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 fOith on Schedule A

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

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

"Purchased Securities") and the United States Department ofthe Treasury (the "Investor")

intends to purchase from the Company the Purchased Securities.

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

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superseded by the terms set forth herein or in the Schedules hereto, the provisions contained in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

ofany 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 Agreement.

This letter agreement may be executed in any number ofseparate counterparts, each such

counterpart being deemed to be an original instrument, and all such counterparts will together

constitute the same agreement. Executed signature pages to this letter agreement may be

delivered by facsimile and such facsimiles will be deemed as sufficient as if actual signature

pages had been delivered.

* * *

095331-0002-10879·NY02.2690240.4
In witness whereof, this letter agreement has been duly executed and delivered by the

duly authorized representatives ofthe parties hereto as ofthe date written below.

UNITED STATES DEPARTMENT OF THE

TREASURy/

By: 7V;~' Name: NUt.-- IO>S"'~'

Title: {Me.e..tN\... p.r:! IrT,4~ S~c.Lf-~~ f¥2-

F,,.JAf'JfAltt,...- sr/411 1(,r'T"]

COMPANY: MORGAN STANLEY

By: _

Name:

Title:

Date: 10 ~-=:2""-()()"-~=----
In witness whereof, this letter agreement has been duly executed and delivered by the

duly authorized representatives ofthe parties hereto as ofthe date written below.

UNITED STATES DEPARTMENT OF THE

TREASURY

By: _

Name:

Title:

Date: _
095331-0002-1 0879·N Y02,2690240 4

SECURITIES PURCHASE AGREEMENT

EXHIBIT A
095331-Q002-10033-NY02.2689565.9

SECURITIES PURCHASE AGREEMENT

STANDARD TERMS

EXHIBIT A
TABLE OF CONTENTS

Page

Article I

Purchase; Closing

1.1 Purchase.. .. .. .. I

1.2 Closing 2

1.3 Interpretation 4

Article II

Representations and Warranties

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 ofWarrant 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

-i095331-0002-10033 -NY02.2689565.9
Article V

Miscellaneous

5.1 Termination 34

5.2 Survival ofRepresentations and Warranties 34

5.3 Amendment 34

5.4 Waiver of Conditions 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

5.1 0 No Third Party Beneficiaries 36

-ii09S331-0002-10033-NY02.2689S6S.9
ANNEXA:

ANNEXB:

ANNEXC:

ANNEXD:

LIST OF ANNEXES

FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK

FORM OF WAIVER

FORM OF OPINION

FORM OF WARRANT

-iii095331-0002-10033 -NY02.2689565.9
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 ofDesignations

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

-iv095331-0002-10033-NY02.2689565.9

Location of

Definition

5.7(b)

Recitals

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)(i)

5.7(b)

2.2(n)

Recitals

1.2(d)(iv)

2.2(n)

2.1 (b)

4.9(c)(ii)

2. 1(a)

1.2(c)

4.5(k)(i)

4.5(k)(ii)

4.5(g)(i)

3.5(b)

Recitals

Recitals

4.8(c)

5.7(c)

2.1(b)

Recitals

5.7(c)
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; Rule 415

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

-v095331-o002·\0033-NY02.2689565.9

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

Recitals

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 Relief Program Capital Purchase

Program ("CPP");

WHEREAS, an eligible financial institution electing to participate in the CPP and issue

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

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

Agreement - Standard Terms;

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

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

economy;

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

the terms of residential mortgages as appropriate to strengthen the health 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 Letter

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 price set forth

on Schedule A (the "Purchase Price").

095331-0002-100JJ-NY02.2689565.9
1.2 Closing.

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

place, time and date as shall be agreed between the Company and the Investor. The time and date

on which the Closing occurs is referred to in this Agreement as the "Closing Date".

(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 approvals or

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

(collectively, "Governmental Entities") required for the consummation ofthe Purchase shall

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

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

law, if any, shall have expired and (ii) no provision ofany 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 subject to the

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

conditions:

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

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

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

all material respects as though made on and as ofthe Closing Date (other than

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

representations and warranties shall be true and correct in all material respects as ofsuch

other date) and (z) Sections 2.2(h) through (v) (disregarding all qualifications or

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

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

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

their terms speak as ofanother 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 be so true and

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

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

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095331·0002·IOO33·NY02.2689565.9
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 behalfofthe

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 similar

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

A (the "Certificate ofDesignations") and such filing shall have been accepted;

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

bonus, incentive and other benefit plans, arrangements and agreements (including golden

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

respect to its Senior Executive Officers (and 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 Agreement 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 l.2(d)(iv)(A) has been

satisfied;

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

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

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

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

ofSection 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 Investor 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

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095331-0002-10033-NY02.2689565.9
(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 otherwise

indicated. The terms defined in the singular have a comparable meaning when used in the plural,

and vice versa. References to "herein", "hereof', "hereunder" and the like refer to this

Agreement as a whole and not to any particular section or provision, unless the context requires

otherwise. The table of contents and headings contained in this Agreement are for reference

purposes only and are not part 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 product 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.] 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 consolidated

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

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

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

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

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

or any outbreak or escalation of hostilities, declared or undeclared acts 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 accounting

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

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

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

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

-4-

095331-0002-10033 -NY02.2689565.9
or occurrences to the extent that such changes or occurrences have or would reasonably be

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

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

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

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

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

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

ability 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 Disclosee!' means information set forth or incorporated in the

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

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

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

under Sections 13(a), 14(a) or 15(d) 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 Previously Disclosed,

the Company represents and warrants to the Investor that as ofthe Signing Date and 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 conduct its

business in all material respects as currently conducted, and except as has not, individually or in

the aggregate, had and would not reasonably be expected to have a Company Material Adverse

Effect, has been duly qualified as a foreign corporation for the transaction of business and is in

good standing under the laws of each otherjurisdiction in which it owns or leases properties or

conducts any business so as to require such qualification; each subsidiary ofthe Company that is

a "significant subsidiary" within the meaning ofRule I-02(w) ofRegulation S-X under the

Securities Act of 1933 (the "Securities Act") has been duly organized and is validly existing in

good standing under the laws of itsjurisdiction 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 the outstanding

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

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. The

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 rights (and

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

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

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

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09S33I-0002-IOO33-NY02.2689S6S.9
specified on Schedule B, and the Company has not made any other commitment to authorize,

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

shares 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 B and (ii) shares

disclosed on Schedule B.

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

and, when issued and delivered pursuant to this Agreement, such Preferred Shares will be duly

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

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

Preferred Stock, whether or not issued or outstanding, with respect to the payment ofdividends

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 legally 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 ofcreditors' 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 issuance upon

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

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

stockholders set forth on Schedule C.

(e) Authorization, Enforceability.

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

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

the Warrant and the consummation ofthe transactions contemplated hereby and thereby

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

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

the Company, subject, in each case, if applicable, to the approvals ofits stockholders set

forth on Schedule C. This Agreement is a valid and binding obligation ofthe Company

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

Exceptions.

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

Agreement and the Warrant and the consummation ofthe transactions contemplated

hereby and thereby and compliance by the Company with the provisions hereof and

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095331-0002-10033 -NY02.2689565.9
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 termination 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 obligation to

which the Company or any Company Subsidiary is a party or by which it or any

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

Subsidiary or any 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

(B), for those occurrences that, individually or in the aggregate, have not had and would

not reasonably be expected to have a Company Material Adverse Effect.

(iii) Other than the filing ofthe Certificate ofDesignations with the Secretary

ofState ofitsjurisdiction 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 ofany

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 of Directors 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 Company's Charter and

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

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

Company has taken all actions necessary to render any stockholders' rights plan 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 completed

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

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095331-0002-10033-NY02.2689565.9
Report on Form 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 Effect.

(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 prior to the Signing Date, as ofthe date ofsuch amendment) and the consolidated

resuhs 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 consistent basis

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

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

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

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 all fees and

assessments due and payable in connection therewith, except, in each case, as would not,

individually or in the aggregate, reasonably be expected to have a Company Material

Adverse Effect. As oftheir respective dates offiling, the Company Reports complied in

all material respects with all statutes and applicable rules and regulatioris 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 untrue statement

ofa 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 requirements of

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

Company Reports were complete and accurate in all material respects as oftheir

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

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

or 906 ofthe Sarbanes-Oxley Act of2002.

(ii) The records, systems, controls, data and information ofthe Company and

the Company Subsidiaries are recorded, stored, maintained and operated under means

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

not) that are under the exclusive ownership and direct control ofthe Company or the

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09533 1-0002·!OO33·NY02.2689565.9
Company Subsidiaries or their accountants (including all means ofaccess thereto and

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

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

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

implemented and maintains disclosure controls and procedures (as defined in

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

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

executive officer and the chieffinancial officer ofthe Company by others within those

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

Date, to the Company's outside auditors and the audit committee ofthe Board of

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

operation ofinternal controls over financial reporting (as defined in Rule 13a-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 significant role in

the Company's internal controls over financial reporting.

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

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

otherwise) which are not properly reflected or reserved against in the Company Financial

Statements to the extent required to be so reflected or reserved against in accordance with

GAAP, except for (A) liabilities that have arisen since the last fiscal year end in the ordinary and

usual course ofbusiness 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 ofSecurities. Neither the Company nor any person acting on its behalf

has taken any action (including any offering of any securities ofthe'Company under

circumstances which would require the integration ofsuch offering with the offering of any 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 any ofthe

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

the Securities Act.

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

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

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

action, suit, investigation or proceeding, against the Company or any Company Subsidiary 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 by any

Governmental Entity with respect to any report or relating to any examinations or inspections of

the Company or any Company Subsidiaries.

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

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

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095JJI-0002-IOOJJ-NY02.2689565.9
Company Subsidiaries have all permits, licenses, franchises, authorizations, orders and approvals

of, and have made all filings, applications and registrations with, Governmental Entities that are

required in order to permit them to own or lease their properties and assets and to carry on their

business as presently conducted and that are material to the business 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, and none ofthem

is, to the knowledge ofthe Company, under investigation with respect to or, to the knowledge of

the Company, have been threatened to be charged with or given notice of any violation of, any

applicable domestic (federal, state or local) or foreign law, statute, ordinance, license, rule,

regulation, policy or guideline, order, demand, writ, injunction, decree 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 expected to have,

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

benefit plan" (within the meaning of Section 3(3) ofthe Employee Retirement Income Security

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

officer or director ofthe Company or any member of its "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 is 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 "Plan") has been maintained in compliance with its terms and with

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

(B) with respect to each Plan subject to Title IV ofERISA (including, for purposes ofthis clause

(B), any plan subject to Title IV ofERISA that the Company or any member of its Controlled

Group previously maintained or contributed to in the six years prior to the Signing Date), (1) no

"reportable event" (within the meaning of Section 4043(c) of ERISA), other than a reportable

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

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

"accumulated funding deficiency" (within the meaning of Section 302 ofERISA or 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 incur, any

liability under Title IV ofERISA (other than contributions to the Plan or premiums to the PBGC

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

"multiemployer plan", within the meaning ofSection 4001(c)(3) ofERISA); and (C) each Plan

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

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095331-0002-1oo33-NY02.2689565.9
determination letter from the Internal Revenue Service with respect to its qualified status that has

not been revoked, or such a determination letter has been timely applied for but not received by

the Signing Date, and nothing has occurred, whether by action or by failure to act, which could

reasonably be expected to cause the loss, revocation or denial ofsuch qualified status or

favorable determination 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 Tax returns

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

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

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

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

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

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

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

interest or penalty, imposed by any Governmental Entity.

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

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

Company Subsidiaries have good and marketable title to all real properties and all other

properties and assets owned by them, in each case free from liens, encumbrances, claims and

defects that would affect the value thereof or interfere with the use made or to be made thereof

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

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

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

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

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

reasonably be expected to have a Company Material Adverse Effect:

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

any nature seeking to impose, or that would reasonably be expected to result in the

imposition of, on the Company or any Company Subsidiary, any liability relating to the

release of hazardous substances as defined under any local, state or federal environmental

statute, regulation or ordinance, including the Comprehensive Environmental Response,

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

threatened against the Company or any Company Subsidiary;

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

proceeding, claim or action; and

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

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

party imposing any such environmental liability.

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095331-0002-10033-NY02.2689565.9
(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 agreement,

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

or similar undertaking to, or is subject to any capital directive by, or since December 31, 2006,

has adopted any board resolutions at the request of, any Governmental Entity (other than the

Appropriate Federal Banking Agencies with jurisdiction over the Company and the Company

Subsidiaries) that currently restricts in any material respect the conduct 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 policies or

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

sentence, a "Regulatory Agreement'), nor has the Company or any Company Subsidiary been

advised since December 31, 2006 by any such Governmental Entity that it is considering issuing,

initiating, ordering, or requesting any such Regulatory Agreement. The Company and each

Company Subsidiary are in compliance in all material respects with each Regulatory Agreement

to which it is party or subject, and neither the Company nor any Company Subsidiary has

received any notice from any Governmental Entity indicating that either the Company or any

Company Subsidiary is not in compliance in all material respects with any such Regulatory

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

agency" with respect to the Company or such Company Subsidiaries, as applicable, as defined in

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

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

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

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

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

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

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

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

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

Adverse Effect.

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095331-0002-10033-NY02.2689565.9
(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 of ownership 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 Subsidiaries received

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

them has materially infringed, diluted, misappropriated or violated, 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 entitled to any

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

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

arrangements made by or on behalfofthe 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 parties will use

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

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

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

enable consummation ofthe transactions contemplated hereby and shall use commercially

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

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

Schedule C, then the Company shall comply with this Section 3.l(b) and Section 3.1 (c). The

Company shall call a special meeting ofits stockholders, as promptly as practicable following

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

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

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

increase the number ofauthorized shares ofCommon Stock to at least such number as shall be

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

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095331-0002-10033 -NY02.2689565.9
other provisions ofthis Section 3.l(b) and Section 3.l(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 Closing) 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 such

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

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

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

Investor promptly 0 f the receipt ofany comments from the SEC or its staffwith respect 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 ofits representatives, on the one hand, and the

SEC or its staff, on the other hand, with respect to such proxy statement. If at any time 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 behalf 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 practicable prepare

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

Investor with a reasonable opportunity to comment thereon. In the event that the approval ofany

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 approval of)

each such proposal at a meeting ofits stockholders no less than once in each subsequent sixmonth period beginning on January 1,2009 until all such approvals are obtained or 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 stockholders

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 time of any

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

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

circumstances under which they are made, not misleading.

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

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

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

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

counsel.

3.3 Sufficiency ofAuthorized Common Stock; Exchange Listing.

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095331-0002-10033-NY02.2689565.9
(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 securities exchange

as promptly as practicable following such request.

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

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

aware and which would reasonably be expected to cause any representation or warranty 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 available to the

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

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

3.5 Access, Information and Confidentiality.

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

Preferred Shares having an aggregate liquidation value ofless than 10% ofthe Purchase Price,

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

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

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

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

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

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

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

be conducted during normal business hours and in such manner as not to interfere unreasonably

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

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095331-0002-JOO33-NY02.2689565.9
expected to cause a violation of any agreement to which the Company or any Company

Subsidiary is a party or would cause a risk of a loss ofprivilege to the Company or 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 reasonable best

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

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

Company or its representatives pursuant to this Agreement (except to the extent that such

information can be shown to have been (i) previously known by such party on a non-confidential

basis, (ii) in the public domain through no fault ofsuch party or (iii) later lawfully acquired from

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

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

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

subpoena or similar legal process.

Article IV

Additional Agreements

4.1 Purchase for Investment. The Investor acknowledges that the Purchased Securities

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

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

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

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

securities laws, (b) will not sell or otherwise dispose ofany ofthe Purchased Securities or the

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

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

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

ofevaluating the merits and risks ofthe Purchase and ofmaking an informed investment

decision.

4.2 Legends.

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

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

"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN

REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE

SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD

OR OTHERWISE DISPOSED OF EXCEPT WlllLE A REGISTRATION

STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND

APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION

FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS."

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095331-0002-10033-NY02.2689565.9
(b) The Investor agrees that all certificates or other instruments representing the

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

"THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON

TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE

AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES AND THE

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

ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT

BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH

SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE

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 following effect:

"THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS

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

INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY

OTHER GOVERNMENTAL AGENCY.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN

REGISTERED UNDER THE SECURITIES ACT OF 1933', AS AMENDED (THE

"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY

NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE

A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER

SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO

AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.

EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS

INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE

EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE

144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED

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

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

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

OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS

INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT

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

AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE

FOR RESALE PURSUANT TO RULE I44A, TO A PERSON IT REASONABLY

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

]44A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN

ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER

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

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

OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION

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095331.()()()2·10033-NY02.2689565.9
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL

GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS

INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE

EFFECT OF THIS LEGEND."

(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 accordance

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

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

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

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

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

certificates or other instruments.

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

transfer or lease all or substantially all 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 shall be

permitted to transfer, sell, assign or otherwise dispose of("Transfer') all or a portion ofthe

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

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

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

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

Warrant Shares (as such number may be adjusted from time to time pursuant to Section 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 the Purchase

Price (and the purchase price paid by the Investor to any such successor for securities ofsuch

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

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

Offerint' means the sale and issuance for cash by the Company to persons other than 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 case, qualify as

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

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

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

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

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095331-0002- lOO33-NY02.2689565.9
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 prepare 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 obligated 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 Statemenf'). 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 facilitate such

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

Company shall not be required to facilitate an underwritten offering ofRegistrable

Securities unless the expected gross proceeds from such offering exceed (i) 2% ofthe

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. The

lead underwriters in any such distribution shall be selected by the Holders ofa majority

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

permitted under applicable law, such Holders shall consider the qualifications ofany

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

distribution.

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09533 J..QOO2-I0033-NY02.2689565.9
(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 ofDirectors, it would be materially

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

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

defer such registration for a period of not more than 45 days after receipt ofthe 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 Company has

generally exercised (or is concurrently exercising) similar black-out rights against 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-month period.

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

available, the Company proposes to register any ofits equity securities, other than a

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

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

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

all other Holders of its intention to effect such a registration (but in no event less than ten

days prior to the anticipated filing date) and will include in such registration all

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

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

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

withdraw its Registrable Securities from such Piggyback Registration by giving written

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

business day prior to the planned effective date ofsuch Piggyback Registration. 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 proposed to be

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

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

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 person's

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

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

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

through such underwriting) enter into an underwriting agreement in customary form with

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

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

person in connection with any registration. If any participating person disapproves ofthe

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

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095331·0002·I0033·NY02.2689565.9
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 under the Shelf

Registration Statement pursuant to Section 4.5(a)(ii) or (y) a Piggyback Registration

under Section 4.5(a)(iv) relates to an underwritten offering on behalf ofthe Company,

and in either case the managing underwriters advise the Company that in their 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 opinion 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 proposes to 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 Section 4.5(a)(iv), as

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

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

with respect to its securities that is inconsistent with the order ofpriority contemplated

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

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

(b) Expenses 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 offering or sale price

ofthe securities so registered.

(c) Obligations ofthe Company. The Company shall use its reasonable best efforts,

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

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

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

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

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

distribution ofRegistrable Securities pursuant to an effective ShelfRegistration Statement, the

Company shall, as expeditiously as reasonably practicable:

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

proposed offering ofRegistrable Securities pursuant to an effective registration

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

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095331-0002-10033-NY02.2689565.9
such prospectus supplement current until the securities described therein are no longer

Registrable Securities.

(ii) Prepare and file with the SEC such amendments and supplements to the

applicable registration statement and the prospectus or prospectus supplement used in

connection with such registration statement as may be necessary to comply with the

provisions ofthe Securities Act with respect to the disposition ofall securities 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 supplement thereto

(including in each case all exhibits) and of a prospectus, including a preliminary

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

documents as they may reasonably request in order to facilitate the disposition of

Registrable Securities owned or to be distributed by them.

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

by such registration statement under such other securities or Blue Sky laws ofsuch

jurisdictions as shall be reasonably requested by the Holders or any managing

underwriter(s), to keep such registration or qualification in effect for so long as such

registration statement remains in effect, and to take any other action which may be

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

jurisdictions ofthe securities owned by such Holder; provided that the Company shall not

be required in connection therewith or as a condition thereto to qualify to do business or

to file a general consent to service ofprocess in any such states or jurisdictions.

(v) Notify each Holder ofRegistrable Securities at any time when a

prospectus relating thereto is required to be delivered under the Securities Act 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 fact required to

be stated therein or necessary to make the statements therein not misleading in light of

the circumstances then existing.

(vi) Give written notice to the Holders:

(A) when any registration statement filed pursuant to Section 4.5(a) or

any amendment thereto has been filed with the SEC (except for any amendment

effected by the filing of a document with the SEC pursuant to the Exchange Act)

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

become effective;

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

registration statement or the prospectus included therein or for additional

information;

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09533I-0002-IOO33-NY02.2689565.9
(C) ofthe issuance by the SEC of any stop order suspending the

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

that purpose;

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

notification with respect to the suspension ofthe qualification ofthe Common

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

for such purpose;

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

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

registration statement in order to make the statements therein not misleading

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

prospectus until the requisite changes have been made); and

(F) ifat any time the representations and warranties ofthe Company

contained in any underwriting agreement contemplated by Section 4.5(c)(x) cease

to be true and correct.

(vii) Use its reasonable best efforts to prevent the issuance or obtain the

withdrawal of any order suspending the effectiveness of any registration statement

referred to in Section 4.5(c)(vi)(C) at the earliest practicable time.

(viii) Upon the occurrence of any event contemplated by Section 4.5(c)(v) or

4.5(c)(vi)(E), promptly prepare a post-effective amendment to such registration statement

or a supplement to the related prospectus or file any other required document so that, as

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

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

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

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

to suspend the use ofthe prospectus until the requisite changes to the prospectus 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 ofsuch

prospectus (at the Company's expense) other than permanent file copies then 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.

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

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

respect to the transfer ofphysical stock certificates into book-entry form in accordance

with any procedures reasonably requested by the Holders or any managing

underwriter(s).

(x) If an underwritten offering is requested pursuant to Section 4.5(a)(ii), enter

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

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095331·0002·\OO33-NY02.2689565.9
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 Securities, 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 form, substance and scope,

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

furnish the underwriters with opinions ofcounsel to the Company, addressed to the

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

opinions requested in underwritten offerings, (C) use its reasonable best efforts to obtain

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

(and, if necessary, any other independent certified public accountants of any business

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

in the ShelfRegistration Statement) who have certified the financial statements included

in such ShelfRegistration Statement, addressed to each ofthe managing underwriter(s), if

any, such letters to be in customary form and covering matters ofthe type customarily

covered in "cold comfort" letters, (0) ifan underwriting agreement is entered into, the

same shall contain indemnification provisions and procedures customary in underwritten

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

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

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

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

ofthe representations and warranties made pursuant to clause (i) above and to evidence

compliance with any customary conditions contained in the underwriting agreement or

other agreement entered into by the Company.

(xi) Make available for inspection by a representative ofHolders that are

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

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

normally kept, during reasonable business hours, fmancial and other records, 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 conducted in

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

managing unQerwriter(s), attorney or accountant in connection with such Shelf

Registration Statement.

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

listed on each national securities exchange on which similar securities issued by the

Company are then listed or, if no similar securities issued by the Company are then listed

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

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095331-0002·10033 -NY02.2689565.9
Registrable Securities to be listed on such securities exchange as the Investor may

designate.

(xiii) Ifrequested by Holders ofa 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 all 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 satisfying 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 circumstances exist

that make inadvisable use ofsuch registration statement, prospectus or prospectus supplement,

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/or such

Holder shall deliver to the Company (at the Company's expense) all copies, other than

permanent file copies then in the Investor and/or such Holder's possession, 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 be in effect in

any 12-month period shall not exceed 90 days.

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

securities held by such Holder (and its Affiliates, partners, members and former members) shall

not be available unless such securities are Registrable Securities.

(f) Furnishing Information.

(i) Neither the Investor nor any Holder shall use any free writing prospectus

(as defined in Rule 405) in connection with the sale ofRegistrable Securities without the

prior written consent ofthe Company.

(ii) It shall be a condition precedent to the obligations ofthe Company to take

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

underwriters, if any, shall furnish to the Company such information regarding

themselves, the Registrable Securities held by them and the intended method of

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09S331-0002-10033-NY02.2689S6S.9
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, claims,

damages, actions, liabilities, costs and expenses), joint or several, arising out ofor 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 such Holder (or

any amendment or supplement thereto); or any omission to state therein a material fact

required to be stated therein or necessary to make the statements therein, in light 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

ofor is based upon (A) an untrue statement or omission made in such registration

statement, including any such preliminary prospectus or final prospectus contained

therein or any such amendments or supplements thereto or contained in any free writing

prospectus (as such term is defined in Rule 405) prepared by the Company or authorized

by it in writing for use by such Holder (or any amendment or supplement thereto), in

reliance upon and in conformity with information regarding such Indemnitee or its plan

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 such

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

such Indemnitee "by means of' (as defmed in Rule 159A) a "free writing prospectus" (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, costs or

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

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

contribute to the amount paid or payable by such Indemnitee as a result ofsuch 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 Company, on the

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

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

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095331.QOO2-10033-NY02.2689565.9
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 other factors,

whether the untrue statement of a material fact or omission to state a material fact relates

to information supplied by the Company or by the Indemnitee and the parties' relative

intent, knowledge, access to information and opportunity to correct or prevent such

statement or omission; the Company and each Holder agree that it would not be just and

equitable if contribution pursuant to this Section 4.5(g)(ii) were determined by pro rata

allocation or by any other method of allocation that does not take account ofthe equitable

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

misrepresentation (within the meaning of Section 11(f) ofthe Securities Act) 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 to a transferee

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

Securities other than Preferred Shares, a market value, no less than an amount equal 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 Company 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 Common Stock on

the national securities exchange on which the Common Stock is listed or admitted to trading on

the last trading day prior to the proposed transfer, and the "market value" for the Warrant (or any

portion thereof) shall be the market value per share 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 ofRegistrable Securities

by the Investor or other Holders pursuant to this Section 4.5, the Company agrees not to effect

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

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

Registration) covering, in the case ofan underwritten offering ofCommon Stock or Warrants,

any ofits equity securities or, in the case of an underwritten offering ofPreferred Shares, any

Preferred Stock ofthe Company, or, in each case, any securities convertible into or exchangeable

or exercisable for such securities, during the period not to exceed ten days prior and 60 days

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

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

agrees to cause such 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 days as may be

requested by the managing underwriter. "Special Registration" means the registration of(A)

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

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

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

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09S33I-0002-I0033-NY02.2689S6S.9
customers, lenders or vendors ofthe Company or Company Subsidiaries or in connection with

dividend reinvestment plans.

U) Rule 144; Rule l44A. 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 defmed in Rule l44(c)(I) or any similar or analogous rule promulgated under the

Securities Act, at all times after the Signing Date;

(ii) (A) file with the SEC, in a timely manner, all reports and other documents

required ofthe Company under the Exchange Act, and (B) if at any time the Company is

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

information necessary to permit sales pursuant to Rule l44A (including the information

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

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

furnish to the Investor or such Holder forthwith upon request: a written statement by the

Company as to its compliance with the reporting requirements ofRule 144 under 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 itselfof any rule or regulation ofthe SEC allowing it

to sell any such securities to the public without registration; and

(iv) takesuch further action as any Holder may reasonably request, all to the

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

without registration under the Securities Act.

(k) As used in this Section 4.5, the following terms shall have the following

respective meanings:

(i) "Holder" m~ans the Investor and any other holder ofRegistrable

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 Holders chosen by

Holders holding a majority interest in the Registrable Securities being registered.

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

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

Securities Act and applicable rules and regulations thereunder, and the declaration or

ordering ofeffectiveness ofsuch registration statement or (B) filing a prospectus and/or

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095331-0002.10033-NY02.2689565.9
prospectus supplement in respect of an appropriate effective registration statement on

Form S-3.

(iv) "Registrable Securities" means (A) all Preferred Shares, (B) the Warrant

(subject to Section 4.5(p» and (C) any equity securities issued or issuable directly or

indirectly with respect to the securities referred to in the foregoing clauses (A) or (B) by

way ofconversion, exercise or exchange thereof, including the Warrant Shares, or share

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

reclassification, merger, amalgamation, arrangement, consolidation or other

reorganization, providedthat, once issued, such securities will not be Registrable

Securities when (1) they are sold pursuant to an effective registration statement under the

Securities Act, (2) except as provided below in Section 4.5(0), they may be sold 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 soId in a private transaction in which

the transferor's rights under this Agreement are not assigned to the transferee ofthe

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

statement at anyone time.

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

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

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

this Section 4.5, including all registration, filing and listing fees, printing expenses, fees

and disbursements of counsel for the Company, blue sky fees and expenses, expenses

incurred in connection with any "road show", the reasonable fees and disbursements of

Holders' Counsel, and expenses ofthe Company's independent accountants in

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

such registration, but shall not include Selling Expenses.

(vi) "Rule 144", "Rule 144A", "Rule 159A", "Rule 405" and "Rule 415" mean,

in each case, such rule promulgated under the Securities Act (or any successor provision),

as the same shall be amended from time to time.

(vii) "Selling Expenses" mean all discounts, selling commissions and stock

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

ofcounsel for any Holder (other than the fees and disbursements ofHolders' Counsel

included in Registration Expenses).

(I) At any time, any holder of Securities (including any Holder) may elect to forfeit

its rights set forth in this Section 4.5 from that date forward; provided, that a Holder forfeiting

such rights shall nonetheless be entitled to participate under Section 4.5(a)(iv) - (vi) in any

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

ifthe holder had not withdrawn; and provided, further, that no such forfeiture shall terminate a

Holder's rights or obligations under Section 4.5(f) with respect to any prior registration or

Pending Underwritten Offering. "Pending Underwritten Offering" means, with respect to any

Holder forfeiting its rights pursuant to this Section 4.5(1), any underwritten offering of

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095331-0002-\0033 -NY02.2689565.9
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 0 f its obligations under this Section

4.5 and that the Investor and the Holders from time to time may be irreparably harmed by any

such failure, and accordingly agree that the Investor and such Holders, in addition to any other

remedy to which they may be entitled at law or in equity, to the fullest extent permitted and

enforceable under applicable law shall be entitled to compel specific performance 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 the Signing

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

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

hereof in any manner that may impair the rights granted to the Investor and the Holders under

this Section 4.5. In the event the Company has, prior to the Signing Date, entered into any

agreement with respect to its securities that is inconsistent with the rights granted to the Investor

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

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 defmition 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 behalfofthe Investor by one

or more broker-dealers, an ''underwriting agreement" shall include any purchase agreement

entered into by such broker-dealers, and any "registration statement" or "prospectus" shall

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

distribution.

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

portion thereof under the Shelf Registration Statement only beginning 30 days after notifying the

Company of any such sale, during which 30-day period the Investor and all Holders ofthe

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

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

agent.

4.6 Voting ofWarrant Shares. Notwithstanding anything in this Agreement to the

contrary, the Investor shall not exercise any voting rights with respect to the Warrant Shares.

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09SJ31-0002·10033·NY02.2689S6S.9
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 lnvestor 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

ofany 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 and (y) the date

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

the Preferred Shares to third parties which are not Affiliates ofthe Investor, neither the Company

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

(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 announced 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 ofany kind ofthe Company, or any trust preferred

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

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

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

case in this clause (B) in connection with the administration ofany employee benefit plan

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

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

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

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

acquisitions by a broker-dealer subsidiary ofthe Company solely for the purpose of

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

Parity Stock in the ordinary course ofits business, (0) purchases by a broker-dealer

subsidiary ofthe Company ofcapital stock ofthe Company for resale pursuant to an

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

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

rights plan, (F) the acquisition by the Company or any ofthe Company Subsidiaries of

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

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

trustees or custodians, and (G) the exchange or conversion ofJunior Stock for or into

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095331-0002-10033-NY02.2689565.9
other Junior Stock or ofParity 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 (0), 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 (clauses (C) and (F), collectively, the "Permitted Repurchasei'). "Share Dilution

Amount" means the increase in the number of diluted shares outstanding (determined in

accordance with OAAP, and as measured from the date ofthe Company's most recently

filed Company Financial Statements prior to the Closing Date) resulting from the grant,

vesting or exercise of equity-based compensation to employees and equitably adjusted for

any stock split, stock dividend, reverse stock split, reclassification or similar transaction.

(b) 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 ofstock 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 Company.

"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 parties 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 Section 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 ofFair Market Value ofsuch

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

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

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

Value ofthe securities.

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09S331·0002·10033·NY02.2689S6S.9
(c) As used in this Section 4.9, the following terms shall have the following

respective meanings:

(i) "Appraisal Procedure" means a procedure whereby two independent

appraisers, one chosen by the Company and one by the Investor, shall mutually agree

upon the Fair Market Value. Each party shall deliver a notice to the other appointing its

appraiser within 10 days after the Appraisal Procedure is invoked. Ifwithin 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 the 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 disparate from the

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

disparate from the middle determination, then the determination 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 Investor. The costs

ofconducting any Appraisal Procedure shall be borne by the Company.

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

value ofsuch security as determined by the Board of Directors, acting in good faith in

reliance on an opinion of a nationally recognized independent investment banking firm

retained by the Company for this purpose and certified in a resolution to the Investor. If

the Investor does not agree with the Board ofDirector's determination, it may object in

writing within 10 days of receipt ofthe Board ofDirector's determination. In 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 agree upon

the Fair Market Value. Ifthe chief executive officer and the authorized representative 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 either party to

determine the Fair Market Value by delivery ofa written notification thereofnot later

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

4.10 Executive Compensation. Until such time as the Investor ceases to own 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 11 I(b) ofthe EESA as implemented by

any guidance or regulation thereunder that has been issued and is in effect as ofthe Closing 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 executive

officers" as defined in subsection]] l(b)(3) ofthe EESA and regulations issued thereunder,

including the rules set forth in 3] C.F.R. Part 30.

-33-

09S331·0002-!OO33-NY02.2689S6S.9
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 fo Howing the Signing Date; provided, however, that in the event the

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

determine whether to extend the term ofthis Agreement, it being understood that the parties shall

be required to consult only until the fifth day after such 30th calendar day and not be under any

obligation to extend the term ofthis Agreement thereafter; provided, further, that the right to

terminate this Agreement under this Section 5.1(a) shall not be available to any party whose

breach of any representation or warranty or failure to perform any obligation under this

Agreement shall have caused or resulted in the failure ofthe Closing to occur on or prior to such

date; or

(b) by either the Investor or the Company in the event that any Governmental Entity

shall have issued an order, decree or ruling or taken any other action restraining, enjoining or

otherwise prohibiting the transactions contemplated by this Agreement and such order, decree,

ruling or other action shall have become final and nonappealable; or

(c) by the mutual written consent 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 party hereto

except that nothing herein shall relieve either party from liability for any breach ofthis

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 terminate 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 without limitation.

5.3 Amendment. No amendment of any provision ofthis Agreement will be effective

unless made in writing and signed by an officer or a duly authorized representative of each party;

provided that the Investor may unilaterally amend any provision ofthis Agreement to the extent

required to comply with any changes after the Signing Date in applicable federal statutes. No

failure or delay by any party in exercising any right, power or privilege hereunder shall operate

as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further

exercise of any other right, power or privilege. The rights and remedies herein provided shall be

cumulative of any rights or remedies provided by law.

5.4 Waiver ofConditions. The conditions to each party's obligation to consummate

the Purchase are for the sole benefit ofsuch party and may be waived by such party in whole or

in part to the extent permitted by applicable law. No waiver will be effective unless it is in a

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095331-0002-10033-NY02.2689565.9
writing signed by a duly authorized officer ofthe waiving party that makes express reference to

the provision or provisions subject to such waiver.

5.5 Governing Law: Submission to Jurisdiction, Etc. This Agreement will be

governed by and construed in accordance with the federal law ofthe United States if and to

the extent such law is applicable, and otherwise in accordance with the laws of the State of

New York applicable to contracts made and to be performed entirely within such State.

Each ofthe parties hereto agrees (a) to submit to the exclusive jurisdiction and venue ofthe

United States District Court for the District of Columbia and the United States Court of

Federal Claims for any and all actions, suits or proceedings arising out ofor relating to this

Agreement or the Warrant or the transactions contemplated hereby or thereby, and (b)

that notice may be served upon (i) the Company at the address and in the manner set forth

for notices to the Company in Section 5.6 and (ii) the Investor in accordance with federal

law. To the extent permitted by applicable law, each ofthe parties hereto hereby

unconditionally waives trial by jury in any legal action or proceeding relating to this

Agreement or the Warrant or the transactions contemplated hereby or thereby.

5.6 Notices. Any notice, request, instruction or other document to be given hereunder

by any party to the other will be in writing and will be deemed to have been duly given (a) on the

date ofdelivery if delivered personally, or by facsimile, upon confirmation ofreceipt, or (b) on

the second business day following the date of dispatch if delivered by a recognized next day

courier service. All notices to the Company shall be delivered as set forth in Schedule A, or

pursuant to such other instruction as may be designated in writing by the Company to the

Investor. All notices to the Investor shall be delivered as set forth below, or pursuant to such

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 and Finance)

Facsimile: (202) 622-1974

5.7 Definitions

(a) When a reference is made in this Agreement to a subsidiary of a person, the term

"subsidiary" means any corporation, partnership, joint venture, limited liability company or other

entity (x) ofwhich such person or a subsidiary ofsuch person is a general partner or (y) ofwhich

a majority ofthe voting securities or other voting interests, or a majority ofthe securities or other

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 directly or

indirectly owned by such person and/or one or more subsidiaries thereof.

-35-

095331-0002-I0033-NY02.2689565.9
(b) The tenn "Affiliate" means, with respect to any person, any person directly or

indirectly controlling, controlled by or under common control with, such other person. For

purposes ofthis defmition, "controf' (including, with correlative meanings, the tenns "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 ofmanagement and/or

policies ofsuch person, whether through the ownership of voting 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 "officeri' (as such term is 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, obligation nor

liability arising hereunder or by reason hereofshall be assignable by any party hereto without the

prior written consent ofthe other party, and any attempt to assign any right, remedy, obligation

or liability hereunder without such consent shall be void, except (a) an assignment, in the case of

a Business Combination where such party is not the surviving entity, or a sale ofsubstantially all

ofits assets, to the entity which is the survivor ofsuch Business Combination or the purchaser in

such sale and (b) as provided in Section 4.5.

5.9 Severability. Ifany provision ofthis Agreement or the Warrant, or the application

thereofto any person or circumstance, is determined by a court of competent jurisdiction to be

invalid, void or unenforceable, the remaining provisions hereof, or the application 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, impaired 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 detennination,

the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable

substitute provision to effect the original intent ofthe parties.

5.10 No Third Party Beneficiaries. Nothing contained in this Agreement, expressed or

implied, is intended to confer upon any person or entity other than the Company and the Investor

any benefit, right or remedies, except that the provisions ofSection 4.5 shall inure to the benefit

ofthe persons referred to in that Section.

* * *

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09533I-0002-IOO33-NY02.2689565.9
FORM OF CERTIFICATE OF DESIGNATIONS

[SEE ATTACHED]

09S331-0002-10033-NY02.2689S6S.9

ANNEXA
ANNEXB

FORM OF WAIVER

In consideration for the benefits I will receive as a result of my employer's participation in the

United States Department ofthe Treasury's TARP Capital Purchase Program, I hereby

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, 2008.

I acknowledge that this regulation may require modification ofthe compensation, bonus,

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 of my employer acquired

through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws ofthe United States or any state

related to the requirements imposed by the aforementioned regulation, including without

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.

095331.0002·\0033·NY02.2689565.9
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, when issued and

delivered pursuant to the Agreement, the Preferred Shares will be duly and validly issued and

fully paid and non-assessable, will not be issued in violation of any preemptive rights, and will

rank pari passu with or senior to all other series or classes ofPreferred Stock issued on the

Closing Date with respect to the payment of dividends and the distribution of assets in the event

of any dissolution, liquidation or winding up ofthe Company.

(c) The Warrant has been duly authorized and, when executed and delivered as

contemplated hereby, will constitute a valid and legally 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.

(d) The shares ofCommon Stock issuable upon exercise ofthe Warrant have been

duly authorized and reserved for issuance upon exercise ofthe Warrant and when so 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 forth on

Schedule C).

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

Agreement and the Warrant and [insert, ifapplicable: ,subject to the approvals ofthe

Company's stockholders set forth on Schedule C,] to carry out its obligations thereunder (which

includes the issuance ofthe Preferred Shares, Warrant and Warrant Shares).

(f) The execution, delivery and performance by the Company ofthe Agreement 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 stockholders, and

no further approval or authorization is required on the part ofthe Company [insert, ifapplicable:

, subject, in each case, to the approvals ofthe Company's stockholders set forth on Schedule C].

(g) The Agreement is a valid and 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; provided,h owever, such

counsel need express no opinion with respect to Section 4.5(g) or the severability provisions of

the Agreement insofar as Section 4.5(g) is concerned.

095331-0002-10033 -NY02.2689565.9
095331-0002-1 0033-NY02.2689565.9

FORM OF WARRANT

[SEE ATTACHED]

ANNEXD
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 of Shares of Preferred Stock Purchased:

Dividend Payment Dates on the Preferred Stock:

Number ofInitial Wan'ant Shares:

Exercise Price ofthe Warrant:

Purchase Price:

Morgan Stanley

Corporation

Delaware

Board of Governors ofthe Federal Reserve

System

Morgan Stanley

1585 Broadway

New York, NY 10036

Attention: Chief Financial Officer: Colm

Kelleher

Chief Legal Officer: Gary G. Lynch

Treasurer: David K. Wong

Principal Accounting Officer: Paul C.

Wirth

with a copy to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, NY 10017

Attention: Jeffrey Small

John Brandow

Fixed Rate Cumulative Perpetual Preferred Stock,

Series D

$1,000

10,000,000

January 15. April 15, July 15 and October 15

65,245.759

$22.99

$10,000,000,000
Closing:

Location ofClosing:

Time ofClosing:

Date of Closing:

Wire Information for Closing:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017

9:00 a.m., New York time

October 28, 2008
SCHEDULE B

-

-

•

-

-

•

-

•

•

095331..()00,.-10879-NY02.2690240.4
•
SCHEDULEC

REOUIRED STOCKHOLDER APPROVALS

Required I

Warrants -- Common Stock Issuance

Charter Amendment

Stock Exchange Rules

% Vote Required

If no stockholder approvals are required, please so indicate by checking the box: 12$].

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

095331-0002-10879-NY02.2690240.4
SCHEDULED

LITIGATION

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

Purchase Agreement - Standard Terms.

Ifnone, please so indicate by checking the box: 18l.

095331·0002·10879·NY02 26902404
SCHEDULE E

COMPLIANCE WITH LAWS

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

ofthe Securities Purchase Agreement - Standard Terms.

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

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

the Securities Purchase Agreement - Standard Terms.

If none, please so indicate by checking the box: IZI.
SCHEDULE F

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: lXI.

fj)efaware

'11ie :First State

PAGE 1

I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF

DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A i"RUE AND CORRECT

COpy OF THE CERTIFICATE OF DESIGNATION OF "MORGAN STANLEY",

FILED IN THIS OFFICE ON THE TWENTY-EIGBTH DAY OF OCTOBER, A.D.

2008, AT 8:23 O'CLOCK A.M.

A FILED COpy OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE

NEW CASTLE COUNTY RECORDER OF DEEDS.

0923632 8100

081070595

Harriet Smith Windsor, secretary of State

AUTHENTICATION: 6934865

DATE: 10-28-08
State of Delawant 8eanttarv of State

Divi.don of Co~tions

Deliw.red OB:20 JW 10/2B/2ooB

FILED OB:23 AJl10/2B/200B

SRV OB1070595 - 0923632 FILE

CERTIFICATE OF DESIGNATIONS

OF

FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES D

OF

MORGAN STANLEY

Morgan Stanley, a corporation organized and existing under the laws ofthe State of

Delaware (the "Commation"), in accordance with the provisions of Section 151 ofthe General

Corporation Law ofthe State ofDelaware) does hereby certifY:

The board ofdirectors ofthe Corporation (the "Board ofDirectors") or an applicable

committee ofthe Board ofDirectors. in accordance.with the certificate ofincorporation and

bylaws ofthe Corporation and applicable law, adopted the following resolution on October 26,

2008 creating a series of 10,000,000 shares ofPreferred Stock ofthe Corporation designated as

"Fixed Rate Cumulative Perpetual Preferred Stock. Series D".

RESOLVED, that pursuant to the provisions ofthe certificate ofincorporation and the

bylaws ofthe Corporation and applicable law, a series ofPreferred Stock, par value $0.0I 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 shares ofsuch

series, are as follows:

Part L Designation and Number ofShares. There is hereby created out ofthe authorized

and unissued shares ofpreferred stock ofthe Corporation a series ofpreferred stock designated

as the "Fixed Rate Cumulative Perpetual Preferred Stock, Series D" (the "Designated Preferred

Stock"). The authorized number ofshares ofDesignated Preferred Stock shall be 10,000,000.

Part 2. Standard Provisions. The Standard Provisions contained in Annex A attached

hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of

this Certificate ofDesignationsto the same extent as ifsuch provisions had been set forth in full

herein.

Part. 3. Definitions. The following terms are used in this Certificate ofDesignations

(including the Standard Provisions in Annex A hereto) as defmed below:

(a) "Common Stock" means the common stock, par value SO.Ol per share, ofthe

Corporation.

(b) "Dividend Payment Date" means January 15, April 15, July 15 and October 15 of

each year.

(c) "Junior Stock" means the Common Stock and any other class or series ofstock of

the Corporation the tenos ofwhich expressly provide that it ranksjuniorto Designated Preferred

1

(NY) 140l1f64 7/CERT.Dfo,SIGNATJOf'l/SeJi",.O.doc
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 ofDesignated Preferred Stock.

(e) "Minimum Amount" means $2,500,000,000.

(f) "Parity Stock" means any class or series ofstock ofthe Corporation (otherthan

Designated Preferred Stock) the terms ofwhich do not expressly provide that such class or series

will rank senior orjunior to Designated Preferred Stock as to dividend rights and/or as to rights

on liquidation, dissolution or winding up ofthe Corporation (in each case without regard to

wbether dividends accrue cumulatively or non~cumulatively). Without limitingtbe foregoing,

Parity Stock shall include the Corporation's (i) Series A Floating Rate Non-Cumulative Preferred

Stock; (ii) Series B Non~umulative Non-Voting Perpetual Convertible Preferred Stock; and (iii)

Series C Non-Cumulative Non-Voting Perpetual Preferred Stock..

(g) "Signing Date" means October 26. 2008.

Part. 4. Certain Voting Matters. Whetherthe vote or consent ofthe holders ofa plurality,

majority or other portion ofthe shares ofDesignated Preferred Stock and any Voting Parity

Stock has been cast or given on any matter on which the holders ofshares ofDesignated

Preferred Stock are entitled to vote shall be determined by the Corporation by reference to the

specified liquidation amount ofthe shares voted or covered by the consent as ifthe Corporation

were liquidated on the record date for such vote or consent, ifany, or, in the absence ofa record

date, on the date for such vote or consent. For purposes ofdetermining the voting rights ofthe

holders ofDesignated Preferred Stock under Section 7 ofthe Standard Provisions fonning part of

this Certificate ofDesignations, each bolder will be entitled to one vote fOT each $1,000 of

liquidation preference to which such holder's shares are entitled.

[Remainder ofPage Intentionally Left Blank]

2

(NY) 14017JI>47/C£kT.DIlSIGNATIONlSeries.O.dno
IN WITNESS WHEREOF, Morgan Stanley has caused this Certificate ofDesignations to

be signed by Calm Kelleher, its Executive Vice President and Chief Financial Officer, this 28th

day of October, 2008.

MOROANS~~"

BY:~£id.{~ Name: Colm Kelleher

Title: Executive Vice President and ChiefFinancial

Officer

3

(NY) Ito 171647/CERT.DHSIONATlON/Strlcs.O.doo
ANNEXA

STANDARD PROVISIONS

Section 1. General MAtters. Each share ofDesignated Preferred Stock shall be identical

in all respects to every othershare ofDesignated Preferred Stock. The Designated Preferred

Stock shall be perpetual, subject to the provisions ofSection 5 ofthese Standard Provisions that

10rm a part ofthe Certificate ofDesignations. The Designated Preferred Stock shall rank equally

with Parity Stock and shall rank senior to Junior Stock with respect to the payment ofdividends

and the distribution ofassets in the event ofany dissolution, liquidation or winding up ofthe

Corporation.

Section 2. Standard Definitions. As used herein with respect to Designated Preferred

Stock:

(a) "Applicable Dividend Rate" means (i) during the period from the Original 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 day ofthe

first Dividend Period commencing on or after the fifth anniversary ofthe Original Issue Date,

9% per annum.

(b) uAp,propriate Federal Banking Agency" means the "appropriate Federal banking

agency" with respect to the Corporation as defined in Section 3(q) ofthe Federal Deposit

Insurance Act (12 U.S.C. Section 1813(q») or any successor provision.

(c) "Business Combination" means a merger, consolidation, statutory share exchange

orsimilar transaction that requires the approval ofthe Corporation'sstockholders.

(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 law or

other governmental actions to close.

(e) "Bylaws" means the bylaws ofthe Corporation) as they may be amended from

time to time.

(f) "Certificate ofDesignations" means the Certificate ofDesignations or comparable

instrument relating to the Designated Preferred Stock, ofwhich these Standard Provisions fonn a

part, as it may be amended from time to time.

(g) "Charter" means the Corporatjon's certificate or articles ofincorporation, articles

ofassociation, or similar organizational document.

(h) "Dividend Period" has the meaning set forth in Section 3(a).

(i) "Dividend Record Date" hasthe meaning set forth in Section 3(a).

G) "Liguidation Preference" has the meaning set forth in Section 4(a).

A-I

(NY) 14017/647lCeRT.OESIONATIONlSeries.D,doo
(k) "Original Issue Date" means the date on which shares ofDesignated Preferred

Stock are first issued.

(I) "Preferred Director" has the meaning set forth in Section 7(b).

(m) "Preferred Stock" means any and all series ofpreferred stock ofthe Corporation,

including the Designated Preferred Stock.

(n) "Oualified Equity OfferingU means the sale and issuance for cash by the

Corporation to persons other than the Corporation or any ofits subsidiaries after the Original

Issue Date ofshares ofperpetual Preferred Stock, Common Stock or any combination ofsuch

stock, that, in each case, qualify as and may be included in Tier I 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 pursuant to

agreements or arrangements entered into, or pursuant to financing plans which were publicly

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 part ofthe

Certificate ofDesignations relating to the Designated Preferred Stock.

(q) "Successor Preferred Stock" hasthe meaning set forth in Section 5(a).

(r) "Voting Parity Stock" means, with regard to any matter as to which the holders 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 ofDesignations, any and all series of

Parity Stock upon which like voting rights have been conferred and are exercisable with respect

to such matter.

Section 3. Dividends.

(a) Rate. Holders ofDesignated 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 below) at a

rate per annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount per share of

Designated Preferred Stock and (ii) the amount ofaccrued and unpaid dividends for any prior

Dividend Period on such share ofDesignated Preferred Stock, ifany. Such dividends shall begin

to accrue and be cumulative from the Original Issue Date, shall compound on each subseque~t

Dividend Payment Date (i.e., no dividends shall accrue on other dividends unless and until the

first Dividend Payment Date for such other dividends has passed without such other dividends

having been paid on such date) and shall be payable quarterly in arrears on each Dividend

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 Date would

otherwise fallon a day that is not aBusiness 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 accrue as a

result ofthat postponement. The period from and including any Dividend Payment Date to, but

A·2

€NY) 14l>17I647/CERT.DESIClNATTON/S.ri••.D,doc
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 ofany 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 ofa

Dividend Period. and for the initial Dividend Period, shall be computed on the basis ofa 360-day

year consisting oftwelve 3o-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 ofDesignated 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 by the

Board ofDirectors or any duly authorized committee ofthe Board ofDirectors that is not 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 Date whether

or not such day is a Business Day.

Holders ofDesignated Preferred Stock shall not be entitled to any dividends, whether

payable in cash, securities or other property, other than dividends (ifany) declared and payable

on Designated Preferred Stock as specified in this Section 3 (subject to the other provisions of

the Certificate ofDesignations).

(b) Priority ofDividends. So long as any share ofDesignated Preferred Stock

remains outstanding, no dividend or distribution shall be declared or paid on the Common Stock

or any other shares ofJunior Stock (otherthan dividends payable solely in shares ofCommon

Stock) or Parity Stock, subject to the immediately following paragraph in the case ofParity

Stock, and no Common Stock, Junior Stock or Parity Stock shall be, directly or indirectly,

purchased, redeemed or otherwise acquired for consideration by the Corporation or any ofits

subsidiaries unless all accrued and unpaid dividends for all past Dividend Periods, including the.

latest completed Dividend Period (including, ifapplicable as prOVided in Section 3(a) above,

dividends on such amount), on all outstanding shares ofDesignated Preferred Stock have been or

are contemporaneously declared and paid in full (or have been declared and a sum sufficient for

the payment thereofhas been set aside for the benefit ofthe holders ofshares ofDesignated

Preferred Stock on the applicable record date). The foregoing limitation shall not apply to (i)

redemptions, purchases or other acquisitions ofshares ofCommon Stock or other Junior Stock in

connection with the administration ofany employee benefit plan in the ordinary course of

business (including purchases to offset the Share'Dilution Amount (as defined below) pursuant

to a publicly announced repurchase plan) and consistent with past practice, provided that any

purchases to offset the Share Dilution Amount shall in no event exceed the Share Dilution

Amount; (ii) purchases or other acquisitions by a broker-dealer subsidiary ofthe Corporation

solely for the purpose ofmarket·making, stabilization or customer facilitation transactions in

Junior Stock or Parity Stock in the ordinary course ofits business; (iii) purchases by a brokerdealer subsidiary ofthe Corporation of capital stock ofthe Corporation for resale pursuant to an

offering by the Corporation ofsuch capital stock underwritten by such broker-dealersubsidiary;

(iv) any dividends or distributions ofrights or Junior Stock in connection with a stockholders'

A-3

(NY) 14017/647/CERT.DESIGNATlONISerles.D.cIoc
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 ofany 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 into 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 ex.ercise, settlement or exchange

thereoffor Common Stock. "'Share Dilution Amount" means the increase in the number 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 consolidated

financial statements most recently filed with the Securities and Exchange Commission prior to

the Original Issue Date) resulting from the grant, vesting or exercise ofequity-based

compensation to employees and equitably adjusted for any stock split, stock dividend. reverse

stock split, reclassification orsimilar transaction.

When dividends are not paid (or declared and a sum sufficient for payment thereofset

aside for the benefit ofthe holders thereofon the applicable record date) on any Dividend

Payment Date (or, in the case ofParity Stock having dividend payment dates different from the

Dividend Payment Dates. on a dividend payment date falling within a Dividend Period related to

such Dividend Payment Date) in full upon Designated Preferred Stock and any shares ofParity

Stock, all dividends declared on Designated Preferred Stock and all such Parity Stock and

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 payment date falling

within the Dividend Period related to such Dividend Payment Date) shall be declaredpro rata so

that the respective amounts ofsuch dividends declared shaJl bear the same ratio to each other as

all accrued and unpaid dividends per share on the shares ofDesignated Preferred Stock

(including, ifapplicable as provided in Section 3(a) above, dividends on such amount) and 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 payment date

falling within the Dividend Period related to such Dividend Payment Date) (subject to their

having been declared by the Board ofDirectors or a duly authorized committee ofthe Board of

Directors out oflegally available funds and including, in the case ofParity Stock that bears

cumulative dividends, all accrued but unpaid dividends) bear to each other. Ifthe Board of

Directors or a duly authorized committee ofthe Board ofDirectors detennines not to pay any

dividend or a fun dividend on a Dividend Payment Date, the Corporation will provide written

notice to the holders ofDesignated Preferred Stock prior to such Dividend Payment Date.

Subject to the foregoing, and not otherwise. such dividends (payable in cash, securities or

other property) as may be determined by the Board ofDirectors or any duly authorized

committee ofthe Board ofDirectors may be declared and paid on any securities, including

Common Stock and other Junior Stock, from time to time out ofany funds legally available for

such payment, and holders ofDesignated Preferred Stock shall not be entitled to participate in

any such dividends.

Section 4. Liquidation Rights.

A·4

(NY) 14017/647/CRRT.DESIGNAnONIS.ri••.D.cIo.
(a) Voluntary or Involuntary Liquidation. In the event ofany liquidation. dissolution

or winding up ofthe affairs ofthe Corporation, whether voluntary or involuntary, holders of

Designated Preferred Stock shall be entitled to receive for each share ofDesignated Preferred

Stock, out oftbe assets ofthe Corporation or proceeds thereof(whether capital or surplus)

available for distribution to stockholders ofthe Corporation, subject to the rights ofany creditors

ofthe Corporation, before any distribution ofsuch assets or proceeds is made to or set 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 (li) the amount ofany accrued and unpaid dividends

(including, ifapplicable as provided in Section 3(a) above, dividends on such amount), whether

or not declared, to the date ofpayment (such amounts collectively, the "Liquidation

Preference").

(b) Partial Payment.lfin any distribution described in Section 4(a) above the assets

ofthe Corporation or proceeds thereofare not sufficient to pay in full the amounts payable with

respect to all outstanding shares ofDesignated Preferred Stock and the corresponding amounts

payable with respect ofany other stock ofthe Corporation ranking equally with Designated

Preferred Stock as to such distribution, holders ofDesignated Preferred Stock and the holders of

sucb other stock shall share ratably in any such distribution in proportion to the full respective

distributions to which they are entitled.

(c) Residual Distributions. Ifthe Liquidation Preference has been paid in full to all

holders of Designated Preferred Stock and the corresponding amounts payable with respect 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 their respective

rights and preferences.

(d) Merger, Consolidation and Sale ofAssets Not Liguidation. For purposes ofthis

Section 4, the merger or consolidation ofthe Corporation with any other corporation or other

entity, including a merger or consolidation in which the holders ofDesignated Preferred Stock

receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash,

securities or other property) ofall or substantially all ofthe assets ofthe Corporation, shall not

constitute a liquidation, dissolution or winding up ofthe Corporation.

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 third

anniversary ofthe Original Issue Date. On or after 1he first Dividend Payment Date faIling on or

after the third anniversary ofthe Original Issue Date, the Corporation, at its option, subject to the

approval ofthe Appropriate Federal Banking Agency, may redeem, in whole or in part, at any

time and from time to time, out offunds legally available therefor, the shares ofDesignated

Preferred Stock at the time outstanding, upon notice given as provided in Section 5(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, ifapplicable as

A-5

()IV) J4017J647/CERT.DES1GNATIONlSeries.D.doc
provided in Section 3(a) above, dividends on such amount) (regardless ofwhether any dividends

are actually declared) to, but eKcluding, the date fiKed for redemption.

Notwithstanding the foregoing, priorto the first Dividend Payment Date falling on or

after the third anniversary ofthe Original Issue Date, the Corporation, at its option, subject to the

approval ofthe Appropriate Federal Banking Agency, may redeem, in whole or in part, at any

time and from time to time, the shares ofDesignated Preferred Stock at the time outstanding,

upon notice given as provided in Section 5(c) below, at a redemption price equal to the sum of0)

the Liquidation Amount pershare and Oi) except as otherwise provided below, any accrued and

unpaid dividends (including, ifapplicable as provided in Section 3(a) above, dividends on such

amount) (regardless ofwhether any dividends are actually declared) to, but excluding, the date

fixed for redemption; providedthat (x) the Corporation (or any successor by Business

Combination) has received aggregate gross proceeds ofnot less than the Minimum Amount (plus

the "Minimum Amount" as defined in the relevant certificate ofdesignations for each other

outstanding series ofpreferred stock ofsuch successor that was originally issued to the United

States Department ofthe Treasury (the "Successor Preferred Stock") in connection with the

Troubled Asset ReliefProgram Capital Purchase Program) from one or more Qualified Equity

Offerings (including Qualified Equity Offerings ofsuch successor), and (y) the aggregate

redemption price ofthe Designated Preferred Stock (and any Successor Preferred Stock)

redeemed pursuant to this paragraph may not exceed the aggregate net cash proceedsreceived by

the Corporation (or any successor by Business Combination) from such Qualified Equity

Offerings (including QuaHfied Equity Offerings ofsuch successor).

The redemption price for any shares ofDesignated Preferred Stock shall be payable on

the redemption date to the holder ofsuch shares against surrender ofthe certificate(s) evidencing

such shares to the Corporation or its agent. Any declared but unpaid dividends payable on 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 date, but

rather shaJl be paid to the holder ofrecord ofthe redeemed shares on such Dividend Record Date

relating to the Dividend Payment Date as provided in Section 3 above.

(b) No Sinking Fund. The Designated Preferred Stock will not be subject to any

mandatory redemption, sinking fund or other similar provisions. Holders ofDesignated Preferred

Stock will have no right to require redemption or repurchase ofany shares ofDesignated

Preferred Stock.

(c) Notice ofRedemption. Notice ofevery redemption ofshares ofDesignated

Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of

record ofthe shares to be redeemed at their respective last addresses appearing on the books of

the Corporation. Such mailing shall be at least 30 days and not more than 60 days before the date

fixed for redemption. Any notice mailed as provided in this Subsection shall be conclusively

presumed to have been duly given, whether or not the holder receives such notice, but failure

duly to give such notice by mail, or any defect in such notice or in the mailing thereof; to any

holder ofshares ofDesignated Preferred Stock designated for redemption shaH not affect the

validity ofthe proceedings for the redemption ofany othershares ofDesignated Preferred Stock.

Notwithstanding the foregoing, ifshares ofDesignated Preferred Stock are issued in book~ntry

form through The Depository Trust Corporation or any othersimilar facility, notice of

("YI 1.o17f6.7fCF.R.".DESIGNAnONlSeria.D.doc
redemption may be given to the holders ofDesignated Preferred Stock at such time and in any

manner permitted by such facility. Each notice ofredemption given to a holder shall state~ (1) the

redemption date; (2) the number ofshares ofDesignated Preferred Stock to be redeemed and) if

less than all the shares held by such holder are to be redeemed) the number ofsuch shares 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 ofany redemption ofpart ofthe shares ofDesignated

Preferred Stock at the time outstandin& the shares to be redeemed shall be selected either pro

rata or in such other manner as the Board ofDirectors or a duly authorized committee thereof

may determine to be fair and equitable. Subject to the provisions hereof, the Board ofDirectors

or a duly authorized committee thereofshall have full power and authority to prescribe the terms

and conditions upon which shares ofDesignated Preferred Stock shall be redeemed from time to

time. Iffewer than aU the shares represented by any certificate are redeemed, a new certificate

shall be issued representing the unredeemed shares without charge to the holder thereof.

(e) Effectiveness ofRedemption. If notice ofredemption has been duly given and if

on or before the redemption date specified in the notice all funds necessary for the redemption

have been deposited by the Corporation) in trust for the pro rata benefit ofthe holders 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 ofat least $500 million and

selected by the Board ofDirectors) so as to be and continue to be available solely therefor, then,

notwithstanding that any certificate for any share so called for redemption has not been

surrendered for cancellation, on and after the redemption date dividends shall cease to accrue on

all shares so called for redemption, all shares so called for redemption shall no longer be deemed

outstanding and all rights with respect to such shares shall forthwith on such redemption 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 unclaimed at the

end ofthree years from the redemption date sbal~ to the extent permitted by Jaw, be released to

the Corporation, after which time the holders ofthe shares so called for redemption shall look

only to the Corporation for payment ofthe redemption price ofsuch shares.

(t) Status ofRedeemed Shares. Shares ofDesignated Preferred Stock that are

redeemed) repurchased or otherwise acqUired by the Corporation shall revert to authorized but

unissued shares ofPreferred Stock (provided that any such cancelled shares ofDesignated

Preferred Stock may be reissued only as shares ofany series ofPreferred Stock otherthan

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.

Section 7. Voting Rights.

(a) General. The holders ofDesignated Preferred Stock shall not have any voting

rights except as set forth below or as otherwise from time to time required by law.

A·7

(NY) 140171647ICERT.DE'SIGNATIONlSeries.D.doc:
(b) Preferrs-d Stock Directors. Whenever, at any time or times, dividends payable on

the shares ofDesignated Preferred Stock have not been paid for an aggregate ofsix quarterly

Dividend Periods or more, whether or not consecutive, the authorized number ofdirectors ofthe

Corporation shall automatically be increased by two and the holders ofthe Designated Preferred

Stock shall have the right, with holders ofshares ofany one or more other classes orseries of

Voting Parity Stock outstanding at the time, voting together as a class, to elect two directors

(hereinafterthe "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 subsequent annual

meeting ofstockholders until all accrued and unpaid dividends for all past Dividend Periods,

including the latest completed Dividend Period (including, ifapplicable as provided in Section

3(a) above, dividends on such amount), on all outstanding shares ofDesignated Preferred Stock

have been declared and paid in full at which time such right shaIJ terminate with respect to the

Designated Preferred Stock, except as herein or by law expressly provided, subject to revesting

in the event ofeach and every subsequent default ofthe character above mentioned; provided

that it shall be a qualification for election for any Preferred Director that the election ofsuch

Preferred Director shall not cause the Corporation to violate any corporate governance

requirements ofany securities exchange or othertrading facility on which securities ofthe

Corporation may then be listed ortraded that listed or traded companies must have a majority of

independent directors. Upon any tennination ofthe right ofthe holders ofshares ofDesignated

Preferred Stock and Voting Parity Stock as a class to vote for directors as provided above, the

Preferred Directors shaIJ cease to be qualified as directors, the term ofoffice ofall Preferred

Directors then in office shall terminate immediately and the authorized number ofdirectors shall

be reduced by the number ofPreferred Directors elected pursuant hereto. Any Preferred Director

may be removed at any time, with or without cause, and any vacancy created thereby may 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. lfthe office ofany Preferred Director becomes vacant for any reason other than

removal from office as aforesaid, the remaining Preferred Director may choose a successor who

shall hold office for the unexpired term in respect ofwhich such vacancy occurred.

(c) Class Voting Rights as to Particular Matters. So long as any shares ofDesignated

Preferred Stock are outstanding, in addition to any other vote or consent ofstockholders required

by law or by the Charter, the vote or consent ofthe holders orat least 66 2/3% ofthe shares of

Designated Preferred Stock at the time outstanding, voting as a separate class, given in person 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) Authorization of Senior Stock. Any amendment or alteration ofthe

Certificate ofDesignations for the Designated Preferred Stock or the Charter to authorize

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 class or series

ofcapital stock ofthe Corporation ranking senior to Designated Preferred Stock with

respect to either or both the payment ofdividends andlor the distribution ofassets on any

liquidation, dissolution or winding up ofthe Corporation;

A-8

(1'1Y) 14017I647/CERT.DESIGNAnO!'l/Sori••,l'.doc
(ii) Amendment ofDesignated Preferred Stock. Any amendment, alteration

or repeal ofany 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, preferences,

privileges or voting powers ofthe Designated Preferred Stock; or

(iii) Share Exchanges. Reclassifications. Mergers and Consolidations. Any

consummation ofa binding share exchange or reclassification involving the Designated

Preferred Stock, or ofa merger or consolidation ofthe Corporation with another

corporation or other entity, unless in each case (x) the shares ofDesignated Preferred

Stock remain outstanding or. in the case ofany such merger or consolidation with 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 ultimate

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 limitations

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 an purposes ofthis Section 7(c), any increase in the amount ofthe

authorized Preferred Stock, including any increase in the authorized amount ofDesignated

Preferred Stock necessary to satisfy preemptive or similar rights granted by the Corporation 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 to

Designated Preferred Stock with respect to the payment ofdividends (whethersuch dividends

are cumulative or non~cumulative) and the distribution ofassets upon liquidation, dissolution or

winding up ofthe Corporation will not be deemed to adversely affect the rights. preferences.

privileges or voting powers, and shall not require the affumative vote or consent of, the holders

ofoutstanding shares ofthe Designated Preferred Stock.

(d) Changes after Provision for Redemption. No vote or consent ofthe holders of

Designated Preferred Stock shall be required pursuant to Section 7(c) above if, at or priorto the

time when any such vote or consent would otherwise be required pursuant to such Section, an

outstanding shares ofthe Designated Preferred Stock shall have been redeemed, or shall have

been caned for redemption upon proper notice and sufficient funds shaH have been deposited in

trust for such redemption, in each case pursuant to Section 5 above.

(e) Procedures for Voting and Consents. The rules and procedures for calling and

conducting any meeting ofthe holders ofDesignated Preferred Stock (including, without

limitation. the fixing ofa record date in connection therewith), the solicitation and use ofproxies

at such a meeting, the obtaining ofwritten consents and any other aspect or matter with regard to

such a meeting or such consents shall be governed by any rules ofthe Board ofDirectors or any

duly authorized committee ofthe Board ofDirectors, in its discretion, may adopt from time to

A-9

(NY) 14017I641/cERT,DF.sIGNAT10Nl$eries.D.doe
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 pezmitted 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 thereoffor all

purposes, and neither the Corporation nor such transfer agent shall be affected by any notice to

the contrary.

Section 9. Notices. All notices or communications in respect ofDesignated Preferred

Stock shall be sufficiently given ifgiven in writing and delivered in person or by first class mail,

postage prepaid, or ifgiven in such other manner as may be permitted in this Certificate of

Designations, in the Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if

shares ofDesignated Preferred Stock are issued in book-entry fonn through The Depository

Trust Corporation or any similar facility, such notices may be given to the holders ofDesignated

Preferred Stock in any manner permitted by such facility.

Section 10. No Preemptive Rights. No share ofDesignated Preferred Stock shall have

any rights of preemption whatsoever as to any securities ofthe Corporation, or any warrants,

rights or options issued or granted with respect thereto, regardless ofhow such securities, or such

warrants, rights or options, may be designated, issued or granted.

Section 11. Rtm1acement Certificates. The Corporation shall replace any mutilated

certificate at the holder's ex.pense upon surrender ofthat certificate to the Corporation. The

Corporation shall replace certificates that become destroyed, stolen or lost at the holder's

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 required

by the Corporation.

Section 12. Other Rights. The shares ofDesignated 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 or in the

Charter or as provided by applicable law.

A·l0

(NY) 14017/647/CERT.t>ESIGNAnONlSerie'D.cloc

FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES D

($1,000 LIQUIDATION PREFERENCE)

NUMBER SHARES

10,000,000

CUSIP 617480 868

MORGAN STANLEY

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE

THIS CERTIFICATE IS TRANSFERABLE

IN THE CITY OF NEW YORK, NEW YORK

THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS

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

INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER

GOVERNMENTAL AGENCY.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN

REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE

"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE

TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A

REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT

AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION

FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF

THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE

SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE

SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF

THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE

HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS

DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL

NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES. REPRESENTED BY

THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT

WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (8) FOR SO LONG AS

THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR

RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A

"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE

SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR tHE

ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN

THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE

ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE

REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT

IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY

THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE

EFFECT OF THIS LEGEND.

(NY) J40 J7/6471CLOSINGlprer.sbare.cerl.doc
COpy

This is to certify that the UNITED STATES DEPARTMENT OF THE TREASURY is

the owner ofTEN MILLION fully paid and non-assessable shares ofFixed Rate Cumulative

Perpetual Preferred Stock, Series D, $0',01 par value, liquidation preference $1,000 per share, of

the Corporation (the "Stock"), transferable on the books of the Corporation by the holder hereof

in person or by duly authorized attorney upon surrender ofthis certificate properly endorsed.

This certificate is not valid unless countersigned and registered by the Transfer Agent and

Registrar.

Witness the facsimile seal ofthe Corporation and the facsimile signatures ofits duly

authorized officers.

Dated: October 28, 2008

Colm Kelleher

Executive Vice President and Chief

Financial Officer

(NY) HOl 71641ICLOSINGlprcf.5harc.cert.doc

DavidK4f

Treasurer

r~

Countersigned and Registered

MELLON INVESTOR SERVICES LLC,

as T'dAgent and Registrar

By:kz;~ Authorize-a Signature
COpy

MORGAN STANLEY

MORGAN STANLEY (the "Corporation") will rumish, without charge to each stockholder who so

requests, a copy of the certificate of designation establishing the powers, preferences and relative, participating,

optional or other special rights or each class of stock of the Corporation or series thereof and the qualifications,

limitations or restrictions of such preferences and/or rights applicable to each class of stock of the Corporation or

series thereof. Such information may be obtained by a request in writing to the Secretary of the Corporation at its

principal place of business.

This certificate and the share or shares represented hereby are issued and shall be held subject to all ofthe

provisions of the Corporation's Amended and Restated Certificate ofIncorporation, as amended, and the Certificate

of Designations of the Fixed Rate Cumulative Perpetual Preferred Stock, Series D (Liquidation Preference $1,000

per share) (copies of which are on file with the Transfer Agent), to all of which the holder, by acceptance hereof,

assents.

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed

as though they were written out in full to applicable laws or regulations:

TEN COM - as tenants in common

TEN ENT - as tenants by the entireties

JT TEN - asjoint tenants with right of

survivorship and not as

tenants in common

UNIF GIFT MIN ACT- Custodian

(Minor) (Cust)

under Uniform Gifts to Minors Act

(State)

Additional abbreviations may also be used though not in the above list.

For value received, hereby sell(s), assign(s) and transfer(s) unto

PLEASE INSERT SOCIAL SECURITY OR OTHER

IDENTIFYING NUMBER OF ASSIGNEE

PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE

shares ~--:----:--:----:------:--:----:--""""--:------:-::~--:-:--:---:--:~--:---:---7':""----:-----:

of the capital stock represented by the within certificate, and do(es) hereby irrevocably constitute and appoint

__---....,--....,--:----:--" Attorney to transfer the said stock on the books ofthe within named Corporation with

full power ofsubstitution in the premises.

(NY) 14017l647/CLOSING/prefsltar•.oc.,.doo
Dated _

Signature

NOTICE: The signature to this assignment must correspond

with the name as written upon the face ofthis

certificate in every particular, without

alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

NOTICE: The signature(s) should be

guaranteed by an eligible guarantor

institution (banks, stockbrokers, savings

and loan associations, and credit unions

with membership in an approved signature

guarantee medallion program), pursuant to

Rule 17Ad-IS underthe Securities

Exchange Act of 1934.

(N Y) 1401716471CLOSTNG/pr.r.shar•.",,".dnc

COpy

WARRANT TO PURCHASE COMMON STOCK

THE SECURlTIES REPRESENTED BY THIS INSTRUMENT HAVB NOT BEEN

REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE

SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR

OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT

RELATlNG THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE

SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRAnON

UNDER SUCH ACT OR SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO

THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A SECURITIES

PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES AND THE

INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH TIlE

ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE

SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID

AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID

AGREEMENT WILL BE VOID.

WARRANT

to purchase

65,245,759

Shares ofCommon Stock

of MORGAN STANLEY

Issue Date: October 28, 2008

1. Definitions. Unless the context otherwise requires, when used herein the

tollowing terms shall have the meanings indicated.

"Affiliate" has the meaning ascribed to it in the Purchase Agreement.

"Appraisal Procedure" means a procedure whereby two independent appraisers, one

chosen by the Company and one by the Original Warrantholder, shall mutually agree upon the

determinations 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. Ifwithin 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 the 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 disparate from the middle determination

by more than twice the amount by which the other determination is disparate from the middle

determination, then the determination 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 Original Warrantholder; otherwise, the average of all three determinations
shall be binding upon the Company and the Original Warrantholder. The costs of conducting

any Appraisal Procedure shall be borne by the Company.

"BoardofDirectors" means the board of directors 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 general1y are authorized or required by law or other

governmental actions to close.

"Capital Stoc/t' means (A) with respect to any Person that is a corporation or company,

any and all shares, interests, participations or other equivalents (however designated) ofcapital

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 Person.

"Charter" means, with respect to any Person, its certificate or articles of incorporation,

articles of association, or similar organizational document.

"Common Stoc/t' has the meaning ascribed to it in the Purchase Agreement.

"Company" means the Person whose name, corporate or other organizational form and

jurisdiction of organization is set forth in Item 1 of Schedule 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.

"Exchange Act" means the 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 of Schedule A hereto.

"Expiration Time" has the meaning set forth in Section 3.

"Fair Market Value" means, with respect to any security or other property, the fair

market value ofsuch security or other property as determined by the Board ofDirectors, acting

in go~ faith or, with respect to Section 14, as determined by the Original Warrantholder acting

in good faith. For so long as the Original Warrantholder holds this Warrant or any portion

thereof, it may object in writing to the Board ofDirector's calculation offilir market value within

10 days ofreceipt ofwritten notice thereof. lfthe Original Warrantholder and the Company are

unable to agree on fair market value during the 10-day period following the delivery ofthe

Original Warrantholder's objection, the Appraisal Procedure may be invoked by either party to

2
determine Fair Market Value by delivering written notification thereofnot later than the 30th day

after delivery ofthe Original Warrantholder's objection.

"Governmental Entities" has the meaning ascribed to it in the Purchase Agreement.

"InWal Number' has the meaning set forth in Section 13(B).

"Issue Date" means the date set forth in Item 3 ofSchedule A hereto.

"Market Price" means, with respect to a particular security, on any given day, the last

reported sale price regular way or, in case no such reported sale takes place on such day, the

average ofthe last closing bid and ask prices regular way, in either case on the principal national

securities exchange on which the applicable securities are listed or admitted to trading, or if not

listed or admitted to trading on any national securities exchange, the average ofthe closing bid

and ask prices as furnished by two members ofthe Financial Industry Regulatory Authority, Inc.

selected from time to time by the Company for that purpose. "Market Price" shall be determined

without reference to after hours or extended hours trading. Ifsuch security is not listed and

traded in a manner that the quotations referred to above are available for the period required

hereunder, the Market Price per share ofCommon Stock shall be deemed to be (i) in the event

that any portion ofthe Warrant is held by the Original Warrantholder, the fuir market value per

share ofsuch security as determined in good faith by the Original Warrantholder or (ii) in all

other circumstances, the fair market value per share ofsuch security as determined in good faith

by the Board ofDirectors in reliance on an opinion ofa nationally recognized independent

investment banking corporation retained by the Company for this purpose and certified in a

resolution to the Warrantholder. For the purposes ofdetermining the Market Price ofthe

Common Stock on the "trading day" preceding, on or following the occurrence ofan event, (i)

that trading day shall be deemed to commence immediately after the regular scheduled closing

time oftrading on the New York Stock Exchange or, iftrading is closed at an earlier time, such

earlier time and (ii) that trading day shall end at the next regular scheduled closing time, or if

trading is closed at an earlier time, such earlier time (for the avoidance of doubt, and as an

example, ifthe Market Price is to be determined as ofthe last trading day preceding a specified

event and the closing time oftrading on a particular day is 4:00 p.m. and the specified event

occurs at 5:00 p.m. on that day, the Market Price would be determined by reference to such 4:00

p.m. closing price).

"Ord;nary Cash Dividends" means a regular quarterly cash dividend on shares of

Common Stock out ofsurplus or net profits legally available therefor (determined in accordance

with generally accepted accouotingprinciples in effect from time to time), providedthat

Ordinary Cash Dividends shall not include any cash dividends paid subsequent to the Issue Date

to the extent the aggregate per share dividends paid on the outstanding Common Stock in any

quarter exceed the amount set forth in Item 4 of Schedule A hereto, as adjusted for any 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 taken by such

Person and not by any other Warrantholder.

3
"Permitted Transactions" has the meaning set forth in Section 13(8).

"Person" has the meaning given to it in Section 3(a)(9) ofthe Exchange Act and as used

in Sections 13(d)(3) and 14(d)(2) ofthe Exchange Act.

"Per Share Fair Market Value" has the meaning set forth in Section B(C).

"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 the

Company or any Affiliate thereofpursuant to (A) any tender offer or exchange offer subject to

Section 13(e) or 14(e) ofthe Exchange Act or Regulation 14E promulgated thereunder or (B)

any other offer available to substantially all holders ofCommon Stock, in the case ofboth (A) or

(B), whether for cash, shares ofCapital Stock ofthe Company, other securities ofthe Company,

evidences of indebtedness ofthe Company or any other Person or any other property (including,

without limitation, shares ofCapital Stock, other securities or evidences ofindebtedness ofa

subsidiary), or any combination thereof, effected while this Warrant is outstanding. The

"Effective Date" ofa Pro Rata Repurchase shall mean the date of acceptance ofshares for

purchase or exchange by the Company under any tender or exchange offer which is a Pro Rata

Repurchase or the date ofpurchase with respect to any Pro Rata Repurchase that is not a tender

or exchange offer.

"Purchase Agreement" means the Securities Purchase Agreement - Standard Terms

incorporated into the Letter Agreement, dated as ofthe date set forth in Item 5 of Schedule A

hereto, as amended from time to time, between the Company and the United States Department

ofthe Treasury (the "Letter Agreemenf'), including all annexes and schedules thereto.

"Qualified Equity Offerin~' has the meaning ascribed to it in the Purchase Agreement.

"Regulatory Approvals" with respect to the Warrantholder, means, to the extent

applicable and required to permit the Warrantholder to exercise this Warrant for shares of

Common Stock and to own such Common Stock without the Warrantholder being in violation of

applicable law, rule or regulation, the receipt of any necessary approvals and authorizations of,

fil ings and registrations with, notifications to, or expiration or termination of any applicable

waiting period under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,

and the rules and regulations thereunder.

"SEC" means the U.S. Securities and Exchange Commission.

"Securities Act" means the Securities Act of 1933, as amended, or any successor statute,

and the rules and regulations promulgated thereunder.

"Shares" has the meaning set forth in Section 2.

"trading day" means (A) ifthe shares ofCommon Stock are not traded on any national

or regional securities exchange or association or over-the-counter market, a business day or (B)

ifthe shares ofCommon Stock are traded on any national or regional securities exchange or

4
association or over-the-counter market, a business day on which such relevant exchange or

quotation system is scheduled to be open for business and on which the shares of Common

Stock (i) are not suspended from trading on any national or regional securities exchange or

association or over-the-counter market for any period or periods aggregating one half hour or

longer; and (ii) have traded at least once on the national or regional securities exchange or

association or over-the-counter market that is the primary market for the trading ofthe shares of

Common Stock.

"US. GMP" 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.

2. Number ofShares; Exercise Price. This certifies that, for value received, the

United States Department ofthe Treasury or its permitted assigns (the "Warrantholder") is

entitled, upon the terms and subject to the conditions hereinafter set forth, to acquire from the

Company, in whole or in part, after the receipt ofall applicable Regulatory Approvals, if any, up

to an aggregate ofthe number offully paid and nonassessable shares ofCommon Stock set forth

in Item 6 of Schedule A hereto, at a purchase price per share ofCommon Stock equal 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 of

adjustments.

3. Exercise ofWarrant: Term. Subject to Section 2, to the extent permitted by

applicable laws and regulations, the right to purchase the Shares represented by this Warrant is

exercisable, in whole or in part by the Warrantholder, at any time or from time to time after the

execution and delivery oftrus Warrant by the Company on the date hereof, but in no event later

than 5:00 p.m., New York City time on the tenth anniversary ofthe Issue Date (the "Expiration

Time"), by (A) the surrender ofthis Warrant and Notice ofExercise annexed hereto, duly

completed and executed on behalfofthe Warrantholder, at the principal executive office 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 appearing on the books ofthe Company), and

(B) payment ofthe Exercise Price for the Shares thereby purchased:

(i) by having the Company withhold, from the shares ofCommon Stock that

would otherwise be delivered to the Warrantholder upon such exercise, shares ofCommon stock

issuable upon exercise ofthe Warrant equal in value to the aggregate Exercise Price as to which

this Warrant is so exercised based on the Market Price ofthe Common Stock on the trading day

on which this Warrant is exercised and the Notice ofExercise is delivered to the Company

pursuant to this Section 3, or

(ii) with the consent of both the Company and the Warrantholder, by tendering in

cash, by certified or cashier's check payable to the order ofthe Company, or by wire transfer of

immediately available funds to an account designated by the Company.

5
Ifthe Warrantholder does not exercise this Warrant in its entirety, the

Warrantholder will be entitled to receive from the Company within a reasonable time, and in any

event not exceeding three business days, a new warrant in substantially identical form for the

purchase ofthat number of Shares 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.

Notwithstanding anything in this Warrant to the contrary, the Warrantholder hereby

acknowledges and agrees that its exercise ofthis Warrant for Shares is subject to the condition

that the Warrantholder will have first received any applicable Regulatory Approvals.

4. Issuance of Shares: Authorization: Listing. Certificates for Shares issued upon

exercise ofthis Warrant will be issued in such name or names as the Warrantholder may

designate 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 represents and warrants that

any Shares issued upon the exercise ofthis Warrant in accordance with the provisions of Section

3 will be duly and validly authorized and issued, fully paid and nonassessable and free from all

taxes, liens and charges (other than liens or charges created by the Warrantholder, income and

franchise taxes incurred in connection with the exercise ofthe Warrant or taxes in respect of any

transfer occurring contemporaneously therewith). The Company agrees that the Shares so issued

will be deemed to have been issued to the Warrantholder as ofthe close of business on the date

on whiclt this Warrant and payment ofthe Exercise Price are delivered to the Company in

accordance with the terms ofthis Warrant, notwithstanding that the stock transfer books ofthe

Company may then be closed or certificates representing such Shares may not be actually

delivered on such date. The Company will at all times reserve and keep available, out ofits

authorized but unissued Common Stock, solely for the purpose of providing for the exercise of

this Warrant, the aggregate number ofshares ofCommon Stock then issuable upon exercise of

this Warrant at any time. The Company will (A) procure, at its sole expense, the listing ofthe

Shares issuable upon exercise ofthis Warrant at any time, subject to issuance or notice of

issuance, on all principal stock exchanges on which the Common Stock is then listed or traded

and (B) maintain such listings ofsuch Shares at all times after issuance. The Company will use

reasonable best efforts to ensure that the Shares may be issued without violation ofany

applicable law or regulation or of any requirement of any securities exchange on which the

Shares are listed or traded.

5. No Fractional Shares or Scrip. No fractional Shares or scrip representing

fractional Shares shall be issued upon any exercise ofthis Warrant. In lieu of any fractional

Share to which the Warrantholder would otherwise be entitled, the Warrantholder shall be

entitled to receive a cash payment equal to the Market Price ofthe Common Stock on the last

trading day preceding the date of exercise less the pro-rated Exercise Price for such fractional

share.

6. No Rights as Stockholders: Transfer Books. This Warrant does not entitle the

Warrantholder to any voting rights or other rights as a stockholder ofthe Company prior to the

date of exercise hereof. The Company will at no time close its transfer books against transfer of

this Warrant in any manner which interferes with the timely exercise ofthis Warrant.

6
7. Charges. Taxes and Expenses. Issuance of certificates for Shares to the

Warrantholder upon the exercise ofthis Warrant shall be made without charge to the

Warrantholder for any issue or transfer tax or other incidental expense in respect ofthe issuance

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 and all rights

hereunder are transferable, in whole or in part, upon the books ofthe Company by the registered

holder hereof in person or by duly authorized attorney, and a new warrant shalI be made and

delivered by the Company, ofthe same tenor and date as this Warrant but registered in the name

ofone or more transferees, upon surrender ofthis Warrant, duly endorsed, to the office or agency

ofthe Company described in Section 3. AlI expenses (other than stock transfer taxes) and other

charges payable in connection with the preparation, execution and delivery ofthe new 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. Ifand for so

long as required by the Purchase Agreement, this Warrant shall contain the legends as set forth in

Sections 4.2(a) and 4.2(b) ofthe Purchase Agreement.

9. Exchange and Registry ofWarrant. This Warrant is exchangeable, upon the

surrender hereof by the Warrantholder to the Company, for a new warrant or warrants oflike

tenor and representing the right to purchase the same aggregate number of Shares. The

Company shalI maintain a registry showing the name and address ofthe Warrantholder as the

registered holder ofthis Warrant. This Warrant may be surrendered for exchange or exercise in

accordance with its terms, at the office ofthe Company, and the Company shall be entitled to

rely in all respects, prior to written notice to the contrary, upon such registry.

10. Loss. Theft. Destruction or Mutilation ofWarrant. Upon receipt by the Company

ofevidence reasonably satisfactory to it ofthe loss, theft, destruction or mutilation ofthis

Warrant, and in the case of any such loss, theft or destruction, upon receipt of a bond, indemnity

or security reasonably satisfactory to the Company, or, in the case of any such mutilation, upon

surrender and cancellation ofthis Warrant, the Company shall make and deliver, in lieu ofsuch

lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and representing the

right to purchase the same aggregate number ofShares as provided for in such lost, stolen,

destroyed or mutilated Warrant.

11. Saturdays. Sundays. Holidays. etc. Tfthe last or appointed day for the taking of

any action or the expiration of any right required or granted herein shall not be a business day,

then such action may be taken or such right may be exercised on the next succeeding day that is

a business day.

12. Rule 144 Information. The Company covenants that it will use its reasonable best

efforts to timely file all reports and other documents required to be filed by it under the

Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC

thereunder (or, ifthe Company is not required to file such reports, it will, upon the request of any

7
Warrantholder, make publicly available such information as necessary to permit sales pursuant to

Rule 144 under the Securities Act), and it will use reasonable best efforts to take such further

action as any Warrantholder may reasonably request, in each case to the extent required from

time to time to enable such holder to, ifpermitted by the terms ofthis Warrant and the Purchase

Agreement, sell this Warrant without registration under the Securities Act within the limitation

ofthe exemptions provided by (A) Rule 144 under the Securities Act, as such rule may be

amended from time to time, or (B) any successor rule or regulation hereafter adopted by the

SEC. Upon the written request ofany Warrantholder, the Company will deliver to such

Warrantholder a written statement that it has complied with such requirements.

13. Adjustments and Other Rights. The Exercise Price and the number of Shares

issuable upon exercise ofthis Warrant shall be subject to adjustment from time to time 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 single event

shall cause an adjustment under more than one subsection ofthis Section 13 so as to result in

duplication:

(A) Stock Splits. Subdivisions. Reclassifications or Combinations. Ifthe Company

shall (i) declare and pay a dividend or make a distribution on its Common Stock in shares of

Common Stock, (ii) subdivide or reclassify the outstanding shares ofCommon Stock into a

greater number ofshares, or (iii) combine or reclassify the outstanding shares ofCommon Stock

into a smaller number ofshares, the number ofShares issuable upon exercise ofthis Warrant at

the time ofthe record date for such dividend or distribution or the effective date ofsuch

subdivision, combination or reclassification shall be proportionately adjusted so that the

Warrantholder after such date shall be entitled to purchase the number ofshares ofCommon

Stock which such holder would have owned or been entitled to receive in respect ofthe shares of

Common Stock subject to this Warrant after such date had this Warrant been exercised

immediately prior to such date. In such event, the Exercise Price in effect at the time ofthe

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 (x) the

product of(1) the number ofShares issuable upon the exercise ofthis Warrant before such

adjustment and (2) the Exercise Price in effect immediately prior to the record or effective date,

as the case may be, for the dividend, distribution, subdivision, combination or reclassification

giving rise to this adjustment by (y) the new number ofShares issuable upon exercise ofthe

Warrant determined pursuant to the immediately preceding sentence.

(B) Certain Issuances ofCommon Shares or Convertible Securities. Until the earlier

of(i) the date on which the Original Warrantholder no longer holds this Warrant or any portion

thereof and (ii) the third anniversary ofthe Issue Date, ifthe Company shall issue shares of

Common Stock (or rights or warrants or othersecurities exercisable or convertible into or

exchangeable (collectively, a "conversion") for shares ofCommon Stock) (collectively,

"convertible securities") (other than in Permitted Transactions (as defined below) or a

transaction to which subsection (A) ofthis Section 13 is applicable) without consideration or at a

consideration per share (or having a conversion price per share) that is less than 90% ofthe

Market Price on the last trading day preceding the'date ofthe agreement on pricing such shares

(or such convertible securities) then, in such event:

8
(A) the number of Shares issuable upon the exercise ofthis Warrant immediately

prior to the date ofthe agreement on pricing ofsuch shares (or ofsuch convertible

securities) (the "Initial Number") shall be increased to the number obtained by

multiplying the Initial Number by a fraction (A) the numerator ofwhich shall be

the sum of(x) the number ofshares ofCommon Stock ofthe Company

outstanding on such date and (y) the number of additional shares ofCommon

Stock issued (or into which convertible securities may be exercised or convert)

and (B) the denominator ofwhich shall be the sum of(l) the number ofshares of

Common Stock outstanding on such date and (n) the number ofshares of

Common Stock which the aggregate consideration receivable by the Company 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 shares (or

such convertible securities); and

(B) the Exercise Price payable upon exercise ofthe Warrant shall be adjusted by

multiplying such Exercise Price in effect immediately prior to the date ofthe

agreement on pricing ofsuch shares (or ofsuch convertible securities) by a

fraction, the numerator of which shall be the number ofshares ofCommon Stock

issuable upon exercise ofthis Warrant prior to such date and the denominator of

which shall be the number ofshares ofCommon Stock issuable upon exercise of

this Warrant immediately after the adjustment described in clause (A) above.

For purposes ofthe foregoing, the aggregate consideration receivable by the Company in

connection with the issuance ofsuch shares ofCommon Stock or convertible securities shall be

deemed to be equal to the sum ofthe net offering price (including the Fair Market Value of any

non-cash consideration and after deduction of any related expenses payable to third parties) of all

such securities plus the minimum aggregate amount, ifany, payable upon exercise or conversion

ofany such convertible securities into shares ofCommon Stock; and "Permitted Transactions"

shall mean issuances (i) as consideration for or to fund the acquisition ofbusinesses andlor

related assets, (ii) in connection with employee benefit plans and compensation related

arrangements in the ordinary course and consistent with past practice approved by the Board of

Directors, (iii) in connection with a public or broadly marketed offering and sale ofCommon

Stock or convertible securities for cash conducted by the Company or its affiliates pursuant to

registration under the Securities Act or Rule 144A thereunder on a basis consistent with capital

raising transactions by comparable financial institutions and (iv) in connection with the exercise

ofpreemptive rights on terms existing as ofthe Issue Date. Any adjustment made pursuant to

this Section 13(B) shall become effective immediately upon the date ofsuch issuance.

(C) Other Distributions. In case the Company shall fix a record date for the making

ofa distribution to all holders ofshares ofits Common Stock ofsecurities, evidences of

indebtedness, assets, cash, rights or warrants (excluding Ordinary Cash Dividends, dividends of

its Common Stock and other dividends or distributions referred to in Section 13(A», in each

such case, the Exercise Price in effect prior to such record date shall be reduced immediately

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 last trading

day preceding the first date on which the Common Stock trades regular wayan the principal

9
national securities exchange on which the Common Stock is listed or admitted to trading without

the right to receive such distribution, minus the amount of cash and/or the Fair Market Value of

the securities, evidences ofindebtedness, assets, rights or warrants to be so distributed in respect

ofone share ofCommon Stock (such amount and/or Fair Market Value, the "Per Share 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 event, the

number of Shares issuable upon the exercise ofthis Warrant shall be increased to the number

obtained by dividing (x) the product of(1) the number ofShares issuable upon the exercise of

this Warrant before such adjustment, and (2) the Exercise Price in effect immediately prior to the

distribution giving rise to this adjustment by (y) the new Exercise Price determined in

accordance with the immediately preceding sentence. In the case of adjustment for a cash

dividend that is, or is coincident with, a regular quarterly cash dividend, the Per Share Fair

Market Value would be reduced by the per share amount ofthe portion ofthe cash dividend that

would constitute an Ordinary Cash Dividend. In the event that such distribution is not so made,

the Exercise Price and the number of Shares issuable upon exercise ofthis Warrant then in effect

shall be readjusted, effective as ofthe date when the Board ofDirectors determines not to

distribute such shares, evidences ofindebtedness, assets, rights, cash or warrants, as the case may

be, to the Exercise Price that would then be in effect and the number of Shares that W01.ild then

be issuable upon exercise ofthis Warrant ifsuch record date had not been fixed.

(D) Certain Repurchases ofCommon Stock. In case the Company effects a Pro Rata

Repurchase ofCommon Stock, then the Exercise Price shall be reduced to the price determined

by multiplying the Exercise Price in effect immediately prior to the Effective Date ofsuch Pro

Rata Repurchase by a fraction ofwhich the numerator shall be (i) the product of(x) the number

ofshares ofCommon Stock outstanding immediately before such Pro Rata Repurchase and (y)

the Market Price ofa share ofCommon Stock on the trading day immediately preceding the first

public announcement by the Company or any ofits Affiliates ofthe intent to effect such Pro Rata

Repurchase, minus (ii) the aggregate purchase price ofthe Pro Rata Repurchase, and of which

the denominator shall be the product of(i) the number ofshares ofCommon Stock outstanding

immediately prior to such Pro Rata Repurchase minus the number ofshares ofCommon Stock so

repurchased and (ii) the Market Price per share ofCommon Stock on the trading day

immediately preceding the first public announcement by the Company or any ofits Affiliates 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 obtained by

dividing (x) the product of(1) the number ofShares issuable upon the exercise ofthis Warrant

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 determined in

accordance with the immediately preceding sentence. For the avoidance of doubt, no increase 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).

(E) Business Combinations. Jn case of any Business Combination or reclassification

ofCommon Stock (other than a reclassification ofCommon Stock referred to in Section 13(A»,

the Warrantholder's right to receive Shares upon exercise ofthis Warrant shall be converted into

the right to exercise this Warrant to acquire the number ofshares ofstock or other securities or

property (including cash) which the Common Stock issuable (at the time ofsuch Business

Combination or reclassification) upon exercise ofthis Warrant immediately prior to such

10
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 forth herein with respect to the rights and interests thereafter ofthe

Warrantholder shall be appropriately adjusted so as to be applicable, as nearly as may reasonably

be, to the Warrantholder's right to exercise this Warrant in exchange for any shares ofstock or

other securities or property pursuant to this paragraph. In determining the kind and amount of

stock, securities or the property receivable upon exercise ofthis Warrant following the

consummation ofsuch Business Combination, ifthe holders ofCommon 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 receive upon

exercise shall be deemed to be the types and amounts ofconsideration received by the majority

ofall holders ofthe shares of common stock that affirmatively make an election (or ofall such

holders if none make an election).

(F) Rounding ofCalculations: Minimum Adjustments. All calculations under this

Section 13 shall be made to the nearest one-tenth (1I10th) of a cent or to the nearest onehundredth (Ill OOthYof a share, as the case may be. Any provision ofthis Section 13 to the

contrary notwithstanding, no adjustment in the Exercise Price or the number of Shares into

which this Warrant is exercisable shall be made ifthe amount ofsuch adjustment would be less

than $0.01 or one-tenth (l/lOth) ofa share ofCommon Stock, but any such amount shall be

carried forward and an adjustment with respect thereto shall be made at the time ofand together

with any subsequent adjustment which, together with such amount and any other amount or

amounts so carried forward, shall aggregate $0.01 or 1/1Oth of a share ofCommon Stock, or

more.

(0) Timing ofIssuance ofAdditional Common Stock Upon Certain Adjustments. In

any case in which the provisions ofthis Section 13 shall require that an adjustment shall become

effective immediately after a record date for an event, the Company may defer until the

occurrence ofsuch event (i) issuing to the Warrantholder ofthis Warrant exercised after such

record date and before the occurrence ofsuch event the additional shares ofCommon Stock

issuable upon such exercise by reason ofthe adjustment required by such event over and 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 of

Common Stock; provided, however, that the Company upon requestshall deliver to such

Warrantholder a due bill or other appropriate instrument evidencing such Warrantholder's right

to receive such additional shares, and such cash, upon the occurrence ofthe event requiring such

adjustment.

(H) Completion ofOualified Equity Offering. In the event the Company (or any

successor by Business Combination) completes one or more Qualified Equity Offerings on or

prior to December 31, 2009 that result in the Company (or any such successor) receiving

aggregate gross proceeds ofnot less than 100% ofthe aggregate liquidation preference ofthe

Preferred Shares (and any preferred stock issued by any such successor to the Original

Warrantholder under the CPP), the number ofshares ofCommon Stock underlying the portion of

this Warrant then held by the Original Warrantholder shall be thereafter reduced by a number of

shares ofCommon Stock equal to the product of(i) 0.5 and (ii) the number ofshares underlying

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 Warrant or

any portion thereof, if any event occurs as to which the provisions ofthis Section 13 are not

strictly applicable or, ifstrictly applicable, would not, in the good faith judgment ofthe Board of

Directors ofthe Company, fairly and adequately protect the purchase rights ofthe Warrants in

accordance with the essential intent and principles ofsuch provisions, then the Board of

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 Price or the

number ofShares into which this Warrant is exercisable shall not be adjusted in the event ofa

change in the par value ofthe Common Stock or a change in the jurisdiction of incorporation of

the Company.

(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 Section 13, the

Company shall forthwith file at the principal office ofthe Company a statement showing 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 adjustment, and

the Company shall also cause a copy ofsuch statement to be sent by mail, first class postage

prepaid, to each Warrantholder at the address appearing in the Company's records.

(K) Notice ofAdjustment Event. In the event that the Company shall propose to take

any action ofthe type described in this Section 13 (but only ifthe action ofthe type described in

this Section 13 would result in an adjustment in the Exercise Price or the number of Shares into

which this Warrant is exercisable or a change in the type ofsecurities or property to be delivered

upon exercise ofthis Warrant), the Company shall give notice to the Warrantholder, in the

manner set forth in Section 13(J), which notice shall specify the record date, ifany, with respect

to any such action and the approximate date on which such action is to take place. Such notice

shall also set forth the facts with respect thereto as shall be reasonably necessary to indicate 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. In the case of any action which would

require the fixing of a record date, such notice shall be given at least 10 days prior to the date so

fixed, and in case ofall other action, such notice shall be given at least 15 days prior to the taking

ofsuch proposed action. Failure to give such notice, or any defect therein, shall not affect the

legality or validity ofany such action.

(L) Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent

to the taking ofany action which would require an adjustment pursuant to this Section 13, the

Company shall take any action which may be necessary, including obtaining regulatory, New

York Stock Exchange 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 Warrantholder is entitled to receive upon exercise ofthis Warrant pursuant to this

Section 13.

12
(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 Exercise Price

made hereunder would reduce the Exercise Price to an amount below par value ofthe Common

Stock, then such adjustment in Exercise Price made hereunder shall reduce the Exercise Price to

the par value ofthe Common Stock.

14. Exchange. At any time following the date on which the shares ofCommon Stock

ofthe Company are no longer listed or admitted to trading on a national securities exchange

(other than in connection with any Business Combination), the Original Warrantholder may

cause the Company to exchange all or a portion ofthis Warrant for an economic interest (to be

determined by the Original Warrantholder after consultation with the Company) ofthe Company

classified as permanent equity under U.S. GAAP having a value equal to the Fair Market Value

ofthe portion ofthe Warrant so exchanged. The Original Warrantholder shall calculate any Fair

Market Value required to be calculated pursuant to this Section 14, which shall not be subject to

the Appraisal Procedure.

15. No Impairment. The Company will not, by amendment ofits Charter or through

any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of

securities or any other voluntary action. avoid or seek to avoid the observance or performance of

any ofthe terms to be observed or performed hereunder by the Company. but will at all times in

good faith assist in the carrying out of all the provisions ofthis Warrant and in taking ofall such

action as may be necessary or appropriate in order to protect the rights ofthe Warrantholder.

16. Goyerning Law. This Warrant will be governed by and construed in

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 Company

and the Warrantholder agrees (a) to submit to the exclusive jurisdiction and venue ofthe

United States District Court for the District ofColumbia for any 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 Section 20 below and upon

the Warrantholder at the address for the Warrantholder set forth 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 unconditionally

waives trial by jury in any legal action or proceeding relating to the Warrant or the

transactions contemplated hereby or thereby.

17. Binding Effect. This Warrant shall be binding upon any successors or assigns of

the Company.

18. Amendments. This Warrant may be amended and the observance ofany term of

this Warrant may be waived only with the written consent ofthe Company and the

Warrantholder.

19 . Prohibited Actions. The Company agrees that it will not take any action which

would entitle the Warrantholder to an adjustment ofthe Exercise Price ifthe total number of

shares ofComrnon Stock issuable after such action upon exercise ofthis Warrant. together with

13
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, would exceed

the total number ofshares ofCommon Stock then authorized by its Charter.

20. Notices. Any notice, request, instruction or other document to be given hereunder

by any party to the other will be in writing and will be deemed to have been duly given (a) on the

date ofdelivery ifdelivered 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 hereunder shall be delivered as set forth in Item 8 ofSchedule A

hereto, or pursuant to such other instructions as may be designated in writing by the party to

receive such notice.

21. Entire Agreement. This Warrant, the forms attached hereto and Schedule 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 subject matter hereof and supersede all prior and contemporaneous

arrangements or undertakings with respect thereto.

[Remainder ofpage imentionally left blank]

14
[Form of Notice ofExercise]

Date: _

TO: Morgan Stanley

RE: Election to Purchase Common Stock

The undersigned, pursuant to the provisions set forth in the attached Warrant, hereby

agrees to subscribe for and purchase the number ofshares ofthe Common Stock set forth below

covered by such Warrant. The undersigned, in accordance with Section 3 ofthe Warrant, hereby

agrees to pay the aggregate Exercise Price for such shares ofCommon Stock in the manner set

furth below. A new warrant evidencing the remaining shares ofCommon Stock covered by such

Warrant, but not yet subscribed for and purchased, if any, should be issued in the name set forth

below.

Number of Shares ofCommon Stock _

Method of Payment ofExercise Price (note if cashless 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:
IN WI1NESS WHEREOF, the Company has caused this Warrant to be duly executed by

a duly authorized officer.

Dated: October 28, 2008

MORGAN STANLEY

By: ~kIl(er.?, Name: COL~ te/..leH~R.

Title: EXECUTIVE VicE P"~"l>EIfT ANI>

CHIEF FINANCIAL. Off/CElt

Attest:

By:

-Na-me-:

iUtJI'7

--=() J\ ". I f I

Title: y~I~ ~·tV. VVO~

\.,-~-~.ne. r

[Signature Page to Warrant]
SCHEDULE A

Item 1

Name: Morgan Stanley

Corporate or other organizational fonn: Corporation

Jurisdiction of organization: Delaware

ltem2

Exercise Price: $22.99

Item 3

Issue Date: October 28, 2008

Item 4

Amount oflast dividend declared prior to the Issue Date: $0.27

Item 5

Date ofLetter Agreement between the Company and the United States Department ofthe

Treasury: October 26, 2008

Item 6

Number ofshares ofCommon Stock: 65,245,759

Item 7

Company's address:

Morgan Stanley

]585 Broadway Avenue

New York, New York 10036

Attention: ChiefFinancial Officer: Colm Kelleher

ChiefLegal Officer: Gary G. Lynch

Treasurer: David K. Wong

Principal Accounting Officer: Paul C. Wirth

Item 8

Notice information:

Ifto the Company:

Morgan Stanley

1585 Broadway

New York, NY 10036

Attention: ChiefFinancial Officer: Colm Kelleher

ChiefLegal Officer: Gary G. Lynch

Treasurer: David K. Wong

Principal Accounting Officer: Paul C. Wirth
with a copy to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, NY 10017

Attention: Jeffrey Small

John Brandow

Ifto the Warrantholder:

United States Department ofthe Treasury

1500 Pennsylvania Avenue, NW, Room 2312

Washington, D.C. 20220

Attention: Assistant General Counsel (Banking and Finance)

Facsimile: (202) 622-1974

2

WAIVER

In consideration for the benefits I will receive as a result of my employer's participation

in the United States Department of the Treasury's TARP Capital Purchase Program, I

hereby 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

20,2008.

I acknowledge that this regulation may require modification ofthe compensation, bonus,

incentive and other benefit plans, arrangements, policies and agreements (including socalled "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 employer acquired through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws of the United States or any

state related to the requirements imposed by the aforementioned regulation, including

without 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.
WAIVER

In consideration for the benefits 1will receive as a result of my employer's participation

in the United States Department of the Treasury's TARP Capital Purchase Program, 1

hereby 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

20,2008.

I acknowledge that this regulation may require modification ofthe compensation, bonus,

incentive and other benefit plans, arrangements, policies and agreements (including socalled "golden parachute" agreements) that I have with my employer or in which 1

participate as they relate to the period the United States holds any equity or debt

securities ofmy employer acquired through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws of the United States or any

state related to the requirements imposed by the aforementioned regulation, including

without 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.

~(/C(. Colm Kelleher
WAIVER

In consideration for the benefits I will receive as a result of my employer's participation

in the United States Department of the Treasury's TARP Capital Purchase Program, I

hereby 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

20,2008.

I acknowledge that this regulation may require modification ofthe compensation, bonus,

incentive and other benefit plans. arrangements, policies and agreements (including socalled "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 employer acquired through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws of the United States or any

state related to the requirements imposed by the aforementioned regulation, including

without 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.
WAIVER

In consideration for the benefits I will receive as a result of my employer's participation

in the United States Department of the Treasury's TARP Capital Purchase Program, I

hereby 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

20,2008.

I acknowledge that this regulation may require modification ofthe compensation, bonus,

incentive and other benefit plans, arrangements, policies and agreements (including socalled "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 employer acquired through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws of the United States or any

state related to the requirements imposed by the aforementioned regulation, including

without 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.

/:
WAIVER

In consider.ation for the benefits I will receive as a result ofmy employer's participation

in the United States Department of the Treasury's TARP Capital Purchase Program, I

hereby 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

20,2008.

I acknowledge that this regulation may require modification ofthe compensation, bonus,

incentive and other benefit plans, arrangements, policies and agreements (including socalled "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 employer acquired through the TARP Capital Purchase Program.

This waiver includes all claims I may have under the laws of the United States or any

state related to the requirements imposed by the aforementioned regulation, including

without 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.

MORGAN STANLEY

Officer's Certificate

October 28, 2008

This Officer's Certificate (this "Certificate") is delivered in connection with

Section 1.2(d)(ii) ofthe Securities Purchase Agreement - Standard Terms (the "SPA")

incorporated into the Letter Agreement, dated as of October 26, 2008, between Morgan

Stanley (the "Company") and the United States Depwtment ofthe Treasury (the

"Investor") (the "Letter Agreement" and, together with the SPA, the "Agreement").

Capitalized terms used but not defined herein have the meaning ascribed to them

in the Agreement.

The undersigned duly authorized Senior Executive Officer ofthe Company

hereby certifies to the Investor, on behalf ofthe Company, that:

(A) the representations and warranties ofthe Company set forth in (x) Section

2.2(g) ofthe Agreement are true and correct in all respects as though made

on and as ofthe date hereof, (y) Sections 2.2(a) through (f) ofthe

Agreement are true and correct in all material respects as though made on

and as ofthe date hereof (other than representations and warranties that by

their terms speak as of another date, which representations and warranties

were true and correct in all material respects as ofsuch other date) and (z)

Sections 2.2(h) through (v) ofthe Agreement (disregarding all

qualifications or limitations set forth in such representations and warranties

as to "materiality", "Company Material Adverse Effect" and words of

similar import) are true and correct as though made on and as ofthe date

hereof (other than representations and warranties that by their terms speak

as of another date, which representations and warranties were true and

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

representations and warranties referred to in this clause (z) to be so true and

correct, individually or in the aggregate, does not have and would not

reasonably be expected to have a Company Material Adverse Effect; and

(B) the Company has performed in all material respects all obligations required

to be performed by it under the Agreement at or prior to the date hereof.

(Remainder ofpage intentionally left blank)

(N Y) 140 1116411CLOS!NGIMS.OfficeLCelt.doc
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the

date first written above.

COMPANY: MORGAN STANLEY

By: ~&((rii... Name: Co1m Kelleher

Title: Executive Vice President and

Chief Financial Officer

(NY) 14017/647/CLOSING/MS.Officer.Cert.doc

MORGAN STANLEY

Officer's Certificate

October 28, 2008

This Officer's Certificate (this "Certificate") is delivered in connection with

Section 1.2(d)(iv) ofthe Securities Purchase Agreement - Standard Terms (the "SPA")

incorporated into the Lener Agreement, dated as ofOctober 26, 2008, between Morgan

Stanley (the "Company") and the United States Department ofthe Treasury (the

"Investor") (the "Letter Agreement" and, together with the SPA, the "Agreement").

Capitalized terms used but not defined herein have the meaning ascribed to them

in the Agreement.

The undersigned duly authorized Senior Executive Officer ofthe Company

hereby certifies to the Investor, on behalfofthe Company, that the Company has effected

such changes to its compensation, bonus, incentive and other benefit plans, arrangements

and agreements (including golden parachute, severance and employment agreements)

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

changes to be legally enforceable, each ofits Senior Executive Officers has duly

consented in writing to such changes), as may be necessary, during the period that the

Investor owns any dcbt or equity securities ofthe Company acquired pursuant to the

Agreement or the Warrant, in order to comply with Section 111 (b) ofthe Emergency

Economic Stabilization Act of 2008 as implemented by guidance or regulation thereunder

that has been issued and is in effect as ofthe date hereof.

(Remainder ofpage intentionally left blank)

(NY) \40J11641ICLOSINGIMS.Officer.Cerl.doc
IN WIlNESS WHEREOF, the undersigned has executed this Certificate on the

date first written above.

COMPANY: MORGAN STANLEY

By:

Name: Colm Kelleher

Title: Executive Vice President and

Chief Financial Officer

(NY) 14017/6471CLOSINGIMS.Officer.Cert.doc
',1
DAVIS POLK & WARDWELL

450 LEXINGTON AVENUE

NEW YORK, NY 100 17

2124504000

fAX 212 450 3800

October 28, 2008

United States Department ofTreasury

1500 Pennsylvania Avenue, NW

Washington, DC 20220

Ladies and Gentlemen:

MENl.O PARK

WASHINGTON, D.C.

LONDON

PARIS

FRANKfLJRT

MADRID

TOKYO

B£hJING

HONG KONG

We have acted as special counsel for Morgan Stanley, a Delaware

corporation (the "Company"), in connection with the Letter Agreement made as

of October 26, 2008 and the related Securities Purchase Agreement Standard

Terms incorporated by reference therein (collectively, the "Purchase

Agreement") with you under which you have agreed to purchase from the

Company (i) 10,000,000 shares ofits Fixed Rate Cumulative Perpetual Preferred

Stock, Series 0, $0.01 par value per share (the "Series D Preferred Stock"), and

(ii) a warrant (the "Warrant") to purchase 65,245,759 shares ofthe Company's

common stock, $0.01 par value per share ("Common Stock"), for a total

aggregate purchase price of $10,000,000,000. This opinion is being delivered

pursuant to Section 1.2(d)(vi) of the Purchase Agreement. Capitalized terms used

but not otherwise defined herein are used as defined in the Purchase Agreement.

We have examined originals or copies, certified or otherwise identified to

our satisfaction, ofsuch documents, corporate records, certificates of public

officials and other instruments as we have deemed necessary or advisable for the

purpose ofrendering this opinion.

Based upon the foregoing, we are ofthe opinion that:

1. The Company has been duly incorporated and is validly existing as a

corporation in good standing under the laws ofthe State of Delaware;

2. The Series 0 Preferred Stock has been duly and validly authorized

and, when issued and delivered pursuarit to the Purchase Agreement, the Series 0

Preferred Stock will be duly and validly issued, fully paid and non-assessable,

will not be issued in violation of any preemptive rights, and will rank pari passu

with or senior to all other series or classes ofPreferred Stock issued as ofthe date

(NY) 14017/647/0PIN10NSldpw.opinion.doo
United States Department ofTreasury 2 October 28, 2008

hereof with respect to the payment of dividends and the distribution of assets in

the event of any dissolution, liquidation or winding up ofthe Company;

3. The Warrant has been duly authorized and, when executed and

delivered as contemplated by the Purchase Agreement, will constitute a valid and

legally 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, concepts ofreasonableness and general

equitable principles, regardless ofwhether such enforceability is considered in a

proceeding at law or in equity;

4. The shares of Common Stock issuable upon exercise ofthe Warrant

(the "Warrant Shares") have been duly authorized and reserved for issuance

upon exercise ofthe Warrant and, when so issued in accordance with the tenns of

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

5. The Company has the corporate power and authority to execute and

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

thereunder (which include the issuance ofthe Series D Preferred Stock, the

Warrant and the Warrant Shares);

6. The execution, delivery and performance by the Company ofthe

Purchase Agreement 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 stockholders, and no further approval or

authorization is required on the part ofthe Company; and

7. The Purchase Agreement is a valid and 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, concepts ofreasonableness and general equitable principles, regardless

ofwhether such enforceability is considered in a proceeding at law or in equity;

provided, however, that no opinion is expressed with respect to Section 4.5(g) of

the Purchase Agreement or the severability provisions ofthe Purchase Agreement

insofar as Section 4.5(g) ofthe Purchase Agreement is concerned..

We are members ofthe Bar ofthe State ofNew York and the foregoing

opinion is limited to the laws ofthe State ofNew York, the federal laws ofthe

United States of America and the General Corporation Law ofthe State of

Delaware.

(NY) 14017/647/0PINIONSldpw.opinion.doc
United States Department ofTreasury 3 October 28, 2008

This opinion is rendered solely to you in connection with the Purchase

Agreement. This opinion may not be relied upon by you for any other purpose or

relied upon by any other person or furnished to any other person without our prior

written consent.

Very tntly yours,

(NY) 140111641IOPlNIONSJdpw.opmion.doc