ten days after such transfer, furnish to the COI~pany written

notice ofthe name and address ofsuch transferee or assignee and the number and tYPe of

Registrable Securities that are being assigned. For purposes ofthis Section 4.5(h), :"market

value" per share ofCommon Stock shall be the last reported sale price ofthe COIIlIJlon 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 ofCommon 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 ofRegistrc:!.ble Securities

by the Investor or other Holders pursuant to this Section 4.5, the Company agrees riot to effect

(other than pursuant to such registration or pursuant to a Special Registration) any public sale or

distribution, or to file any ShelfRegistration Statement (other than such registratio, or a Special

Registration) covering, in the case of an underwritten offering ofCommon Stock Of Warrants,

any ofits equity securities or, in the case of an underwritten offering of Preferred sj:ares, any

Preferre~ Stock ofthe Comp~y, or, each cas~, any securities convertible i.nto 0 exchangeable

or exercIsable for such secuntles, durmg the penod not to exceed ten days pnor an: 60 days

following the effective date ofsuch offering or such longer period up to 90 days aslmay be

requested by the managing underwriter for such underwritten offering. The Company also I

agrees to cause such ofits directors and senior executive officers to execute and deliver

customary lock-up agreements in such form and for such time period up to 90 daysIas may be

requested by the managing underwriter. "Special Registration" means the registra,on of(A)

equity securities and/or options or other rights in respect thereofsolely registered on Form S-4 or

Form S-8 (or successor form) or (B) shares of equity securities and/or options or o4ter rights in

respect thereofto be offered to directors, members ofmanagement, employees, c0tlsultants,

I

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095331-0002-I0033-NY02.2689565.11
customers, lenders or vendors ofthe Company or Company Subsidiaries or in cOIlIlection with

dividend reinvestment plans.

G) Rule 144; Rule 144A. With a view to making available to the Investor and

Holders the benefits of certain rules and regulations ofthe SEC which may permit the sale ofthe

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)(I) or any similar or analogous rule promulgatedi 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 ofthe Company under the Exchange Act, and (B) if at any time th¢ Company is

not required to file such reports, make available, upon the request of any Hqlder, such

information necessary to permit sales pursuant to Rule 144A (including thelinformation

required by Rule 144A(d)(4) under the Securities Act); ,

(iii) so long as the Investor or a Holder owns any Registrable Sequrities,

furnish to the Investor or such Holder forthwith upon request: a written stat~ment by the

Company as to its compliance with the reporting requirements ofRule 144 ~der the

Securities Act, and ofthe Exchange Act; a copy ofthe most recent annual or quarterly

report ofthe Company; and such other reports and documents as the Investor or Holder

may reasonably request in availing itself of any rule or regulation ofthe 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 I

extent required from time to time to enable such Holder to sell Registrable Securities

without registration under the Securities Act. I

(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 Registr~ble

Securities to whom the registration rights conferred by this Agreement have! been

transferred in compliance with Section 4.5(h) hereof. :

(ii) "Holders' Counsef' means one counsel for the selling Holdets chosen by

Holders holding a majority interest in the Registrable Securities being regis~ered.

(iii) "Register," "registered," and "registration" shall refer to a registration

effected by preparing and (A) filing a registration statement in compliance Jrith the

Securities Act and applicable rules and regulations thereunder, and the declo/ation or

ordering of effectiveness ofsuch registration statement or (B) filing a prosp¢ctus and/or

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095331-0002-10033-NY02.2689565.11
prospectus supplement in respect of an appropriate effective registration s~tement 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 irectlyor

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 Sh(jIes, or share

dividend or share split or in connection with a combination ofshares, recaPftalization,

reclassification, merger, amalgamation, arrangement, consolidation or other

reorganization, provided that, once issued, such securities will not be Regi~trable

Securities when (1) they are sold pursuant to an effective registration state~ent under the

Securities Act, (2) except as provided below in Section 4.5(0), they may b~l~old pursuant

to Rule 144 without limitation thereunder on volume or manner ofsale, (3) [they shall

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 transferde ofthe

securities. No Registrable Securities may be registered under more than on~ registration

statement at anyone time.

(v) "Registration Expenses" mean all expenses incurred by the ~ompany in

effecting any registration pursuant to this Agreement (whether or not any registration or

prospectus becomes effective or fmal) or otherwise complying with its obligations under

this Section 4.5, including all registration, filing and listing fees, printing e~penses, 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 ofthe Company's independent accountan~ in

connection with any regular or special reviews or audits incident to or required by any

such registration, but shall not include Selling Expenses. I

(vi) "Rule 144", "Rule 144A", "Rule 159A", "Rule 405" and "Ru{e 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 filld stock

transfer taxes applicable to the sale ofRegistrable Securities and fees and disbursements

of counsel for any Holder (other than the fees and disbursements ofHolder~' Counsel

included in Registration Expenses). I

(1) 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) - (vil) in any

Pending Underwritten Offering to the same extent that such Holder would have been entitled to

ifthe holder had not withdrawn; and provided, further, that no such forfeiture shallIterminate 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 reJpect to any

Holder forfeitiJlg its rights pursuant to this Seetion 4.5(1), any underwritten offerin1 of

-29-

095331-0002-10033-NY02.2689565.11
Registrable Securities in which such Holder has advised the Company ofits intent to register its

Registrable Securities either pursuant to Section 4.5(a)(ii) or 4.5(a)(iv) prior to the date ofsuch

Holder's forfeiture.

(m) Specific Performance. The parties hereto acknowledge that there would be no

adequate remedy at law ifthe Company fails to perform any ofits 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 ofthe

obligations ofthe Company under this Section 4.5 in accordance with the terms and conditions

ofthis Section 4.5.

(n) No Inconsistent Agreements. The Company shall not, on or after th,e Signing

Date, enter into any agreement with respect to its securities that may impair the rigrts granted to

the Investor and the Holders under this Section 4.5 or that otherwise conflicts with !the provisions

hereofin any manner that may impair the rights granted to the Investor and the Ho~ders 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 t(j) the Investor

and the Holders under this Section 4.5 (including agreements that are inconsistent With the order

ofpriority 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 ofthis Section 4.5.

(0) 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 Idefinition 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 ofsuch securities on behalf ofthe Itivestor 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 "prospectu~"shall

include any offering document approved by the Company and used in connection With such

distribution.

(P) Registered Sales ofthe Warrant. The Holders agree to sell the Warrant or any

portion thereof under the ShelfRegistration Statement only beginning 30 days afte~ notifying the

Company of any such sale, during which 3D-day period the Investor and all HOldert·ofthe

Warrant shall take reasonable steps to agree to revisions to the Warrant to permit a ublic

distribution ofthe Warrant, including entering into a warrant agreement and appointing a warrant

AAem. I

4.6 Voting of Warrant Shares. Notwithstanding anything in this Agreen\1ent to the

contrary, the Investor shall not exercise any voting rights with respect to the Warra.t\tt Shares.

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09533 1-OOO2-10033-NY02.2689565.I I
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 ofthis

Agreement.

4.8 Restriction on Dividends and Repurchases.

(a) Prior to the earlier of(x) the third anniversary ofthe Closing Date apd (y) the date

on which the Preferred Shares have been redeemed in whole or the Investor has ~ferred all of

the Preferred Shares to third parties which are not Affiliates ofthe Investor, neithe~the Company

nor any Company Subsidiary shall, without the consent ofthe Investor:

(i) declare or pay any dividend or make any distribution on the Common

Stock (other than (A) regular quarterly cash dividends ofnot more than the amount ofthe

last quarterly cash dividend per share declared or, iflower, publicly anno~ced an

intention to declare, on the Common Stock prior to October 14,2008, as adjusted for any

stock split, stock dividend, reverse stock split, reclassification or similar transaction, (B)

dividends payable solely in shares ofCommon Stock and (C) dividends or distributions

ofrights or Junior Stock in connection with a stockholders' rights plan); or '

(ii) redeem, purchase or acquire any shares ofCommon Stock or other capital

stock or other equity securities of any kind ofthe Company, or any trust prdferred

securities issued by the Company or any Affiliate ofthe Company, other than (A)

redemptions, purchases or other acquisitions ofthe Preferred Shares, (B) redemptions, I

purchases or other acquisitions ofshares ofCommon Stock or other Junior ~tock, in each

case in this clause (B) in connection with the administration of any employ~e benefit plan

in the ordinary course ofbusiness (including purchases to offset the Share Qilution

Amount (as defined below) pursuant to a publicly announced repurchase plan) and

consistent with past practice; provided that any purchases to offset the Shar~ Dilution

Amount shall in no event exceed the Share Dilution Amount, (C) purchasesior other

acquisitions by a broker-dealer subsidiary ofthe Company solely for the pUI(pose of

market-making, stabilization or customer facilitation transactions in Junior Stock or

Parity Stock in the ordinary course ofits business, (D) purchases by a broket-dealer

subsidiary ofthe Company of capital stock ofthe Company for resale pursukt to an

offering by the Company ofsuch capital stock underwritten by such broker-tlealer

subsidiary, (E) any redemption or repurchase ofrights pursuantto any stockholders'

rights plan, (F) the acquisition by the Company or any ofthe Company Sub~idiaries of

record ownership in Junior Stock or Parity Stock for the beneficial ownershib of any

other persons (other than the Company or any other Company Subsidiary), ifcluding as

trustees or custodians, and (G) the exchange or conversion ofJunior Stock f(j)r or into

I

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09533I-0002-I0033-NY02_2689565_11
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 ofthe Company's most recently

filed Company Financial Statements priorto the Closing Date) resulting frdm 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) 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 ofthe Preferred Shares then held by the Investor on the

same terms and conditions.

(c) "Junior Stock" means Common Stock and any other class or series <;>fstock ofthe

Company the terms ofwhich 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 ofthe Gompany.

"Parity Stock" means any class or series ofstock ofthe Company the terms ofwhich 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 ofthe Company (in

each case without regard to whether dividends accrue cumulatively or non-cumulatively).

4.9 Repurchase ofInvestor Securities.

(a) Following the redemption in whole ofthe Preferred Shares held by the Investor or

the Transfer by the Investor of all ofthe Preferred Shares to one or more third parti~s not

affiliated with the Investor, the Company may repurchase, in whole or in part, at any time any

other equity securities ofthe Company purchased by the Investor pursuant to this Agreement or

the Warrant and then held by the Investor, upon notice given as provided in clause ~b) below, at

the Fair Market Value ofthe equity security.

(b) Notice of every repurchase of equity securities ofthe Company held ;by the

Investor shall be given at the address and in the manner set forth for such party in S~ction 5.6.

Each notice ofrepurchase given to the Investor shall state: (i) the number and type ofsecurities

to be repurchased, (ii) the Board ofDirector's determination of Fair Market Value ~fsuch

securities and (iii) the place or places where certificates representing such securitiesl are to be

surrendered for payment ofthe repurchase price. The repurchase ofthe securities sIPecified in

the notice shall occur as soon as practicable following the determination ofthe Fair Market

Value ofthe securities. '

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095331-OOO2·10033-NY02.2689565.11
(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 inqependent

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. Ifwithip 30 days after

appointment ofthe two appraisers they are unable to agree upon the Fair Market Value, a

third independent appraiser shall be chosen within 10 days thereafter by th~ mutual

consent ofsuch first two appraisers. The decision ofthe third appraiser so appointed and

chosen shall be given within 30 days after the selection ofsuch third appraiser. Ifthree

appraisers shall be appointed and the determination of one appraiser is dis~arate from the

middle determination by more than twice the amount by which the other dtttermination is

disparate from the middle determination, then the determination ofsuch 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 Invest~r. The costs

of conducting any Appraisal Procedure shall be borne by the Company.

(ii) "Fair Market Value" means, with respect to any security, th~ fair market

value ofsuch security as determined by the Board ofDirectors, acting in gdod faith in

reliance on an opinion of a nationally recognized independent investment bbking 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 ofDirector's determination, it rriay object in

writing within 10 days ofreceipt ofthe Board ofDirector's determination. PI the event of

such an objection, an authorized representative ofthe Investor and the chief executive

officer ofthe Company shall promptly meet to resolve the objection and to ~gree upon

the Fair Market Value. Ifthe chief executive officer and the authorized rep~esentative are

unable to agree on the Fair Market Value during the 10-day period following the delivery

ofthe Investor's objection, the Appraisal Procedure may be invoked by ei~er party to

determine the Fair Market Value by delivery of a written notification there9fnot later

than the 30th day after delivery ofthe Investor's objection. i

4.10 Executive Compensation. Until such time as the Investor ceases to bwn any debt

or equity securities ofthe 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 its Senior

Executive Officers comply in all respects with Section 111(b) ofthe EESA as impl~mented by

any guidance or regulation thereunder that has been issued and is in effect as oftheIClosing Date,

and shall not adopt any new Benefit Plan with respect to its Senior Executive Officers that does

not comply therewith. "Senior Executive Officers" means the Company's "senior e~ecutive

officers" as defined in subsection 111(b)(3) ofthe EESA and regulations issued the~eunder,

including the rules set forth in 31 C.F.R. Part 30. I

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095331-QOO2-10033-NY02.2689565.11
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 ifthe Closing shall not have occurred by

the 30th calendar day following the Signing Date; provided, however, that in the e,*ent the

Closing has not occurred by such 30th calendar day, the parties will consult in good faith to

determine whether to extend the term ofthis Agreement, it being understood that tjhe parties shall

be required to consult only until the fifth day after such 30th calendar day and not ~e under any

obligation to extend the term ofthis Agreement thereafter;provided,jurther, that the right to

terminate this Agreement under this Section 5.1 (a) shall not be available to any pahy whose

breach of any representation or warranty or failure to perform any obligation undet this

Agreement shall have caused or resulted in the failure ofthe Closing to occur on o~ prior to such

date; or

(b) by either the Investor or the Company in the event that any Govermpental Entity

shall have issued an order, decree or ruling or taken any other action restraining, eq.joining 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 ofthe Investor and the Company.

In the event oftermination ofthis 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 par1 hereto

except that nothing herein shall relieve either party from liability for any breach ofithis I

Agreement.

5.2 Survival ofRepresentations and Warranties. All covenants and agreements, other

than those which by their terms apply in whole or in part after the Closing, shall tex1minate as of

the Closing. The representations and warranties ofthe Company made herein or in any

certificates delivered in connection with the Closing shall survive the Closing with~ut limitation.

5.3 Amendment. No amendment of any provision ofthis Agreement will be effective

unle~s made in writing and signed. by an officer or a duly a~t~orizedr~presentativelofeach party;

prOVided that the Investor may urulaterally amend any proVISIOn ofthIS AgreementIto the extent

required to comply with any changes after the Signing Date in applicable federal statutes. No 1

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 oth¢r or further

exercise of any other right, power or privilege. The rights and remedies herein pro~ided shall be

cumulative of any rights or remedies provided by law. I

5.4 Waiver ofConditions. The conditions to each party's obligation to cbnsummate

the Purchase are for the sole benefit ofsuch party and may be waived by such partyl in whole or

in part to the extent permitted by applicable law. No waiver will be effective unlesslit is in a

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09533I-0002-IOO33-NY02.2689565.11
writing signed by a duly authorized officer ofthe waiving party that makes expres~ reference to

the provision or provisions subject to such waiver.

5.5 Governing Law: Submission to Jurisdiction, Etc. This Agreem~ntwill be

governed by and construed in accordance with the federal law ofthe United ~tates if and to

the extent such law is applicable, and otherwise in accordance with the laws o~ 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 a~~ venue ofthe

United States District Court for the District of Columbia and the United Stat~s 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 orr thereby, and

(b) that notice may be served upon (i) the Company at the address and in the manner set

forth for notices to the Company in Section 5.6 and (ii) the Investor in accord~nce with

federal law. To the extent permitted by applicable law, each of the parties heteto hereby

unconditionally waives trial by jury in any civil legal action or proceeding rel~ting to this

Agreement or the Warrant or the transactions contemplated hereby or there~y.

5.6 Notices. Any notice, request, instruction or other document to be giyen hereunder

by any party to the other will be in writing and will be deemed to have been duly g~ven (a) on the

date of delivery if delivered personally, or by facsimile, upon confirmation ofreceipt, or (b) on

the second business day following the date ofdispatch ifdelivered by a recognized next day

courier service. All notices to the Company shall be delivered as set forth in Schedhle A, or

pursuant to such other instruction as may be designated in writing by the Compan~ to the

Investor. All notices to the Investor shall be delivered as set forth below, or pursuant to such I

other instructions as may be designated in writing by the Investor to the Company.,

Ifto the Investor:

United States Department ofthe Treasury

1500 Pennsylvania Avenue, NW, Room 2312

Washington, D.C. 20220

Attention: Assistant General Counsel (Banking amd Finance)

Facsimile: (202) 622-1974 I

I

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 codJ.pany or other

entity (x) ofwhich such person or a subsidiary ofsuch person is a general partner ot (y) ofwhich

a majority ofthe voting securities or other voting interests, or a majority ofthe secJrities or other I

interests ofwhich having by their terms ordinary voting power to elect a majority ofthe board of

directors or persons performing similar functions with respect to such entity, is direbtly or

indirectly owned by such person andior one or more subsidiaries thereof. I

I

I

-35-

095331-oo02-10033-NY02.2689565.11
(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 per$on. For

purposes ofthis definition, "controf' (including, with correlative meanings, the terins "controlled

by" and "under common control with") when used with respect to any person, means the

possession, directly or indirectly, ofthe power to cause the direction ofmanagemert and/or

policies ofsuch person, whether through the ownership ofvoting securities by contract or

otherwise.

(c) The terms "knowledge ofthe Company" or "Company's knowledge': mean the

actual knowledge after reasonable and due inquiry ofthe "officers" (as such term i~ defined in

Rule 3b-2 under the Exchange Act, but excluding any Vice President or Secretary) ofthe

Company.

5.8 Assignment. Neither this Agreement nor any right, remedy, obligatirn nor

liability arising hereunder or by reason hereofshall be .assignable by any party her~to without the

prior written consent ofthe other party, and any attempt to assign any right, remedy, obligation

or liability hereunder without suchconsent shall be void, except (a) an assignment1

in the case of

a Business Combination where such party is not the surviving entity, or a sale ofsubstantially all

ofits assets, to the entity which is the survivor ofsuch Business Combination or thb purchaser in

such sale and (b) as provided in Section 4.5.

5.9 Severability. If any provision ofthis Agreement or the Warrant, or the application

thereofto any person or circumstance, is determined by a court of competent jurisqiction to be

invalid, void or unenforceable, the remaining provisions hereof, or the application ofsuch

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, ~mpaired or

invalidated thereby, so long as the economic or legal substance ofthe transactions contemplated

hereby is not affected in any manner materially adverse to any party. Upon such de,termination,

the parties shall negotiate in good faith in an effort to agree upon a suitable and eqlfitable

substitute provision to effect the original intent ofthe parties.

5.10 No Third Party Beneficiaries. Nothing contained in this Agreement,Iexpressed or

implied, is intended to confer upon any person or entity other than the Company and the Investor

any benefit, right or remedies, except that the provisions of Section 4.5 shall inure to the benefit .

ofthe persons referred to in that Section.

* * *

-36-

095331-0002·\0033-NY02.2689565.11
FORM OF CERTIFICATE OF DESIGNATIONS

[SEE ATTACHED]

095331-0oo2-10033-NY02.2689565.11

ANNEXA
CERTIFICATE OF DESIGNATIONS

OF

FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES C

OF

UCBH HOLDINGS, INC.

UCBH Holdings, Inc., a corporation organized and existing under the laws ofthe State of

Delaware (the "Corporation"), in accordance with the provisions ofSection 151 oftlle General

Corporation Law ofthe State ofDelaware, does hereby certify:

The board of directors ofthe Corporation (the "Board of Directors") or an applicable

committee ofthe Board of Directors, in accordance with the certificate ofincorporation and . I

bylaws ofthe Corporation and applicable law, adopted the following resolution on November 12,

2008 creating a series of298,737 shares ofPreferred Sto'ck ofthe Corporation designated as

"Fixed Rate Cumulative Perpetual Preferred Stock, Series C".

RESOLVED, that pursuant to the provisions ofthe certificate ofincorporation and the

bylaws ofthe Corporation and applicable law, a series of Preferred Stock, par value $0.01 per

share, ofthe Corporation be and hereby is created, and that the designation and number ofshares

ofsuch series, and the voting and other powers, preferences and relative, participating, optional

or other rights, and the qualifications, limitations and restrictions thereof, ofthe shar~s ofsuch

series, are as follows:

Part 1. Designation and Number of Shares. There is hereby created out ofthe authorized

and unissued shares ofpreferred stock ofthe Corporation a series of preferred stock 4esignated

as the "Fixed Rate Cumulative Perpetual Preferred Stock, Series C" (the "DesignatedlPreferred

Stock"). The authorized number ofshares ofDesignated Preferred Stock shall be 29~,737.

Part 2. Standard Provisions. The Standard Provisions contained in Annex A 8;ttached

hereto are incorporated herein by reference in their entirety and shall be deemed to be. a part of

this Certificate ofDesignations to the same extent as jfsuch provisions had been set forth in full

herein.

Part. 3. Definitions. The following terms are used in this Certificate ofDesigIi.ations

(including the Standard Provisions in Armex A hereto) as defmed below:

(a) "Common Stock" means the c.olllII1on stock, par value $0.01 per share,I ofthe

Corporation.

(b) ~'Dividend Payment Date" means February 15, May 15, August 15 andiNovember

15 of each year. I

(c) "Junior Stock" means the Common Stock, the Corporation's Series A I

Participating' Preferred Stock and any other class or series ofstock ofthe Corporation fhe terms

1
of which expressly provide that it ranks junior to Designated Preferred Stock as to dividend

rights and/or as to rights on liquidation, dissolution or winding up ofthe Corporation.

(d) "Liquidation Amount" means $1,000 per share of Designated Preferred Stock.

(e) "Minimum Amount" means $74,684,250.

(f) "Parity Stock" means any class or series ofstock ofthe Corporation (other than 1

Designated Preferred Stock) the terms of which do not expressly provide that such c~ass or series

will rank senior or junior to Designated Preferred Stock as to dividend rights and/or to rights

on liquidation, dissolution or winding up ofthe Corporation (in each case without regard to

whether dividends accrue cumulatively or non-cumulatively). Without limiting the fQregoing,

Parity Stock shall include the Corporation's 8.50% Non-Cumulative Perpetual Conv~rtible

Series B Preferred Stock.

(g) "Signing Date" means the Original Issue Date.

Part. 4. Certain Voting Matters. Holders ofshares of Designated Preferred Stock will be .1

entitled to one vote for each such share on any matter on which holders of Designate~ Preferred

Stock are entitled to vote, including any action by written consent.

[Remainder ofPage Intentionally Left Blank]

2
IN WITNESS WHEREOF, UCBH Holdings, Inc. has caused this Certificate of

Designations to be signed by Tho~ S. Wu. its Chairman, President and CEO, this 12~h day of

November, 2008.

UCBH HOLDINGS, INC.

BY.~ Nam ~TfumIliiS.b.

Wu

Title: Chainnan~ President and CEO

3
~NEXA

STANDARD PROVISIONS

Section I. General Matters. Each share ofDesignated Preferred Stock shall be !identical

in all respects to every other share ofDesignated Preferred Stock. The Designated Preferred

Stock shall be perpetual, subject to the provisions of Section 5 ofthese Standard Provisions that

form a part ofthe Certificate ofDesignations. The Designated Preferred Stock shall rark equally

with Parity Stock and shall rank senior to Junior Stock with respect to the payment of dividends

and the distribution of assets in the event of any dissolution, liquidation or winding up bfthe

Corporation. I

Section 2. Standard Definitions. As used herein with respect to Designated Preferred

Stock: I

(a) "Applicable Dividend Rate" means 0) during the period from the Origipal Issue

Date to, but excluding, the first day ofthe first Dividend Period commencing on or after the fifth

anniversary ofthe Original Issue Date, 5% per annum and (ii) from and after the first dry ofthe

first Dividend Period commencing on or after the fifth anniversary ofthe Original ISSuj. Date,

9% per annum.

(b) "Appropriate Federal Banking Agency" means the "appropriate FederalIbanking

agency" with respect to the Corporation as defined in Section 3(q) ofthe Federal Deposit

Insurance Act (12 U.S.C. Section l8l3(q)), or any successor provision. . I

(c) "Business Combination" means a merger, consolidation, statutory share11exchange

or similar transaction that re.quires the approval ofthe Corporation's stockholders.

I

(d) "Business Day" means any day except Saturday, Sunday and any day on which

banking institutions in the State ofNew York generally are authorized or required by IJw or

other governmental actions to close. I

(e) "Bylaws" means the bylaws ofthe Corporation, as they may be amended from

time to time. I

(f) "Certificate of Designations" means the Certificate ofDesignations or comparable

instrument relating tn the Designated Preferred Stock, ofwhich these Standard ProVis;]lns form a

part, as it may be amended from time to time.

(g) "Charter" means the Corporation's certificate or articles of incorporatio ,articles

of association, or similar organizational document. I

(h) "Dividend Period" has the meaning set forth in Section 3(a).

(i) "Dividend Record Date" has the meaning set forth in Section 3(a).

G) "Liquidation Preference" has the meaning set forth in Section 4(a).

A-I

09533HlQOZ-11515-NYOZ26119555.9
(k) "Original Issue Date" means the date on which shares ofDesignated Preferred

Stock are first issued.

(1) "Preferred Director" has the l:Tleaning set forth in Section 7(b).

(m) "Preferred Stock" means any and all series of preferred stock ofthe Cqrporation,

including the Designated Preferred Stock.

(n) "Qualified Equity Offering" means the sale and issuance for cash by the

Corporation to persons other than the Corporation or any of its subsidiaries after the Original

Issue Date ofshares of perpetual Preferred Stock, Common Stock or any combination! ofsuch

stock, that, in each case, qualify as and may be included in Tier 1 capital ofthe Corporation at

the time ofissuance under the applicable risk-based capital guidelines ofthe Corporation's

Appropriate Federal Banking Agency (other than any such sales and issuances made ~ursuant to

agreements or arrangements entered into, or pursuant to financing plans which were Pllblic1y

announced, on or prior to October 13, 2008).

(0) "Share Dilution Amount" has the meaning set forth in Section 3(b).

(p) "Standard Provisions" mean these Standard Provisions that form a partjofthe

Certificate ofDesignations relating to the Designated Preferred Stock.

(q) "Successor Preferred Stock" has the meaning set forth in Section 5(a).

(r) "Voting Parity Stock" means, with regard to any matter as to which thelholders of

Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and 7(b) ofthese

Standard Provisions that form a part ofthe Certificate of Designations, any and all seri~s of

Parity Stock upon which like voting rights have been conferred and are exercisable wi~ respect

to such matter.

Section 3. Dividends.

(a) Rate. Holders of Designated Preferred Stock shall be entitled.to receive~ on each

share ofDesignated Preferred Stock if, as and when declared by the Board ofDirectorS or any

duly authorized committee ofthe Board ofDirectors, but only out ofassets legally available

therefor, cumulative cash dividends with respect to each Dividend Period (as defined ~elow) at a

rate per annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount Ifrshare of

Designated Preferred Stock and (ii) the amount of accrued and unpaid dividends for any prior

Dividend Period on such share ofDesignated Preferred Stock, if any. Such dividends fhallbegin

to accrue and be cumulative from the Original Issue Date, shall compound on each sub$equent

Dividend Payrnen~ Date (i.e., no dividends shall accrue on other dividends unless and Jntil the

first Dividend Payment Date for such other dividends has passed without such other di~idends

having been paid on such date) and shall be payable quarterly in arrears on each Divid nd

Payment Date, commencing with the first such Dividend Payment Date to occur at least 20

calendar days after the Original Issue Date. In the event that any Dividend Payment Dfte would

otherwise fall on a day that is not a Business Day, the dividend payment due on that date will be

postponed to the next day that is a Business Day and no additional dividends will accrJe as a

result ofthat postponement. The period from and including any Dividend Payment oat to, but

A-2 09533I-0002-11515-NY02.26S9555.9
excluding, the next Dividend Payment Date is a "Dividend Period", provided that the initial

Dividend Period shall be the period from and including the Original Issue Date to, but excluding,

the next Dividend Payment Date.

Dividends that are payable on Designated Preferred Stock in respect of any Dividend

Period shall be computed on the basis ofa 360-day year consisting oftwelve 30-day months. The

amount of dividends payable on Designated Preferred Stock on any date prior to the end of a

Dividend Period, and for the initial Dividend Period, shall be computed on the basis of a 360-day

year consisting oftwelve 30-day months, and actual days elapsed over a 30-day month.

Dividends that are payable on Designated Preferred Stock on any Dividend Payment Date

will be payable to holders ofrecord of Designated Preferred Stock as they appear on the stock

register ofthe Corporation on the applicable record date, which shall be the 15th calendar day

immediately preceding such Dividend Payment Date or such other record date fixed the

Board ofDirectors or any duly authorized committee ofthe Board ofDirectors that isinat more

than 60 nor less than 10 days prior to such Dividend Payment Date (each, a "Dividend Record

Date"). Any such day that is a Dividend Record Date shall be a Dividend Record Datd whether

or not such day is a Business Day.

Holders of Designated Preferred Stock shall not be entitled to any dividends, ~hether

payable in cash, securities or other property, other than dividends (if any) declared an!! payable

on Designated Preferred Stock as specified in this Section 3 (subject to the other provi~ions of

the Certificate ofDesignations).

(b) Priority ofDividends. So long as any share ofDesignated Preferred St<i>ck

remains outstanding, no dividend or distribution shall be declared or paid on the Common Stock

or any other shares ofJunior Stock (other than dividends payable solely in shares ofCbmmon

Stock) or Parity Stock, subject to the immediately following paragraph in the case of "Parity

Stock, and no Common Stock, Junior Stock or Parity Stock shall be, directly or indiredtly,

purchased, redeemed or otherwise acquired for consideration by the Corporation or an~ ofits

subsidiaries unless all accrued and unpaid dividends for all past Dividend Periods, including the

latest completed Dividend Period (including, if applicable as provided in Section 3(a) ~bove,

dividends on such amount), on all outstanding shares ofDesignated Preferred Stock have been or I

are contemporaneously declared and paid in full (or have been declared and a sum sufficient for

the payment thereof has been set aside for the benefit ofthe holders ofshares of Desi~ated

Preferred Stock on the applicable record date). The foregoing limitation shall not appl~ to (i)

redemptions, purchases or other acquisitions ofshares ofCommon Stock or other Juni~r Stock in

connection with the administration of any employee benefit plan in the ordinary coursd of

business (including purchases to offset the Share Dilution Amount (as defined below) *ursuant

to a publicly announced repurchase plan) and consistent with past practice, providedthat any

purchases to offset the Share Dilution Amount shall in no event exceed the Share Dilullon

Amount; (ii) purchases or other acquisitions by a broker-dealer subsidiary ofthe Corporation

solely for the purpose ofmarket-making, stabilization or customer facilitation transactifns in

Junior Stock or Parity Stock in the ordinary course of its business; (iii) purchases by a orokerdealer subsidiary ofthe Corporation of capital stock ofthe Corporation for resale pursu~nt to an

offering by the Corporation ofsuch capital stock underwritten by such broker-dealer su~sidiary;

(iv) any dividends or distributions ofrights or Junior Stock in connection with a stockh~lders'

I

A-3 09S33I-0002-IISIS·NY02.2689SSS.9
rights plan or any redemption or repurchase ofrights pursuant to any stockholders' rights plan;

(v) the acquisition by the Corporation or any ofits subsidiaries ofrecord ownership in' Junior

Stock or Parity Stock for the beneficial ownership of any other persons (other than the

Corporation or any of its subsidiaries), including as trustees or custodians; and (vi) the exchange

or conversion ofJunior Stock for or into other Junior Stock or ofParity Stock for or irjto other

Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, in each case,

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

thereoffor Common Stock. "Share Dilution Amount" means the increase in the num~er of

diluted shares outstanding (determined in accordance with generally accepted accounting

principles in the United States, and as measured from the date ofthe Corporation's cobsolidated

financial statements most recently filed with the Securities and Exchange Commissio~ prior to

the Original Tssue 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.

When dividends are not paid (or declared and a sum sufficient for payment thereofset

aside for the benefit ofthe holders thereof on the applicable record date) on any Dividend

Payment Date (or, in the case ofParity Stock having dividend payment dates differentlfrom the

Dividend Payment Dates, on a dividend payment date falling within a Dividend Perioq related to

such Dividend Payment Date) in full upon Designated Preferred Stock and any shares bfParity

Stock, all dividends declared on Designated Preferred Stock and all such Parity Stock ~nd payable on such Dividend Payment Date (or, in the case of Parity Stock having dividehd

payment dates different from the Dividend Payment Dates, on a dividend payment dat~ falling

within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so

that the respective amounts ofsuch dividends declared shall bear the Same ratio to eacfu other as

all accrued and unpaid dividends per share on the shares ofDesignated Preferred Stock

(including, if applicable as provided in Section 3(a) above, dividends on such amount)land all

Parity Stock payable on such Dividend Payment Date (or, in the case ofParity Stock having

dividend payment dates different from the Dividend Payment Dates, on a dividend pa~ment date

falling within the Dividend Period related to such Dividend Payment Date) (subject to ~heir

having been declared by the Board ofDirectors or a duly authorized committee ofthe Board of

Directors out of legally available funds and including, in the case of Parity Stock that tiears

cumulative dividends, all accrued but unpaid dividends) bear to each other. Tfthe Boatd of

Directors or a duly authorized committee ofthe Board of Directors determines not to pay any

dividend or a full dividend on a Dividend Payment Date, the Corporation will provide ~ritten notice to the holders ofDesignated Preferred Stock prior to such Dividend Payment D~te.

Subject to the foregoing, and not otherwise, such dividends (payable in cash, securities or I

other property) as may be determined by the Board ofDirectors or any duly authorized:

committee ofthe Board of Directors may be declared and paid on any securities, including

Common Stock and other Junior Stock, from time to time out of any funds legally avai,able for

such payment, and holders ofDesignated Preferred Stock shall not be entitled to participate in

any such dividends. !

Section 4. Liquidation Rights.

A-4 095331-0002-115 15-NY02.2689555.9
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution

or winding up ofthe affairs ofthe Corporation, whether voluntary or involuntary, holCjlers of

Designated Preferred Stock shall be entitled to receive for each share ofDesignated Preferred

Stock, out ofthe assets ofthe Corporation or proceeds thereof(whether capital or surplus)

available for distribution to stockholders ofthe Corporation, subject to the rights of any creditors

ofthe Corporation, before any distribution ofsuch assets or proceeds is made to or se~ aside for

the holders ofCommon Stock and any other stock ofthe Corporation ranking junior to

Designated Preferred Stock as to such distribution, payment in full in an amount equal to the sum

of(i) the Liquidation Amount per share and (ii) the amount of any accrued and unpaiq dividends

(including, if applicable as provided in Section 3(a) above, dividends on such amount), whether

or not declared, to the date of payment (such amounts collectively, the "Liquidation '

Preference").

(b) Partial Payment. Ifin any distribution described in Section 4(a) above the assets

ofthe Corporation or proceeds thereof are not sufficient to pay in. full the amounts pa~able with

respect to all outstanding shares ofDesignated Preferred Stock and the corresponding ~mounts

payable with respect of any other stock ofthe Corporation ranking equally with Desigrated

Preferred Stock as to such distribution, holders ofDesignated Preferred Stock and the ~olders of

such other stock shall share ratably in any such distribution in proportion to the full respective

distributions to which they are entitled. . I

(c) Residual Distributions. Tfthe Liquidation Preference has been paid in fUll to all

holders ofDesignated Preferred Stock and the corresponding amounts payable with re$pect of

any other stock ofthe Corporation ranking equally with Designated Preferred Stock as to such

distribution has been paid in full, the holders of other stock ofthe Corporation shall be entitled to

receive all remaining assets ofthe Corporation (or proceeds thereof) according to thei~ respective

rights and preferences.

(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes ofthis

Section 4, the merger or consolidation ofthe Corporation with any other corporation o~ other

entity, including a mergeror consolidation in which the holders ofDesignated Preferrdd Stock

receive cash, securities or other property for their shares, or the sale, lease or exchang~ (for cash,

securities or otherproperty) of all or substantially all ofthe assets ofthe Corporation, shall not

constitute a liquidation, dissolution or winding up ofthe Corporation. I

Section 5. Redemption.

(a) Optional Redemption. Except as provided below, the Designated Preferred Stock

may not be redeemed prior to the first Dividend Payment Date falling on or after the t~ird anniversary ofthe Original Tssue Date. On or after the first Dividend Payment Date falling on or

after the third anniversary ofthe Original Issue Date, the Corporation, at its option, sU~ject to the

approval ofthe Appropriate Federal Banking Agency, may redeem, in whole or in partl at any

time and from time to time, out offunds legally available therefor, the shares ofDesig~ated

Preferred Stock at the time outstanding, upon notice given as provided in Section S(c) below, at a

redemption price equal to the sum of(i) the Liquidation Amount per share and (ii) exc,pt as

otherwise provided below, any accrued and unpaid dividends (including, if applicable as

I

A-5 09S33I-0002-IISIS·NY02.2689SSS.9
provided in Section 3(a) above, dividends on such amount) (regardless of whether anYi dividends

are actually declared) to, but excluding, the date fixed for redemption.

Notwithstanding the foregoing, prior to the first Dividend Payment Date falling on or

after the third anniversary ofthe Original Issue Date, the Corporation, at its option, su~ject to the

approval ofthe Appropriate Federal Banking Agency, may redeem, in whole or in pati, at any

time and from time to time, the shares of Designated Preferred Stock at the time outs~nding,

upon notice given as provided in Section S(c) below, at a redemption price equal to the sum of(i)

the Liquidation Amount per share and (ii) except as otherwise provided below, any accrued and

unpaid dividends (including, if applicable as provided in Section 3(a) above, dividend~ on such

amount) (regardless of whether any dividends are actually declared) to, but exduding,ithe date

fixed for redemption; provided that (x) the Corporaticm (or any successor by Business!

Combination) has received aggregate gross proceeds ofnot less than the Minimum Anrount (plus

the "Minimum Amount" as defined in the relevant certificate ofdesignations for each pther

outstanding series of preferred stock ofsuch successor that was originally issued to th~ United

States Department ofthe Treasury (the "Successor Preferred Stock") in connection with the

Troubled Asset Relief Program Capital Purchase Program) from one or more Qualifie4 Equity

Offerings (including Qualified Equity Offerings ofsuch successor), and (y) the aggreg~te

redemption price ofthe Designated Preferred Stock (and any Successor Preferred Stock)

redeemed pursuant to this paragraph may not exceed the aggregate net cash proceeds rkeived by

the Corporation (or any successor by Business Combination) from such Qualified Equ~ty

Offerings (including Qualified Equity Offerings ofsuch successor).

The redemption price for any shares of Designated Preferred Stock shall be pay,able on

the redemption date to the holder ofsuch shares against surrender ofthe certificate(s) 9videncing

such shares to the Corporation or its agent. Any declared but unpaid dividends payablelon a

redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall

not be paid to the holder entitled to receive the redemption price on the redemption datb, but

rather shall be paid to the holder ofrecord ofthe redeemed shares on such Dividend R¢cord Dltte

relating to the Dividend Payment Date as provided in Section 3 above. I

(b) No Sinking Fund. The Designated Preferred Stock will not be subject t~ any

mandatory redemption, sinking fund or other sirnilar provisions: Holders of Designate4 Preferred

Stock will have no right to require redemption or repurchase ofany shares of Designattd

Preferred Stock. I

. ,

(c) Notice ofRedemption. Notice ofevery redemption ofshares of Design~ed

Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of

, record ofthe.shares to be ~~deemed at their respective last addresses appearing on the ifoks of

the CorporatIOn. Such malhng shall be at least 30 days and not more than 60 days befo~e the date

fixed for redemption. Any notice mailed as provided in this Subsection shall be conclu~ively

presumed to have been duly given, whether or not the holder receives such notice, but failure

duly to give such noti~ by mail, or any defect in s~ch notice or in the ~ailing thereof, to any

holder ofshares ofDeSignated Preferred Stock deSignated for redemptIon shall not affe~t the

validity ofthe proceedings for the redemption of any other shares ofDesignated Prefe1ed Stock.

Notwithstanding the foregoing, ifshares of Designated Preferred Stock are issued in boOk-entry

form through The Depository TrustCorporation or any other similar facility, notice of I

A-6 09S331~OO2-IISI S-NY02.2689SSS.9
redemption may be given to the holders of Designated Preferred Stock at such time a*d in any

manner permitted by such facility. Each notice ofredemption given to a holder shall ~tate: (I) the

redemption date; (2) the number ofshares of Designated Preferred Stock to be redee~ed and, if

less than all the shares held by such holder are to be redeemed, the number ofsuch shrres to be

redeemed from such holder; (3) the redemption price; and (4) the place or places where

certificates for such shares are to be surrendered for payment ofthe redemption price~

(d) Partial Redemption. In case of any redemption ofpart ofthe shares ofDesignated

Preferred Stock at the time outstanding, the shares to be redeemed shall be selected eirher pro

rata or in such other manner as the Board ofDirectors or a duly authorized committeff thereof

rna.y de.termine to be fair and equitable. Subject to the provisions hereof, the Board oflDirectors

or a duly authorized committee thereofshall have full power and authority to prescribf the terms

and conditions upon which shares ofDesignated Preferred Stock shall be redeemed from time to

time. Iffewer than all the shares represented by any certificate are redeemed, a new c6rtificate

shall be issued representing the unredeemed shares without charge to the holder there~f. I

(e) Effectiveness ofRedemption. If notice ofredemption has been duly giyen and if

on or before the redem.ption date. specified in the notice all funds necessary for the re~bmPtio.n

have been deposited by the Corporation, in trust for the pro rata benefit ofthe hoIder4 ofthe

shares called for redemption, with a bank or trust company doing business in the Borough of

Manhattan, The City ofNew York, and having a capital and surplus of at least $500 rrlillion and

selected by the Board of Directors, so as to be and continue to be available solely ther~for, then,

notwithstanding that any certificate for any share so called for redemption has not bee~

surrendered for cancellation, o~ and after the redempt.ion date divi~ends shall cease tolaccrue on

all shares so Called for redemptIOn, all shares so called for redemptlon shall no longer Pe deemed

outstanding and all rights with respect to such shares shall forthwith on such redempti~n date

cease and terminate, except only the right ofthe holders thereofto receive the amount payable on

such redemption from such bank or trust company, without interest. Any funds unclairped at the

end ofthree years from the redemption date shall, to the extent permitted by law, be rdleased to

the Corporation, after which time the holders ofthe shares so called for redemption Shrlll.IOOk

only to the Corporation for payment ofthe redemption price ofsuch shares. .

(f) Status ofRedeemed Shares. Shares of Designated Preferred Stock that ~re

redeemed, repurchased or otherwise acquired by the Corporation shall revert to authorized but

unissued shares ofPreferred Stock (provided that any such cancelled shares ofDesign,ted

Preferred Stock may be reissued only as shares of any series ofPreferred Stock other than

Designated Preferred Stock).

Section 6. Conversion. Holders ofDesignated Preferred Stock shares shall have no right

to exchange or convert such shares into any other securities. I

Section 7. Voting Rights.

(a) General. The holders of Designated Preferred Stock shall not have any ~oting rights except as set forth below or as otherwise from time to time required by law. I

A-7 09S33I-ocJ02-IISIS-NY02.26.89SSS.9
(b) Preferred Stock Directors. Whenever, at any time or times, dividends payable on

the shares of Designated Preferred Stock have not been paid for an aggregate ofsix quarterly

Dividend Periods or more, whether or not consecutive, the authorized number of directors ofthe I

Corporation shall automatically be increased by two and the holders ofthe Designated Preferred

Stock shall have the right, with holders ofshares of anyone or more other classes or s~ries of

Voting Parity Stock outstanding at the time, voting together as a class, to elect two dir~ctors

(hereinafter the "Preferred Directors" and each a "Preferred Director ") to fill such newly

created directorships at the Corporation's next annual meeting ofstockholders (or at a special

meeting called for that purpose prior to such next annual meeting) and at each sUbsequ¢nt annual

meeting ofstockholders until all accrued and unpaid dividends for all past Dividend pdriods,

including the latest completed Dividend Period (including, if applicable as provided in ;Section

3(a) above, dividends on such amount), on all outstanding shares of Designated Preferred Stock

have been declared and paid in full at which time such right shall terminate with respeqt to the

Designated Preferred Stock, except as herein or by law expressly provided, subject to revesting

in the event of each and every subsequent default ofthe character above mentioned; prfJVided

that it shall be a qualification for election for any Preferred Director that the election o~ such

Preferred Director shall not cause the Corporation to violate any corporate governance i

requirements of any securities exchange or other trading facility on which securities ofthe

Corporation may then be listed or traded that listed or traded companies must have a mhjority of

independent directors. Upon any termination ofthe right ofthe holders ofshares of Ddsignated

Preferred Stock and Voting Parity Stock as a class to vote for directors as provided abo~e, the

Preferred Directors shall cease to be qualified as directors, the term ofoffice of all Preferred

Directors then in office shall terminate immediately and the authorized number of diredtors shall

be reduced by the number ofPreferred Directors elected pursuant hereto. Any Preferre~ Director

may be removed at any time, with or without cause, and any vacancy created thereby niay be

filled, only by the affirmative vote ofthe holders a majority ofthe shares ofDesignated Preferred

Stock at the time outstanding voting separately as a class together with the holders ofshares of

Voting Parity Stock, to the extent the voting rights ofsuch holders described above are then

exercisable. Ifthe office of any Preferred Director becomes vacant for any reason othet than

removal from office as aforesaid, the remaining Preferred Director may choose a succe~or who

shall hold office for the unexpired term in respect ofwhich such vacancy occurred. I

(c) Class Voting Rights as to Particular Matters. So long as any shares ofD~signated Preferred Stock are outstanding, in addition to any other vote or consent ofstockholderf required

by law or by the Charter, the vote.or consent ofthe holders of at least 66 2/3% ofthe shares of

Designated Preferred Stock at the time outstanding, voting as a separate class, given in ~erson or

by proxy, either in writing without a meeting or by vote at any meeting called for the purpose,

shall be necessary for effecting or validating: I

I

(i) Authorization of Senior Stock. Any amendment or alteration ofthe

Certificate of Designations for the Designated Preferred Stock or the Charter to r,uthOrize

or create or increase the authorized amount of, or any issuance of, any shares of, or any

securities convertible into or exchangeable or exercisable for shares of, any clasf or series

ofcapital stock ofthe Corporation ranking senior to Designated Preferred Stockl with

respect to either or both the payment ofdividends and/or the distribution of asser on any

liquidation, dissolution or winding up ofthe Corporation;

A-8

09S331..()()()2-11SIS·NY02,2689SSS,9
(ii) Amendment ofDesignated Preferred Stock. Any amendment, alteration

or repeal of any provision ofthe Certificate ofDesignations for the Designated Preferred

Stock or the Charter (including, unless no vote on such merger or consolidation is

required by Section 7(c)(iii) below, any amendment, alteration or repeal by means ofa

merger, consolidation or otherwise) so as to adversely affect the rights, preferqnces,

privileges or voting powers ofthe Designated Preferred Stock; or

(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any

consummation of a binding share exchange or reclassification involving the D<=signated

Preferred Stock, or of a merger or consolidation ofthe Corporation with another

corporation or other entity, unless in each case (x) the shares of Designated Preferred

Stock remain outstanding or, in the case of any such merger or consolidation 'Vith respect

to which the Corporation is not the surviving or resulting entity, are converted :into or

exchanged for preference securities ofthe surviving or resulting entity or its uI~imate

parent, and (y) such shares remaining outstanding or such preference securities, as the

Case may be, have such rights, preferences, privileges and voting powers, and l:imitations

and restrictions thereof, taken as a whole, as are not materially less favorable to the

holders thereofthan the rights, preferences, privileges and voting powers, and limitations

and restrictions thereof, ofDesignated Preferred Stock immediately prior to such

consummation, taken as a whole;

provided, however, that for all purposes ofthis Section 7(c), any increase in the amount ofthe

authorized Preferred Stock, including any increase in the authorized amount of Design~ted

Preferred Stock necessary to satisfy preemptive or similar rights granted by the Corpor;ation to

other persons prior to the Signing Date, or the creation and issuance, or an increase in the

authorized or issued amount, whether pursuant to preemptive or similar rights or otherwise, of

any other series ofPreferred Stock, or any securities convertible into or exchangeable or

exercisable for any other series ofPreferred Stock, ranking equally with and/orjunior io

Designated Preferred Stock with respect to the payment of dividends (whether such dividends

'"are cumulative or non-cumulative) and the distribution of assets upon liquidation, diss~lution or

winding up ofthe Corporation will not be deemed to adversely affect the rights, preferrnces,

privileges or voting powers, and shall not require the affirmative vote or consent of, th~ holders

of outstanding shares ofthe Designated Preferred Stock.

(d) Changes after Provision for Redemption. No vote or consent ofthe hol~ers of

Designated Preferred Stock shall be required pursuant to Section 7(c) above if, at or prtor to the

time when any such vote or consent would otherwise be required pursuant to such Sedion, all I

outstanding shares ofthe· Designated Preferred Stock shall have been redeemed, or shall have

been called for redemption upon proper notice and sufficient funds shall have been de~osit~d in

trust for such redemption, in each case pursuant to Section 5 above.

(e) Procedures for Voting and Consents. The rules and procedures for caIliqg and

conducting any meeting ofthe holders of Designated Preferred Stock (including, without

limitation, the fixing of a record date in connection therewith), the solicitation and use bf proxies

at such a meeting, the obtaining ofwritten consents and any other aspect or matter willi regard to

such a meeting or such consents shall be governed by any rules ofthe Board ofDirecto~s or any

duly authorized committee ofthe Board of Directors, in its discretion, may adopt from ~ime to

A-9 09S33I-0002-IISIS-NY02.2689SSS.9
time, which rules and procedures shall conform to the requirements ofthe Charter, the Bylaws,

and applicable law and the rules of any national securities exchange or other trading facility on

which Designated Preferred Stock is listed or traded at the time.

Section 8. Record Holders. To the fullest extent permitted by applicable law, the

Corporation and the transfer agent for Designated Preferred Stock may deem and treat the record

holder of any share ofDesignated Preferred Stock as the true and lawful owner thereo~ for all

purposes, and neither the Corporation nor such transfer agent shall be affected by any rlotice to I

the contrary.

Section 9. Notices. All notices or communications in respect of Designated P~eferred

Stock shall be sufficiently given if given in writing and delivered in person or by first class mail,

postage prepaid, or if given in such other manner as may be permitted in this Certificatt, of

Designations, in the Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if

shares ofDesignated Preferred Stock are issued in book-entry form through The Depository

Trust Corporation or any similar facility, such notices may be given to the holders ofD~signated

Preferred Stock in any manner permitted by such facility.

Section 10. No Preemptive Rights. No share ofDesignated Preferred StockshaU have

a?y rights o~ pre~mption whatsoever. as to any securities ofthe Corporation, or any ~~+ants, fights or opttons Issued or granted WIth respect thereto, regardless of how such secufltH~s, or such

warrants, rights or options, may be designated, issued or granted. I

Section 11. Replacement Certificates. The Corporation shall replace any mutilafted

certificate at the holder's expense upon surrender ofthat certificate to the Corporation. The

I

Corporation shall replace certificates that become destroyed, stolen or lost at the holderrs

expense upon delivery to the Corporation ofreasonably satisfactory evidence that the certificate

has been destroyed, stolen or lost, together with any indemnity that may be reasonably tequired

by the Corporation. :

Section 12. Other Rights. The shares of Designated Preferred Stock shall not have any

rights, preferences, privileges or voting powers or relative, participating, optional or otHer special

rights, or qualifications, limitations or restrictions thereof, other than as set forth herein lor in the

Charter or as provided by applicable law. I

A-IO 09S331-GOO2-IISIS-NY02.2689SSS.9
ANNEXB

FORM OF WAIVER

In consideration for the benefits I will receive as a result of my employer's particip~tion in the

United States Department ofthe Treasury's TARP Capital Purchase Program, I her~by

voluntarily waive any claim against the United States or my employer for any changes to my

compensation or benefits that are required to comply with the regulation issued by the

Department ofthe Treasury as published in the Federal Register on October 20, 20Q8.

I acknowledge that this regulation may require modification ofthe compensation, l¥'nus,

incentive and other benefit plans; arrangements, policies and agreements (including so-called

"golden parachute" agreements) 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 ofmy emp~byer acquired

through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws ofthe United States or an.y state

related to the requirements imposed by the aforementioned regulation, including wi~hout

limitation a claim for any compensation or other payments I would otherwise receive, any

challenge to the process by which this regulation was adopted and any tort or constitutional

claim about the effect ofthese regulations on my employment relationship.

095331-DOO2-10033-NY02.2689565.11
ANNEXC

FORM OF OPINION

(a) The Company has been duly incorporated and is validly existing as a corporation

in good standing under the laws ofthe state ofits incorporation.

(b) The Preferred Shares have been duly and validly authorized, and, wIlen 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 ri~ts, 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 asseu! in the event I

of any dissolution, liquidation or winding up ofthe Company.

(c) The Warrant has been duly authorized and, when executed and deliv1ered as

contemplated by the Agreement, will constitute a valid and legally binding obligati+n ofthe

Company enforceable against the Company in accordance with its terms, except as ithe 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 ~quity.

(d) The shares ofCommon Stock issuable upon exercise ofthe Warrantihave been

duly authorized and reserved for issuance upon exercise ofthe Warrant and when s~ issued in

accordance with the terms ofthe Warrant will be validly issued, fully paid and non-assessable

[insert, ifapplicable: , subject to the approvals ofthe Company's stockholders set ~rth on

Schedule C]. ,

(e) The Company has the corporate power and authority to execute and ~eliver the

Agreement and the Warrant and [insert, ifapplicable: , subject to the approvals offue

Company's stockholders set forth on Schedule C,] to carry out its obligations theretfder (which

includes the issuance ofthe Preferred Shares, Warrant and Warrant Shares).

(f) The execution, delivery and performance by the Company ofthe Agteement and

the Warrant and the consummation ofthe transactions contemplated thereby have been duly

authorized by all necessary corporate action on the part ofthe Company and its stodkholders, and

no further approval or authorization is required on the part ofthe Company [insert, y"applicable:

, subject, in each case, to the approvals ofthe Company's stockholders set forth on chedule C].

(g) The Agreement is a valid and binding obligation ofthe Company e orceable

against the Company in accordance with its terms, except as the same may be limit d by

applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affe1ting the

enforcement of creditors' rights generally and general equitable principles, regardlers ofwhether

such enforceability is considered in a proceeding at law or in equity; provided, howfver, such

counsel need express no opinion with respect to Section 4.5(g) or the severability p*ovisions of

the Agreement insofar as Section 4.5(g) is concerned. I

095331-0002"1oo33-NY02.2689565.11
095331-0002-IOO33-NY02.2689565.11

FORM OF WARRANT

[SEE ATTACHED]

ANNEXD
CUSIP i90262T 11 8

WARRANTTOPURCHASECO~ONSTOCK

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN

REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THIp

SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLp 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 REGISTRATIG>NI

UNDER SUCH ACT OR SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE

RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A SECURITIESI

PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES Al'tD THE

INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH T

r

·

E

ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE

SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAl

AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WlTft SAID

AGREEMENT WILL BE VOID. '

WARRANT

to purchase

7,847,732

Shares of Common Stock

of VCBH Holdings, Inc.

Issue Date: November 14,2008

1. Definitions. Unless the context otherwise requires, when used herein the

following tenns shall have the meanings indicated.

"Affiliate" has the meaning ascribed to it in the Purchase Agreement.

"Appraisal Procedure" means a procedure whereby two independent appraiserf' one

chosen by the Company and one by the Original Warrantholder, shall mutually agree upon the

detenninations then the subject of appraisal. Each party shall deliver a notice to the other

appointing its appraiser within 15 days after the Appraisal Procedure is invoked. If wit~in 30

days after appointment ofthe two appraisers they are unable to agree upon the amount in

question, a third independent appraiser shall be chosen within 10 days thereafter by thd mutual

consent ofsuch first two appraisers. The decision ofthe third appraiser so appointed arid chosen

shall be given within 30 days after the selection ofsuch third appraiser. Ifthree apprai+rs shall

be appointed and the detennination of one appraiser is disparate from the middle detenpination

hy more than twice the amount by which the other detennination is disparate from the riddle

determination, then the detelTIlination ofsuch appraiser shall be excluded, the remaining two

determinations shall be averaged and such average shall be binding and conclusive lipqn the

I

11'J"II·l)Un·(lI~lJ IM}lIYUl.1691"66.l1
Company and the Original Warrantholder, otherwise, the average of all three deterDiIinations

shall be binding upon the Company and the Original Warrantholder. The costs of conducting

any Appraisal Procedure shall be borne by the Company.

"Board ofDirectors" means the board ofdirectors ofthe Company, including any duly

authorized committee thereof.

"Business Combination" means a merger, consolidation, statutory share exchange or

similar transaction that requires the approval ofthe Company's stockholders.

"business day" means any day except Saturday, Sunday and any day on which banking

institutions in the State ofNew York generally are authorized or required by law or other

governmental actions to close.

"CapitalStoc/t' means (A) with respect to any Person that is a corporation ot company,

any and all shares, interests, participations or other equivalents (however designated~ of capital

or capital stock ofsuch Person and (B) with respect to any Person that is not a corporation or

company, any and all partnership or other .equity interests ofsuch Pers.on. '

"Charter' means, with respect to any Person, its certificate or articles ofincorporation,

articles of associaHon, or similar organizational document

"Common Stock:' has the meaning ascribed to it in the Purchase Agreement.

"Company' meansthe Person whose name, corporate or other organizationaJi form and

jurisdiction oforganization is set forth in Item 1 ofSchedule A hereto.

"conversion" has the meaning set forth. in Section 13(B).

"convertible securities" has the meaning set forth in Section 13(B).

"CPP" has the meaning ascribed to it in the Purchase Agreement.

"ExchangeAd' meansthe Securities Exchange Act of 1934, as amended, or any

successor statute, and the rules and regulations promulgated thereunder.

"Exercise Price" means the amount set forth in Item 2 ofSchedule A hereto.1

"Expiration Time" has the meaning set forth in Section 3. J

"Fair Market Value" mearts, with respect to any security or other property, e fair

market value ofsuch security or other property as determined by the Board ofDirectprs, acting

in good faith or, with respect to Section 14, as determined by the Original Warranth91der acting

in good faith. For so long as the Original Warrantholder holds this Warrant or any Pfrtion

thereof, it may ?bject in.writing~o the Board ofDire~~r's..calCUlation offairmark~r:tue within

10 days ofrecelpt ofwntten notlce thereof Ifthe OrigmalWarrantholder and the ,..'t::pany are

unable to agree on fair market value during1h¢ 100day period following the delivery ofthe

Original Warrantholder·s objection, the Appraisal Procedure may be invoked by eithfr party to

2

OtlIU-O«UloOl99I-WY01.2&'1"66_ll
detennine Fair Market Value by delivering written notification thereofnot later than 1ihe 30th day

after delivery ofthe Original Warrantholder's objection.

"Governmental Entities" has the meaning ascribed to it in the Purchase Agreement.

"Initial Number" has the meaning set forth in Section l3(B).

"Issue Date" means the da.te set forthin Item 3 ofSchedule A hereto.

"MarketPrice" means, with respect to a particular security, on any given daY,lthe last

reported sale price regular way or, incase no such reported sale takes place on such day, the

avera~~ ofthe last closing.bid and ask.prices regu~~ way, either case. on the prin~i~al n~ional s.ecunties eX~hange on ~h1Ch the appb~ble sec~~es are bsted or admitted to tradm~, ~r 1f~ot

listed or adm1tted to tradmg on anynatlonal secunhes exchange, the average ofthe closmg b1d

and ask prices as furnished by two members ofthe Financial Industry Regulatory Authority, Inc.

selected from time to time by the Company for that pqrpose. "Market Price" shall be !detennined

without reference to after hoW'S or extended hours trading. Ifsuch security is not lis~d and

traded in a manner that the quotations referred to above are available for the period re~ired

hereunder, the Market Price pershare ofCommon Stock shall be deemed to be (i) in 'the event

that any portion ofthe Warrant is held by the Original Warrantholder, the fair market iValue per

share ofsuch security as determined in good faith by the Original Warrantholder or (it) in all

other circumstanc~s,the f~rm~etvalue per.sh.are ofsuc~ security as de~e~ed in19ood faith

by the Board of Directors m rebance on an opm1on of a natlOnaily recogruzed mdq>endent

invest~ent banking corporation retained by the Co.mpany fo~ ~is purpose and c~ifi¢d ina

resolut1on to the Warrantholder. Forthe purposes ofdetermmmg the Market Pnce ofithe

Common Stock on the ''trading day" preceding, on or following the occurrence of an event, (i)

that trading day shall be deemed to commence immediately after the regular schedule~ closing

time oftrading on the New York Stock Exchange or, iftrading is closed at an earliertime, such

ear~er ~e and (ii) that ~in? dayshaU en? at ~he next regular.scheduled.closing ~e, or if

tradmg 1S closed at an earhertlffie,such earl1ertline (for th¢ avo1dance of doubt, and an

example, ifthe Market Price is to be detennined as ofthe lasttrading day preceding a!specified

event and the closing time oftrading on a particular day is 4:00 p.rn. and the specified event

occurs at 5:00 p.m. on that day, the M~ket Price would be detenninedby reference t~ such 4:00

p.m. closing price). I

"Ordinary Cash Dividends" means a regular quarterly cash dividend on share~ of

C?mmon Stock out ofsurplus o~ net p~o~ts le~ally available ~erefor.(lietennin~d in ~ccordance w1th generally acceptedaccountmg pnnc1ples lfi effect from time to time), prOVIded~at

Ordinary Cash Dividends shall not include any cash dividends paid subsequent to the Issue Date I

to the extent the aggregate pershare dividends paid on the outstanding Common Stock in any

quarter exceed the amount set forth in Item 4 ofSchedule A hereto, as adjusted for an~ stock

split, stock dividend, reverse stock split, reclassification or similar transaction. !

"Original Warrantholder"means the United States Department ofthe TreasurY. Any

actions specified to be taken by the Original Warrantholder hereunder may onlY'be taRen by such

Person and not by any other Warrantholder.

3 091111..0041·0 199I·NYttl.1691466.1 J
"Shares" has the meaning set forth in Section 2.

"Permitted Transactions" has the meaning set forth in Section 13eB).

"Person" has the meaning given to it in Section 3(a)(9) ofthe Exchange Act and as used

in Sections 13(dX3) and 14(d)(2) ofthe Exchange Act.

"Per Share Fair Market Value"" has the meaning set forth in Section 13ee).

"Preferred Shares" means the perpetual preferred stock issued to the Original

Warrantholder on the Issue Date pursuant to the Purchase Agreement.

"Pro Rata Repurchases" means any purchase ofshares ofCommon Stock by 1he

Company or any Affiliate thereofpursuant to (A) any tender offer or exchange offer ~ubject to

Section 13ee) or 14(e) ofthe Exchange Act or Regulation 14E prom.ulgated thereun.der or (B)

any other offer available to substantially all holders ofCommon Stock, in the case of both (A) or

(B), whether for cash. shares ofCapital Stock ofthe Company, other securities ofthe Company,

evidences ofindebtedness ofthe Company or any other Person or any other property (including.

without limitation, shares ofCapital Stock, other se.curities or evidences ofindebtedness of a I

subsidiary), or any combination thereof, effectedwhile this Warrant is outstanding. ~e

"Effective Date" of a Pro Rata Repurchase shall mean the date of acceptance ofshares for

I

purchase or exchange bythe Company under any tender or exchange offer which is a :pro Rata

Repurchase orthe date of purchase with respect to any Pro Rata Repurchase that is n~t a tender

or exchange offer.

"Purchase Agreement' means the Securities Purchase Agreement - Standard Tenns

incorporated into the Letu:r Agre~ment, dated as ofthe date.setforth inI~em50fSch~duleA

hereto, as amended from time to tune, between the Company and the Uruted. States Department

ofthe Treasury (the "LetterAgreemenfl, including all ailnexes and schedules thereto I

"QualifiedEqUity Offering" has the meaning ascribed to it in the Purchase A~eement

"RegulatoryApprovals" with respect to the Warrantholder, means, to the exteJt

applicable and required to pennit the Warrarttholderto exercise this Warrantfor shares of

Common Stock and to own such Common Stock without the Warrantholder being in tiolation of

applicable law, rule or regulation, the receipt of any necessary approvals and authoriz~onsof,

filings and registrations with. notifications to, or expiration or termination ofany appqcable

waiting period under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as Fended,

and the rules and regulations thereunder.

"SEC' means the U.S. Securities and Exchange Commission.

"Securities Acf' means the Securities Act of 1933, as amended, or any successprstatute,

and the rules and regulations promulgated thereunder. I

I

I

I

I

. "trading ~c:>''' means (A) ifthe ~h~es ofCommon Stock are not traded ~n an~ national

or regIOnal secuntles exchange or asSOCiation or over-the-counter market, a busmess ~ay or (B)

ifthe shares ofCommon Stock are traded on any national or regional securities exch~ge or

4

U9IIII-OOU-tlI99I-NYu'.26'12'66.1 J
association or over-the-counter market, a business day on which such relevant exch~ge or

quotation system is scheduled to be open for business and oIl which the shares of Common

Stock (i) are not suspended from trading on anynational or regional securities exchartge or

association or over-the-counter market for any'period or periods aggregating one ~houror

longe~ ~d (ii) have traded at least once on ~he nati~nal or regional securities. exchan~e or

associatIon or over-the-counter market that 18 the ptlmary market for the tradmg of1h;e shares of

Common Stock.

"U.S. OMP" means United States generally accepted accounting principles.

"Warrantholder" has the meaning set forth in Section 2.

"Warrant" means this Warrant, issued pursuant to the Purchase Agreement. I

2. Number of Shares; Exercise Price. This certifies that, for value received, the

United States Department ofthe Treasury or its permitted assigns (the "Warranthold~r")is

entitled, upon the terms and subjectto the conditions hereinafter set forth, to acquire fromthe

Company, in whole or in part, after the r~ceipt of all applicable Regulatory Approval~, ifany, up

to an aggregate ofthe number offullypatd and nonassessable shares ofCommon Stock set forth

in Item 6 of Schedule A hereto, at a purchase price per share ofCommon Stock equall to the

Exercise Price. The number ofshares ofCommon Stock (the "Shares") and the Exercise Price

are subject to adjustment as provided herein, and "all references to "Common Stock," ,'Shares"

and "Exercise Price" herein shall be deemed to include any such adjustment or series pf

adjustments. "

3. Exercise ofWarrant; Term. Subject to Section 2, to the extent permittfd by

applicable laws and regulations, the rightto purchase the Shares represented by this Warrant is

exercisable, in whole or in part by the Warrantholder; at any time or from time to timJ after the

execution and delivery ofthis Warrant by the Company on the date hereof, but in no ~vent later

than 5:00 p.m., New York. City time on the tenth anniversary ofthe Issue Date (the "Expiration I

Time'''), by (A) the surrender ofthis Warrant and Notice of Exercise annexed hereto, 9uly

completed and executed on behalf ofthe Warrantholder, at the principal executive o~ce ofthe

Company located at the address set forth in Item 7 ofSchedule A hereto (or such other office or

agency ofthe Company'in the United States, as it may designate by notice in writing to the

Warrantholder at the address ofthe Warrantholder ~pearing on the books ofthe Company), and

(B) payment ofthe Exercise Pricefor'the Shares thereby purchased: !

I

(i) by having the Company withhold, from the shares ofCommon Stock that

would otherwise be delivered to the Warrantholder upon such exercise, shares ofCoIlflOn stock

issuable upon exercise ofthe Warrant equal in value to the aggregate Exercise Price to which

this Warrant is so exercised based on the Market Price ofthe Common Stock on the tt;ading day

on which this Warrant is exercised and the Notice ofExercise is delivered to the Company

pursuantto this Section 3, or I

. (ii) with ~e consent ofboth the Company and the Warrantholder, ~y tcfdering in

cash, by certified or cashier's check payable to the order ofthe Company, or by wrre transfer of

immediately available funds to an account designated by the Company. I

I

5
Ifthe Warrantholder does not exercise this Warrant in its entirety, thel

Warrantholder will be entitled to receive from the Company within a reasonable time, and in any

event not exceeding three business days, a new ~arrant insubstantially identical fo+ for th~ purchase ofthatnumber ofShares equal to the difference between the number of Shares subject

to this Warrant and the number ofShares as to which this Warrant is so exercised. I

Notwithstanding anything in this Warrant to the contrary, the Warrantholder hereby I

acknowledges and agrees.that its exer.cise ~f this WaiT~t for Shares is subject to the I'condition

that the Warrantholder wtll have first recelved any apphcable Regulatory Approvals.

4. IsSUance of Shares; AuthQrization; Listing. ~rtificates for Shares issued upon

exercise ofthis Warrant will be issued in such name or names as the Warrantholder .hay

desi~ate and will be delivered to such named Person or Persons within a reasonable[time, not to

exceed three business days after the date on which this Warrant has been duly exercised in

accordance with the terms ofthis Warrant The Company hereby rl::presents and warlants that

any Shares issued upon the exercise ofthis Warrant in accordance with the provisior$ of Section

3 will ~e duly and validly authorized. and issued, fully paid and .nonasses.Sable and ~rge from all

taxes, hens and charges (other than hens or charges created by the Warrantholder, in~ome and

franchise taxes incurred in connection with the exercise ofthe Warrant or taxes in respect of any

tr~feroccurring contempor~eouslytherewith). The Company agrees that ~e Sh~es so issued

will b~ de~ed to have been ~suedto the Watra?thol~ras ofth.e close ofbusmess 9n ~e date

on which thlS Warrant and payment ofthe Exerotse Pnce are dehvered to the Comp~ym

accordance with the terms orthis W~ant, notwiths~dingthat the stock transfer bo~ks ofthe

Company may then be closed or certificates representmg sqchShares-may not be actttally

delivered on such date. The Company will at all times reserve and keep available, o~t ofits

authorized but unissued Common Stock, solely for the pwpose ofproviding for the exercise of

th~ Warrant, the ag!?,egate number of shar~ ofCommon S~ckthenissuable up~ e~ercise of

thlS Warrant at any tlIDe. The Company w1l1 (A)procure, at lts sole expense, the listitlg ofthe

Shares issuable upon exercise ofthis Warrant at any time, subject to issuance or noticb of

issuance, on all principal stock exchanges on which the Common Stock is then listed 6r traded

and (B) maintain such listings ofsuch Shares at all times after issuance. The CompaJy will use

reasonable best efforts to ensure thatthe Shares may be issued without violation of a.Jy

applicable law onegulation or of any requirement ofany securities exchange on Wlti1h the

Shares are listed or traded.

5. No Fractional Shares or Scrip. No ftaetionalShares or scrip reptesentitng

fractional Shares shall be issued upon any exercise ofthis Warrant In lieu of any fra,cftional

Share to which the Warrantholder would otherwise be entitle~ the Warrantholder shap be

enti~led to receive cash paymentequ~to the Market Price ofthe.Go~on Stock o~lth~ last

tradmg day precedmg the date ofexercIse less the pro-rated ExerclSe Pnce for such flflcttonaJ

share. I

6

6. No Rights as Stockholders: Transfer Books. This Warrant does not en~tle the

Warrantholder to any voting rights or other rights as a stockholder ofthe Company prior to the

date of exercise hereof. The Companywill at no time close its transfer books againstr'·sfer of

this Warrant in any manner which interferes with the timely exercise ofthis Warrant

I n'I8II~.....pl"lpNYI)J. 269246',11
7. Charges. Taxes and Expenses. Issuance of certificates for Shares to tl!J.e

Warrantholder upon the exercise ofthis Warrant shall be made without charge to theI

Warrantholder for any issue or transfertax or other incidental expense in respect ofthe issl1allce

ofsuch certificates, all ofwhich taxes and expenses shall be paid by the Company.

8. Transfer/Assignment.

(A) Subject to compliance with clause (B) ofthis Section 8, this Warrant.$nd all rights

hereunder are transferable, in whole orin part, upon the books ofthe Company by th~ registered

holder hereofin person or by duly authorized attorney, and a new warrant shall be mfie and

delivered by the Company, ofthe same tenor an~ date as this Warrant but registeredFthe name

ofone or more transferees, upon smrender ofthiS Warrant, duly endorsed, to the office or agency

ofthe Company described in Section 3. All expenses (other than stock t~fertaxes~ and other

charges payable in connectionwith the preparation, execution and delivery ofthe net warrants

pursuant to this Section 8 shall be paid by the Company.

(B) The transfer ofthe Warrant and the Shares issued upon exercise ofthe Warrant

are subject to the restrictions set forth in Section 4.4 ofthe Purchase Agreement. lfard for so

long as required by the Purchase Agreement, this Warrant shall·contain the legends set forth in

Sections 4.2(a) and 4.2(b) ofthe Purchase Agreement.

9. Exchange and Registry of Warrant This Warrant is exchangeable, upon the

surrender hereof by the Warrantholder to the Company, for a new warrant or warranl.$ oflike

tenor and representing the right to purchase the same aggregate number of Shares. The

Company shall maintain a registry showing the name and address ofthe Warranthol~ras the

registered holder ofthis W~t. This Warrant may be surrendered for exchange or ¢xercise in

accordance with its terms,. at the office ofthe Company, and the Company shall be eqtitled to

rely in all respects, priorto written notice to the contrary, upon such registry.

. 10. Loss, Theft: Destructio~ or Mutilation of Warrant..Upon rec~ipt.by thf ,:ompany

of eVidence reasonably satlSfactory to It ofthe loss, theft, destruction or mutilation ofIthis

Warrant, and in the case of any such loss, theft or destruction, ~pon receipt ofa bond, .indemnity

orsecurity reasonably satisfactory to the Company, or, in1he case ofany such mutila1iion, upon

surrender and cancellation ofthis Warrant, the Company shall make and deliver, in li,u ofsuch

lost, stolen, destroyed or mutilated Warrant, a new Wmant oflike tenor and representing the

right to purchase the same aggregate number of Shares as prOVided for in such lost, stplen,

destroyed or mutilated Warrant.

11. Saturdays. Sundays. Holidays. etc. Ifthe last or appointed day for the taking of

any action or the expiration of any right required or granted herein shall not be a bus~ess day,

then such action may be taken or such right may be exercised on the next succeeding uay that is

a business day.

12. Rule 144 Information. The Company covenants.that it will use its reasbnable best

effortsto timely file all reports and other documents required to be filed by it under thi

Securities Act and the Exchange Act and the rules and regulations promulgated byth SEC

thereunder (or, ifthe Company is not required to file such reports, it will, upon the re uestof any

7

u9l..."OO...-01991·NY"ll~.2"6.11
Warrantholder, make publicly available such infonnation as necessary to pennit sales pursuant to

Rule 144 under the Securities Act), and it will use reasonable best efforts to take sucl further

action as any Warrantholder may reasonably request, in each case to the extent required from

time to time to enable such holder to, ifpennitted by the terms ofthis Warrant and ~e Purchase

Agreement, sell this Warrant without registration underthe Securities Act within the ilimitation

ofthe exemptions provided by (A) Rule 144 under the Securities Act, as such rule m~y be

amended from time to time, or (B) any successor rule or regulation hereafter adoptedl by the

SEC. Upon the written request ofany Warrantholder, the Companywill deliver to s*h

Warrantholder a written statement that it has complied with such requirements.

13. Adjustments and Other Rights. The Exercise Price and the numberofjShares

issuable upon exercise ofthis Warrant shall be subject to adjustment from time to tiOle as

follows; provided, that ifmore than one subsection ofthis Section 13 is applicable to:a single

event, the subsection shall be applied that produces the largest adjustment and no sin~le event

shall cause an adjustment under more than one subsection ofthis Section 13 so as to resuh in

duplication: 1

(A) Stock Splits, Subdivisions, Reclassifications or Combinations. Ifthe ~mpany

shall (i) declare ~~ pay ~ividend or m~e a distributi~n on its Common Stock in s~~es of

Common Stock, (11) subdiVide or reclassify the outstanding shares ofCommon Stock:into a

greater number ofshares, or (iii) combine or reclassify the outstanding shares ofConkon Stock

into a smaller number ofshares, the number ofShares issuable upon exercise ofthis tarrant at

the time ofthe record date for such dividend or distribution or the effective date ofsuchI

.

SUbdivision, combination or reclassificati~nshall b.e proportionately adjusted so th.at 1f1e

Warrantholder after such date shall be entitled to purchase the number ofshares ofC1mmon

Stock which such holder would have owned or been entitled to receive in respect oftlle shares of

Common Stock subject to this Warrant after such date had this Warrant been exercise~

immediately priorto such date. In such event, the Exercise Price in effect at the time bfthe

record date for such dividend or distribution. or the effective date ofsuch subdivision, !

combination or reclassification shall be adjusted to the number obtained by dividing (~) the

product of(1) the number ofShates issuable upon the exercise ofthis Warrant before!such

adjustment and (2) the Exercise Price in effect immediately prior to the record or effe~tive date, I

as the case may be, for the dividend, distribution, subdivision, combination or reclassification

giving rise to t~s adjustment by (y) ~e ne~ number of~hares issuable upon exercise !ofthe

Warrant detennmed pursuant to the ImmedIately precedmg sentence.

(B) Certain Issuances ofCommon Shares or Convertible Securities. Until the earlier

of(i) the date on which the Original WjUT8Iltholder ne longer holds this Warrant or ~y portion

thereof and (ii) the third anniversary ofthe Issue Date, ifthe Company shall issue shaJ[es of

Common Stock (or rights or warrants or other securities exercisable or convertibleint<> or

exchangeable (collectively, a "conversion") for shares ofCommon Stock) (collectively,

"convertible securities") (other than in Permitted Transactions (~defined below) or a[

transaction to which subsection (A).Ofthis S.ection 13 is applicable) without cODSideratJ

i ion or at a

consideration per share (or having a conversion price per share) that is less than 90% f the

Market Price on the last trading day preceding the date ofthe agreement on pricing subh shares

(or such convertible securities) then, in such event: I

8

P91IH..oo.tI-o I"I·NYUJ.1691466.11
(A) the number ofShares issuable upon the exercise ofthis Warrant immediately

prior to the date ofthe agreement on pricing ofsuch shates (or ofsuch convertible

securities) (the "InitialNumber') shall be increased to the number obtained by

multiplying the Initial Number bya fraction (A) the numerator ofwhifh shall be

the sum of(x)thenumber ofshares ofCommon Stock ofthe CompanY

outstanding on such date and (y) the number of additional shares ofq,mmon

Stock issued (or into which convertible securities maybe exercised orlconvert)

and (B) the denominator ofwhich shall be the sum of(I) the number qfshares of

Common Stock outstanding on such date and (II) the number ofshare* of

Common Stock which the-aggregate consideration receivable by the qompany for

the total number ofshares ofCommon Stock so issued (or into which convertible

securities may be exercised or convert) would purchase at the Market Price on the

last trading day preceding the date ofthe agreement on pricing such s~ares (or

such convertible securities); and

(B) the Exercise Price payable upon exercise ofthe Warrant shall be aUjusted by

multiplying such Exercise Price in effect immediately prior to the datd ofthe

agrec:m.e.nt OD pricing ofsuch ,shares (or ofsuch convertible securities)1 by a

fraction, the numerator ofwhich shall be the number ofshares of Co~on Stock

issuable upon exercise ofthis Warrant prior to such date and the denominator of

which shall be the number ofshares ofCommon Stock issuable upon Jxercise of

this Warrant immediately after the adjustment described in clause (A) ~ove.

For purposes ofthe foregoing, the aggregate consideration receivable by the Company in

connection with the issuance ofsuch shares ofCommon Stock or convertible securiti~s shall be . I

deemed to be equal to the sum ofthe net offering price (including the Fair-Market Value ofany

non-cash consideration and after deduction of any related expenses payable to third p~ies) of all

such securities plus the minimum aggregate amount, if any, payable upon exercise or conversion

of any such convertlole securities into-shares ofCommon Stock; and "Permitted Tra~sac(jons"

shall mean issuances (i) as consideration fot or to fund the acquisition of businesses ahdlor

related assets, (ii) in connection with employee benefit plans and compensation relatea

~angemen~ the ordm.ary c~urse and.consistent with past practic~ approved by th9 Board of

DIrectors, (m) m connectlon with a public or broadly marketed offenng and sale ofCpmmon

Stock or convertible securitiesfor cash conducted by the Company or its affIliates pwfsuant to

registration under the Securities Act or Rule 144A thereunder on a basis consistent w~lli capital

raising transactions by comparable fmancialinstitutions and (iv)in connection withtlie exercise

ofpreemptive rights on tenns existing as ofthe Issue Date. Any adjustment made putsuant to

this Section 13(B)shall become effective immediately upon the date ofsuch i$suanceJ

(C) Other Distributions. In case the Company shall fix a record date for the making

of a distribution to all holders ofshares ofits Common Stock ofsecurities, evidences bf

?tdebtedness, assets, cash, ri~ts; or warr~ (~xcl~dingOrdinary ?ash D~idends, ditidends of

lts Common Stock and other dlVldends or dlstributions referred to m SectlOn 13(A», 1P each

such case, the Exercise Price in effect prior to such record date shall be reduced imme~iatety

thereafter to the price determined by multiplying the Exercise Price in·effect immediately prior to

the reduction by the quotient of(x) the Market Price ofthe Common Stock on the lastltrading

day preceding the first date on which the Common Stock trades regular way on the pqncipal I

9

09l'11-Q041~ I"l-NYU'. 2691466.• I
national securities exchange on which the Common Stock is listed or admitted to trading without I

the right to receive such distribution, minus the amount ofcash and/or the Fair Mar~ Value of

the securities, evidences ofindebtedness, assets., rights or warrants to be so distribute, in respect

ofone share ofCommon Stock (s~ch amQunt and/or Fair Market Value, the "Per Sh~re Fair

Market Value") divided by (y) such Market Price on such date specified in clause (x)~ such

adjustment shall be made successively whenever such a record date is fixed In such ¢vent, the

munber ofShares issuable upon the exercise ofthis Warrant shall be increased to the number

obtained by dividing (x) the product of(1) the nUinl)er ofShares issuable upon the exercise of

this Warrant before such adjustment, and (2) the Exercise Price in effect immediatelyjpriorto the

distribution giving rise to this adjustment by (y) the new Exercise Price determined

accordance with the immediately preceding sentence. In the case of adjustment for a pash

dividend that is, or is coincident with. a regular quarterly cash divid:n~, the Per Shar:9 ~air

Market Val~e would be ~educed by ~e 'per share arnOlmt ofthe portiO? o~the. cas.h dlYldend that

would constitute an Ordmary Cash DIVidend In the event that such dIstnbution 15 not so made,

the Exercise Price and the-number ofShares issuable upon exercise ofthis Warrant thbn in effect

shall be readjusted, effective as ofthe date when the Board of Directors determines nJt to

distribute such shares, evidences ofindebtedness, assets, rights, cash or warrants, as t1ke case may

be, to the Exercise Price that would then be in effect and the number of Shares that w6uld then

be issuable upon exercise ofthis Warrant ifsuch record date had not been fixed I

(D) Certain Repurchases ofCommon Stock. In case the Company effects. Pro Rata

Repurchase ofCommon Stock, then the Exercise Price shall be reduced to the price determined

by multiplying the Exercise Price in effect immediately priorto the Effective Date of$uch Pro

Rata Repurchase by a fraction ofwhich the numerator shall be (0 the product of(x) ~e number

ofshares of Common Stock outstanding immediately before such Pro Rata Repurchase and (y)

the Market Price of a share ofCommon Stock on the trading day immediatelyprecedi¥:g the first

public announcement by the Company or any ofits Affiliates ofthe intent to ·effectsuch Pro Rata

Repurchase, minus (ii) the aggregate purchase price ofthe Pro Rata Repurchase, and dfwhich

!he de~ominat~ shall be the product of(i) the n~berofshares ofCommon Stock 0u1standing

unmedlately pnor to such Pro Rata Repurchase mmus the number ofshares ofComm0n Stock so I

repurchased and (ii) the Market Price pershare ofCOmmon Stock on the trading day I

immediately preceding the fIrst public announcement by the CompanyoT any orits Afiliates of

the intent to effect such Pro Rata Repurchase. In such event, the number ofshares ofCommon

Stock issuable upon the exercise ofthis Warrant shall be increased to the number obtalDed by

dividing (x) the product of(!) the number ofShares issuable upon the exercise ofthis ~arrant

before such adjustment, and (2) the Exercise Price in effect immediately prior to the Pro Rata

Repurchase giving rise to this adjustment by (y) the new Exercise Price detennined in

accordance with the immediately preceding$entence. For the avoidance of doubt, no mcrease to

the Exercise Price or decrease in the number of Shares issuable upon exercise ofthis Warrant

shall be made pursuant to this Section 13(D). I

(E) Business Combinations. In case of any Business Combination or reclaJsification

ofCommon Stock (other than a reclassifIcation ofCommon Stock referred to in Sectidn 13(A)),

the Warrantholder's right to receive Shares- upon exercise ofthis Warrant shall be con~ertedinto

the right to exercise this Warrant to acquire the number ofshares ofstock or othersecJrities or

property (including cash) which the Common Stock issuable (at the time ofsuch Busirless

Combination or reclassification) upon exercise ofthis Warrant immediately priorto subh

10

O9UII-OMI-4)I" I·NYOJ .16t1466.ll
Business Combination or reclassification would have been entitled to receive upon

consummation ofsuch Business Combination or reclassification; and in any such case, if

necessary, the provisions set fQrth-herein with respect to the rights and interests tbere¢er-ofthe

Warrantholdershall be appropriately _adjusted so as to be applicable, as neatly as maYI reasonably

be, to the Warrantholder's right to exercise this Wan-ant in exchange for any shares ofstock or

other securities or property pursuant to this paragraph. In determining the kind and Jnount of

stock, securities or the property receivable upon exercise ofthis Warrant followingthb . I

consummation ofsuch Business Combination, ifthe holders ofCQrnmon Stock have the right to

elect the kind or amount of consideration receivable upon consummation ofsuch Business

Combination; then the consideration that the Warrantholder shall be entitled to receiv~ upon

exercise shall be deemed to be the types and amounts of consideration received by th~ majority

ofall holders ofthe shares ofcommon stock that affIrmatively make an election (or ofall such

holders ifnone make an election).

(F) Rounding ofCalculations; Minimum Adjustments. All calculations under this

Section 13 shall be made to the nearest one-tenth (l/IOth) ofa cent or to the nearest onehundredth (lIlOOth) ofashare, as the case may be. Any provision ofthis Section 13 ~othe

contrary notwithstanding, no adjustment in the Exercise Price or the number of Share~ into

which this Warrant is exercisable shall be made ifthe amount ofsuch adjustment would be less

than $0.0 I or one-tenth (1I1Oth) of a share ofCommon Stock, but any such amount s~an be

carried forward and an adjustment with respect thereto shall be made at the time ofanli together

with any subsequent adjustment which, together with such amount and any other amo~nt or

amounts so carried forward, shall aggregate $0.01 or 1/IOth of a share ofCommon St<j>Ck, or

more. '

(G) Timing ofIssuance of Additional Common Stock Upon Certain Adjustments. In

any case in which the provisions ofthis Section 13 shall require that an adjustment Shtll become

effective immediately after a record date for an event, the Company may defer until ~e

occurrence ofsuch event (i) issuing to the Warrantholder ofthis Warrant exercised ~r such

record date and before the occurrence ofsuch event the additional shares ofCommon ~ock

issuable upon such exercise by reason ofthe adjustment required by such ~vent over ar? above

the shares ofCommon Stock issuable upon such exercise before giving effect to such adjustment

and (ii) paying to such Warrantholder any amount of cash in lieu of a fractional share pf

Common Stock; provided, however, that the Company upon request shall deliver to such

Warrantholder a due bill or other appropriate instrwnent evidencing such Warranthol+r's right

to receive such additional-shares, and such cash, upon the occurrence ofthe event reqttiring such

adjustment I

(H) Completion ofQualified Equity Offering. In the event the Company (1r any

successor by Business Combination) completes one or more Qualified Equity Offerings on or

priorto December 31, 2009 that resuh in the Company (or any such successor ) recei~g

aggregate gross proceeds ofnot less than 100% ofthe aggregate liquidation preferencJ ofthe

Preferred Shares (and any preferred stock issued by any such successorto the Origin~

Warrantholder under the CPP), the number ofshares ofCommon Stock underlying th~ portion of

this Warrant then held by the Original Warrantholdershall be thereafter reduced by a number of

shares ofCommon Stock equal to the product of(i) 0.5 and (ii) the number ofshares 1nderlYing

11

09••11-00...0 I"l..NYtI]. 2692466.11
the Warrant on the Issue Date (adjusted to take into account all other theretofore made

adjustments pursuant to this Section 13). !

(I) Other Events. For so long as the Original Warrantholder holds this W8rrant or

an~ portion ~reof, any ,event oc~urs as to which tm: provisions o~th~ Section 13 ~e not

strictly appbcable or, ifstnctly appbcable, would not, m the good faith Jud.gment oftlie Board of

Directors ofthe Company, fairly and adequately protect the purchase rights ofthe wlkants in

accordance with the essential intent and principles ofsuch provisions, then the Board lof

Directors shall make such adjustments in the application ofsuch provisions, in accordance with

such essential intent and principles, as shall be reasonably necessary, in the good faitH opinion of

the Board ofDirectors, to protect such purchase rights as aforesaid. The Exercise Pribe or the

number ofShares into which this Warrant is exercisable shaD not be adjusted in the etent of a

change in the par value ofthe Common Stock or a change in the jurisdiction of inco~orationof

theCompany.. !

(J) Statement Regarding Adjustments. Whenever the Exercise Price or the number of

Shares into which this Warrant is exercisable shall be adjusted as provided in Section113, the

Company shall forthwith file at the principal office ofthe- Company a statement show~g in

reasonable detail the facts requiring such adjustment and the Exercise Price that shall be in effect

and the number of Shares into which this Warrant shall be exercisable after such adjtJtment, and

the Company shall also cause a copy ofsuch statement to be sent by mail, IlI'St class ~stage

prepaid, to each Watrantholder at the address appearing in the Company's records. I

(K) Notice ofAdjustment Event. In the event that the Company shall prowse to take

any action ofthe type described in this Section 13 (but only ifthe action ofthe type ~cribed in

this. S~on 13 wo~~d resul~ in an adjustment the Exercise Pri~ ~r the number of ~fare~ into

which thIS Warrant IS exerClSable or a change m the type ofsecuritIes or property to 11 d.elivered

upon exercise ofthis Warrant), the Company shall give notice to the Warrantholder, in the

mamer set forth in Section 13(1), which notice shall specify the record dale, ifany, with respect

to any such action and the approximate date on which such action is to take place. SU~h notice

shall also set forth the facts with respect thereto as shall be reasonably necessary to in1icate the

effect on the Exercise Price and the number, kind or class·ofshares or other securities or property

which shall be deliverable upon exercise ofthis Warrant. Inthe case of any action which would I

require the fixing of a record date, such notice shall be given at least 10 days priorto the date so

fixed, and in case of all other action, such notice shall be given at least 15 days prior t6 the taking

ofsuch proposed action.. Failure to give such notice, or any defect therein, shall notJrect the

legality or validity ofany such action. I

(L) Proceedings Prior to Any Action Requiring Adjustment As a conditioJ precedent

to the taking of any action which would require an adjustment pursuant to this Sectio~ 13, the

Company shall take any action which may be necessary, including obtaining regulato~, New

York Stock Exchange, NASDAQ Stock Market or other applicable national securitieslexchange

or stockholder approvals or exemptions, in order that the Company may thereafter validly and

legally issue as fully paid and nonassessable all shares ofCommon Stock that the Wa¢m;tholder

is entitled to receive upon exercise ofthis Warrant pursuant to this Section 13. I

12

1"......cN).II.cJI991-..VOJ 1692.&66.11
(M) Adjustment Rules. Any adjustments pursuant to this Section 13 shall be made

successively whenever an event referred to herein shall occur. Ifan adjustment in EX¢rcise Price

made hereWlder would reduce the Exercise Pric~ to an amount below par value ofthel Common

Stock, then such adjustment in Exercise Price made hereunder shall reduce the Exerc~e Price to

the par value ofthe Common Stock.

1'4. Exchange. At any time following the date on wbich the shares ofCommon Stock

o.fthe Company are no longer listed o...r admitted totrading on a national securtti. ··es. e~jhange (other than in connection with any BusineS$ Combination), the Original Warratttholjr may

cause the Company to exchange all or a portion oltbis Warrant for an economic interest (to be

detennined by the Original Warrantholder afterconsuhation with the Company) ofth¢ Company

classified as permanent equity under U.S. GAAP having a value equal to the Fair Madeet Value

ofthe portion ofthe Warrant so exchanged. The Original Warrantholder shall calculfte any Fair

Market Value required to be calculated pursuant to Section 14, which shall not subject to

the Appraisal Procedure.

15. No Impairment. The Company will not, by amendment ofits Charter ~rthrough

any reorganizatiOrt, transfer of assets, consolidation, merger, dissolutiott, issue or sale :of

securities or any other voluntary action, avoid orseek to avoid the observance or perfOrmance of

any ofthe terms to be observed or performed hereunder by the Company, but will at aU times in

good faith assist in the carrying out of all the provisions ofthis Warrant and in taking pfall such

action as may be necessary or appropriate in order to protect the rights oftheWarrantJ,lolder.

16. Governing Law. This Warrant will be governed by and construed i-.

accordance with the federal law ofthe United States if and to the extent such law !is

applicable, and otherwise in accordance with the laws ofthe State of New York applicable

to contracts made and to be performed entirely within such State. Each ofthe Co~pany

and the Warrantholder agrees (a) to submit to the exclusive jurisdiction and ven~e ofthe

United States District Court for the District ofColumbia for any civil action, suit,or

proceeding arising out of or relating to this Warrant or the transactions contemplated

hereby, and (b) that notice may be served upon the Company at the address in Sektion 20

below and upon theWarrantholder at the address for the Warrantholder set fort~ in the

registry maintained by the Company pursuant to Section 9 hereof. To the extent permitted

by applicable law, each ofthe Company and the Warrantholder hereby unc:ondit~onally

waives trial by jury in any civil legal action or pl"Oceeding relating to the Warrant or the

transactions contemplated hereby or thereby. I

17. Binding Effect. l1tis Warrant shall be binding upon any successors or assigns of

I the Company.

18. Amendments. This Warrant may be amended and the observance ofany tenn of

this Warrant may be waived only with the written consent ofthe Company and the I

Warrantholder.

19 . Prohibited Actions. The Company agrees that it will not take any action which I

would entitle the Wammtholderto an adjustment ofthe Exercise Price ifthe total num~er of

shares ofCommon Stock issuable after such action upon exercise ofthis Warrant, toge!ther with

13

OIJIIII-on.&I..oI9YI..NYO).169J4".11
all shares ofCommon Stock then outstanding and all shares ofCommon Stock then issuable

upon the exercise of all outstanding options, warrants, conversion and other rights, wbuld exceed

the total number ofshares ofCommon Stock then authorized by its Charter.

20. Notices. Any notice, re.quest, 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 ofdelivery ifdelivered personally. or by facsimile, upon confmnation ofreceip~ or (b) on

the second business day following the date ofdispatch ifdelivered by a recognized n~xtday

courier service. All notices hereunder.shall be delivered as set forth in Item 8 of Schedule A

hereto, or pursuant to such other instructions as may be designated in writing by the party to

receive such notice.

21. Entire Aereement. This Warrant, the forms attached hereto and Sche4ule A

hereto (the terms ofwhich are incorporated by reference herein), and the Letter Agreement

(including all documents incorporated therein), contain the entire agreement between!the parties

with respect to the subj eet matter hereofand s.upcrSede allprior and contemporaneo,*

arrangements or undertakings with respect thereto.

[Remainder ofpage intentionally left blank]

14

119."I..oo~I~ 1'91·NYuJ.2.6'11466.11
[Form ofNotice ofExercise)

Date:----

TO: DCBR Holdings, Inc.

RE: Election to Purchase Common Stock

The undersigned, pursuant to the provisions set forth in the attached Warrant, h~reby

agrees to subscribe for and purchase the number ofshares ofthe Common Stock set f01.h below

covered by such Warrant. The undersigned, in accordance with Section 3 ofthe Warr~t, hereby

agrees to pay the aggregate Exercise Price for such shares ofCommon Stock in the mariner set

forth below. A new warrant evidencing the remaining shares ofCommon Stock coveted by such

Warrant, but not yet subscribed for and purchased, ifany, should be issued in the name s~t forth

below.

Number ofShares ofCommon Stock _

Method ofPayment ofExercise Price (note if casWess exercise pursuant to Section 3(i) ofthe

Warrant or cash exercise pursuant to Section 3(ii) ofthe Warrant, with consent ofthe COmpany

and the Warrantholder)

Aggregate Exercise Price:

Holder: _

By:

Name: ------

Title:

O'I..I-OO.I.(II9'I·NY0l.2.'Z•••. 11 15
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by

a duly authorized officer.

COMPANY:( UCBH Holdings, Inc.

By: ,\

Naml: T~ S. Wu

Title: Chairman, President and CEO

Attest:

By:

Name: Eileen Romero

Title: Secretary

[Signature Page to Warrant)

16
SGHEDULEA

Item 1

Name: UCBH Holdings, Inc.

Corporate or other organizational form: Corporation

Jurisdiction of organization: Delaware

Item 2

Exercise Price: $5.71

Item 3

Issue Date: November 14,2008

Item 4

Amount oflast dividend declared prior to the Issue Date:

$0.04 per share ofComrnon Stock, $21.25 per share ofSeries B Preferred StoCk

Item 5

Date of Letter Agreement between the Company and the United States Department o~the Treasury:

November 14,2008 '

Item 6

Number ofshares ofComrnon Stock: 7,847,732

Item 7

Company's address:

555 Montgomery Street

San Francisco, CA 94111

Item 8

Notice information:

UCBH Holdings, Inc.

S55 Montgomery Street

San Francisco, CA 94111

Attn: Dennis A. Lee, Esq.