UNITED STATES DEPARTMENT OF THE TREASrJRY 

1500 PENNSYLVANl,\ AVENUE, NW 

WASHINGTON, D.C. 20220 

Dear Ladies and Gentlemen: 

Tht:: company set tlwlh on the signatw'e page hereto (the "'Company") intends lo issu~ in a 

private placement {he number of shares of a series of its preferred stock set forill on Schedule A 

hC'feto (the "Pr~rerred Shares") and a warrant to purchase the number of shnres of a series of its 

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

Shares, the "Purchased Securities") and the United St.,tes Department of the Treasury (the 

"Investor") intends to purchase from the Company the Purchased Securities. 

The purpose of this letter agreement is to conftnn the tenns and conditions of the 

purchase by the Investor of the Purchased Secmities. Except to the extent supplemented or 

superseded by the tenns set forth herein or in the Schedules hereto, the provisions contained in 

the Securities Purchase Agreement Standard Telms allached hereto as Exhibit A (the 

'~Secut'ilhw Purchase Agreement") are incorporateo by reference herein. Terms that arc defined 

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

of any inconsistency bet\veen this letter agree,ment and the Securities Purchase Agreement, the 

tenns of this letter agreement shall govern. 

Each of ille CompmlY and the Investor hereby confirms its agreement with the other party 

with respect to the issuance hy the Company of the Purchased Securities and the purchase by the 

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

Agreement on the tetms specified on Schedule A hereto. 

This letter agreement (including the Schedules hereto), the Secw'itie" Purchase 

Agreement (including the Annexes thereto), the Disclosure Schedules and the Warrant constitute 

the entire agreement, and supersede all other prior agreements, understandlngs, representations 

and wmTanties, both written and oral, between the parties, with respect to the subject matter 

ht;.."fcof. This letter agreement constitutes the "Letter Agreement" rete-lTed to in the Securities 

Purchase Agreement. 

This letter agreenK'11t may he executed in any number of separate c()unterparls, each such 

counterpart being deemed to be an original instrwnent, m,d all such counterparts will together 

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

delivered hy tacfiimile and ~'uch facsimiles will be deemed a~ sufficient as if actual signaulre 

pages had been delivered. 

>!: * * 
In witness whereot: this letter agreement has been duly executed and delivered by the 

duly authorized representatives of the parties hereto as of the date written below. 

UNITED STATES DEPARTMENT OF THE 

TREASURV .' 

By: ~~ __ ~ ______ ~~=-~~ __ Name: Neel Kashkari 

Title: Interim Assistant Secretary 

For Financial Stability 

COMPANY: Tri-State Bank of Memphis 

By: cc---' 

Name: Jesse H. Turner 

Title: President and Chief Executive Officer 

APR 3- 2009 Date: __________________ _ 
[n witness whereaC this leller agreement has been duly executed and delivered by the 

duly authorized representatives of the parties hereto as of the date \vriften belo\\'. 

UNITED STATES DEPARTMENT OF THE 

TREASURY 

By: _______ _ 

Name: 

Title: 

Name. . Turner, Jr. 

Title: President and Chief Executive Officer 
SCHEDULE A 

ADDITIONAL TERMS AND CONDITIONS 

Company InfOimation: 

Name of the Company: 

Corporate or other organizational form: 

Jurisdiction of Organization: 

Appropriate Pederal Banking Agency: 

Notice Information: 

Term of 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: 

Series of Warrant Preferred Stock: 

Number of Warrant Shares: 

Number or Net Warrant Shares (after net settlement): 

Exercise Price of the Warrant: 

Purchase Price: 

Closing: 

Location of Closing: 

Time of Closing: 

Date of Closing: 

Tri-State Bank of Memphis 

State Bank 

Tennessee 

Federal Deposit Insurance Corporation 

Joyce A. McGehee 

Senior Vice President and Chief Financial Officer 

Tri-State Bank of Memphis 

180 South Main at Beale Street 

Memphis, TN 38103-3616 

Fixed Rate Non-Cumulative Perpetual Preferred 

Stock, Series B 

$1,000 

2,795 

February 15, May 15. August 15 and 

November 15 of each year 

Not Applicable 

Not Applicable 

Not Applicable 

Not Applicable 

$2,795,000 

Hughes Hubbard & Reed LLP 

One Battery Park Plaza 

New York, New York 10004-1482 

9:00 a.m. EST 

April 3, 2009 
Wire Information for Closing: 

Contact for Confirmation of 

Wire Information: 

ABA Number: 

Bank: 

Account Name: 

Account Number: 

Beneficiary: 

William H. Bufford, Secretary 

Office: 525-0384 

Mobile: 
CAPITALIZATION 

Capitalization Date; March 31, 2009 

Common Stock 

Par value: $5,00 

Total Authorized: 3,000,000 

Outstanding: 220,180 

Subject to warrants, options, convertible securities, etc.: None 

Reserved for benefit plans and other issuances: None 

Remaining authorized but unissued: 2,779,820 

Shares issued after Capitalization Date 

(other than pursuant to warrants, options, 

convertible securities, etc. as set forth above): None 

Preferred Stock -- Series A 

Par value: 

Total Authorized: 

None 

1,000,000 

SCHEDULED 

Outstanding (by series): 

Reserved for issuance: 

20,916 shares of Preferred Stock - Series A 

None 

Remaining authorized but unissued: 

Preferred Stock - Series B 

Par value: 

Total Authorized: 

Outstanding (by series): 

Reserved for issuance: 

Remaining authorized but unissued: 

979,084 

None 

3,000,000 

None 

None 

3,000,000 

SCHEDULEC 

LITIGATION 

List any exceptions to the representation and warranty m Section 2.2(1) of the Securities 

Purchase Agreement - Standard Tcnns. 

If none, please so indicate by checking the box: 0 
SCHEDULED 

COMPLIANCE WITH LA WS 

List any exceptions to the representation and wan'anty in the second sentence of Sectioll 2.2(m) 

of the Securities Purchase Agreement _. Standard '[elIDs. 

If none, please so indicatc by checking the box: lSI. 

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

the Securities Pmchase Agreement - Standard Terms. 

[rnone, please so indicate by checking the box: [Xl. 
SCHEDIJLEE 

REGULA TORY AGREEJlU:NTS 

List any exceptions to the representation lind wananty in Section 2.2(s) of the Securities 

Purchase Agrccment -- Standard Tcnns. 

If none, please so indicate by checking U,e box: 1]1. 
EXHIBIT A 

SEClJRITIES PURCHASE AGREEMENT 

Q9~ J 31-(l»()2-1 (1(1:1 j-.N YQ2.l059J·I!$1 ,5 
095331 -0002-I00.B-NY02.2690847.9 

EXHIBIT A 

(Non-Exchange-Traded QFls, excluding S Corps 

and Mutual Organizations) 

SECURITIES PURCHASE AGREEMENT 

STANDARD TERMS 
TABLE OF CONTENTS 

Page 

Article I 

Purchase; Closing 

1.1 Purchase ................................................................................................................... 3 

1.2 Closing ..................................................................................................................... 3 

1.3 Interpretation .......................................................................................................... 8 

Article II 

Representations and Warranties 

2.1 Disclosure ............................................................................................................... 9 

2.2 Representations and WalTanties of the Company .................................................. 11 

Article 1II 

Covenants 

3.1 Commercially Reasonable Efforts ........................................................................ 29 

3.2 Expenses ................................................................................................................ 30 

3.3 Sufficiency of Authorized Warrant Prefen'ed Stock; Exchange Listing ............... 30 

3.4 Certain Notifications Until Closing ....................................................................... 30 

3.5 Access, Information and Confidentiality ............................................................... 31 

Article IV 

Additional Agreements 

4.1 Purchase for Investment.. ...................................................................................... 34 

4.2 Legends .................................................................................................................. 35 

4.3 Certain Transactions ............................................................................................. .39 

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

of~%m~ ................................................................................................... 39 

4.5 Registration Rights ............................................................................................... ..40 

4.6 Depositary Shares .................................................................................................. 68 

4.7 Restriction on Dividends and Repurchases ............................................................ 68 

4.8 Executive Compensation ....................................................................................... 73 

4.9 Related Party Transactions .................................................................................... 74 

4.10 Bank and Thrift Holding Company Status ............................................................. 74 

4.11 Predominantly Financial ........................................................................................ 75 

-i0953) I-OllU2-J O()JJ·NY02. 26'1()84 7.<) 
Article V 

Miscellaneous 

5.1 Termination ............................................................................................................ 75 

5.2 Survival of Representations and WalTanties .......................................................... 77 

5.3 Amendment ............................................................................................................ 77 

5.4 Waiver of Conditions ............................................................................................. 77 

5.5 Governing Law: Submission to Jurisdiction, Etc . ............................................ 78 

5.6 Notices ................................................................................................................... 78 

5.7 Definitions .............................................................................................................. 79 

5.8 Assignment ............................................................................................................ 80 

5.9 Severability ............................................................................................................ 81 

5.10 No Third Party Beneficiaries ................................................................................. 81 

095331·0002·I0033·NY02.26908A7!) 
LIST OF ANNEXES 

ANNEX A: FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK 

ANNEX B: FORM OF CERTIFICATE OF DESIGNATIONS FOR WARRANT 

PREFERRED STOCK 

ANNEX C: FORM OF WAIVER 

ANNEX D: FORM OF OPINION 

ANNEX E: FORM OF WARRANT 

-iii095331·0002·1 0033·NYf!2,269084 7.9 
INDEX OF DEFINED TERMS 

Term 

Affiliate 

Agreement 

Appropriate Federal Banking Agency 

Bank Holding Company 

Bankruptcy Exceptions 

Benefit Plans 

Board of Directors 

Business Combination 

business day 

Capitalization Date 

Certificates of Designations 

Charter 

Closing 

Closing Date 

Code 

Common Stock 

Company 

Company Financial Statements 

Company Material Adverse Effect 

Company Reports 

Company Subsidiary; Company Subsidiaries 

control; controlled by; under common control with 

Controlled Group 

CPP 

Disclosure Schedule 

EESA 

ERISA 

Exchange Act 

Federal Reserve 

GAAP 

Governmental Entities 

Holder 

Holders' Counsel 

Indemnitee 

Information 

Investor 

Junior Stock 

knowledge of the Company; Company's knowledge 

Letter Agreement 

officers 

Parity Stock 

095331-0002-1 0033-NY02, 269084 7.9 

Location of 

Definition 

5.7(b) 

Recitals 

2.2(s) 

4.10 

2.2(d) 

l.2(d)(iv) 

2.2(1) 

5.8 

1.3 

2.2(b) 

1.2(d)(iii) 

1.2(d)(iii) 

1.2(a) 

1.2(a) 

2.2(n) 

2.2(b) 

Recitals 

2.2(h) 

2.I(b) 

2.2(i)(i) 

2.2(e)(ii) 

5.7(b) 

2.2(n) 

Recitals 

2.1(a) 

1.2(d)(iv) 

2.2(n) 

4.4 

4.10 

2.1(b) 

1.2(c) 

4.5(1)(i) 

4.5(1)(ii) 

4.5(h)(i) 

3.5(c) 

Recitals 

4.7(1) 

5.7(c) 

Recitals 

5.7(c) 

4.7(1) 
Term 

Pending Underwritten Offering 

Permitted Repurchases 

Piggyback Registration 

Plan 

PrefmTed Shares 

PrefelTed Stock 

Previously Disclosed 

Proprietary Rights 

Purchase 

Purchase Price 

Purchased Securities 

register; registered; registration 

Registrable Securities 

Registration Expenses 

RegulatOlY Agreement 

Rule 144; Rule 144A; Rule 159A; Rule 405; Rule 415 

Savings and Loan Holding Company 

Schedules 

SEC 

Securities Act 

Selling Expenses 

Senior Executive Officers 

Shelf Registration Statement 

Signing Date 

Special Registration 

subsidiary 

Tax; Taxes 

Transfer 

Warrant 

Warrant Preferred Stock 

WalTant Shares 

09533 ! ·0002·1 003 .1.NY02.269084 7.9 

-vLocation of 

Definition 

4.5(m) 

4.7(c) 

4.5(b)(iv) 

2.2(n) 

Recitals 

Recitals 

2.I(c) 

2.2(u) 

Recitals 

l.l 

Recitals 

4.5(1)(iii) 

4.5(1)(iv) 

4.5(1)(v) 

2.2(s) 

4.5(1)(vi) 

4.10 

Recitals 

2.2(k) 

2.2(a) 

4.5(1)(vii) 

4.8 

4.5(b)(ii) 

2.I(b) 

4.5(j) 

5.7(a) 

2.2(0) 

4.4 

Recitals 

Recitals 

2.2(d) 
SECURITIES PURCHASE AGREEMENT - STANDARD TERMS 

Recitals: 

WHEREAS, the United States Department of the Treasury (the "[nvestor") may from 

time to time agree to purchase shares of preferred stock and wan'ants from eligible financial 

institutions which elect to participate in the Troubled Asset Relief Program Capital Purchase 

Program ("CPP"); 

WHEREAS, an eligible tlnancial 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 Tenus; 

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

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

economy; 

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

the tenns of residential mortgages as appropliate to strengthen the health of the U.S. housing 

market; 

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

the seties of its Preferred Stock ("Pr~/erred Stoc/(') set forth on Schedule A to the Letter 

Agreement (the "Pre/erred Shares") and a warrant to purchase the number of shares of the selies 

of its Preferred Stock (,'Warrant Preferred Stock") set forth on Schedule A to the Letter 

Agreement (the" Warrant" and, together with the PrefeITed 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 Tenus and the Letter Agreement, including the schedules thereto (the "Schedules"), 

specifying additional tenus of the Purchase. This Securities Purchase Agreement - Standard 

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

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

Agreement - Standard Tenus to "Schedules" are to the Schedules attached to the Letter 

Agreement. 

NOW, THEREFORE, in consideration of the premiscs, and of the representations, 

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

Article I 

Purchase; Closing 

1.1 Purchase. On the tenus and subject to the conditions set forth in this Agreement, 

the Company agrees to sell to the Investor, and the Investor agrees to purchase trom the 

Company, at the Closing (as hereinaller defined), the Purchased Securities for the price set forth 

on Schedule A (the "Purchase Price"). 

095) 3 [ -0002-1 003 3 -r-.;\'02,269084 7.0) 
1.2 Closing. 

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

of the Purchase (the "Closing") will take place at the location spccified 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 of thc conditions to the Closing in this Section 

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

as evidenced by one or more certificates dated the Closing Date and bearing appropriate legends 

as hereinafter provided for, in exchange for payment in full of the Purchase Price by wire 

transfer of immediately available United States funds to a bank account dcsignated by the 

Company on Schedule A. 

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

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

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

authorizations of all United States and other govemmental, regulatory Or judicial autlrorities 

(collcctivcly, "Governmental Entities") required for the consummation of the Purchase shall 

have bcen obtained or made in fonn and substance reasonably satisfactory to each party and shall 

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

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

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

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

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

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

conditions: 

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

Section 2.2(g) of this Agreement shall be tlUe and COlTect in all respects as though made 

on and as of the Closing Date, (y) Sections 2.2(a) tlu'ough (f) shall be tlUe and correct in 

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

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

representations and walTanties shall be tlUC and correct in all material respects as of such 

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

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

Material Adverse Effect" and words of similar import) shall be tlUe and correct as though 

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

their tenns speak as of another date, which representations and walTanties shan be true 

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

representations and walTanties rcfelTed 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 

-2-

095331·0002·1 OO} J. NY02.169084 7.9 
performed in all material respects all obligations required to be perfonned by it under this 

Agreement at or prior to the Closing; 

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

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

in Section l.2(d)(i) have been satisfled; 

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

of its jurisdiction of organization or other applicable Governmental Entity the 

amendments to its certiflcate or articles of incorporation, articles of association, or similar 

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

A and Annex B (the "Certificates o{Designations") and such flling shall have been 

accepted; 

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

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

parachute, severance and cmployment agreements) (collectivcly, "Benefit Plans") with 

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

be Icgally enforceable, each of its 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 of the Company acquired pursuant to this Agreement or the 

WalTant, in order to comply with Section 111(b) of the Emergency Economic 

Stabilization Act 0[2008 ("EESA") as implemented by guidance or regulation thereunder 

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

have received a certiflcate signed on behalf of the Company by a senior executive omcer 

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

satisfled; 

(v) each of the Company's Senior Executive Omcers shall have delivered to 

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

Investor from any claims that such Senior Executive Omcers may otherwise havc as a 

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

the modiflcatiou of; and the agreement of the Company hereunder to modify, the terms of 

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

provisions of such Beneflt Plans that would not be ill compliance with the requirements 

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

has been issued and is ill effect as of the Closing Date; 

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

counsel to the Compauy (which may be internal counsel), addressed to the Investor and 

dated as of the Closing Date, in substantially the form attached hereto as Annex 0; 

(vii) the Company shall have delivered cettifleates in proper form or, with thc 

prior consent of the Investor, evideuce of shares in book-entry form, evidencing the 

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

-3-

095331-0002- [0033-N Y02.269084 7. <) 
(viii) the Company shall have duly executed the Warrant in substantially the 

form attached hereto as Annex E 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 Telms, and a reference to 

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

indicated. The tenns defmed in the singular have a comparable meaning when used in the plural, 

and vice versa. References to '''hercin'\ '-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 arc for reference 

purposes only and are not part of this Agreement. Whenever the words "include," "includes" or 

"including" are used in this Agreement, they shall be deemed followed by the words "without 

limitation." No rule of construction against the draftsperson shall be applied in connection with 

the interpretation or enforcement of this Agreement, as this Agreement is the product of 

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

mean the lawful currency of the United States of America. Except as expressly stated in this 

Agreement, all references to any statute, IUle or regulation are to the statute, rule or regulation as 

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

include any rules and regulations promulgated under the statute) and to any section of any 

statute, rule or regulation include any successor to the section. References to a "business day" 

shall mean any day except Saturday, Sunday and any day on which banking institutions in the 

State of New York generally are authorized or required by law or other governmental actions to 

close. 

2. I Disclosure. 

Article II 

Representations and Warranties 

(a) On or prior to the Signing Date, the Company delivered to the Investor a schedule 

("Disclosure Schedule") setting forth, among other things, items the disclosure of which is 

necessary or appropriate either in response to an express disclosure requirement contained in a 

provision hereof or as an exception to one or more representations or warranties contained in 

Section 2.2. 

(b) "Company Material Adverse Ejjixt" means a material adverse effect on (i) the 

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

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

not be deemed to include the effects of (A) changes after the date of the 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 of war or terrorism, in 

-4-

09533 ! ·0002-1 003 J. NY02.269084 7.9 
each case generally affecting the industries in which the Company and its subsidiaries operate, 

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

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

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

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

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

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

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

consolidated subsidiarics taken as a wholc relative to comparable U.S. banking or fmancial 

services organizations); or (ii) the ability of the Company to consummate the Purchase and other 

transactions contemplated by this Agreement and the Warrant and perform its obligations 

hereunder or thereunder on a timely basis. 

(c) "Previously Disc/ose,f' means infonnation set forth on thc Disclosure Schedule, 

provided, however, that disclosure in any section of such Disclosure Schedule shall apply only to 

the indicated section of this Agreement except to the extent that it is reasonably apparent from 

the face of such disclosure that such disclosure is relevant to another section of this Agreement. 

2.2 Representations and Warranties of the Company. Except as Previously Disclosed, 

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

Closing Date (or such other date specified hcrcin): 

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

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

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

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

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

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

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

conducts any business so as to require such qualification; each subsidiary of the Company that 

would be considered a "significant subsidiary" within the meaning of Rule I-02(w) of 

Regulation S-X under the Securities Act of 1933 (the "Securities Act"), has been duly organized 

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

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

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

effect as of the Signing Date. 

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

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

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

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

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

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

were not issued in violation of allY preemptive rights). As of the Signing Date, the Company 

does not have outstanding any securities or other obligations providing the holder the right to 

-5-

09SJ31·0002·100:n·NY02.2690IH7.9 
acquire its Common Stock ("Common Stock") that is not reserved tor issuance as 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 of 

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

other equity-based awards or other convertible securities or wan'ants which were issued and 

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

Schedule B. Each holder of 5% or more of any class of capital stock of the Company and such 

holder's primary address are set forth 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 Pretened 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 of dividends 

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

Company. 

(d) The Warrant and Warrant Sharcs. Thc Warrant has been duly authorized and, 

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

obligation of the Company enforceable against the Company in accordance with its terms, except 

as the samc may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or 

similar laws affecting the enforcement of creditors' rights gcnerally and general equitable 

principles, regardless of whether such cnforceability is considered in a proceeding at law or in 

equity ("Bankruptcy Exceptions"). The shares of Warrant Preferred Stock issuable upon exercise 

of the Wan'ant (the "Warrant Shares") have been duly authorized and reserved for issuance upon 

exercise orthe Wan'ant and when so issued in accordance with the tetTns of the Warrant will be 

validly issued, fully paid and non-assessable, and will rank pari passu with or senior to all other 

series or classes of Preferred Stock, whethcr or not issued or outstanding, with respect to the 

payment of dividends and the distribution of assets in the event of any dissolution, liquidation or 

winding up of the Company. 

(e) Authorization, Enforceabilil:y. 

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

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

thereunder (which includes the issuance of the PrefetTed Shares, Warrant and Warrant 

Shares), The execution, delivery and perfotTnance by thc Company of this Agreement and 

the Warrant and the consummation of the transactions contemplated hereby and thereby 

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

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

the Company. This Agreement is a valid and binding obligation of the Company 

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

Exceptions. 

-6-
(ii) The execution, delivcry and performance by the Company of this 

Agreement and the Wan'ant and the consummation of the transactions contemplated 

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

thereot; will not (A) violate, conflict with, or result in a breach of any provision of, or 

constitute a default (or an event which, with notice or lapse of time or both, would 

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

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

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

of the Company or any subsidiary of the Company (each a "Company Subsidimy" and, 

collectively, the "Company Suhsidiaries") under any of the tenns, conditions or 

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

deed of trust, license, lease, agreement or other instrument or obligation to which the 

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

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

of the properties or assets of the Company or any Company Subsidiary may be subject, or 

(B) subject to compliance with the statutes and regulations referred to in the next 

paragraph, violate any statute, rule or regulation or any judgment, ruling, order, writ, 

injunction or decree applicable to the Company or any Company Subsidiary or any of 

their respective properties or assets except, in the case of clauses (A)(ii) and (B), for 

those occurrences that, individually or in the aggregate, have not had and would not 

reasonably be expected to have a Company Material Adverse Effect. 

(iii) Other than the filing of the Certificates of Designations with the Secretary 

of State of its jurisdiction of organization or other applicable Governmental Entity, such 

tilings and approvals as are required to be made or obtained under any state "blue sky" 

laws and such as have been made or obtained, no notice to, filing with, exemption or 

review by, or authorization, consent or approval of, any Governmental Entity is required 

to be made or obtained by the Company in connection with the consummation by the 

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

authorizations, consents and approvals the failure of which to make or obtain would not, 

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

Adverse Effect. 

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

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

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

contemplated hereby and thereby, including the exercise of the Wan'ant in accordance with its 

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

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

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

(g) No Company Material Adverse Effect. Since the last day of the last completed 

fiscal period for which tinancial statements are included in the Company Financial Statements 

(as detined below), no fact, circumstance, event, change, occurrence, condition or development 

-7-

095 331·0002~ I 003 3 -NY02.2690li4 7.9 
has occurred that, individually or in the aggregate, has had or would reasonably be expected to 

have a Company Material Adverse Effect. 

(h) Comoanv Fmancial Statements. The Company has Previously Disclosed each of 

the consolidated financial statements of the Company and its consolidated subsidiaries for each 

of the last three completed fiscal years of the Company (which shall be audited to the extent 

audited financial statements are available prior to the Signing Date) and each completed 

quarterly period since the last completed fiscal year (collectively the "Company Financial 

Statements"). The Company Financial Statements present fairly in all material respects the 

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

indicated therein and the consolidated results of their operations for the periods specified therein; 

and except as stated therein, such financial statements (Al were prepared in conformity with 

GAAP applied on a consistent basis (except as may be noted therein) and (B) have been prepared 

from, and are in accordance with, the books and records of the Company and the Company 

Subsidiaries. 

(i) Reports. 

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

has filed all reports, registrations, documents, filings, statemcnts and snbmissions, 

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 cOlUlection therewith, except, in each case, as would not, 

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

Adverse Effect. As of their respective dates of filing, the Company Reports complied in 

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

applicable Governmental Entitics. 

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

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

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

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

Company Subsidiaries or their acconntants (including all means of access 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(il(ii). The Company (A) has 

implemcnted and maintains adequate disclosure controls and procedures to ensure that 

material information relating to the Company, including the consolidated Company 

Subsidiaries, is made known to the chief executive officer and the chief financial officer 

of the Company by others within those entities, and (B) has disclosed, based on its most 

recent evaluation prior to the Signing Date, to the Company's outside auditors and the 

audit committee of the Board of Directors (x) any significant deficiencies and material 

weaknesses in the design or operation of internal controls 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 110t material, that involves management or 

-8-

09533 ! ·00Q2 -I 003 3 -NY 02.269D84 7.9 
other employees who have a significant role in the Company's intemal controls over 

financial reporting. 

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

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

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

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

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

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

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

Material Adverse Effect. 

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

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

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

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

and Exchange Commission (the "SEC) promulgated thereunder), which might subject the 

offering, issuance or sale of any of the Purchased Securities to Investor pursuant to this 

Agreement to the registration requirements of the Securities Act. 

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

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

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

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

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

any order, judgment or decree or (B) unresolved violation, criticism or exception by any 

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

the Company or any Company Subsidiaries. 

(10) 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 thc 

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

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

required in order to pcnnit them to own or lease their properties and assets and to canyon their 

business as presently conducted and that are material to the business of the Company or such 

Company Subsidiary. Except as set forth ou Schedule D, the Company and the Company 

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

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

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

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

regulation, policy or guideline, order, demand, writ, injunction, decree or judgment of any 

Govcmmental 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 statutOlY or regulatory restrictions of general application or as set forth on 

Schedule D, no Govemmental Entity has placed any restriction on the business or properties of 

-9-

0953:; 1-0002 -I 003 3- NY02.2(,90H4 7 ,'l 
the Company or any Company Subsidiary that would, individually or in the aggregate, 

reasonably be expected to have a Company Material Adverse Effect. 

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

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

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

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

officer or director of the Company or any member of its "Controlled Group" (defined as any 

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

Section 414 of the Inlernal Revenue Code of 1986, as amended (the "Code"» that is sponsored, 

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

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

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

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

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

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

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

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

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

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

"accumulated funding deficiency" (within the meaning of Section 302 of ERISA or Section 412 

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

is reasonably expected to occur, (3) the fair market value of the assets under each Plan exceeds 

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

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

has incurred in the six years prior to the Signing Date, or reasonably expects to incur, any 

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

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

"multiemployer plan", within the meaning of Section 400 I (c)(3) of ERISA); and (C) each Plan 

that is intended to be qualified under Seclion 401(a) of the Code has received a favorable 

determination letter fi'Om the Internal Revenue Service with respect to its qualified status that has 

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

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

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

favorable detennination letter. 

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

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

Subsidimies have filed all federal, state, local and foreign income and (ranchise Tax returns 

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

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

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

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

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

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

-10-

0953J [-0002 -J 0033- NY02.~69084 7.') 
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 interfcre 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 enforceablc leascs with no exceptions that would 

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

('1) Environmental Liabilitv. 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 secking to impose, or that would reasonably be expected to result in the 

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

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

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

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

threatened against the Company or any Company Subsidiary; 

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

proceeding, claim or action; and 

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

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

party imposing any such environmental liability. 

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

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

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

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

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

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

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

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

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

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

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

under any such agreement or an·angement other than such breaches that would not, individually 

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

-11-

OQ 53 31 -0002-! 003 3-l\Y 02.269084 7 ,9 
(s) Agreements with Regulatory Agencies. Except as set forth on Schedule E, neithcr 

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 matcllal 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 thc conduct of its business or that in 

any material manner relates to its capital adequacy, its liquidity and funding policies and 

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

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

sentence, a "ReglllatOly 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 neithcr 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 

Scction 3(q) of the Federal Deposit Insurance Act (12 U.S.c. Section ISI3(q)). 

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

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

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

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

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

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

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

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

Adverse Effect. 

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

reasonably be expected to have a Company Matetial Adverse Effect, (il the Company and each 

Company Subsidiary owns or otherwise has the right to usc, all intellectual property rights, 

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

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

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

specifications of any of its branch facilities ("Proprietmy Rights") free and clear of all liens and 

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

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

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

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

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

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

-12-

09533 ! -00U2-1 OOJ3-NY02,269084 7.9 
expected to have a Company Material Adverse Effect, to the Company's knowledge, no other 

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

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

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

by the Company and the Company Subsidiaries. 

(v) Brokers ancl Finders. No broker, tinder or investment banker is entitled to any 

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

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

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

Investor could have any liability. 

Article 1Il 

Covenants 

3.1 Commercially Reasonable Efforts. Subject to the tenus and conditions of this 

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

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

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

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

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

end. 

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

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

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

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

counsel. 

3.3 Sufficiency of Authorized Warrant Preferred Stock; Exchange Listing. 

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

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

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

effectuate such exercise. 

(b) [flhe Company lists its Common Stock on any national securities exchange, the 

Company shall, if requested by the Investor, promptly use its reasonable best efforts to canse the 

Preferred Shares and Warrant Shares to be approved for listing on a national securities exchange 

as promptly as practicable following such request. 

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

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

aware and which would reasonably be expected to cause any representation or wananty of the 

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

-13-

095331-0002-1 003 J-NY02.2690841.9 
cause any covenant or agreement of the Company contained in this Agreement not to be 

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

fact, circumstance, event, change, occurrence, condition or development of which 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..!;,rt"er, that a failure to comply with this Section 3.4 shall not constitute a 

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

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

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

3.5 Access, Information and Conlidentiality. 

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

Prefell'ed Shares having an aggregate liquidation value of less than 10% of the Purchase Price, 

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

acting through the Appropriate Federal Banking Agency, or otherwise to the extent necessary to 

evaluate. manage, or transfer its investment in the Company, to examine the corporate books and 

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

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

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

any inlormation 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 nonnal business hours and in such manner as not to interfere unreasonably 

with the conduct of the business of the Company, and nothing herein shall require the Company 

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

prohibited by applicable law or regulation, or (ii) that such disclosure would reasonably be 

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 of privilege 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) From the Signing Date until the date on which all of the Preferred Shares and 

Warrant Shares have been redeemed in whole, the Company will deliver, or will cause to be 

delivered, to the Investor: 

(i) as soon as available after the end of each fiscal year of the Company, and 

in any event within 90 days thereafter, a consolidated balance sheet of the Company as of 

the end of such fiscal year, and consolidated statements of income, retained earnings and 

cash !lows of the Company for such year, in each case prepared in accordance with 

GAAP and setting forth in each case in comparative form the figures for the previous 

fiscal year of the Company, and which shall be audited to the extent audited financial 

statements are available; and 

-14-

095 n 1-U002-J 003 }.NY02.2('<)1)l)4 7_9 
(ii) as soon as available alter the end of the first, second and third quarterly 

periods in each fiscal year of the Company, a copy of any quarterly reports provided to 

other stockholders of the Company or Company management. 

(c) 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 infonnation 

(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 

infannation can be shown to have bcen (i) previously known by such patty on a non-confidential 

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

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

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

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

subpoena or similar legal process. 

(d) The Investor's infannalion rights pursuant to Section 3.5(b) may be assigned by 

the Investor to a transferee or assignee of the Purchased Securities or the Wan-ant Shares or with 

a liquidation preference or, in the case of the Warrant, the liquidation preference of the 

underlying shares of Wan-ant Preferred Stoek, no less than an amount equal to 2% of the initial 

aggregate liquidation preference of the Preferred Shares. 

Article IV 

Additional Agreements 

4.1 Pm-chase for Investment. The Investor acknowledges that the Purchased Securities 

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

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

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

distribute them to any person in violation of the Securities Act Or any applicable u.s. state 

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

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

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

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

of evaluating the merits and risks of the Purchase and of making an informed investment 

decision. 

4.2 Legends. 

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

Warrant 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 ST ATE AND MAY NOT BE TRANSFERRED, SOLD 

-15-

09S.B I ,oo02·]OO.U·NY02.26'lOH47.9 
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. 

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." 

(b) In addition, the Investor agrees that all certificates or other instrumcnts 

representing the Preferred Shares and the Warrant 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 ACr), OR THE SECURITIES LAWS OF ANY STATE AND MAY 

NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE 

A REGISTRATION STA TEMENT RELATING THERETO IS IN EFFECT UNDER 

SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO 

AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. 

EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE 

EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 

144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED 

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

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

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

OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT 

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

AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE 

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

BELIEVES IS A "QUALIFIED 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 

-16-

09533 1-0002-1 0033-NY02.269084 7 ,9 
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE [N 

RELIANCE ON RULE I44A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY 

OTHER A V A[LABLE EXEMPTION FROM THE REG[STRATION 

REQU[REMENTS OF THE SECURITIES ACT AND (3) AGREES THAT [T W[LL 

GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY TH[S 

INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE 

EFFECT OF THIS LEGEND. 

THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTR[CTIONS ON 

TRANSFER AND OTHER PROVISIONS OF A SECURlTIES 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 [NSTRUMENT MAY NOT 

BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH 

SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT [N COMPLIANCE 

WITH SAID AGREEMENT WILL BE VOID." 

(c) [n the event that any Purchased Securities or Warrant Shares (i) become registered 

under the Securities Act or (ii) are eligible to be transfen'ed without restriction in accordance 

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

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

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

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

previously issued certificates or other instruments. 

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

transfer or lease all Or substantially all of its property or assets to, any other party unless the 

successor, transferee or lessee party (or its ultimate parent entity), as the case may be (if not the 

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

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

Company. 

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

the Warrant. Subject to compliance with applicable securilies laws, the Investor shall be 

pennitted to transfer, sell, assign or othelwise dispose of ("Tran,~fer") all or a pOltion of the 

Purchased Securities or WatTant. Shares at any time, and the Company shall lake all steps as may 

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

the Warrant Shares; provided that the Investor shall not Transfer any Purchased Seemities or 

Warrant Shares ifsuch transfer would require the Company to be subject to the periodic 

reporting requirements of Section [3 or 1S(d) of the Securities Exchange Act of [934 (the 

"Exchange Act"). [n fUltherance of the foregoing, the Company shall provide reasonable 

cooperation to facilitate any Transfers of the Purchased Securities or Warrant Shares, including, 

as is reasonable under the circumstances, by furnishing such information concerning the 

Company and its business as a proposed transferee may reasonably request (including such 

information as is required by Section 4.S(k» and making management of the Company 

-[ 7-

095 B I "ooo~ -\ 0033· NY Q2.26l}084 7.') 
reasonably available to respond to questions of a proposed transferee in accordance with 

customary practice, subject in all cases to the proposed transferee agreeing to a customary 

contldentialityagreement. 

4.5 Registration Rights. 

(a) Unless and until the Company becomes subject to the reporting requirements of 

Section 13 or 15(d) of the Exchange Act, the Company shall have no obligation to comply with 

the provisions of this Section 4.S (other than Section 4.S(b)(iv)-(vi»; provided that the Company 

covenants and agrees that it shall comply with this Section 4.S as soon as practicable after the 

date that it becomes subject to such reporting requirements. 

(b) Registration. 

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

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

becomes subject to the reporting requirements of Section 13 or IS( d) of the Exchange Act 

(and in any event no later than 30 days therealter), the Company shall prepare and Ille 

with the SEC a Shelf Registration Statement covering all Registrable Securities (or 

otherwise designate an existing Shelf Registration Statement Illed with the SEC to cover 

the Registrable Securities), and, to the extent the Shelf Registration Statement has not 

theretofore been declared effective or is not automatically effective upou such tlling, the 

Company shall use reasonable best efforts to cause such Shelf Registration Statement to 

be declared or become effective and to keep such Shel f Registration Statement 

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

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

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

Registration Statement (or a new Shelf Registration Statement) if the initial Shelf 

Registration Statement expires). Notwithstanding the foregoing, if the Company is not 

eligible to me a registration statement on Fonn S-3, then the Company shall not be 

obligated to me a Shelf Registration Statement unless and until requestcd to do so in 

writing by the Investor. 

(ii) Any registration pursuant to Section 4.S(b)(i) shall be effected by means 

of a shelf registration on an appropriate form under Rule 41S under the Securities Act (a 

"She!t'Registration Statement"). If the Investor or any other Holder intends to distribute 

any Registrable Securities by means of an underwritten offering it shall promptly so 

advise the Company and the Company shall take all reasonable steps to facilitate such 

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

Company shall not be required to facilitate an underwritten offering of Registrable 

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

initial aggregate liquidation preference of the Preferred Shares if such initial aggregate 

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

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

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

-18-

O'l5331-0002-IOO33·NY02.2690847.<) 
of the Registrable Securities to bc distributed; provided that to the extent appropriate and 

pennitted under applicable law, such Holders shall consider the qualifications of any 

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

distribution. 

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

resale of Registrable Securities from an effective Shelf Registration Statement) or an 

underwritten offering pursuant to Section 4.5(b): (A) with respect to securitics that are 

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

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

detrimental to the Company or its seeurityholdcrs for such registration or undelwritten 

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

defer such registration for a period of not more than 45 days after receipt of the rcquest of 

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

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

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

of similar securities that have registration rights and (2) not more than three times in any 

12-month period and not more than 90 days in the aggregate in any 12-month period. 

(iv) If during any period when an effective Shelf Registration Statemcnt is not 

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

registration pursuant to Section 4.5(b)(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 writtcn notice to the Investor and 

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

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

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

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

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

withdraw its Registrable Securities from such Piggyback Registration by giving written 

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

business day prior to the planned effective date of such Piggyback Registration. The 

Company may terminate or withdraw any registtation under this Section 4.5(b)(iv) prior 

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

have elected to include Registrable Securities in such registration. 

(v) If the registration rcferred to in Section 4.5(b)(iv) is proposed to be 

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

written notice given pursuant to Section4.5(b)(iv). In such event, the right of Investor 

and all other Holdcrs to registration pursuant to Section 4.5(b) will be conditioned upon 

such persons' participation in such underwriting and the inclusion of such person's 

Registrable Securities in the underwriting if such securities are of the same class of 

securities as the sccurities 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 fonn with 

-19-

095331-0002-10033 ·NY02.269084 7.9 
the undelwriter or underwriters selected for such underwriting by the Company; provided 

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

person in connection with any registration. [f any participating person disapproves of the 

tenns of the underwriting, such person may elect to withdraw theretrom by written notice 

to the Company, the managing underwriters and the Investor (if the Investor is 

participating in the underwriting). 

(vi) [f 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(b)(ii) or (y) a Piggyback Registration 

under Section 4.5(b)(iv) relates to an underwritten offering on behalf of the Company, 

and in either case the managing undelwriters advise the Company that in their reasonable 

opinion the number of securities requested to be included in such offering exceeds the 

number which can be sold without adversely affecting the marketability of such offering 

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

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

managing underwriters can be sold without adversely affecting the marketability of the 

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

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

Registration under Scction 4.5(b)(iv), the securities the Company proposes to sell, (B) 

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

inclusion of Registrable Securities pursuant to Section 4.5(b)(ii) or Section 4.5(b)(iv), as 

applicable, pro rata on the basis of the aggregate number of such securities or shares 

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

been requested to be so included, subject to the terms of this Agreement; provided, 

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

with respect to its securities that is inconsistent with the order of priority contemplated 

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

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

(c) Expenses of Registration. All Registration Expenses incurred in connection with 

any registration, qualification or compliance hereunder shall be bome by the Company. All 

Selling Expenses incurred in connection with any registrations hercunder shall be borne by the 

holders of the securities so registered pro rata on the basis of the aggregate offering or sale price 

of the securities so registered. 

(d) Obligations of the Comoanv. Whenever required to effect the registration of any 

Registrable Securities or facilitate the distribution of Registrable Securities pursuant to an 

effective Shelf Registration Statement, the Company shall, as expeditiously as reasonably 

practicable: 

(i) Prepare and file with the SEC a prospectus supplement or post-effective 

amendment with respect to a proposed offering of Registrable Securities pursuant to an 

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

-20-

095331-0002-1 0033-NY02,2690S4 7.9 
statement effective and keep such prospectus supplement current until the securities 

described therein are no longer Registrable Securities. 

Oi) Prepare and file with the SEC such amendments and supplements to the 

applicable registration statemcnt and the prospectus or prospectus supplement used in 

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

provisions of the Securities Act with respect to the disposition of all securities covered by 

such registration statement. 

(iii) Furnish to the Holders and any unde.writers such number of copies of the 

applicable registration statement and each such amendment and supplement thereto 

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

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

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

Registrable Securities owned or to be distributed by them. 

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

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

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

underwriter(s), to keep snch 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 snch seller to consummate the disposition in such 

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

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

to file a general consent to service of process in any such states or jnrisdictions. 

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

prospectus rclating thereto is required to be delivered under the Securities Act of the 

happening orany event as a result of which the applicable prospectus, as then in effect, 

includes an nntrue statement of a material fact or omits to state a material fact required to 

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

the circllll1stances 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 snch 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 prospectns included therein or for additional 

infonnation; 

-21-

095331-0002-1 0033- NYQ2.269084 7.9 
(C) of the issuance by the SEC of any stop order suspending the 

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

that purpose; 

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

notification with respect to the suspension of the qualification of the applicable 

Registrable Securities for sale in any jurisdiction or the initiation or threatening of 

any proceeding for such purpose; 

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

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

registration statement in order to make the statements therein not misleading 

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

prospectus until the requisite changes have been made); and 

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

containcd in any underwriting agreement contemplated by Section 4.5(d)(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(d)(vi)(C) at the earliest practicable time. 

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

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

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

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

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

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

misleading. If the Company notifies the Holders in accordance with Section 4.5(d)(vi)(E) 

to suspend the use of the prospectus until the requisite changes to the prospectus have 

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

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

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

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

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

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

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

respect to the transfer of physical stock certificates into book-entry Conn 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(b)(ii), 

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

-22-

095331·0002·, I 0033-NY02.269084 7.9 
such other actions reasonably requested by the Holders of a majority of the Registrable 

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

to expedite or facilitate the underwritten disposition of such Registrable Securities, and in 

connection thercwith in any undClwritten offering (including making members of 

management and executives of the Company available to participate in "road shows", 

similar sales events and other marketing activities), (A) make such represenl1tions and 

walTanties to the Holders that arc selling stockholders and the managing underwriter(s), if 

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

Rcgistration Statement, prospectus and documents, if any, incorporated or deemed to be 

incorporated by reference therein, in each case, in customary fOITll, substance and scope, 

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

furnish the undClwriters with opinions of counsel to the Company, addressed to thc 

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

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

"cold comfort" letters from the independent certified pub lie accountants of the Company 

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

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

in the Shelf Registration Statement) who have certified the financial statements included 

in such Shelf Registration Statement, addressed to each of the managing underwriter(s), if 

any, such letters to be in customary fOITll and covering matters of the type customarily 

covered in "cold comfort" letters, (D) if an underwriting agreement is entered into, the 

same shall contain indemnification provisions and procedures customary in undcrwritten 

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

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

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

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

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

compliance with any customalY conditions contained in the underwriting agreement or 

other agreement entered into by the Company. 

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

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

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

nornlally kept, during reasonable business hours, financial and other records, pertinent 

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

employees of the Company to supply all infonnation in each case reasonably requested 

(and of the type customarily provided in connection with due diligence conducted in 

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

managing underwriter(s), attomey 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 arc then listed 

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

-23-

(}95.H j .OO02-l Oil] J. N Y02. 26'101>4 7.9 
Registrable Securities to be listed on such securities cxchange as the Investor may 

designate. 

(xiii) If requested by Holders of a majority of the Registrable Securities being 

registered and/or sold in connection therewith, or the managing undetwriter(s), if any, 

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

Holders of a majority of the Registrable Securities being registered andlor sold in 

connection therewith or managing underwriter(s), if any, may reasonably request in order 

to penn it the intended method of distribution of such securities and make all required 

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

Company has received such request. 

(xiv) Timely provide to its security holders earning statements satisfying the 

provisions of Section ll(a) of the Securities Act and Rule 158 thereunder. 

(e) Suspension of Sales. Upon receipt of written notice from the Company that a 

registration statement, prospectus or prospectus supplement contains or may contain an untrue 

statement of a material fact or omits or may omit to state a material fact required to be stated 

therein or necessaty to make the statements therein not misleading or that circumstances exist 

that make inadvisable use of such registration statement, prospectus or prospectus supplement, 

the Investor and each Holder of Registrable Securities shall forthwith discontinue disposition of 

Registrable Securities until the Investor and/or Holder has received copies of a supplemented or 

amended prospectus or prospectus supplement, or until the Investor andlor such Holder is 

advised in writing by the Company that the use of the prospectus and, if applicable, prospectus 

supplement may be resumed, and, if so directed by the Company, the Investor and/or such 

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

pennancnt file copies then in the Investor andlor such Holder's possession, of the prospectus 

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

of receipt of such notice. The total number of days that any such suspension may be in effect in 

any 12-month period shall not exceed 90 days. 

(I) Tennination of Registration Rights. A Holder's registration rights as to any 

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

not be available unless such securities are Registrable Securities. 

(g) Furnishing Infonnation. 

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

(as defined in Rule 405) in cOlmection with the salc of Registrable Securities without the 

prior written consent of the Company. 

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

any action pursuant to Section 4.5(d) that Investor andlor the selling Holders and the 

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

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

-24-

095.B 1·0002-1 ()O.l.l,NY02.26')084 7<) 
disposition of such securities as shall be required to effect the registered offering of their 

Registrable Securities. 

(h) Indemnification. 

(i) The Company agrees to indemnify each Holder and, if a Holder is a 

person other than an individual, snch Holder's officers, directors, employees, agents, 

representatives and Affiliates, and each Person, ifany, that controls a Holder within thc 

meaning of the Securities Act (each, an "Indemnitee"), against any and all losses, claims, 

damages, actions, liabilities, costs and expenses (including reasonable fees, expenses and 

disbursements of attorneys and other professionals incurred in connection with 

investigating, defending, settling, compromising or paying any such losses, claims, 

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

upon any untrue srntement or alleged untrue statement of material fact conrnined in any 

registration statement, including any preliminary prospectus or final prospectus conlained 

therein or any amendments or supplements thereto or any documents incorporated therein 

by reference or contained in any free writing prospectus (as such telm is defined in Rule 

405) prepared by the Company or authorized by it in writing for use by such Holdcr (or 

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

required to be srnted therein or necessalY to make the statements therein, in light of the 

circumstances under which they were made, not misleading; provided, that the Company 

shall not be liable to such Indemnitee in any such case to the ex tent that any such loss, 

claim, damage, liability (or action or proceeding in respect thereof) or expense arises out 

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

statement, including any such preliminary prospectus or final prospectus contained 

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

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

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

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

of distribution or ownership interests which was furnished in writing to the Company by 

such Indemnitee for use in connection with such registration statement, including any 

such preliminary prospectus or final prospectus contained therein or any such 

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

such Indemnitee "by means of' (as defined in Rule 159A) a "free writing prospectus" (as 

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

(ii) If the indemnification provided for in Section 4.5(h)(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 hannless as 

contemplated therein, then the Company, in lieu of indemnifying such IndellUlitee, shall 

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

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

to reflect the relative fault of the Indemnitee, on the one hand, and the Company, on the 

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

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

-25-

0953.1 1·{){)02·1 0033·NY02.269084 7,<) 
equitable considerations. The relative limit of the Company, on the one hand, and of the 

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

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

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

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

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

equitablc if contribution pursuant to this Section 4.5(h)(ii) were detennined by pro rala 

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

considerations referred to in Section4.5(h)(i). No Indemnitee guilty of fraudulent 

misrcprcsentation (within the meaning of Section 11(f) of the Securities Act) shall be 

entitled to contJibution from the Company if the Company was not guilty of such 

fi'audulent misrepresentation. 

(i) Assignment of Registration Rights. The rights of the Investor to registration of 

Registrable Securities pursuant to Scction 4.5(b) may be assigned by the Investor to a transferee 

or assignee of Registrable Securities with a liquidation preference or, in the case of the Warrant, 

the liquidation preference of the underlying shares of Warrant PrefelTed Stock, no less than an 

amount equal to (i) 2% of the initial aggregate liquidation preference of the Preferred Shares if 

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

initial aggregate liquidation preference of the PrcfelTed Shares is cqual to or greater than $2 

billion; provided, however, the transferor shall, within ten days after such transfer, furnish to the 

Company written notice of the name and address of such transferee or assignee and the number 

and type of Registrable Securities that are being assigned. 

(j) Clear Markct. With respect to any underwritten offering of Registrable Securities 

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

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

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

Registration) covering any preferred stock of the Company or any securities convertible into or 

exchangeable or exercisable for preferred stock of the Company, during the period not to exceed 

ten days prior and 60 days following the effective date of such offering or such longer period up 

to 90 days as may be requested by the managing underwriter for such underwlitten offering. The 

Company also agrees to cause such of its directors and senior executive officers to execute and 

deliver customary lock-up agreements in such form and for such time period up (0 90 days as 

may be requested by the managing underwriter. "Special Registration" means the registration of 

(A) equity securities and/or options or other rights in respect thereof solely registered on Form S4 or Fonn S-8 (or successor fonn) or (B) shares of equity securities and/or options or other rights 

in respect thereof to be offered to directors, members of management, employees, consultants, 

customers, lenders or vendors of the Company or Company Subsidiaries or in connection with 

dividend reinvestment plans. 

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

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

Registrable Securities to the public without registration, the Company agrees to usc its 

reasonable best efforts to: 

-26-

095331·Q002-I0033-NY02,2690847.9 
(i) make and keep public information available, as those terms are understood 

and defined in Rule 144(c)(1) or any similar or analogous rule promulgated under the 

Securities Act, at all times after the Signing Date; 

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

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

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

information necessary to pennit sales pursuant to Rule 144A (including the infOlmation 

required by Rule I 44A(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 f0l1hwith upon request: a written statement by the 

Company as to its compliance with the reporting requirements of Rule 144 under the 

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

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

may reasonably request in availing itself of any rule or regulation of the SEC allowing it 

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

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

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

without registration under the Securities Act. 

(I) As used in this Section 4.5, the following tenns shall have the following 

respective meanings: 

(i) "Holder" means the Investor and any other holder of Registrable 

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

transferred in compliance with Section 4.5(h) hereof. 

(ii) "Holders' Coullsef' 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 or amendment thereto in 

compliance with the Securities Act and applicable rules and regulations thereunder, and 

the declaration or ordering of effectiveness of such registration statement or amendment 

thereto or (B) filing a prospectus and/or prospectus supplement in respect of an 

appropriate effective registration statement on Form S-3. 

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

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

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

way of conversion, exercise or exchange thereof, including the Warrant Shares, or share 

dividend or sharc split or in connection with a combination of shares, recapitalization, 

reclassification, merger, amalgamation, arrangement, consolidation or other 

-27-

09533! .(1002·1 0033·NY02.269084 7.9 
reorganization, provided that, once issued, such securities will not be Registrable 

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

Securities Act, (2) except as provided below in Section 4.5(p), they may be sold pursuant 

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

have ceased to be outstanding or (4) they have been sold in a private transaction in which 

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

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 of the Company's independent accountants ill 

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", "Rille 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 Expemes" mean all discounts, selling commissions and stock 

transfcr taxes applicable to the sale of Registrable Securities and fees and disbursements 

of counsel for any Holder (other than the fees and disbursements of Holders Counsel 

included in Registration Expenses). 

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

its rights set fOlth 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(b)(iv) - (vi) in any 

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

if the holder had not withdrawn; and provided,jilrther, that no such forfeiture shall telminate a 

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

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

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

Registrable Securities in which such Holder has advised the Company of its intent to register its 

Registrable SecuIities either pursuant to Section 4.5(b)(ii) or 4.5(b)(iv) prior to the date of such 

Holder's forfeiture. 

(n) Specific Perfonnance. The parties hereto acknowledge that there would be no 

adequate remedy at law if the Company fails to perfollil any of its obligations under this Section 

4.5 and that the Investor and the Holders from time to time may be ill'eparably 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 filllest extent pelmitted and 

-28-

095.B [·0002·[ GO}.1· NY 0 2 .26'Xl84 7.9 
enforceable under applicable law shall be entitled to compel specific perionnance of the 

obligations of the Company under this Section 4.5 in accordance with the tenus and conditions 

of this Section 4.5. 

(0) 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 ,ights 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 inconsistcnt with the order 

of priority contemplated by Section 4.5(b)(vi» or that may othe,wise conflict with the provisions 

hereof, the Company shall use its reasonable best efforts to amend such agreements to ensure 

they are consistent with the provisions of this Section 4.5. 

(p) Certain Offcrings by the Invcstor. In the case of any securitics held by the 

Investor that cease to be Registrablc Securities solely by reason of clause (2) in the definition of 

"Registrable Securities," the provisions of Sections 4.5(b)(ii), clauses (iv), (ix) and (x)-(xii) of 

Section 4.5(d), Section 4.5(h) and Section 4.5(j) shall continuc to apply until such seeUlities 

othclwise cease to be Registrable Securities. In any such case, an ;"undclwritten" offering or 

other disposition shall include any distribution of such sccurities on behalf ofthc 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. 

(q) Registered Sales of the Warrant. The Holders agree to sell the Warrant or any 

portion thercofunder the Shelf Registration Statement only beginning 30 days after notifying the 

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

Warrant shall take reasonable steps to agree to revisions to the Warrant to pe,mit a public 

distribution of the Wan'ant, including entering into a warrant agreement and appointing a warrant 

agent. 

4.6 Deposita,y Shares. Upon request by the Investor at any time following the 

Closing Date, thc Company shall promptly enter into a depositary arrangement, pursuant to 

customary agreements reasonably satisfactory to the Investor and with a depositary reasonably 

acceptable to the Investor, pursuant to which the Preferred Shares or the Warrant Shares may be 

deposited and depositary shares, each representing a fraction of a Preferred Share or Warrant 

Share, as applicable, as specified by the Investor, may be issued. From and after the execution of 

any such depositary a,rangemcnt, and the deposit of any Preferred Shares or Wan'ant Shares, as 

applicable, pursuant thereto, the depositary shares issued pursuant thereto shall be deemed 

"Preferred Shares", "Warrant Shares" and, as applicable, "Registrable Securities" for purposes of 

this Agreement. 

4.7 Restriction on Dividends and Repurchases. 

-29-

095331-0002-10033-NY02.2690847.9 
(a) Prior to the earlier of (x) the third anniversary of the Closing Date and (y) the date 

on wllich all of the Pre felTed Shares and Wan·ant Shares have been redeemed in whole or the 

Investor has transferred all of the Preferred Shares and Warrant Shares to third parties which are 

not Affiliates of the Investor, neither the Company nor any Company Subsidiary shall, without 

the consent of the Investor, declare or pay any dividend or make any distribution on capital stock 

or other equity securities of any kind of the Company or any Company Subsidiary (other than (i) 

regular quarterly cash dividends of not more than the amount of the last quarterly cash dividend 

per share declared or, if lower, announced to its holders of Common Stock an intention to 

declare, on the Common Stock prior to November 17, 2008, as adjusted for any stock split, stock 

dividend, reverse stock split, reclassification or similar transaction, (ii) dividends payable solely 

in shares of Common Stock, (iii) regular dividends on shares of preferred stock in accordance 

with the terms thereof and which are permitted under the terms of the Preferred Shares and the 

Wamlllt Shares, (iv) dividends or distributions by any wholly-owned Company Subsidiary or (v) 

dividends or distributions by any Company Subsidiary required pursuant to binding contractual 

agreements entered into prior to November 17, 2008). 

(b) During the period beginning on the third anniversary of the Closing Date and 

ending on the earlier of (i) the tenth anniversary of the Closing Date and (ii) the date on which all 

of the Preferred Shares and W 31Tant Shares have been redeemed in whole or the Investor has 

transferred all of the Preferred Shares and Warrant Shares to third parties which are not Affiliates 

of tile Investor, neither the Company nor any Company Subsidiary shall, without the consent of 

the Investor, (A) pay any per share dividend or distribution on capital sloek or other equity 

securities of any kind of the Company at a per armum rate that is in excess of 103% of the 

aggregate per share dividends and distributions for the immediately prior liscal year (other than 

regular dividends on shares of preferred stock in accordance with the terms thereof and which 

are permitted under the terms of the PrefeITcd Shares and the Warrant Shares); provided that no 

increase in the aggregate amount of dividends or distributions on Common Stock shall be 

pelTIlitted as a result of any dividends or distributions paid in shares of Common Stock, any stock 

split or any similar transaction or (B) pay aggregate dividends or distributions on capital stock or 

other equity securities of any kind of any Company Subsidiary that is in excess of 103% of the 

aggregate dividends and distributions paid for the immediately plior fiscal year (other than in the 

case of this clause (B), (1) regular dividends on shares of preferred stock in accordance with the 

terms thereof and which are permitted under the telTIlS of the Preferred Shares and the Warrant 

Shares, (2) dividends or distributions by any wholly-owned Company Subsidiary, (3) dividends 

or distributions by any Company SubsidialY required pursuant to binding contractual agreements 

entered into prior to November 17, 2008) or (4) dividends or distributions on newly issued shares 

of capital stock for cash or other property. 

(c) Prior to the earlier of (x) the tenth armiversary of the Closing Date and (y) the date 

on which all of the Preferred Shares and W,mant Shares have been redeemed in whole or the 

Investor has transferred all of the Preferred Shares and Warrant Shares to third pmties which are 

not Affiliates of the Investor, neither the Company nor any Company Subsidiary shall, without 

the consent of the Investor, redeem, purchase or acquire any shares of Common Stock or other 

capital stock or other equity securities of any kind of the Company or any Company Subsidiary, 

or any trust preferred securities issued by the Company or any Affiliate of the Company, other 

-30-

095331·0002·1 0033·NY 02.26<>OH 7.<) 
than (i) redemptions, purchases or other acquisitions of the Preferred Shares and Warrant Shares, 

(ii) in connection with the administration of any employee benefit plan in the ordinary course of 

business and consistent with past practice, (iii) the acquisition by the Company or any of the 

Company Subsidiaries of record ownership in Junior Stock or Parity Stock for the beneficial 

ownership of any other persons (other than the Company or any other Company Subsidiary), 

including as trustees or custodians, (iv) the exchange or conversion of Junior Stock for or into 

other Junior Stock or of Parity Stock or tlUst preferred securities for or into other Parity Stock 

(with the same or lesser aggregate liquidation amount) or Junior Stock, in each case set forth ill 

this clause (iv), solely to the extent required pursuant to binding contractual agreements entered 

into prior to the Signing Date or any subsequent agreement for the accelerated exercise, 

settlement or exchange thereof for Common Stock (clauses (ii) and (iii), collectively, the 

"'Permitted Repurchases"), (v) redemptions of securities held by the Company or any whollyowned Company Subsidiary or (vi) redemptions, purchases or other acquisitions of capital stock 

or other equity securities of any kind of any Company Subsidiary required pursuant to binding 

contractual agreements entered into prior to November 17, 2008. 

(d) Until such time as the Investor ceases to own any Preferred Shares or Warrant 

Shares, the Company shall not repurchase any Preferred Shares or Warrant Shares from any 

holder thereof, whether by means of open market purchase, negotiated transaction, or otherwise, 

other than Permitted Repurchases, unless it offers to repurchase a ratable portion of the Preferred 

Shares or Warrant Sharcs, as the case may be, then held by the Investor on the same terms and 

conditions. 

(e) During the period beginning on the tenth anniversary of the Closing and ending 

on the date on which all of the PrefelTcd Shares and Warrant Shares have been redeemed in 

whole or the Investor has transferred all of the PrefelTed Shares and Warrant Shares to third 

parties which arc not Affiliates of the Investor, neither the Company nor any Company 

Subsidiary shall, without the consent of the Investor, (i) declare or pay any dividend or make any 

distribution on capital stock or other equity securities of any kind of the Company or any 

Company Subsidiary; or (ii) redeem, purchase or acquire any shares of Common Stock or other 

capital stock or other equity securities of any kind of the Company or any Company Subsidiary, 

or any tlUst prefelTed securities issued by the Company or any Amliate of the Company, other 

than (A) redemptions, purchases or other acquisitions of the PrefelTed Shares and Warrant 

Shares, (B) regular dividends on shares of prefen·ed stock in accordance with the terms thereof 

and which are permitted under the terms of the Preferred Shares and the WalTant Shares, or (C) 

dividends or distributions by any wholly-owned Company Subsidiary. 

(I) "Junior Stock" means Common Stock and any other class or series of stock of the 

Company the temas of which expressly provide that it ranks junior to the PreferTed Shares as to 

dividend rights and/or as to rights on liquidation, dissolution or winding up of the Company. 

"Parity Stock" means any class or series of stock of the Company the temas of which do not 

expressly provide that such class or series will rank senior or junior to the PrefelTed Shares as to 

dividend rights and/or as to rights on liquidation, dissolution or winding up of the Company (in 

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

-31-

095331·0002·1 0033-NY02.~6<)0847.,} 
4.8 Executive Compensation. Until such time as the Investor ceases to own any debt 

or equity securities of the Company acquired pursuant to this Agreement or the Warrant, the 

Company shall take all necessary action to ensure that its Benefit Plans with respect to its Senior 

Exccutive Officers comply in all respects with Section 111(b) of the EESA as implemented by 

any guidance or rcgulation thereunder that has been issued and is in effect as of the Closing Date, 

and shall not adopt any ncw 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 111(b)(3) of the EESA and regulations issued thereunder, 

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

4.9 Related Party Transactions. Until such time as the Investor ceases to own any 

Purchased Securities or Warrant Shares, the Company and the Company Subsidiaries shall not 

enter into transactions with Affiliates or related persons (within the meaning of/tem 404 under 

the SEC's Regulation S-K) unless (i) such transactions are on terms no less favorable to the 

Company and the Company Subsidiaries than could be obtained from an unaffiliated third party, 

and (ii) have been approved by the audit committee of the Board of Directors or comparable 

body of independent directors of the Company. 

4.10 Bank and Thrift Holding Company Status. If the Company is a Bank Holding 

Company or a Savings and Loan Holding Company on the Signing Date, then the Company shall 

maintain its status as a Bank Holding Company or Savings and Loan Holding Company, as the 

case may be, for as long as the Investor owns any Purchased Securities or Warrant Shares. The 

Company shall redeem all Purchased Securities and Warrant Shares held by the Investor prior to 

terminating its status as a Bank Holding Company or Savings and Loan Holding Company, as 

applicable. "Bank Holding Company" means a company registered as such with the Board of 

Governors of the Federal Reserve System (the "Federal Reserve") pursuant to 12 U.S.C. § 1842 

and the regulations of the Federal Reserve promulgated thereunder. "Savings and Loan Holding 

Company" means a company registered as such with the Office of Thrift Supervision pursuant to 

12 U.S.c. § I 467(a) and the regulations of the Office of Thrift Supervision promulgated 

thereunder. 

4.11 Predominantly Financial. For as long as the Investor owns any Purchased 

Securities or Warrant Shares, the Company, to the extent it is not itself an insured depository 

institution, agrees to remain predominantly engaged in financial activities. A company is 

predominantly engaged in financial activities if the annual gross revenues derived by the 

company and all subsidiaries of the company (excluding revenues derived from subsidiary 

depository institutions), on a consolidated basis, from engaging in activities that are financial in 

nature or are incidental to a financial activity under subsection (k) of Section 4 of the Bank 

Holding Company Act of 1956 (12 U.S.C. 1 843(k» represent at least 85 percent of the 

consolidated annual gross revenues of the company. 

Article V 

Miscellaneous 

5.1 Tennination. This Agreement may be tCIminated at any time prior to the Closing: 

-32-

0953 ~ ! ·0002.[ 0033· :-.IY02.26<}()84 7.\) 
(a) by either the Investor or the Company if the Closing shall not have occurred by 

the 30'h calendar day following the Signing Date; provided, however, that in the event the 

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

detcnnine whether to extend the tenn of this Agreement, it being understood that the parties shall 

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

obligation to extend the tenn of this Agreement thereafter; provided,fi,rlher, that the right to 

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

breach of any representation or warranty or ['lilure to perfonn any obligation under this 

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

date; or 

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

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

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

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

(c) by the mutual written consent orthe Investor and the Company. 

In the event of termination of this Agreement as provided in this Section 5.1, this Agreement 

shall forthwith become void and there shall be no liability on the part of either party hereto 

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

Agreement. 

5.2 Survival of Representations and Wananties. All covenants and agreements, other 

than those which by their tenns apply in whole or in part after the Closing, shall terminate as of 

the Closing. TI,e representations and warranties of the Company made herein or in any 

certificates delivered in connection with the Closing shall survive the Closing without limitation. 

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

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

prOVided that the Investor may unilaterally amend any provision of this Agreement to the extent 

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

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

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

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

cumulative of any rights or remedies provided by law. 

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

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

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

writing signed by a duly authorized officer of the waiving party that makes express reference to 

the provision or provisions subject to such waiver. 

5.5 Governing Law: Submission to Jurisdiction, Etc. Tbis Agreemeut will be 

governed by and construed in accordance with the federal law of the Uuited States if and to 

-33-

09533 J -0002" I 0033-NYO 2.269084 7 .<) 
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 snch State. 

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

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

Federal Claims for any and all civil actious, suits or proceedings arising out of or relating 

to this Agreement or the Warrant or the transactions contemplated hereby or thereby, and 

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

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

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

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

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

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

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

date of delivery if delivered personally, or by tltCsimile, upon confinnation of receipt, or (b) on 

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

courier service. All notices 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 sct forth below, or pursuant to such 

other instructions as may be designated in writing by the Investor to the Company. 

5.7 Definitions 

If to the Investor: 

United States Dcpartmcnt of the Treasury 

1500 Pennsylvania Avenue, NW, Room 2312 

Washington, D.C. 20220 

Attention: Assistant General Counsel (Banking and Finance) 

Facsimile: (202) 622-1974 

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

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

entity (x) of which such person or a subsidiary of such person is a general partner or (y) of which 

a majority of the voting securities or other voting interests, or a majority of the securities or other 

interests of which having by their terms ordinary voting power to elect a majority of the board of 

directors or persons performing similar functions with respect to such entity, is directly or 

indirectly owned by such person andlor One or more subsidiaries thereot: 

(b) The tenn "Affiliate" means, with respect to any pcrson, any person directly or 

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

purposes of this definition, "controC' (including, with correlative meanings, the terms "controlled 

by" and '''under common control with") when used with respect to any person, means the 

possession, directly or indirectly, of the power to cause the direction of management andlor 

-34-

09,'i}31 -0002·100B-NY02,26iX)847.9 
policies of such person, whether through the ownership of voting securities by contract or 

otherwise. 

(e) The terms "knowledge o.lthe Company" or "Company 's knowledge" mean the 

actual knowledge after reasonable and due inquiry of the "officers" (as such term is defined in 

Rule 3b-2 LInder the Exchange Act, but excluding any Vice President or Sccretary) of the 

Company. 

5.8 Assignment. Neither this Agrcement nor any right, remedy, obligation nor 

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

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

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

a merger, consolidation, statutory share exchange or similar transaction that requires the approval 

of the Company's stockholdcrs (a "Business Combination") where such party is not the sUlviving 

entity, or a sale of substantially all of its assets, to the entity which is the survivor of such 

Business Combination or the purehascr in such sale and (b) as provided in Sections 3.5 and 4.5. 

5.9 Severability. If any provision of this Agreement or the Warrant, or the application 

thereof to any person or circumstance, is detennined by a court of competent jurisdiction to be 

invalid, void or unenforceable, the remaining provisions hereof, or the application of such 

provision to persons or circumstances other than those as to whieh it has been held invalid or 

unenforceable, will remain in full force and effect and shall in no way be affected, impaired or 

invalidated thereby, so long as the economic or legal substance of the transactions contemplated 

hcreby 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 efleet the original intent of the 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 of Section 4.5 shall inure to the benefit 

of the persons refeITed to in that Section. 

* * * 

-35-

095331-0002-1 0033·NY02,269084 7.9 
ANNEXA 

FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK 

[SEE ATTACHED] 

0953 J ! -0002 -! 0033- NYOU690R47.9 
Certificate of Designations of 

Fixed Rate Non-Cumulative Perpetnal Preferred Stock, Series B of 

Tri-State Bank of Memphis 

Tri-State Bank of Memphis, a Tennessee state bank, organized and existing under the 

laws of the State of Tennessee ("Issuer"), in accordance with the provisions of Section 

48-16-102 of the Tennessee Code Annotated thereof, does hereby certify: 

The Board of Directors of the Issuer ("Board of Directors"), in accordance with the 

Charter, as amended, of the Issuer and applicable law, adopted the following resolution 

on creating a series of shares of Class B Preferred Stock of the Issuer designated as 

"Fixed Rate Non-Cumulative Perpetual Preferred Stock, Series B." 

RESOLVED, that pursuant to the provisions of the Charter, as amended, of the Issuer and 

applicable law, a series of Preferred Stock, no par value of the Issuer be and hereby is 

created, and that the designation and number of shares of such series, and the voting and 

other powers, preferences, and relative, participating, optional, or other rights, and the 

qualifications, limitations, and restrictions thereof, of the shares of such series, are as 

follows: 

Part 1. Designation and Number of Shares. There is hereby created out of the authorized 

and unissued shares of Class B preferred stock of the Issuer a series of preferred stock 

designated as the "Fixed Rate Non-Cumulative Perpetual Preferred Slock, Series B" 

("Designated Preferred Stock"). The authorized number of shares of Designated 

Prefen-ed Stock shall be 2,795. 

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

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

part of this Certificate of Designations to the same extent as if such provisions had been 

set forth in full herein. 

Part 3. Definitions. The following tenns are used in this Certificate of Designations 

(including the Standard Provisions in Schedule A hereto) as defined below: 

a. "Common Stock" means the common stock, par value $5.00 per share, of the 

Issuer. 

b. "Dividend Payment Date" means February 15, May 15, August 15, and 

November 15 of each year. 

c. "Junior Stock" means the Common Stock and any other class or series of stock of 

the Issuer the terms of which expressly provide that it ranks junior to Designated 

Preferred Stock as to dividend rights and/or as to rights on liquidation, 

dissolution, or winding up of the Issuer. 
d. "Liquidation Amount" means $1,000 per share of Designated Preferred Stock. 

e. "Minimum Amount" means $698,750.00. 

f. "Parity Stock" means any class or series of stock of the Issuer (other than 

Designated Preferred Stock) the terms of which do not expressly provide that such 

class or series will rank senior or junior to Designated Preferred Stock as to 

dividend rights and/or as to rights on liquidation, dissolution, or winding up of the 

Issuer (in each case without regard to whether dividends accrue cumulatively or 

non-cumulatively). Without limiting the foregoing, Parity Stock shall include the 

Issuer's Series A Preferred Stock. 

g. "Signing Date" means Original Issue Date. 

Part 4. Celtain Voting Matters. Holders of shares of Designated Preferred Stock will be 

entitled to one vote for each such shares on any matter on which holders of Designated 

preferred Stock are entitled to vote, including any action by written consent. 

IN WITNESS WHEREOF, Tri-State Bank of Memphis has caused this Certificate of 

Designation to be signed by Jesse H. Turner, Jr., its President this 25'h day of March 

2009. 

Tri-State Bank of Memphis 

By: _________ -----

Jesse H. Turner, Jr., President 
Schedule A 

STANDARD PROVISIONS 

Section 1. General Matters. Each share of Designated Preferred Stock shall be identical in all 

respects to every other share of Designated Preferred Stock. The Designated Preferred Stock 

shall be perpetual, subject to the provisions of Section 5 of these Standard Provisions that form a 

part of the Certificate of Designations. The Designated Preferred Stock shall rank equally with 

Parity Stock and shall rank senior to Junior Stock with respect to the payment of dividends and 

the distribution of assets in the event of any dissolution, liquidation or winding up of the Issuer. 

Section 2. Standard Definitions. As used herein with respect to Designated Preferred Stock: 

(a) "Aequiror," in any Holding Company Transaction, means the stuviving or resulting eutity 

or its ultimate parent in the case of a merger or consolidation or the transferee in thc case 

of a sale, lease or other transfer in one transaction or a series of related transactions of all 

or substantially all of the consolidated assets of the Issuer and its subsidiaries, taken as a 

whole. 

(b) "Applicable Dividend Rate" means (i) dnring the petiod from the Original Issue Date to, 

but excluding, the first day of the first Dividend Petiod commencing on or after the fifth 

anniversary of the Original Issue Date, 5% per annum and Oi) from and after the first day 

of the first Dividend Period commencing on or after the fifth anniversary of the Otiginal 

Issue Date, 9% per annum. 

(c) "Appropriate Federal Banking Agency" means the "appropIiate Federal banking agency" 

with respect to the Issuer as defined in Section3(q) of the Federal Deposit Insurance Act 

(12 U.S.C. Section 18l3(q», or any successor provision. 

(d) "Bank Holding Company" means a company registered as such with the Board of 

Governors of the Federal Reselve System pursuant to 12 U.S.C. §1842 and the 

regulations of the Board of Governors of the Federal Reserve System thereunder. 

(c) IIBusiness Combination" means a merger, consolidation, statutory share exchange or 

similar transaction that requires the approval of the Issuer's stockholders. 

(I) "Business Day" means any day except Saturday, Sunday and any day on which banking 

institutions in the State of New York generally are authoIized or required by law or other 

governmental actions to close. 

(g) "Bylaws" means the bylaws of the Issuer, as they may be amended from time to time. 

(h) "Certificate of Designations" means the Certificate of Designations or comparable 

instrument relating to the Designated Preferred Stock, of which these Standard Provisions 

form a part, as it may be amended from time to time. 

A-I 
(i) "Charter" means the Issuer's charter, certificate, or articles of incorporation, articles of 

association, or similar organizational document. 

(j) "Dividend Period" has the meaning set forth in Section 3(a). 

(k) "Dividend Record Date" has the meaning set forth in Section 3(a). 

(I) "Holding Company Preferred Stock" has the meaning set forth in Section 7(c)(iv). 

(m) "Holding Company Transaction" means the OCCUlTence of (a) any transaction (including, 

without limitation, any acquisition, merger or consolidation) the result of which is that a 

"person" or "group" within the meaning of Section \3(d) of the Securities Exchange Act 

of 1934, as amended, (i) becomes the direct or indirect ultimate "beneficial owner," as 

defined in Rule 13d-3 under that Act, of common equity of the Issuer representing mare 

than 50% of the voting power of the outstanding Common Stock or (ii) is othelwise 

required to consolidate the Issuer for purposes of generally accepted accounting 

principles in the United States, or (b) any consolidation or merger of the Issuer or similar 

transaction or any sale, lease or other transfer in one transaction or a series of related 

transactions of all or substantially all of the consolidated assets of the Issuer and its 

subsidiaries, taken as a whole, to any Person other than one of the Issuer's subsidiaries; 

provided that, in the case of either clause (a) or (b), the Issuer or the Acquiror is or 

becomes a Bank Holding Company or Savings and Loan Holding Company. 

(n) "Liquidation Preference" has the meaning set forth in Section 4(a). 

(0) "Original Issue Date" means the date on which shares of Designated PrefelTed Stock are 

first issued. 

(p) "Person" means a legal person, including any individual, corporation, estate, partnership, 

joint venture, association, joint-stock company, limited liability company or trust. 

(q) "Preferred Director" has the meaning set forth in Section 7(b). 

(r) "Preferred Stock" means any and all series of preferred stock of the Issuer, including the 

Designated PrefelTed Stock. 

(s) "Qualified Equity Offering" means the sale and issuance for cash by the Issuer to persons 

other than the Issuer or any of its subsidiaries after the Original Issue Date of shares of 

perpetual Preferred Stock, Common Stock or any combination of such stock, that, in each 

case, qualify as and may be included in Tier 1 capital of the Issuer at the time of issuance 

under the applicable risk-based capital guidelines of the Issuer'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 November 17, 2008). 

A-2 
(t) "Savings and Loan Holding Company" means a company registered as such with the 

Office of Thrift Supervision pursuant to 12 U.S.C. § 1467(a) and the regulations of the 

Office of Thrift Supervision promulgated thereunder. 

(u) "Standard Provisions" mean these Standard Provisions that form a part of the Certificate 

of Designations relating to the Designated Preferred Stock. 

(v) "Successor Preferred Stock" has the meaning set forth in Section 5(a). 

(w) "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) of 

these Standard Provisions that lonn a part of the Certificate of Designations, any and all 

series of Parity Stock upon which like voting rights have been conferred and are 

exercisable with rcspect to such matter. 

Section 3. Dividends. 

(a) Rate. Holders of Designated Preferred Stock shall be entitled to receive, on each share of 

Designated Preferred Stock if, as and when declared by the Board of Directors or any 

duly authorized committee of the Board of Directors, but only out of assets legally 

available therefor, non-cumulative cash dividends with respect to each Dividend Period 

(as defined below) at a rate per annum equal to the Applicable Dividend Rate on the 

Liquidation Amount per share of Designated Preferred Stock, and no more, 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 rail on a day that is not a 

Business Day, the dividend payment due on that date will be postponed to the next day 

that is a Business Day and no additional dividends will accrue as a result of that 

postponement. The period from and including any Dividend Payment Date to, but 

excluding, rhe next Dividend Payment Date is a "Dividend Period", provided that the 

initial Dividend Period shall be the period from and including rhe Original Issne Date to, 

but excluding, the next Dividend Payment Date. 

Dividends that are payable on Designated Preferred Stock in respect of any Dividend 

Period shall be computed on the basis of a 360-day year consisting of twelve 30-day 

months. The amount of dividends payable on Designated Preferred Stock on any date 

prior to the end of a Dividend Period, and for the initial Dividend Period, shall be 

computed on the basis of a 360-day year consisting of twelve 30-day months, and actnal 

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 of record of Designated Preferred Stock as they appear on the 

stock register of the Issuer 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 of Directors or any duly authorized committee of the Board of Directors 

that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, 

A-3 
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 of Designated Preferred Stock shall not be entitled to any dividends, whether 

payable in cash, securities or other property, other than dividends (if any) declared and 

payable on Designated Preferred Stock as specified in this Section 3 (subject to the other 

provisions of the Certificate of Designations). 

(b) Non-Cumulative. Dividends on shares of Designated Preferred Stock shall be noncumulativc. If thc Board of Dircctors or any duly authorized committee of the Board of 

Directors does not declare a dividend on the Designated Preferred Stock in respect of any 

Dividend Period, the holders of Designated Preferred Stock shall have no right to receive 

any dividend for such Dividend Period, and the Issuer shall have no obligation to pay a 

dividend for such Dividend Period, whether or not dividends are declared for any 

subsequent Dividend Period with respect to the Designated Preferred Stock. 

(c) Priority of Dividends. So long as any share of Designated Prcferred Stock remains 

outstanding, no dividend or distribution shall be declared or paid on the Common Stock 

or any other shares of Junior Stock (other than dividends payable solely in shares of 

Common Stock) or Parity Stock, subjcct to the immediately following paragraph in the 

case of Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall be, 

directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the 

Issuer or any of its subsidiaties unless full dividends on all outstanding shares of 

Designated Preferred Stock for the most recently completed Dividend PCliod have been 

or are contemporaneously declared and paid (or have been declared and a sum sufficient 

for the payment thereof has been set aside for the benefit of the holders of shares of 

Designated Preferred Stock on the applicable record date). The foregoing limitation shall 

not apply to (i) redemptions, purchases or other acquisitions of shares of Common Stock 

or other Junior Stock in connection with the administration of any employee benefit plan 

in the ordinary course of business and consistent with past practice; (ii) the acquisition by 

the Issuer or any of its subsidiaties of record ownership in Junior Stock or Parity Stock 

for the beneficial ownership of any other persons (other than the Issuer or any of its 

subsidiaries), including as trustees or custodians; and (iii) the exchange or conversion of 

Junior Stock for or into other Junior Stock or of Parity 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 exercise, 

settlement or exchange thereof for Common Stock. 

When dividends are not paid (or declared and a sum sufficient for payment thereof set aside for 

the benefit of the holders thereof on the applicable record date) on any Dividend Payment Date 

(or, in the case of Parity Stock having dividend payment dates different Ii·om 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 of Parity Stock, 

all dividends declared on Designated Preferred Stock and all such Parity Stock and payable on 

such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates 

A-4 
different from the Dividend Payment Dates, on a dividend payment date falling within the 

Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the 

respective amounts of such dividends shall bear the same ratio to each other as all acclUed but 

unpaid dividends per share on the Designated Preferred Stock and all Parity Stock payable on 

such Dividend Payment Date (or, in the ease of Parity Stock having dividend payment dates 

different from the Dividend Payment Dates, on a dividend payment date falling within the 

Dividcnd Period related to such Dividend Payment Date) (subject to their having been declared 

by the Board of Directors or a duly authorized committee of the Board of Directors out of legally 

available funds and including, in the case of Parity Stock that bears cumulative dividends, all 

acclUcd but unpaid dividends) bear to each other. If the Board of Directors or a duly authorized 

committee of the Board of Directors determines not to pay any dividend or a full dividend on a 

Dividend Payment Date, the Issuer will provide written notice to the holders of Designated 

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 of Directors or any duly authorized committee of 

the Board of Directors may be declared and paid on any securities, including Common Stock and 

other Junior Stock, from time to time out of any funds legally available for such payment, and 

holders of Designated Preferred Stock shall not be entitled to participate in any such dividends. 

Section 4. Liquidation Rights. 

(a) Voluntary Or Involuntarv Liquidatton. In the event of any liquidation, dissolution or 

winding up of the affairs of the lssucr, whethcr voluntary or involuntary, holders of 

Designated Preferred Stock shall be entitled to receive for each share of Designated 

PrefCITed Stock, out of the assets of the Issuer or proceeds thereof (whether capital or 

surplus) available for distribution to stockholders of the Issuer, subject to the rights of 

any creditors of the Issuer, before any distribution of such assets or proceeds is made to 

Or set aside for the holders of Common Stock and any other stock of the Issuer ranking 

junior to Designated Preferred Stock as to such distribution, payment in full in an amount 

equal to the sum of (i) the Liquidation Amount per share and (ii) the amount of any 

declared and unpaid dividends on each such share (such amounts collectively, the 

"Liquidation Preference"). 

(b) Partial Payment. If in any distribution described in Section 4(a) above the assets of the 

Issucr or proceeds thereof are not sufficient to pay in full the amounts payable with 

respect to all outstanding shares of Designated Preferred Stock and the corresponding 

amounts payable with respect of any other stock of the Issuer ranking equally with 

Designated Preferred Stock as to such distribution, holders of Designated PrefetTed Stock 

and the holders of such other stock shall share ratably in any such distribution in 

proportion to the full respective distributions to which they are entitled. 

(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of 

Designated Prefcrred Stock and the corresponding amounts payable with respect of any 

other stock of the Issuer ranking equally with Designated Preferred Stock as to such 

distribution has been paid in full, the holders of other stock of the Issuer shall be entitled 

A-5 
to receive all remaining assets of the Issuer (or proceeds thereat) according to their 

respective rights and preferences. 

(d) Me",er. Consolidation and Sale of Assets Not Lignidation. For purposes of this Section 

4, the merger or consolidation of the Issuer with any other corporation or other entity, 

including a merger or consolidation in which the holders of Designated Preferred Stock 

recei ve cash, securities or other property for their shares, or the sale, lease or exchange 

(for cash, securities Or other property) of all or substantially all of the assets of the Issuer, 

shall not constitute a liquidation, dissolution or winding up of the Issuer. 

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 of the Original Issue Date. On or after the first Dividend Payment Date 

falling on or after the third almiversary of the Original Issue Date, the Issuer, at its option, 

subject to the approval of the Appropriate Federal Banking Agency, may redeem, in 

whole or in part, at any time and from time to time, out of funds legally available 

therefor, the shares of Designated 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, the amount 

equal to any declared and unpaid dividends plus any dividends accrued but unpaid for the 

then current Dividend Period at the rate set forth in Section 3(a) to, but excluding, the 

date fixed for redemption (regardless of whether any dividends are actually declared for 

that Dividend Period). 

Notwithstanding the foregoing, prior to the first Dividend Payment Date falling on or 

after the third anniversary of the Original Issue Date, the [ssuer, at its option, subject to 

the approval of the Appropriate Federal Banking Agency, may redeem, in whole or in 

part, at any time and from time to time, the shares of Designated PrefelTed Stock at the 

time outstanding, upon notice given as provided in Section 5(c) below, at a redemption 

pricc equal to the sum of (i) the Liquidation Amount per share and (ii) except as 

otherwise provided below, an amount equal to any declared and unpaid dividends plus 

any dividends accrued but unpaid for the then current Dividend Period at the rate set forth 

in Section 3(a) to, but excluding, the date fixed for redemption (regardless of whether any 

dividends are actually declared for that Dividend Period); provided that (x) the Issuer (or 

any successor by Business Combination) has received aggregate gross proceeds of not 

less than the Minimum Amount (plus the "Minimum Amount" as defined in the relevant 

certificate of designations for each other outstanding series of preferred stock of such 

successor that was originally issued to the United States Department of the Treasury (the 

"Successor Preferred Stock") in connection with the Troubled Asset Relief Program 

Capital Purchase Program) from one or more Qualified Equity Offerings (including 

Qualified Equity Offerings of such successor), and (y) the aggregate redemption price of 

the Designated Preferred Stock (and any Successor Preferred Stock) redeemed pursuant 

to this paragraph may not exceed the aggregate net cash proceeds received by the Issuer 

A-6 
(or any successor by Business Combination) from such Qualified Equity Offerings 

(including Qualified Equity Offerings of such successor). 

The redemption price for any shares of Designated Preferred Stock shall be payable on 

thc redemption date to the holder of such shares against surrender of the certificate(s) 

evidencing such shares to the Issuer or its agent. Any declared but unpaid dividends for 

the then current Dividend Period payable on a redemption date that occurs subsequent to 

the Dividend Record Date for a Dividend Pcriod shall not be paid to the holder entitled to 

receive the redemption price on the redemption date, but rather shall be paid to the holder 

of record of the 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 of Designated Preferred 

Stock will have no right to require redemption or repurchase of any shares of Designated 

Preferred Stock. 

(c) Notice of Redemption. Notice of every redemption of shares of Designated Preferred 

Stock shall be given by first class mail, postage prepaid, addressed to the holders of 

record of the shares to be redeemed at their respective last addresses appearing on the 

books of the Issuer. 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 of shares of Designated Preferred Stock 

deSignated for redemption shall not affect the validity of the proceedings for the 

redemption of any other shares of Designated Preferred Stock. Notwithstanding the 

foregoing, if shares of Designated Preferred Stock are issued in book-entry form through 

The Depository Trust Company or any other similar faCility, notice of redemption may be 

given to the holders of Designated Preferred Stock at such time and in any manner 

permitted by such facility. Each notice of redemption given to a holder shall state: (\) the 

redemption date; (2) the number of shares of Designated Preferred Stock to be redeemed 

and, if less than all the shares held by such holder are to be redeemed, the number of such 

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 sUlTendered for payment of the 

redemption price. 

(d) Partial Redemption. In case of any redemption of part of the shares of Designated 

Pre felTed Stock at the time outstanding, the shares to be redeemed shall be selected either 

pro rata or in such other manner as the Board of Directors or a duly authorized cOlnnlittee 

thereof may determine to be fair and equitable. Subject to the provisions hereof, the 

Board of Directors or a duly authorized committee thereof shall have full power and 

authority to prescribe the terms and conditions upon which shares of Designated 

Preferred Stock shall be redeemed from time to time. If fewer than all the shares 

represented by any certificate are redeemed, a new certificate shall be issued representing 

the unredeemed shares without charge to the holder thereof. 

A-7 
(e) Effectiveness of Redemption. (f notice of redemption 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 [ssuer, in trust for the pro rata benefit of the holders of the 

shares called for redemption, with a bank or tmst company doing business in the Borough 

of Manhattan, The City of New York, and having a capital and surplus of at least $500 

million and selected by the Board 0 f Directors, 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 

of the holders thereof to receive the amount payable on such redemption from such bank 

or trust company, without interest. Any funds unclaimed at the end of three years from 

the redemption date shall, to the extent permitted by law, be released to the (ssuer, after 

which time the holders of the shares so called for redemption shall look only to the (ssuer 

for payment of the redemption price of such shares. 

(f) Status of Redeemed Shares. Shares of Designated Preferred Stock that are redeemed, 

repurchased or otherwise acquired by the (ssuer shall revert to authorized but unissued 

shares of Preferred Stock (provided that any such cancelled shares of Designated 

Preferred Stock may be reissued only as shares of any series of Preferred Stock other than 

Designated PreferTed Stock). 

Section 6. Conversion. Holders of Designated 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 of Designated Preferred Stock shall not have any voting rights 

except as set forth below or as otherwise from time to time required by law. 

(b) Preferred Stock Directors. Whenever, at any time or times, dividends payable on the 

shares of Designated Preferred Stock have not been paid for an aggregate of six quarterly 

Dividend Periods or more, whether or not consecutive, the authorized number of directors 

of the Issuer shall automatically be increased by two and the holders of the Designated 

Preferred Stock shall have the right, with holders of shares of anyone or more other 

classes or series of Voting Parity Stock outstanding at the time, voting together as a e(ass, 

to elect two directors (hereinafter the "Preferred Directors" and each a "Preferred 

Director") to fill such newly created directorships at the Issuer's next annual meeting of 

stockholders (or at a special meeting called for that purpose prior to such next annual 

meeting) and at each subsequent annual meeting of stockholders until full dividends have 

been paid on the Designated Preferred Stock for at least four consecutive Dividend 

Periods, at which time such right shall terminate with respect to the Designated Preferred 

Stock, except as herein or by law expressly provided, subject to l'evesting in the event of 

each and every subsequent default of the character above mentioned; provided that it 

A-8 
shall be a qualif1cation for election for any PrefClTed Director that the election of such 

Preferred Director shall not cause the Issuer to violate any corporate govemance 

requirements of any securities exchange or other trading facility on which securities of 

the Issuer may then be listed or traded that listed or traded companies must have a 

majority of independent directors. Upon any tennination of the right of the holders of 

shares of Designated Preferred Stock and Voting Parity Stock as a class to vote for 

directors as provided above, the Preferred Directors shall cease to be qualified as 

directors, the term of office of all Preferred Directors then in office shall terminate 

immediately and the authorized number of directors shall be reduced by the number of 

Preferred Directors elected pursuant hereto. Any Preferred Director may be removcd at 

any time, with or without cause, and any vacancy created thereby may be filled, only by 

the affinnative vote of the holders a majority of the shares of Designated Preferred Stock 

at the time outstanding voting separately as a class together with the holders of shares of 

Voting Pality Stock, to the extent the voting lights of such holders described above are 

then exercisable. If the office of any 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 of which such vacancy 

occurred. 

(c) Class Voting Rights as to Particular Matters. So long as any shares of Designated 

Preferred Stock are outstanding, in addition to any other vote or consent of stockholders 

required by law or by the Charter, the vote or consent of the holders of at least 66 2/3% of 

the 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 of the Certificate of 

Designations 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 of capital stock of the Issuer ranking senior to Designated PreferTed 

Stock with respect to either or both the payment of dividends and/or the 

distribution of assets on any liquidation, dissolution or winding up of the Issuer; 

(ii) Amendment of Designated PreferTed Stock. Any amendment, alteration or repeal 

of any provision of the Certificate of Designations 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 

of a merger, consolidation or otherwise) so as to adversely affect the rights, 

preferences, privileges or voting powers of the Designated Preferred Stock; 

(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Subject to 

Section 7(c)(iv) below, any consummation of a binding share exchange or 

reclassification involving the Designated Preferred Stock, or of a merger or 

consolidation of the Issuer with another corporation or other entity, unless in each 

case (x) the shares of Designated PreferTed Stock remain outstanding or, in the 

A-9 
case of any such merger Or consolidation with respect to which the Issuer is not 

the surviving or resulting entity, are convertcd into or exchanged for preference 

securities of the 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 thereof than the rights, prefcrences, privileges and voting powers, and 

limitations and restrictions thereof, of Designated Preferred Stock immediately 

prior to such consummation, taken as a whole; Or 

(iv) Holding Company Transactions. Any consummation of a Holding Company 

Transaction, unless as a result of the Holding Company Transaction each share of 

Designated Preferred Stock shan be converted into or exchanged for one share 

with an equal liquidation preference of preference securities of the Issuer or the 

Acquiror (the "Holding Company Preferrcd Stock"). Any such Holding Company 

Preferred Stock shall entitle holders thereof to cumulative dividends from the date 

of issuance of such Holding Company Prefcrred Stock at a rate per annum equal 

to the Applicablc Dividcnd Rate on thc amount of liquidation preference of such 

stock, and shall have such othcr rights, preferences, privileges and voting powers, 

and limitations and rcstrictions thereof, taken as a wholc, as arc not matcrially less 

favorable to the holders thereof than the rights, preferences, privileges and voting 

powers, and limitations and restrictions thereof, of Designated Preferred Stock 

immediately prior to such conversion or exchange, taken as a whole; 

provided, however, that for all purposes of this Section 7(c), any increase in the amount 

of the autllolized PrefetTed Stock, including any increase in the authorized amount of 

Designated Preferred Stock necessary to satisfy preemptive or similar rights granted by 

the Issuer 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 othelwise, of any other series of Preferred Stock, or any securities convertible 

into or exchangeable or exercisable for any other series of Preferred Stock, ranking 

equally with and/or junior to DeSignated Preferred Stock with respect to the payment of 

dividends (whether such dividends are cumulative or non-cumulative) and the 

distribution of assets upon liquidation, dissolution or winding up of the Issuer will not be 

deemed to adversely affect the rights, preferences, privileges or voting powcrs, and shall 

not require the affirmative vote or consent of, the holders of outstanding shares of the 

Designated Preferred Stock. 

(d) Changes after Provision for Redemption. No vote or consent of the holders of Designated 

Preferred Stock shall be required pursuant to Section 7(c) abovc if, at or prior to the time 

when any such vote or consent would othelwise be required pursuant to such Section, all 

outstanding shares of the Designated Preferred Stock shall have been redeemed, or shall 

have been called for redemption upon proper notice and sufficient funds shall have been 

deposited in trust for such redemption, in each case pursuant to Section 5 above. 

A-lO 
(e) Procedures for Voting and Consents. The rules and procedures for calling and conducting 

any meeting of the holders of Designated Preferred Stock (including, without limitation, 

the fixing of a record date in connection therewith), the solicitation and use of proxies at 

such a meeting, the obtaining of written consents and any other aspect or matter with 

regard to such a meeting or such consents shan be governed by any rules of the Board of 

Directors or any duly authorized committee of the Board of Directors, in its discretion, 

may adopt from time to time, which rules and procedurcs shall confoml to the 

requirements of the Charter, the Bylaws, and applicable law and the rules of any national 

sccurities exchange or other trdding facility on which Designated Prefcrred Stock is listed 

or traded at the time. 

Section 8. Record Holdcrs. To the fullest extent permitted by applicable law, the Issuer and the 

transfer agent for Designated Preferred Stock may deem and trcat thc rccord holder of any share 

of Desi!,'llated Preferred Stock as the true and lawful owner thereof for all purposes, and neither 

the Issuer nor such transfer agcnt shall be affccted by any notice to the contrary. 

Section 9. Notices. All notices or communications in respect of Designated Preferred Stock shall 

be sufficicntly given if given in writing and delivered in person or by first class mail, postage 

prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, 

in the Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if shares of 

Designated Preferred Stock are issued in book-entry form through The Depository Trust 

Company or any similar facility, such notices may be given to the holders of Designated 

Preferred Stock in any manner permitted by such facility. 

Section 10. No Preemptive Rights. No share of Designated Preferred Stock shall have any rights 

of preemption whatsoever as to any securities of the Issuer, or any warrants, lights or options 

issued or granted with respect thereto, regardless of how such securities, or such warrants, rights 

or options, may be designated, issued or granted. 

Section 11. Replacement Certificates. The Issuer shall replace any mutilated certificate at the 

holder's expense upon surrender of that certificate to the Issuer. The Issuer shall rcplace 

certificates that become destroyed, stolen or lost at the holder's expense upon delivery to the 

Issuer of reasonably satisfactory evidence that the certificate has been destroyed, stolen or lost, 

together with any indemnity that may be reasonably required by the Issuer. 

Section 12. Other Rights. The shares of Designated Preferred Stock shall not have any rights, 

preferences, privileges or voting powers or relative, participating, optional or other special rights, 

or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Charter 

or as provided by applicable law. 

A-II 
FORM OF CERTIFICATE OF DESIGNATIONS 

FOR WARRANT PREFERRED STOCK 

[NOT APPLICABLE] 

{J<>sn 1-(1)02-1 1l03.l-N Y 02.2690R4 7.9 

ANNEXB 
ANNEXC 

FORM OF WAIVER 

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

in the United States Departmcnt of the Treasury's TARP Capital Purchase Program, I 

hereby voluntarily waive any claim against the United States or any state or territory 

thereof or my employer or any of its directors, officers, employees and agents for any 

changes to my compensation or benefits that are required in order to comply with Section 

III of the Emergency Economic Stabilization Act of2008, as amended ("EESA"), and 

rules, regulations, guidance or other requirements issued thereunder (collectively, the 

"EESA Restrictions"). 

I acknowledge that the EESA Restrictions may require modification of the employment, 

compensation, bonus, incentive, severance, retention and other benefit plans, 

arrangements, policies and agreements (including so-called "golden parachute" 

agreements), whether or not in writing, that I have with my employer or in which I 

participate as they relate to the period the United States holds any equity or debt 

securities of my employer acquired through the T ARP Capital Purchase Program and I 

hereby consent to all such modifications. I fmiher acknowledge and agree that if my 

employer notifies me in writing that I have received payments in violation of the EESA 

Restrictions, I shall repay the aggregate amount of such payments to my employer no 

later than fifteen business days following my receipt of such notice. 

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

other jurisdiction related to the requirements imposed by the EESA Restrictions 

(including without limitation, any claim for any compensation or other payments or 

benefits I would otherwise receive absent the EESA Restrictions, any challenge to the 

process by which the EESA Restrictions were adopted and any tort or constitutional 

claim about the effect of the foregoing on my employment relationship) and I hereby 

agree that I will not at any time initiate, or cause or permit to be initiated on my behalf, 

any such claim against the United States, my employer or its directors, officers, 

employees or agents in or before any local, state, federal or other agency, court or body. 

In witness whereof, I execute this waiver on my own behalt~ thereby communicating my 

acceptance and acknowledgement to the provisions herein. 

Respectfully, 

Name: 

Title: 

Date: 
ANNEXD 

FORM OF OPINION 

(a) The Company has been duly incorporated and is validly eXisting as a corporation 

in good standing under the laws of the state of its incorporation. 

(b) The PrefelTed 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 passlI with or senior to all other series or classes of Prefen'ed Stock issued on the 

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

of any dissolution, liquidation or winding up of the Company. 

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

contemplated by the Agreement, will constitute a valid and legally binding obligation of the 

Company enforceable against the Company in accordance with its terms, except as the same may 

be limited by applicable bankmptcy, insolvency, reorganization, moratorium or similar laws 

affecting the enforcement of creditors' rights generally and general equitable principles, 

regardless of whether such enforceability is considered in a proceeding at law or in equity. 

(d) The shares of Warrant Preferred Stock issuable upon exercise of the Warrant have 

been duly authorized and reserved for issuance upon exercise of the Warrant and when so issued 

in accordance with the terms of the Warrant will be validly issued, fully paid and non-assessable, 

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 of dividends and the distribution of 

assets in the event of any dissolution, liquidation or winding up of the Company. 

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

Agreement and the Wan'ant and to cany out its obligations thereunder (which includes the 

issuance of the Preferred Shares, Warrant and Warrant Shares). 

(f) The execution, delivery and perfonnancc by the Company of the Agreement and 

the Warrant and the consummation of the transactions contemplated thereby have been duly 

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

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

(g) The Agreement is a valid and binding obligation of the Company enforceable 

against the Company in accordance with its terms, except as the same may be limited by 

applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the 

enforcement of creditors' rights generally and general equitable principles, regardless of whether 

such enforceability is considered in a proceeding at law or in equity; prOVided, however, such 

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

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

095331-0002-1 OOH_NYO:!.2690847. 9 
09$331-0002-1 003J-NY02.26<Xl$47 9 

FORM OF WARRANT 

[NOT APPLICABLE] 

ANNEXE