Exhibit 10.1


 


UST Sequence Number: 16


 


UNITED STATES
DEPARTMENT OF THE TREASURY

1500 PENNSYLVANIA AVENUE, NW

WASHINGTON, D.C. 20220


 


Dear Ladies and Gentlemen:


 


The company set forth on the
signature page hereto (the “Company”)
intends to issue in a private placement the number of shares of a series of its
preferred stock set forth on Schedule A hereto (the “Preferred Shares”) and a warrant to purchase the number of
shares of its common stock set forth on Schedule A hereto (the “Warrant” and, together with the Preferred
Shares, the “Purchased Securities”)
and the United States Department of the Treasury (the “Investor”) intends to purchase from the
Company the Purchased Securities.


 


The purpose of this letter
agreement is to confirm the terms and conditions of the purchase by the
Investor of the Purchased Securities. 
Except to the extent supplemented or superseded by the terms set forth
herein or in the Schedules hereto, the provisions contained in the Securities
Purchase Agreement – Standard Terms attached hereto as Exhibit A (the “Securities Purchase Agreement”)  are incorporated by reference
herein.  Terms that are defined in the
Securities Purchase Agreement are used in this letter agreement as so
defined.  In the event of any inconsistency
between this letter agreement and the Securities Purchase Agreement, the terms
of this letter agreement shall govern.


 


Each of the Company and the
Investor hereby confirms its agreement with the other party with respect to the
issuance by 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 terms specified on Schedule A hereto.


 


This letter agreement
(including the Schedules hereto) and the Securities Purchase Agreement
(including the Annexes thereto) and the Warrant constitute the entire
agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties,
with respect to the subject matter hereof. 
This letter agreement constitutes the “Letter Agreement” referred to in
the Securities Purchase Agreement.


 


This letter agreement may be
executed in any number of separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together
constitute the same agreement.  Executed
signature pages to this letter agreement may be delivered by facsimile and
such facsimiles will be deemed as sufficient as if actual signature pages had
been delivered.


 


* * *


 

















 


In witness whereof,
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

  TREASURY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neel Kashkari

  
	
   

  	
   

  	
  Name: 

  	
  Neel Kashkari

  
	
   

  	
   

  	
  Title:

  	
  Interim Assistant Secretary for Financial

  
	
   

  	
   

  	
   

  	
   

  	
  Stability

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMPANY: COMERICA INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jon W. Bilstrom

  
	
   

  	
   

  	
  Name: 

  	
  Jon W. Bilstrom

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President – Governance,

  Regulatory Relations and Legal Affairs

  



 


 


Date: November 14, 2008


 

















 


Exhibit A


 


SECURITIES
PURCHASE AGREEMENT


 

















 


EXHIBIT A


	
   

  



 


SECURITIES
PURCHASE AGREEMENT


 


STANDARD TERMS


	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  Article I

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Purchase; Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Purchase

  	
  1

  
	
  1.2

  	
  Closing

  	
  2

  
	
  1.3

  	
  Interpretation

  	
  4

  
	
   

  	
   

  	
   

  
	
   

  	
  Article II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Disclosure

  	
  4

  
	
  2.2

  	
  Representations and Warranties of the
  Company

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  Article III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Commercially Reasonable Efforts

  	
  13

  
	
  3.2

  	
  Expenses

  	
  14

  
	
  3.3

  	
  Sufficiency of Authorized Common Stock;
  Exchange Listing

  	
  14

  
	
  3.4

  	
  Certain Notifications Until Closing

  	
  15

  
	
  3.5

  	
  Access, Information and Confidentiality

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  Article IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Additional Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Purchase for Investment

  	
  16

  
	
  4.2

  	
  Legends

  	
  16

  
	
  4.3

  	
  Certain Transactions

  	
  18

  
	
  4.4

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

  	
  18

  
	
  4.5

  	
  Registration Rights.

  	
  19

  
	
  4.6

  	
  Voting of Warrant Shares

  	
  30

  
	
  4.7

  	
  Depositary Shares

  	
  31

  
	
  4.8

  	
  Restriction on Dividends and Repurchases

  	
  31

  
	
  4.9

  	
  Repurchase of Investor Securities

  	
  32

  
	
  4.10

  	
  Executive Compensation

  	
  33

  



 


-i-

















 


	
   

  	
  Article V

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Miscellaneous

  	
   

  
	
  5.1

  	
  Termination

  	
  34

  
	
  5.2

  	
  Survival of Representations and Warranties

  	
  34

  
	
  5.3

  	
  Amendment

  	
  34

  
	
  5.4

  	
  Waiver of Conditions

  	
  34

  
	
  5.5

  	
  Governing Law:
  Submission to Jurisdiction, Etc.

  	
  35

  
	
  5.6

  	
  Notices

  	
  35

  
	
  5.7

  	
  Definitions

  	
  35

  
	
  5.8

  	
  Assignment

  	
  36

  
	
  5.9

  	
  Severability

  	
  36

  
	
  5.10

  	
  No Third Party Beneficiaries

  	
  36

  



 


-ii-

















 


LIST OF ANNEXES


 


	
  ANNEX A:

  	
   

  	
  FORM OF CERTIFICATE OF DESIGNATIONS
  FOR PREFERRED STOCK

  
	
   

  	
   

  	
   

  
	
  ANNEX B:

  	
   

  	
  FORM OF WAIVER

  
	
   

  	
   

  	
   

  
	
  ANNEX C:

  	
   

  	
  FORM OF OPINION

  
	
   

  	
   

  	
   

  
	
  ANNEX D:

  	
   

  	
  FORM OF WARRANT

  



 


-iii-

















 


INDEX OF DEFINED
TERMS


 


	
  Term

  	
   

  	
  Location of

  Definition

  	
   

  
	
  Affiliate

  	
   

  	
  5.7(b)

  	
   

  
	
  Agreement

  	
   

  	
  Recitals

  	
   

  
	
  Appraisal
  Procedure

  	
   

  	
  4.9(c)(i)

  	
   

  
	
  Appropriate
  Federal Banking Agency

  	
   

  	
  2.2(s)

  	
   

  
	
  Bankruptcy
  Exceptions

  	
   

  	
  2.2(d)

  	
   

  
	
  Benefit Plans

  	
   

  	
  1.2(d)(iv)

  	
   

  
	
  Board of
  Directors

  	
   

  	
  2.2(f)

  	
   

  
	
  Business
  Combination

  	
   

  	
  4.4

  	
   

  
	
  business day

  	
   

  	
  1.3

  	
   

  
	
  Capitalization
  Date

  	
   

  	
  2.2(b)

  	
   

  
	
  Certificate of
  Designations

  	
   

  	
  1.2(d)(iii)

  	
   

  
	
  Charter

  	
   

  	
  1.2(d)(iii)

  	
   

  
	
  Closing

  	
   

  	
  1.2(a)

  	
   

  
	
  Closing Date

  	
   

  	
  1.2(a)

  	
   

  
	
  Code

  	
   

  	
  2.2(n)

  	
   

  
	
  Common Stock

  	
   

  	
  Recitals

  	
   

  
	
  Company

  	
   

  	
  Recitals

  	
   

  
	
  Company
  Financial Statements

  	
   

  	
  2.2(h)

  	
   

  
	
  Company Material
  Adverse Effect

  	
   

  	
  2.1(a)

  	
   

  
	
  Company Reports

  	
   

  	
  2.2(i)(i)

  	
   

  
	
  Company
  Subsidiary; Company Subsidiaries

  	
   

  	
  2.2(i)(i)

  	
   

  
	
  control;
  controlled by; under common control with

  	
   

  	
  5.7(b)

  	
   

  
	
  Controlled Group

  	
   

  	
  2.2(n)

  	
   

  
	
  CPP

  	
   

  	
  Recitals

  	
   

  
	
  EESA

  	
   

  	
  1.2(d)(iv)

  	
   

  
	
  ERISA

  	
   

  	
  2.2(n)

  	
   

  
	
  Exchange Act

  	
   

  	
  2.1(b)

  	
   

  
	
  Fair Market
  Value

  	
   

  	
  4.9(c)(ii)

  	
   

  
	
  GAAP

  	
   

  	
  2.1(a)

  	
   

  
	
  Governmental
  Entities

  	
   

  	
  1.2(c)

  	
   

  
	
  Holder

  	
   

  	
  4.5(k)(i)

  	
   

  
	
  Holders’ Counsel

  	
   

  	
  4.5(k)(ii)

  	
   

  
	
  Indemnitee

  	
   

  	
  4.5(g)(i)

  	
   

  
	
  Information

  	
   

  	
  3.5(b)

  	
   

  
	
  Initial Warrant
  Shares

  	
   

  	
  Recitals

  	
   

  
	
  Investor

  	
   

  	
  Recitals

  	
   

  
	
  Junior Stock

  	
   

  	
  4.8(c)

  	
   

  
	
  knowledge of the
  Company; Company’s knowledge

  	
   

  	
  5.7(c)

  	
   

  
	
  Last Fiscal Year

  	
   

  	
  2.1(b)

  	
   

  
	
  Letter Agreement

  	
   

  	
  Recitals

  	
   

  
	
  officers

  	
   

  	
  5.7(c)

  	
   

  



 


-iv-

















 


	
  Term

  	
   

  	
  Location of

  Definition

  	
   

  
	
  Parity Stock

  	
   

  	
  4.8(c)

  	
   

  
	
  Pending Underwritten Offering

  	
   

  	
  4.5(l)

  	
   

  
	
  Permitted Repurchases

  	
   

  	
  4.8(a)(ii)

  	
   

  
	
  Piggyback Registration

  	
   

  	
  4.5(a)(iv)

  	
   

  
	
  Plan

  	
   

  	
  2.2(n)

  	
   

  
	
  Preferred Shares

  	
   

  	
  Recitals

  	
   

  
	
  Preferred Stock

  	
   

  	
  Recitals

  	
   

  
	
  Previously Disclosed

  	
   

  	
  2.1(b)

  	
   

  
	
  Proprietary Rights

  	
   

  	
  2.2(u)

  	
   

  
	
  Purchase

  	
   

  	
  Recitals

  	
   

  
	
  Purchase Price

  	
   

  	
  1.1

  	
   

  
	
  Purchased Securities

  	
   

  	
  Recitals

  	
   

  
	
  Qualified Equity Offering

  	
   

  	
  4.4

  	
   

  
	
  register; registered; registration

  	
   

  	
  4.5(k)(iii)

  	
   

  
	
  Registrable Securities

  	
   

  	
  4.5(k)(iv)

  	
   

  
	
  Registration Expenses

  	
   

  	
  4.5(k)(v)

  	
   

  
	
  Regulatory Agreement

  	
   

  	
  2.2(s)

  	
   

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

  	
   

  	
  4.5(k)(vi)

  	
   

  
	
  Schedules

  	
   

  	
  Recitals

  	
   

  
	
  SEC

  	
   

  	
  2.1(b)

  	
   

  
	
  Securities Act

  	
   

  	
  2.2(a)

  	
   

  
	
  Selling Expenses

  	
   

  	
  4.5(k)(vii)

  	
   

  
	
  Senior Executive Officers

  	
   

  	
  4.10

  	
   

  
	
  Share Dilution Amount

  	
   

  	
  4.8(a)(ii)

  	
   

  
	
  Shelf Registration Statement

  	
   

  	
  4.5(a)(ii)

  	
   

  
	
  Signing Date

  	
   

  	
  2.1(a)

  	
   

  
	
  Special Registration

  	
   

  	
  4.5(i)

  	
   

  
	
  Stockholder Proposals

  	
   

  	
  3.1(b)

  	
   

  
	
  subsidiary

  	
   

  	
  5.8(a)

  	
   

  
	
  Tax; Taxes

  	
   

  	
  2.2(o)

  	
   

  
	
  Transfer

  	
   

  	
  4.4

  	
   

  
	
  Warrant

  	
   

  	
  Recitals

  	
   

  
	
  Warrant Shares

  	
   

  	
  2.2(d)

  	
   

  



 


-v-

















 


SECURITIES
PURCHASE AGREEMENT – STANDARD TERMS


 


Recitals:


 


WHEREAS, the United States Department of the
Treasury (the “Investor”) may
from time to time agree to purchase shares of preferred stock and warrants from
eligible financial institutions which elect to participate in the Troubled
Asset Relief Program Capital Purchase Program (“CPP”);


 


WHEREAS, an eligible financial institution
electing to participate in the CPP and issue securities to the Investor
(referred to herein as the “Company”)
shall enter into a letter agreement (the “Letter
Agreement”) with the Investor which incorporates this Securities
Purchase Agreement – Standard Terms;


 


WHEREAS, the Company agrees to expand the
flow of credit to U.S. consumers and businesses on competitive terms to promote
the sustained growth and vitality of the U.S. economy;


 


WHEREAS, the Company agrees to work
diligently, under existing programs, to modify the terms of residential
mortgages as appropriate to strengthen the health of the U.S. housing market;


 


WHEREAS, the Company intends to issue in a
private placement the number of shares of the series of its Preferred Stock (“Preferred Stock”) set forth on Schedule
A to the Letter Agreement (the “Preferred
Shares”) and a warrant to purchase the number of shares of its
Common Stock (“Common Stock”) set
forth on Schedule A to the Letter Agreement (the “Initial Warrant Shares”) (the “Warrant” and, together with the Preferred
Shares, the “Purchased Securities”)
and the Investor intends to purchase (the “Purchase”)
from the Company the Purchased Securities; and


 


WHEREAS, the Purchase will be governed by
this Securities Purchase Agreement – Standard Terms and the Letter Agreement,
including the schedules thereto (the “Schedules”),
specifying additional terms of the Purchase. This Securities Purchase Agreement
– Standard Terms (including the Annexes hereto) and the Letter Agreement
(including the Schedules thereto) are together referred to as this “Agreement”.
All references in this Securities Purchase Agreement – Standard Terms to “Schedules”
are to the Schedules attached to the Letter Agreement.


 


NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:


 


Article I


Purchase;
Closing


 


1.1           Purchase. On the terms and subject to the conditions set forth in this Agreement,
the Company agrees to sell to the Investor, and the Investor agrees to purchase
from the Company, at the Closing (as hereinafter defined), the Purchased
Securities for the price set forth on Schedule A (the “Purchase Price”).


 
















 


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 specified in Schedule A, at the time and
on the date set forth in Schedule A or as soon as practicable
thereafter, or at such other place, time and date as shall be agreed between
the Company and the Investor. The time and date on which the Closing occurs is
referred to in this Agreement as the “Closing
Date”.


 


(b)           Subject to the fulfillment or waiver of the conditions to the Closing in
this Section 1.2, at the Closing the Company will deliver the Preferred
Shares and the Warrant, in each case as evidenced by one or more certificates
dated the Closing Date and bearing appropriate legends as hereinafter provided
for, in exchange for payment in full of the Purchase Price by wire transfer of
immediately available United States funds to a bank account designated 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
governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) required for the
consummation of the Purchase shall have been obtained or made in form and
substance reasonably satisfactory to each party and shall be in full force and
effect and all waiting periods required by United States and other applicable
law, if any, shall have expired and (ii) no provision of any applicable
United States or other law and no judgment, injunction, order or decree of any
Governmental Entity shall prohibit the purchase and sale of the Purchased
Securities as contemplated by this Agreement.


 


(d)           The obligation of the Investor to consummate the Purchase is also subject
to the fulfillment (or waiver by the Investor) at or prior to the Closing of
each of the following conditions:


 


(i)            (A) the representations and warranties of the
Company set forth in (x) Section 2.2(g) of this Agreement shall
be true and correct in all respects as though made on and as of the Closing
Date, (y) Sections 2.2(a) through (f) shall be true and correct
in all material respects as though made on and as of the Closing Date (other
than representations and warranties that by their terms speak as of another
date, which representations and warranties shall be true and correct in all
material respects as of such other date) and (z) Sections 2.2(h) through
(v) (disregarding all qualifications or limitations set forth in such
representations and warranties as to “materiality”, “Company Material Adverse
Effect” and words of similar import) shall be true and correct as though made
on and as of the Closing Date (other than representations and warranties that
by their terms speak as of another date, which representations and warranties
shall be true and correct as of such other date), except to the extent that the
failure of such representations and warranties referred to in this Section 1.2(d)(i)(A)(z) to
be so true and correct, individually or in the aggregate, does not have and
would not reasonably be expected to have a Company Material Adverse Effect and (B) the
Company shall have


 


-2-

















 


performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing;


 


(ii)           the Investor shall have received a certificate
signed on behalf of the Company by a senior executive officer certifying to the
effect that the conditions set forth in Section 1 .2(d)(i) have been
satisfied;


 


(iii)          the Company shall have duly adopted and filed with
the Secretary of State of its jurisdiction of organization or other applicable
Governmental Entity the amendment to its certificate or articles of
incorporation, articles of association, or similar organizational document (“Charter”) in substantially the form
attached hereto as Annex A (the “Certificate
of Designations”) and such filing shall have been accepted;


 


(iv)          (A) the Company shall have effected such
changes to its compensation, bonus, incentive and other benefit plans,
arrangements and agreements (including golden parachute, severance and
employment agreements) (collectively, “Benefit
Plans”) with respect to its Senior Executive Officers (and to the
extent necessary for such changes to be legally 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 Warrant,
in order to comply with Section 111(b) of the Emergency Economic Stabilization
Act of 2008 (“EESA”) as
implemented by guidance or regulation thereunder that has been issued and is in
effect as of the Closing Date, and (B) the Investor shall have received a
certificate signed on behalf of the Company by a senior executive officer
certifying to the effect that the condition set forth in Section 1.2(d)(iv)(A) has
been satisfied;


 


(v)           each of the Company’s Senior Executive Officers
shall have delivered to the Investor a written waiver in the form attached
hereto as Annex B releasing the Investor from any claims that such
Senior Executive Officers may otherwise have as a result of the issuance, on or
prior to the Closing Date, of any regulations which require the modification
of, and the agreement of the Company hereunder to modify, the terms of any
Benefit Plans with respect to its Senior Executive Officers to eliminate any
provisions of such Benefit Plans that would not be in compliance with the
requirements of Section 111(b) of the EESA as implemented by guidance
or regulation thereunder that has been issued and is in effect as of the
Closing Date;


 


(vi)          the Company shall have delivered to the Investor a
written opinion from counsel to the Company (which may be internal counsel),
addressed to the Investor and dated as of the Closing Date, in substantially
the form attached hereto as Annex C;


 


(vii)         the Company shall have delivered certificates in
proper form or, with the prior consent of the Investor, evidence of shares in
book-entry form, evidencing the Preferred Shares to Investor or its
designee(s); and


 


-3-

















 


(viii)        the Company shall have duly executed the Warrant in
substantially the form attached hereto as Annex D and delivered
such executed Warrant to the Investor or its designee(s).


 


1.3           Interpretation. When a reference is made in this Agreement to “Recitals,” “Articles,” “Sections,”
or “Annexes” such reference shall be to a Recital, Article or Section of,
or Annex to, this Securities Purchase Agreement – Standard Terms, and a
reference to “Schedules” shall be to a Schedule to the Letter Agreement, in
each case, unless otherwise indicated. The terms defined in the singular have a
comparable meaning when used in the plural, and vice versa. References to “herein”,
“hereof”, “hereunder” and the like refer to this Agreement as a whole and not
to any particular section or provision, unless the context requires otherwise.
The table of contents and headings contained in this Agreement are for
reference purposes only and are not part of this Agreement. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed
followed by the words “without limitation.” No rule of construction
against the draftsperson shall be applied in connection with the interpretation
or enforcement of this Agreement, as this Agreement is the product of
negotiation between sophisticated parties advised by counsel. All references to
“$” or “dollars” mean the lawful currency of the United States of America.
Except as expressly stated in this Agreement, all references to any statute, rule or
regulation are to the statute, rule or regulation as amended, modified,
supplemented or replaced from time to time (and, in the case of statutes,
include any rules and regulations promulgated under the statute) and to
any section of any statute, rule or regulation include any successor to
the section. References to a “business day”
shall mean any day except Saturday, Sunday and any day on which banking
institutions in the State of New York generally are authorized or required by
law or other governmental actions to close.


 


Article II

Representations and Warranties


 


2.1           Disclosure.


 


(a)           “Company Material Adverse Effect”
means a material adverse effect on (i) the business, results of operation
or financial condition of the Company and its consolidated subsidiaries taken
as a whole; provided, however, that Company Material Adverse
Effect shall not be deemed to include the effects of (A) changes after the
date of 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
each case generally affecting the industries in which the Company and its
subsidiaries operate, (B) changes or proposed changes after the Signing
Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting
requirements, or authoritative interpretations thereof, (C) changes or
proposed changes after the Signing Date in securities, banking and other laws
of general applicability or related policies or interpretations of Governmental
Entities (in the case of each of these clauses (A), (B) and (C), other
than changes


 


-4-

















 


or occurrences to the extent that such
changes or occurrences have or would reasonably be expected to have a
materially disproportionate adverse effect on the Company and its consolidated
subsidiaries taken as a whole relative to comparable U.S. banking or financial
services organizations), or (D) changes in the market price or trading
volume of the Common Stock or any other equity, equity-related or debt
securities of the Company or its consolidated subsidiaries (it being understood
and agreed that the exception set forth in this clause (D) does not apply
to the underlying reason giving rise to or contributing to any such change); or
(ii) the ability of the Company to consummate the Purchase and the other
transactions contemplated by this Agreement and the Warrant and perform its
obligations hereunder or thereunder on a timely basis.


 


(b)           “Previously Disclosed”
means information set forth or incorporated in the Company’s Annual Report on Form 10-K
for the most recently completed fiscal year of the Company filed with the
Securities and Exchange Commission (the “SEC”)
prior to the Signing Date (the “Last Fiscal
Year”) or in its other reports and forms filed with or furnished to
the SEC under Sections 13(a), 14(a) or 15(d) of the Securities
Exchange Act of 1934 (the “Exchange Act”)
on or after the last day of the Last Fiscal Year and prior to the Signing Date.


 


2.2           Representations and Warranties of the Company. Except as Previously Disclosed, the Company
represents and warrants to the Investor that as of the Signing Date and as of
the Closing Date (or such other date specified herein):


 


(a)           Organization, Authority and Significant
Subsidiaries. The Company has been
duly incorporated and is validly existing and in good standing under the laws
of its jurisdiction of organization, with the necessary power and authority to
own its properties and conduct its business in all material respects as
currently conducted, and except as has not, individually or in the aggregate,
had and would not reasonably be expected to have a Company Material Adverse Effect,
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require
such qualification; each subsidiary of the Company that is a “significant
subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X
under the Securities Act of 1933 (the “Securities
Act”) has been duly organized and is validly existing in good
standing under the laws of its jurisdiction of organization. The Charter and
bylaws of the Company, copies of which have been provided to the Investor prior
to the Signing Date, are true, complete and correct copies of such documents as
in full force and effect as of the Signing Date.


 


(b)           Capitalization. The authorized capital stock of the Company, and the outstanding
capital stock of the Company (including securities convertible into, or
exercisable or exchangeable for, capital stock of the Company) as of the most
recent fiscal month-end preceding the Signing Date (the “Capitalization Date”) is set forth on Schedule
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 any preemptive rights). Except as provided in the Warrant, as of
the Signing Date, the Company does not have outstanding any securities or other
obligations providing the holder the right to acquire Common Stock that is not
reserved for issuance as


 


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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) shares issued upon the exercise of
stock options or delivered under other equity-based awards or other convertible
securities or warrants which were issued and outstanding on the Capitalization
Date and disclosed on Schedule B and (ii) shares disclosed on Schedule
B.


 


(c)           Preferred Shares. The Preferred Shares have been duly and validly authorized, and, when
issued and delivered pursuant to this Agreement, such Preferred Shares will be
duly and validly issued and fully paid and non-assessable, will not be issued
in violation of any preemptive rights, and will rank pari passu with or senior to all other series or classes of
Preferred Stock, whether or not issued or outstanding, with respect to the
payment of dividends and the distribution of assets in the event of any
dissolution, liquidation or winding up of the Company.


 


(d)           The Warrant and Warrant Shares. The Warrant has been duly authorized and, when
executed and delivered as contemplated hereby, will constitute a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and general equitable
principles, regardless of whether such enforceability is considered in a
proceeding at law or in equity (“Bankruptcy
Exceptions”). The shares of Common Stock issuable upon exercise of
the Warrant (the “Warrant Shares”)
have been duly authorized and reserved for issuance upon exercise of the
Warrant and when so issued in accordance with the terms of the Warrant will be
validly issued, fully paid and non-assessable, subject, if applicable, to the
approvals of its stockholders set forth on Schedule C.


 


(e)           Authorization, Enforceability.


 


(i)            The Company has the corporate power and authority
to execute and deliver this Agreement and the Warrant and, subject, if
applicable, to the approvals of its stockholders set forth on Schedule C,
to carry out its obligations hereunder and thereunder (which includes the
issuance of the Preferred Shares, Warrant and Warrant Shares). The execution,
delivery and performance by the Company of this Agreement and the Warrant and
the consummation of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action on the part of the Company
and its stockholders, and no further approval or authorization is required on
the part of the Company, subject, in each case, if applicable, to the approvals
of its stockholders set forth on Schedule C. This Agreement is a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the Bankruptcy Exceptions.


 


(ii)           The execution, delivery and performance by the
Company of this Agreement and the Warrant and the consummation of the
transactions contemplated hereby and thereby and compliance by the Company with
the provisions hereof and


 


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thereof, will not (A) violate, conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration of, or result in the
creation of, any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company or any Company Subsidiary under any of the
terms, conditions or provisions of (i) subject, if applicable, to the
approvals of the Company’s stockholders set forth on Schedule C, 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 Certificate of
Designations with the Secretary of State of its jurisdiction of organization or
other applicable Governmental Entity, any current report on Form 8-K
required to be filed with the SEC, such filings and approvals as are required
to be made or obtained under any state “blue sky” laws, the filing of any proxy
statement contemplated by Section 3.1 and such as have been made or
obtained, no notice to, filing with, exemption or review by, or authorization,
consent or approval of, any Governmental Entity is required to be made or
obtained by the Company in connection with the consummation by the Company of
the Purchase except for any such notices, filings, exemptions, reviews,
authorizations, consents and approvals the failure of which to make or obtain
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.


 


(f)            Anti-takeover Provisions and Rights Plan. The Board of Directors of the Company (the “Board of Directors”) has taken all
necessary action to ensure that the transactions contemplated by this Agreement
and the Warrant and the consummation of the transactions contemplated hereby and
thereby, including the exercise of the Warrant in accordance with its terms,
will be exempt from any anti-takeover or similar provisions of the Company’s
Charter and bylaws, and any other provisions of any applicable “moratorium”, “control
share”, “fair price”, “interested stockholder” or other anti-takeover laws and
regulations of any jurisdiction. The Company has taken all actions necessary to
render any stockholders’ rights plan of the Company inapplicable to this
Agreement and the Warrant and the consummation of the transactions contemplated
hereby and thereby, including the exercise of the Warrant by the Investor in
accordance with its terms.


 


(g)           No Company Material Adverse Effect. Since the last day of the last completed fiscal
period for which the Company has filed a Quarterly Report on Form 10-Q or
an Annual


 


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Report on Form 10-K with the SEC prior
to the Signing Date, no fact, circumstance, event, change, occurrence,
condition or development has occurred that, individually or in the aggregate,
has had or would reasonably be expected to have a Company Material Adverse
Effect.


 


(h)         Company Financial Statements. Each of the consolidated financial statements of
the Company and its consolidated subsidiaries (collectively the “Company Financial Statements”) included or
incorporated by reference in the Company Reports filed with the SEC since December 31,
2006, present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated therein (or if amended prior to the Signing Date, as of the date of
such amendment) and the consolidated results of their operations for the
periods specified therein; and except as stated therein, such financial
statements (A) were prepared in conformity with GAAP applied on a
consistent basis (except as may be noted therein), (B) have been prepared
from, and are in accordance with, the books and records of the Company and the
Company Subsidiaries and (C) complied as to form, as of their respective
dates of filing with the SEC, in all material respects with the applicable
accounting requirements and with the published rules and regulations of
the SEC with respect thereto.


 


(i)            Reports.


 


(i)            Since December 31, 2006, the Company and each
subsidiary of the Company (each a “Company
Subsidiary” and, collectively, the “Company
Subsidiaries”) has timely filed all reports, registrations,
documents, filings, statements and submissions, together with any amendments
thereto, that it was required to file with any Governmental Entity (the
foregoing, collectively, the “Company
Reports”) and has paid all fees and assessments due and payable in
connection therewith, except, in each case, as would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse
Effect. As of their respective dates of filing, the Company Reports complied in
all material respects with all statutes and applicable rules and
regulations of the applicable Governmental Entities. In the case of each such
Company Report filed with or furnished to the SEC, such Company Report (A) did
not, as of its date or if amended prior to the Signing Date, as of the date of
such amendment, contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading, and (B) complied
as to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act. With respect to all other Company Reports,
the Company Reports were complete and accurate in all material respects as of
their respective dates. No executive officer of the Company or any Company
Subsidiary has failed in any respect to make the certifications required of him
or her under Section 302 or 906 of the Sarbanes-Oxley Act of 2002.


 


(ii)           The records, systems, controls, data and
information of the Company and the Company Subsidiaries are recorded, stored, maintained
and operated under means (including any electronic, mechanical or photographic
process, whether computerized or not) that are under the exclusive ownership
and direct control of the Company or the


 


-8-

















 


Company Subsidiaries or their accountants
(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(i)(ii). The Company (A) has
implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of
the Exchange Act) to ensure that material information relating to the Company,
including the consolidated Company Subsidiaries, is made known to the chief
executive officer and the chief financial officer of the Company by others
within those entities, and (B) has disclosed, based on its most recent
evaluation prior to the Signing Date, to the Company’s outside auditors and the
audit committee of the Board of Directors (x) any significant deficiencies
and material weaknesses in the design or operation of internal controls over
financial reporting (as defined in Rule 13a-15(f) of the Exchange
Act) that are reasonably likely to adversely affect the Company’s ability to
record, process, summarize and report financial information and (y) any
fraud, whether or not material, that involves management or other employees who
have a significant role in the Company’s internal controls over financial
reporting.


 


(j)            No Undisclosed Liabilities. Neither the Company nor any of the Company
Subsidiaries has any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) which are not properly reflected or reserved
against in the Company Financial Statements to the extent required to be so
reflected or reserved against in accordance with GAAP, except for (A) liabilities
that have arisen since the last fiscal year end in the ordinary and usual
course of business and consistent with past practice and (B) liabilities
that, individually or in the aggregate, have not had and would not reasonably
be expected to have a Company Material Adverse Effect.


 


(k)           Offering of Securities. Neither the Company nor any person acting on its
behalf has taken any action (including any offering of any securities of the
Company under circumstances which would require the integration of such
offering with the offering of any of the Purchased Securities under the
Securities Act, and the rules and regulations of the SEC promulgated
thereunder), which might subject the offering, issuance or sale of any of the
Purchased Securities to Investor pursuant to this Agreement to the registration
requirements of the Securities Act.


 


(l)            Litigation and Other Proceedings. Except (i) as set forth on Schedule D
or (ii) as would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect, there is no (A) pending
or, to the knowledge of the Company, threatened, claim, action, suit,
investigation or proceeding, against the Company or any Company Subsidiary or
to which any of their assets are subject nor is the Company or any Company
Subsidiary subject to any order, judgment or decree or (B) unresolved
violation, criticism or exception by any Governmental Entity with respect to
any report or relating to any examinations or inspections of the Company or any
Company Subsidiaries.


 


(m)          Compliance with Laws. Except as would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect,
the Company and the


 


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Company Subsidiaries have all permits,
licenses, franchises, authorizations, orders and approvals of, and have made
all filings, applications and registrations with, Governmental Entities that
are required in order to permit them to own or lease their properties and
assets and to carry on their business as presently conducted and that are material
to the business of the Company or such Company Subsidiary. Except as set forth
on Schedule E, the Company and the Company Subsidiaries have complied in
all respects and are not in default or violation of, and none of them is, to
the knowledge of the Company, under investigation with respect to or, to the
knowledge of the Company, have been threatened to be charged with or given
notice of any violation of, any applicable domestic (federal, state or local)
or foreign law, statute, ordinance, license, rule, regulation, policy or
guideline, order, demand, writ, injunction, decree or judgment of any
Governmental Entity, other than such noncompliance, defaults or violations that
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect. Except for statutory or regulatory
restrictions of general application or as set forth on Schedule E, no
Governmental Entity has placed any restriction on the business or properties of
the Company or any Company Subsidiary that would, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect.


 


(n)           Employee Benefit Matters. Except as would not reasonably be expected to
have, either individually or in the aggregate, a Company Material Adverse
Effect: (A) each “employee benefit plan” (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) providing benefits to any current
or former employee, officer or director of the Company or any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of corporations within the
meaning of Section 414 of the Internal Revenue Code of 1986, as amended
(the “Code”)) that is sponsored,
maintained or contributed to by the Company or any member of its Controlled
Group and for which the Company or any member of its Controlled Group would
have any liability, whether actual or contingent (each, a “Plan”) has been maintained in compliance
with its terms and with the requirements of all applicable statutes, rules and
regulations, including ERISA and the Code; (B) with respect to each Plan
subject to Title IV of ERISA (including, for purposes of this clause (B), any
plan subject to Title IV of ERISA that the Company or any member of its
Controlled Group previously maintained or contributed to in the six years prior
to the Signing Date), (1) no “reportable event” (within the meaning of Section 4043(c) of
ERISA), other than a reportable event for which the notice period referred to
in Section 4043(c) of ERISA has been waived, has occurred in the
three years prior to the Signing Date or is reasonably expected to occur, (2) no
“accumulated funding deficiency” (within the meaning of Section 302 of
ERISA or Section 412 of the Code), whether or not waived, has occurred in the
three years prior to the Signing Date or is reasonably expected to occur, (3) the
fair market value of the assets under each Plan exceeds the present value of
all benefits accrued under such Plan (determined based on the assumptions used
to fund such Plan) and (4) neither the Company nor any member of its
Controlled Group has incurred in the six years prior to the Signing Date, or
reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC in the ordinary course and
without default) in respect of a Plan (including any Plan that is a “multiemployer
plan”, within the meaning of Section 4001(c)(3) of ERISA); and (C) each
Plan that is intended to be qualified under Section 401(a) of the
Code has received a favorable


 


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determination letter from the Internal
Revenue Service with respect to its qualified status that has not been revoked,
or such a determination letter has been timely applied for but not received by
the Signing Date, and nothing has occurred, whether by action or by failure to
act, which could reasonably be expected to cause the loss, revocation or denial
of such qualified status or favorable determination letter.


 


(o)           Taxes.
Except as would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect, (i) the Company and the Company
Subsidiaries have filed all federal, state, local and foreign income and
franchise Tax returns required to be filed through the Signing Date, subject to
permitted extensions, and have paid all Taxes due thereon, and (ii) no Tax
deficiency has been determined adversely to the Company or any of the Company
Subsidiaries, nor does the Company have any knowledge of any Tax deficiencies. “Tax” or “Taxes”
means any federal, state, local or foreign income, gross receipts, property,
sales, use, license, excise, franchise, employment, payroll, withholding,
alternative or add on minimum, ad valorem, transfer or excise tax, or any other
tax, custom, duty, governmental fee or other like assessment or charge of any
kind whatsoever, together with any interest or penalty, imposed by any
Governmental Entity.


 


(p)           Properties and Leases. Except as would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect,
the Company and the Company Subsidiaries have good and marketable title to all
real properties and all other properties and assets owned by them, in each case
free from liens, encumbrances, claims and defects that would affect the value
thereof or interfere with the use made or to be made thereof by them. Except as
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, the Company and the Company Subsidiaries hold
all leased real or personal property under valid and enforceable leases with no
exceptions that would interfere with the use made or to be made thereof by
them.


 


(q)           Environmental Liability. Except as would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect:


 


(i)            there is no legal, administrative, or other
proceeding, claim or action of any nature seeking to impose, or that would
reasonably be expected to result in the imposition of, on the Company or any
Company Subsidiary, any liability relating to the release of hazardous
substances as defined under any local, state or federal environmental statute,
regulation or ordinance, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, pending or, to the Company’s knowledge,
threatened against the Company or any Company Subsidiary;


 


(ii)           to the Company’s knowledge, there is no reasonable
basis for any such proceeding, claim or action; and


 


(iii)          neither the Company nor any Company Subsidiary is
subject to any agreement, order, judgment or decree by or with any court,
Governmental Entity or third party imposing any such environmental liability.


 


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(r)            Risk Management Instruments. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, all derivative instruments, including, swaps, caps,
floors and option agreements, whether entered into for the Company’s own
account, or for the account of one or more of the Company Subsidiaries or its
or their customers, were entered into (i) only in the ordinary course of
business, (ii) in accordance with prudent practices and in all material
respects with all applicable laws, rules, regulations and regulatory policies
and (iii) with counterparties believed to be financially responsible at
the time; and each of such instruments constitutes the valid and legally
binding obligation of the Company or one of the Company Subsidiaries,
enforceable in accordance with its terms, except as may be limited by the
Bankruptcy Exceptions. Neither the Company or the Company Subsidiaries, nor, to
the knowledge of the Company, any other party thereto, is in breach of any of
its obligations under any such agreement or arrangement other than such
breaches that would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.


 


(s)           Agreements with Regulatory Agencies. Except as set
forth on Schedule F, neither the Company nor any Company Subsidiary is
subject to any material cease-and-desist or other similar order or enforcement
action issued by, or is a party to any material written agreement, consent
agreement or memorandum of understanding with, or is a party to any commitment
letter or similar undertaking to, or is subject to any capital directive by, or
since December 31, 2006, has adopted any board resolutions at the request
of, any Governmental Entity (other than the Appropriate Federal Banking
Agencies with jurisdiction over the Company and the Company Subsidiaries) that
currently restricts in any material respect the conduct of its business or that
in any material manner relates to its capital adequacy, its liquidity and funding
policies and practices, its ability to pay dividends, its credit, risk
management or compliance policies or procedures, its internal controls, its
management or its operations or business (each item in this sentence, a “Regulatory Agreement”), nor has the
Company or any Company Subsidiary been advised since December 31, 2006 by
any such Governmental Entity that it is considering issuing, initiating,
ordering, or requesting any such Regulatory Agreement. The Company and each
Company Subsidiary are in compliance in all material respects with each
Regulatory Agreement to which it is party or subject, and neither the Company
nor any Company Subsidiary has received any notice from any Governmental Entity
indicating that either the Company or any Company Subsidiary is not in
compliance in all material respects with any such Regulatory Agreement. “Appropriate Federal Banking Agency” means
the “appropriate Federal banking agency” with respect to the Company or such
Company Subsidiaries, as applicable, as defined in Section 3(q) of
the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)).


 


(t)            Insurance. The Company and the Company
Subsidiaries are insured with reputable insurers against such risks and in such
amounts as the management of the Company reasonably has determined to be
prudent and consistent with industry practice. The Company and the Company
Subsidiaries are in material compliance with their insurance policies and are
not in default under any of the material terms thereof, each such policy is outstanding
and in full force and effect, all premiums and other payments due under any
material policy have been paid, and all claims thereunder have been filed in
due and timely fashion, except, in each case, as would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse
Effect.


 


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(u)           Intellectual Property. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, (i) the Company and each Company Subsidiary owns
or otherwise has the right to use, all intellectual property rights, including
all trademarks, trade dress, trade names, service marks, domain names, patents,
inventions, trade secrets, know-how, works of authorship and copyrights
therein, that are used in the conduct of their existing businesses and all
rights relating to the plans, design and specifications of any of its branch
facilities (“Proprietary Rights”)
free and clear of all liens and any claims of ownership by current or former
employees, contractors, designers or others and (ii) neither the Company
nor any of the Company Subsidiaries is materially infringing, diluting,
misappropriating or violating, nor has the Company or any or the Company
Subsidiaries received any written (or, to the knowledge of the Company, oral)
communications alleging that any of them has materially infringed, diluted,
misappropriated or violated, any of the Proprietary Rights owned by any other
person. Except as would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect, to the Company’s knowledge,
no other person is infringing, diluting, misappropriating or violating, nor has
the Company or any or the Company Subsidiaries sent any written communications
since January 1, 2006 alleging that any person has infringed, diluted,
misappropriated or violated, any of the Proprietary Rights owned by the Company
and the Company Subsidiaries.


 


(v)           Brokers and Finders. No broker, finder or
investment banker is entitled to any financial advisory, brokerage, finder’s or
other fee or commission in connection with this Agreement or the Warrant or the
transactions contemplated hereby or thereby based upon arrangements made by or on
behalf of the Company or any Company Subsidiary for which the Investor could
have any liability.


 


Article III

Covenants


 


3.1           Commercially Reasonable Efforts.


 


(a)           Subject to the terms and conditions of this Agreement,
each of the parties will use its commercially reasonable efforts in good faith
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or desirable, or advisable under applicable laws, so
as to permit consummation of the Purchase as promptly as practicable and
otherwise to enable consummation of the transactions contemplated hereby and
shall use commercially reasonable efforts to cooperate with the other party to
that end.


 


(b)           If the Company is required to obtain any stockholder
approvals set forth on Schedule C, then the Company shall comply with
this Section 3.1(b) and Section 3.1(c). The Company shall call a
special meeting of its stockholders, as promptly as practicable following the
Closing, to vote on proposals (collectively, the “Stockholder Proposals”) to (i) approve the exercise of
the Warrant for Common Stock for purposes of the rules of the national
security exchange on which the Common Stock is listed and/or (ii) amend
the Company’s Charter to increase the number of authorized shares of Common
Stock to at least such number as shall be sufficient to permit the full
exercise of the Warrant for Common Stock and comply with the


 


-13-

















 


other provisions of this Section 3.1(b) and
Section 3.1(c). The Board of Directors shall recommend to the Company’s
stockholders that such stockholders vote in favor of the Stockholder Proposals.
In connection with such meeting, the Company shall prepare (and the Investor
will reasonably cooperate with the Company to prepare) and file with the SEC as
promptly as practicable (but in no event more than ten business days after the
Closing) a preliminary proxy statement, shall use its reasonable best efforts
to respond to any comments of the SEC or its staff thereon and to cause a
definitive proxy statement related to such stockholders’ meeting to be mailed
to the Company’s stockholders not more than five business days after clearance
thereof by the SEC, and shall use its reasonable best efforts to solicit
proxies for such stockholder approval of the Stockholder Proposals. The Company
shall notify the Investor promptly of the receipt of any comments from the SEC
or its staff with respect to the proxy statement and of any request by the SEC
or its staff for amendments or supplements to such proxy statement or for
additional information and will supply the Investor with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC or its staff, on the other hand, with respect to such proxy
statement. If at any time prior to such stockholders’ meeting there shall occur
any event that is required to be set forth in an amendment or supplement to the
proxy statement, the Company shall as promptly as practicable prepare and mail
to its stockholders such an amendment or supplement. Each of the Investor and
the Company agrees promptly to correct any information provided by it or on its
behalf for use in the proxy statement if and to the extent that such
information shall have become false or misleading in any material respect, and
the Company shall as promptly as practicable prepare and mail to its
stockholders an amendment or supplement to correct such information to the
extent required by applicable laws and regulations. The Company shall consult
with the Investor prior to filing any proxy statement, or any amendment or
supplement thereto, and provide the Investor with a reasonable opportunity to
comment thereon. In the event that the approval of any of the Stockholder
Proposals is not obtained at such special stockholders meeting, the Company
shall include a proposal to approve (and the Board of Directors shall recommend
approval of) each such proposal at a meeting of its stockholders no less than
once in each subsequent six-month period beginning on January 1, 2009
until all such approvals are obtained or made.


 


(c)           None of the information supplied by the Company or any of
the Company Subsidiaries for inclusion in any proxy statement in connection
with any such stockholders meeting of the Company will, at the date it is filed
with the SEC, when first mailed to the Company’s stockholders and at the time
of any stockholders meeting, and at the time of any amendment or supplement
thereof, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.


 


3.2           Expenses. Unless otherwise provided in this
Agreement or the Warrant, each of the parties hereto will bear and pay all
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated under this Agreement and the Warrant, including fees
and expenses of its own financial or other consultants, investment bankers, accountants
and counsel.


 


3.3           Sufficiency of Authorized Common Stock; Exchange
Listing.


 


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(a)           During the period from the Closing Date (or, if the
approval of the Stockholder Proposals is required, the date of such approval)
until the date on which the Warrant has been fully exercised, the Company shall
at all times have reserved for issuance, free of preemptive or similar rights,
a sufficient number of authorized and unissued Warrant Shares to effectuate such
exercise. Nothing in this Section 3.3 shall preclude the Company from
satisfying its obligations in respect of the exercise of the Warrant by
delivery of shares of Common Stock which are held in the treasury of the
Company. As soon as reasonably practicable following the Closing, the Company
shall, at its expense, cause the Warrant Shares to be listed on the same
national securities exchange on which the Common Stock is listed, subject to
official notice of issuance, and shall maintain such listing for so long as any
Common Stock is listed on such exchange.


 


(b)           If requested by the Investor, the Company shall promptly
use its reasonable best efforts to cause the Preferred Shares to be approved
for listing on a national securities exchange as promptly as practicable
following such request.


 


3.4           Certain Notifications Until Closing. From the
Signing Date until the Closing, the Company shall promptly notify the Investor
of (i) any fact, event or circumstance of which it is aware and which
would reasonably be expected to cause any representation or warranty of the
Company contained in this Agreement to be untrue or inaccurate in any material
respect or to cause any covenant or agreement of the Company contained in this
Agreement not to be complied with or satisfied in any material respect and (ii) except
as Previously Disclosed, any fact, circumstance, event, change, occurrence,
condition or development of which the Company is aware and which, individually
or in the aggregate, has had or would reasonably be expected to have a Company
Material Adverse Effect; provided,
however, that delivery of any
notice pursuant to this Section 3.4 shall not limit or affect any rights
of or remedies available to the Investor; provided,
further, that a failure to comply
with this Section 3.4 shall not constitute a breach of this Agreement or
the failure of any condition set forth in Section 1.2 to be satisfied
unless the underlying Company Material Adverse Effect or material breach would
independently result in the failure of a condition set forth in Section 1.2
to be satisfied.


 


3.5           Access, Information and Confidentiality.


 


(a)           From the Signing Date until the date when the Investor
holds an amount of Preferred Shares having an aggregate liquidation value of
less than 10% of the Purchase Price, the Company will permit the Investor and
its agents, consultants, contractors and advisors (x) acting through the
Appropriate Federal Banking Agency, to examine the corporate books and make
copies thereof and to discuss the affairs, finances and accounts of the Company
and the Company Subsidiaries with the principal officers of the Company, all
upon reasonable notice and at such reasonable times and as often as the
Investor may reasonably request and (y) to review any information material
to the Investor’s investment in the Company provided by the Company to its
Appropriate Federal Banking Agency. Any investigation pursuant to this Section 3.5
shall be conducted during normal business hours and in such manner as not to
interfere unreasonably with the conduct of the business of the Company, and
nothing herein shall require the Company or any Company Subsidiary to disclose
any information to the Investor to the extent (i) prohibited by applicable
law or regulation, or (ii) that such disclosure would reasonably be


 


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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)           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 non-public records, books, contracts,
instruments, computer data and other data and information (collectively, “Information”) concerning the Company
furnished or made available to it by the Company or its representatives
pursuant to this Agreement (except to the extent that such information can be
shown to have been (i) previously known by such party on a
non-confidential basis, (ii) in the public domain through no fault of such
party or (iii) later lawfully acquired from other sources by the party to
which it was furnished (and without violation of any other confidentiality
obligation)); provided that
nothing herein shall prevent the Investor from disclosing any Information to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process.


 


Article IV

Additional Agreements


 


4.1           Purchase for Investment. The Investor acknowledges
that the Purchased Securities and the Warrant Shares have not been registered
under the Securities Act or under any state securities laws. The Investor (a) is
acquiring the Purchased Securities pursuant to an exemption from registration
under the Securities Act solely for investment with no present intention to
distribute them to any person in violation of the Securities Act or any
applicable U.S. state securities laws, (b) will not sell or otherwise
dispose of any of the Purchased Securities or the Warrant Shares, except in compliance
with the registration requirements or exemption provisions of the Securities
Act and any applicable U.S. state securities laws, and (c) has such
knowledge and experience in financial and business matters and in investments
of this type that it is capable of evaluating the merits and risks of the
Purchase and of making an informed investment decision.


 


4.2           Legends.


 


(a)           The Investor agrees that all certificates or other
instruments representing the Warrant and the Warrant Shares will bear a legend
substantially to the following effect:


 


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


 


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(b)           The Investor agrees that all certificates or other
instruments representing the Warrant will also bear a legend substantially to
the following effect:


 


“THIS INSTRUMENT IS ISSUED SUBJECT TO THE
RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE
AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO
THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED
BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH SAID AGREEMENT WILL BE VOID.”


 


(c)           In addition, the Investor agrees that all certificates or
other instruments representing the Preferred Shares will bear a legend
substantially to the following effect:


 


“THE SECURITIES REPRESENTED BY THIS
INSTRUMENT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.


 


THE SECURITIES REPRESENTED BY THIS INSTRUMENT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING
THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH
PURCHASER OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE
SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR
SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION


 


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REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS
INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.”


 


(d)           In the event that any Purchased Securities or Warrant
Shares (i) become registered under the Securities Act or (ii) are
eligible to be transferred without restriction in accordance with Rule 144
or another exemption from registration under the Securities Act (other than Rule 144A),
the Company shall issue new certificates or other instruments representing such
Purchased Securities or Warrant Shares, which shall not contain the applicable
legends in Sections 4.2(a) and (c) above; provided that the Investor surrenders to the Company the
previously issued certificates or other instruments. Upon Transfer of all or a
portion of the Warrant in compliance with Section 4.4, the Company shall
issue new certificates or other instruments representing the Warrant, which
shall not contain the applicable legend in Section 4.2(b) above; provided that the Investor surrenders to
the Company the previously issued certificates or other instruments.


 


4.3           Certain Transactions. The Company will not merge or
consolidate with, or sell, transfer or lease all or substantially all of its
property or assets to, any other party unless the successor, transferee or
lessee party (or its ultimate parent entity), as the case may be (if not the
Company), expressly assumes the due and punctual performance and observance of
each and every covenant, agreement and condition of this Agreement to be
performed and observed by the Company.


 


4.4           Transfer of Purchased Securities and Warrant Shares;
Restrictions on Exercise of the Warrant. Subject to compliance with
applicable securities laws, the Investor shall be permitted to transfer, sell,
assign or otherwise dispose of (“Transfer”)
all or a portion of the Purchased Securities or Warrant Shares at any time, and
the Company shall take all steps as may be reasonably requested by the Investor
to facilitate the Transfer of the Purchased Securities and the Warrant Shares; provided that the Investor shall not
Transfer a portion or portions of the Warrant with respect to, and/or exercise
the Warrant for, more than one-half of the Initial Warrant Shares (as such
number may be adjusted from time to time pursuant to Section 13 thereof)
in the aggregate until the earlier of (a) the date on which the Company
(or any successor by Business Combination) has received aggregate gross
proceeds of not less than the Purchase Price (and the purchase price paid by
the Investor to any such successor for securities of such successor purchased
under the CPP) from one or more Qualified Equity Offerings (including Qualified
Equity Offerings of such successor) and (b) December 31, 2009. “Qualified Equity Offering” means the sale
and issuance for cash by the Company to persons other than the Company or any
of the Company Subsidiaries after the Closing 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 Company at the
time of issuance under the applicable risk-based capital guidelines of the
Company’s Appropriate Federal Banking Agency (other than any such sales and
issuances made pursuant to agreements or arrangements entered into, or pursuant
to financing plans which were publicly announced, on or prior to October 13,


 


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2008). “Business
Combination” means a merger, consolidation, statutory share exchange
or similar transaction that requires the approval of the Company’s
stockholders.


 


4.5           Registration Rights.


 


(a)           Registration.


 


(i)              Subject to the terms and
conditions of this Agreement, the Company covenants and agrees that as promptly
as practicable after the Closing Date (and in any event no later than 30 days
after the Closing Date), the Company shall prepare and file with the SEC a
Shelf Registration Statement covering all Registrable Securities (or otherwise
designate an existing Shelf Registration Statement filed with the SEC to cover
the Registrable Securities), and, to the extent the Shelf Registration
Statement has not theretofore been declared effective or is not automatically
effective upon such filing, the Company shall use reasonable best efforts to
cause such Shelf Registration Statement to be declared or become effective and
to keep such Shelf Registration Statement continuously effective and in
compliance with the Securities Act and usable for resale of such Registrable
Securities for a period from the date of its initial effectiveness until such
time as there are no Registrable Securities remaining (including by refiling
such Shelf Registration Statement (or a new Shelf Registration Statement) if
the initial Shelf Registration Statement expires). So long as the Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities
Act) at the time of filing of the Shelf Registration Statement with the SEC,
such Shelf Registration Statement shall be designated by the Company as an
automatic Shelf Registration Statement. Notwithstanding the foregoing, if on
the Signing Date the Company is not eligible to file a registration statement
on Form S-3, then the Company shall not be obligated to file a Shelf
Registration Statement unless and until requested to do so in writing by the
Investor.


 


(ii)             Any registration pursuant to Section 4.5(a)(i) shall
be effected by means of a shelf registration on an appropriate form under Rule 415
under the Securities Act (a “Shelf
Registration Statement”). If the Investor or any other Holder
intends to distribute any Registrable Securities by means of an underwritten
offering it shall promptly so advise the Company and the Company shall take all
reasonable steps to facilitate such distribution, including the actions
required pursuant to Section 4.5(c); provided
that the Company shall not be required to facilitate an underwritten
offering of Registrable Securities unless the expected gross proceeds from such
offering exceed (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 of the Registrable Securities to be distributed; provided that to the extent appropriate
and permitted under applicable law, such Holders shall consider the
qualifications of any broker-dealer Affiliate of the Company in selecting the
lead underwriters in any such distribution.


 


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(iii)                                    The Company shall not be required to effect a
registration (including a resale of Registrable Securities from an effective
Shelf Registration Statement) or an underwritten offering pursuant to Section 4.5(a):
(A) with respect to securities that are not Registrable Securities; or (B) if
the Company has notified the Investor and all other Holders that in the good
faith judgment of the Board of Directors, it would be materially detrimental to
the Company or its securityholders for such registration or underwritten
offering to be effected at such time, in which event the Company shall have the
right to defer such registration for a period of not more than 45 days after
receipt of the request of the Investor or any other Holder; provided that such right to delay a
registration or underwritten offering shall be exercised by the Company (1) only
if the Company has generally exercised (or is concurrently exercising) similar
black-out rights against holders of similar securities that have registration
rights and (2) not more than three times in any 12-month period and not
more than 90 days in the aggregate in any 12-month period.


 


(iv)                                   If during any period when an effective Shelf
Registration Statement is not available, the Company proposes to register any
of its equity securities, other than a registration pursuant to Section 4.5(a)(i) or
a Special Registration, and the registration form to be filed may be used for
the registration or qualification for distribution of Registrable Securities,
the Company will give prompt written notice to the Investor and all other
Holders of its intention to effect such a registration (but in no event less
than ten days prior to the anticipated filing date) and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within ten business days after
the date of the Company’s notice (a “Piggyback
Registration”). Any such person that has made such a written request
may withdraw its Registrable Securities from such Piggyback Registration by
giving written notice to the Company and the managing underwriter, if any, on
or before the fifth business day prior to the planned effective date of such
Piggyback Registration. The Company may terminate or withdraw any registration
under this Section 4.5(a)(iv) prior to the effectiveness of such
registration, whether or not Investor or any other Holders have elected to
include Registrable Securities in such registration.


 


(v)                                      If the registration referred to in Section 4.5(a)(iv) is
proposed to be underwritten, the Company will so advise Investor and all other
Holders as a part of the written notice given pursuant to Section 4.5(a)(iv).
In such event, the right of Investor and all other Holders to registration pursuant
to Section 4.5(a) will be conditioned upon such persons’
participation in such underwriting and the inclusion of such person’s
Registrable Securities in the underwriting if such securities are of the same
class of securities as the securities to be offered in the underwritten
offering, and each such person will (together with the Company and the other
persons distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company; provided
that the Investor (as opposed to other Holders) shall not be
required to indemnify any person in connection with any registration. If any
participating person disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice


 


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to the Company, the managing underwriters and
the Investor (if the Investor is participating in the underwriting).


 


(vi)                              If either (x) the Company grants “piggyback”
registration rights to one or more third parties to include their securities in
an underwritten offering under the Shelf Registration Statement pursuant to Section 4.5(a)(ii) or
(y) a Piggyback Registration under Section 4.5(a)(iv) relates to
an underwritten offering on behalf of the Company, and in either case the
managing underwriters advise the Company that in their reasonable opinion the
number of securities requested to be included in such offering exceeds the number
which can be sold without adversely affecting the marketability of such
offering (including an adverse effect on the per share offering price), the
Company will include in such offering only such number of securities that in
the reasonable opinion of such managing underwriters can be sold without
adversely affecting the marketability of the offering (including an adverse
effect on the per share offering price), which securities will be so included
in the following order of priority: (A) first, in the case of a Piggyback
Registration under Section 4.5(a)(iv), the securities the Company proposes
to sell, (B) then the Registrable Securities of the Investor and all other
Holders who have requested inclusion of Registrable Securities pursuant to Section 4.5(a)(ii) or
Section 4.5(a)(iv), as applicable, pro
rata on the basis of the aggregate number of such securities or
shares owned by each such person and (C) lastly, any other securities of
the Company that have been requested to be so included, subject to the terms of
this Agreement; provided, however, that
if the Company has, prior to the Signing Date, entered into an agreement with
respect to its securities that is inconsistent with the order of priority
contemplated hereby then it shall apply the order of priority in such
conflicting agreement to the extent that it would otherwise result in a breach
under such agreement.


 


(b)                                 Expenses of Registration. All Registration Expenses incurred in connection
with any registration, qualification or compliance hereunder shall be borne by
the Company. All Selling Expenses incurred in connection with any registrations
hereunder shall be borne by the holders of the securities so registered pro rata on the basis of the aggregate
offering or sale price of the securities so registered.


 


(c)                                  Obligations of the Company. The Company shall use its reasonable best
efforts, for so long as there are Registrable Securities outstanding, to take
such actions as are under its control to not become an ineligible issuer (as
defined in Rule 405 under the Securities Act) and to remain a well-known
seasoned issuer (as defined in Rule 405 under the Securities Act) if it
has such status on the Signing Date or becomes eligible for such status in the
future. In addition, whenever required to effect the registration of any
Registrable Securities or facilitate the distribution of Registrable Securities
pursuant to an effective Shelf Registration Statement, the Company shall, as
expeditiously as reasonably practicable:


 


(i)                                     Prepare and file with the SEC a prospectus
supplement with respect to a proposed offering of Registrable Securities
pursuant to an effective registration statement, subject to Section 4.5(d),
keep such registration statement effective and keep


 


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such prospectus supplement current until the
securities described therein are no longer Registrable Securities.


 


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


 


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


 


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


 


(v)                                 Notify each Holder of Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the
applicable prospectus, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing.


 


(vi)                              Give written notice to the Holders:


 


(A)                                        when any registration statement filed pursuant to Section 4.5(a) or
any amendment thereto has been filed with the SEC (except for any amendment
effected by the filing of a document with the SEC pursuant to the Exchange Act)
and when such registration statement or any post-effective amendment thereto
has become effective;


 


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


 


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


 


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


 


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


 


(F)                                           if at any time the representations and warranties
of the Company contained in any underwriting agreement contemplated by Section 4.5(c)(x) cease
to be true and correct.


 


(vii)                      Use its reasonable best efforts to prevent the
issuance or obtain the withdrawal of any order suspending the effectiveness of
any registration statement referred to in Section 4.5(c)(vi)(C) at
the earliest practicable time.


 


(viii)                   Upon the occurrence of any event contemplated by Section 4.5(c)(v) or
4.5(c)(vi)(E), promptly prepare a post-effective amendment to such registration
statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to the Holders and any underwriters,
the prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. If the Company
notifies the Holders in accordance with Section 4.5(c)(vi)(E) to
suspend the use of the prospectus until the requisite changes to the prospectus
have been made, then the Holders and any underwriters shall suspend use of such
prospectus and use their reasonable best efforts to return to the Company all
copies of such prospectus (at the Company’s expense) other than permanent file
copies then in such Holders’ or underwriters’ possession. The total number of
days that any such suspension may be in effect in any 12-month period shall not
exceed 90 days.


 


(ix)                           Use reasonable best efforts to procure the cooperation
of the Company’s transfer agent in settling any offering or sale of Registrable
Securities, including with respect to the transfer of physical stock
certificates into book-entry form in accordance with any procedures reasonably
requested by the Holders or any managing underwriter(s).


 


(x)                              If an underwritten offering is requested pursuant
to Section 4.5(a)(ii), enter into an underwriting agreement in customary
form, scope and substance and take all such


 


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other actions reasonably requested by the
Holders of a majority of the Registrable Securities being sold in connection
therewith or by the managing underwriter(s), if any, to expedite or facilitate
the underwritten disposition of such Registrable Securities, and in connection
therewith in any underwritten offering (including making members of management
and executives of the Company available to participate in “road shows”, similar
sales events and other marketing activities), (A) make such representations
and warranties to the Holders that are selling stockholders and the managing
underwriter(s), if any, with respect to the business of the Company and its
subsidiaries, and the Shelf Registration Statement, prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, in customary form, substance and scope, and, if true, confirm the same if
and when requested, (B) use its reasonable best efforts to furnish the
underwriters with opinions of counsel to the Company, addressed to the managing
underwriter(s), if any, covering the matters customarily covered in such
opinions requested in underwritten offerings, (C) use its reasonable best
efforts to obtain “cold comfort” letters from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any business acquired by the Company for which financial
statements and financial data are included in the Shelf Registration Statement)
who have certified the financial statements included in such Shelf Registration
Statement, addressed to each of the managing underwriter(s), if any, such
letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters, (D) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
customary in underwritten offerings (provided that the Investor shall not be
obligated to provide any indemnity), and (E) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith, their counsel and
the managing underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.


 


(xi)                                Make available for inspection by a representative
of Holders that are selling stockholders, the managing underwriter(s), if any,
and any attorneys or accountants retained by such Holders or managing
underwriter(s), at the offices where normally kept, during reasonable business
hours, financial and other records, pertinent corporate documents and
properties of the Company, and cause the officers, directors and employees of
the Company to supply all information in each case reasonably requested (and of
the type customarily provided in connection with due diligence conducted in
connection with a registered public offering of securities) by any such
representative, managing underwriter(s), attorney or accountant in connection
with such Shelf Registration Statement.


 


(xii)                             Use reasonable best efforts to cause all such
Registrable Securities to be listed on each national securities exchange on
which similar securities issued by the Company are then listed or, if no
similar securities issued by the Company are then listed on any national
securities exchange, use its reasonable best efforts to cause all such


 


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Registrable Securities to be listed on such
securities exchange as the Investor may designate.


 


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


 


(xiv)                         Timely provide to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.


 


(d)                            Suspension of Sales. Upon receipt of written notice from the Company
that a registration statement, prospectus or prospectus supplement contains or
may contain an untrue statement of a material fact or omits or may omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that circumstances exist that make
inadvisable use of such registration statement, prospectus or prospectus
supplement, the Investor and each Holder of Registrable Securities shall
forthwith discontinue disposition of Registrable Securities until the Investor
and/or Holder has received copies of a supplemented or amended prospectus or
prospectus supplement, or until the Investor and/or such Holder is advised in
writing by the Company that the use of the prospectus and, if applicable,
prospectus supplement may be resumed, and, if so directed by the Company, the
Investor and/or such Holder shall deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in the Investor and/or
such Holder’s possession, of the prospectus and, if applicable, prospectus
supplement covering such Registrable Securities current at the time of receipt
of such notice. The total number of days that any such suspension may be in
effect in any 12-month period shall not exceed 90 days.


 


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


 


(f)                               Furnishing Information.


 


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


 


(ii)                                  It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 4.5(c) that
Investor and/or the selling Holders and the underwriters, if any, shall furnish
to the Company such information regarding themselves, the Registrable
Securities held by them and the intended method of


 


-25-

















 


disposition of such securities as shall be
required to effect the registered offering of their Registrable Securities.


 


(g)                                 Indemnification.


 


(i)                                     The Company agrees to indemnify each Holder and, if
a Holder is a person other than an individual, such Holder’s officers,
directors, employees, agents, representatives and Affiliates, and each Person,
if any, that controls a Holder within the meaning of the Securities Act (each,
an “Indemnitee”), against any and
all losses, claims, damages, actions, liabilities, costs and expenses
(including reasonable fees, expenses and disbursements of attorneys and other
professionals incurred in connection with investigating, defending, settling,
compromising or paying any such losses, claims, damages, actions, liabilities,
costs and expenses), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of material fact contained in any
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto or any
documents incorporated therein by reference or contained in any free writing
prospectus (as such term is defined in Rule 405) prepared by the Company
or authorized by it in writing for use by such Holder (or any amendment or
supplement thereto); or any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, that the Company shall not be
liable to such Indemnitee in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon (A) an untrue statement or omission
made in such registration statement, including any such preliminary prospectus
or final prospectus contained therein or any such amendments or supplements
thereto or contained in any free writing prospectus (as such term is defined in
Rule 405) prepared by the Company or authorized by it in writing for use
by such Holder (or any amendment or supplement thereto), in reliance upon and
in conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing to the
Company by such Indemnitee for use in connection with such registration
statement, including any such preliminary prospectus or final prospectus
contained therein or any such amendments or supplements thereto, or (B) offers
or sales effected by or on behalf of such Indemnitee “by means of” (as defined
in Rule 159A) a “free writing prospectus” (as defined in Rule 405)
that was not authorized in writing by the Company.


 


(ii)                                  If the indemnification provided for in Section 4.5(g)(i) is
unavailable to an Indemnitee with respect to any losses, claims, damages,
actions, liabilities, costs or expenses referred to therein or is insufficient
to hold the Indemnitee harmless as contemplated therein, then the Company, in
lieu of indemnifying such Indemnitee, shall contribute to the amount paid or
payable by such Indemnitee as a result of such losses, claims, damages,
actions, liabilities, costs or expenses in such proportion as is appropriate to
reflect the relative fault of the Indemnitee, on the one hand, and the Company,
on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, actions, liabilities, costs or
expenses as well as any other relevant


 


-26-

















 


equitable considerations. The relative fault
of the Company, on the one hand, and of the Indemnitee, on the other hand,
shall be determined by reference to, among other factors, whether the untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company or by the Indemnitee and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; the Company and each Holder agree that it
would not be just and equitable if contribution pursuant to this Section 4.5(g)(ii) were
determined by pro rata allocation
or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 4.5(g)(i). No Indemnitee
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from the Company if the
Company was not guilty of such fraudulent misrepresentation.


 


(h)                                 Assignment of Registration Rights. The rights of the Investor to registration of
Registrable Securities pursuant to Section 4.5(a) may be assigned by
the Investor to a transferee or assignee of Registrable Securities with a
liquidation preference or, in the case of Registrable Securities other than
Preferred Shares, a market value, no less than an amount equal to (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; provided,
however, the transferor shall,
within ten days after such transfer, furnish to the Company written notice of
the name and address of such transferee or assignee and the number and type of
Registrable Securities that are being assigned. For purposes of this Section 4.5(h),
“market value” per share of Common Stock shall be the last reported sale price
of the Common Stock on the national securities exchange on which the Common
Stock is listed or admitted to trading on the last trading day prior to the
proposed transfer, and the “market value” for the Warrant (or any portion
thereof) shall be the market value per share of Common Stock into which the
Warrant (or such portion) is exercisable less the exercise price per share.


 


(i)                                     Clear Market. With respect to any underwritten offering of Registrable Securities by
the Investor or other Holders pursuant to this Section 4.5, the Company
agrees not to effect (other than pursuant to such registration or pursuant to a
Special Registration) any public sale or distribution, or to file any Shelf
Registration Statement (other than such registration or a Special Registration)
covering, in the case of an underwritten offering of Common Stock or Warrants,
any of its equity securities or, in the case of an underwritten offering of
Preferred Shares, any Preferred Stock of the Company, or, in each case, any
securities convertible into or exchangeable or exercisable for such securities,
during the period not to exceed ten days prior and 60 days following the
effective date of such offering or such longer period up to 90 days as may be
requested by the managing underwriter for such underwritten offering. The
Company also agrees to cause such of its directors and senior executive
officers to execute and deliver customary lock-up agreements in such form and
for such time period up to 90 days as may be requested by the managing
underwriter. “Special Registration”
means the registration of (A) equity securities and/or options or other
rights in respect thereof solely registered on Form S-4 or Form S-8
(or successor form) or (B) shares of equity securities and/or options or
other rights in respect thereof to be offered to directors, members of
management, employees, consultants,


 


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customers, lenders or vendors of the Company
or Company Subsidiaries or in connection with dividend reinvestment plans.


 


(j)                                     Rule 144; Rule 144A. With a view to making available to the Investor
and Holders the benefits of certain rules and regulations of the SEC which
may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its reasonable best efforts to:


 


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


 


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


 


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


 


(iv)                              take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act.


 


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


 


(i)                                     “Holder”
means the Investor and any other holder of Registrable Securities to whom the
registration rights conferred by this Agreement have been transferred in
compliance with Section 4.5(h) hereof.


 


(ii)                                  “Holders’
Counsel” means one counsel for the selling Holders chosen by Holders
holding a majority interest in the Registrable Securities being registered.


 


(iii)                               “Register,”
“registered,” and “registration” shall refer to a
registration effected by preparing and (A) filing a registration statement
in compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of effectiveness of such registration
statement or (B) filing a prospectus and/or


 


-28-

















 


prospectus supplement in respect of an
appropriate effective registration statement on Form S-3.


 


(iv)                              “Registrable Securities” means (A) all
Preferred Shares, (B) the Warrant (subject to Section 4.5(p)) and (C) any
equity securities issued or issuable directly or indirectly with respect to the
securities referred to in the foregoing clauses (A) or (B) by way of
conversion, exercise or exchange thereof, including the Warrant Shares, or
share dividend or share split or in connection with a combination of shares,
recapitalization, reclassification, merger, amalgamation, arrangement,
consolidation or other reorganization, provided
that, once issued, such securities will not be Registrable
Securities when (1) they are sold pursuant to an effective registration
statement under the Securities Act, (2) except as provided below in Section 4.5(o),
they may be sold pursuant to Rule 144 without limitation thereunder on volume
or manner of sale, (3) they shall have ceased to be outstanding or (4) they
have been sold in a private transaction in which the transferor’s rights under
this Agreement are not assigned to the transferee of the securities. No
Registrable Securities may be registered under more than one registration
statement at any one time.


 


(v)                                 “Registration
Expenses” mean all expenses incurred by the Company in effecting any
registration pursuant to this Agreement (whether or not any registration or
prospectus becomes effective or final) or otherwise complying with its
obligations under this Section 4.5, including all registration, filing and
listing fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, expenses incurred in connection with any “road
show”, the reasonable fees and disbursements of Holders’ Counsel, and expenses
of the Company’s independent accountants in connection with any regular or
special reviews or audits incident to or required by any such registration, but
shall not include Selling Expenses.


 


(vi)                              “Rule 144”,
“Rule 144A”, “Rule 159A”, “Rule 405” and “Rule 415” mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as the same
shall be amended from time to time.


 


(vii)                           “Selling Expenses” mean all discounts,
selling commissions and stock transfer taxes applicable to the sale of
Registrable Securities and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of Holders’ Counsel included in
Registration Expenses).


 


(l)                                     At any time, any holder of Securities (including
any Holder) may elect to forfeit its rights set forth in this Section 4.5
from that date forward; provided,
that a Holder forfeiting such rights shall nonetheless be entitled to
participate under Section 4.5(a)(iv) – (vi) in any Pending
Underwritten Offering to the same extent that such Holder would have been
entitled to if the holder had not withdrawn; and provided, further,
that no such forfeiture shall terminate a Holder’s rights or obligations under Section 4.5(f) with
respect to any prior registration or Pending Underwritten Offering. “Pending Underwritten Offering” means, with respect to any Holder forfeiting
its rights pursuant to this Section 4.5(l), any underwritten offering of


 


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Registrable Securities in which such Holder
has advised the Company of its intent to register its Registrable Securities
either pursuant to Section 4.5(a)(ii) or 4.5(a)(iv) prior to the
date of such Holder’s forfeiture.


 


(m)                               Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of its
obligations under this Section 4.5 and that the Investor and the Holders
from time to time may be irreparably harmed by any such failure, and
accordingly agree that the Investor and such Holders, in addition to any other
remedy to which they may be entitled at law or in equity, to the fullest extent
permitted and enforceable under applicable law shall be entitled to compel
specific performance of the obligations of the Company under this Section 4.5
in accordance with the terms and conditions of this Section 4.5.


 


(n)                                 No Inconsistent Agreements. The Company shall not, on or after the Signing
Date, enter into any agreement with respect to its securities that may impair
the rights granted to the Investor and the Holders under this Section 4.5
or that otherwise conflicts with the provisions hereof in any manner that may
impair the rights granted to the Investor and the Holders under this Section 4.5.
In the event the Company has, prior to the Signing Date, entered into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Investor and the Holders under this Section 4.5 (including
agreements that are inconsistent with the order of priority contemplated by Section 4.5(a)(vi))
or that may otherwise conflict with the provisions hereof, the Company shall
use its reasonable best efforts to amend such agreements to ensure they are
consistent with the provisions of this Section 4.5.


 


(o)                                 Certain Offerings by the Investor. In the case of any securities held by the
Investor that cease to be Registrable Securities solely by reason of clause (2) in
the definition of “Registrable Securities,” the provisions of Sections
4.5(a)(ii), clauses (iv), (ix) and (x)-(xii) of Section 4.5(c), Section 4.5(g) and
Section 4.5(i) shall continue to apply until such securities
otherwise cease to be Registrable Securities. In any such case, an “underwritten”
offering or other disposition shall include any distribution of such securities
on behalf of the Investor by one or more broker-dealers, an “underwriting
agreement” shall include any purchase agreement entered into by such
broker-dealers, and any “registration statement” or “prospectus” shall include
any offering document approved by the Company and used in connection with such
distribution.


 


(p)                                 Registered Sales of the Warrant. The Holders agree to sell the Warrant or any
portion thereof under the Shelf Registration Statement only beginning 30 days
after notifying the Company of any such sale, during which 30-day period the
Investor and all Holders of the Warrant shall take reasonable steps to agree to
revisions to the Warrant to permit a public distribution of the Warrant,
including entering into a warrant agreement and appointing a warrant agent.


 


4.6                                 Voting of Warrant Shares. Notwithstanding anything in this Agreement to the
contrary, the Investor shall not exercise any voting rights with respect to the
Warrant Shares.


 


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4.7           Depositary Shares. Upon request by the Investor at any time following the Closing Date,
the Company shall promptly enter into a depositary arrangement, pursuant to
customary agreements reasonably satisfactory to the Investor and with a
depositary reasonably acceptable to the Investor, pursuant to which the
Preferred Shares may be deposited and depositary shares, each representing a
fraction of a Preferred Share as specified by the Investor, may be issued. From
and after the execution of any such depositary arrangement, and the deposit of
any Preferred Shares pursuant thereto, the depositary shares issued pursuant
thereto shall be deemed “Preferred Shares” and, as applicable, “Registrable
Securities” for purposes of this Agreement.


 


4.8           Restriction on Dividends and Repurchases.


 


(a)           Prior to the earlier of (x) the third
anniversary of the Closing Date and (y) the date on which the Preferred
Shares have been redeemed in whole or the Investor has transferred all of the
Preferred Shares to third parties which are not Affiliates of the Investor,
neither the Company nor any Company Subsidiary shall, without the consent of
the Investor:


 


(i)            declare or pay any dividend or make any
distribution on the Common Stock (other than (A) regular quarterly cash
dividends of not more than the amount of the last quarterly cash dividend per
share declared or, if lower, publicly announced an intention to declare, on the
Common Stock prior to October 14, 2008, as adjusted for any stock split,
stock dividend, reverse stock split, reclassification or similar transaction, (B) dividends
payable solely in shares of Common Stock and (C) dividends or
distributions of rights or Junior Stock in connection with a stockholders’
rights plan); or


 


(ii)           redeem, purchase or acquire any shares of Common
Stock or other capital stock or other equity securities of any kind of the
Company, or any trust preferred securities issued by the Company or any
Affiliate of the Company, other than (A) redemptions, purchases or other
acquisitions of the Preferred Shares, (B) redemptions, purchases or other
acquisitions of shares of Common Stock or other Junior Stock, in each case in
this clause (B) in connection with the administration of any employee
benefit plan in the ordinary course of business (including purchases to offset
the Share Dilution Amount (as defined below) pursuant to a publicly announced
repurchase plan) and consistent with past practice; provided that any purchases to offset the Share Dilution
Amount shall in no event exceed the Share Dilution Amount, (C) purchases
or other acquisitions by a broker-dealer subsidiary of the Company solely for
the purpose of market-making, stabilization or customer facilitation
transactions in Junior Stock or Parity Stock in the ordinary course of its
business, (D) purchases by a broker-dealer subsidiary of the Company of
capital stock of the Company for resale pursuant to an offering by the Company
of such capital stock underwritten by such broker-dealer subsidiary, (E) any
redemption or repurchase of rights pursuant to any stockholders’ rights plan, (F) the
acquisition by the Company or any of the Company Subsidiaries of record
ownership in Junior Stock or Parity Stock for the beneficial ownership of any
other persons (other than the Company or any other Company Subsidiary),
including as trustees or custodians, and (G) the exchange or conversion of
Junior Stock for or into


 


-31-

















 


other Junior Stock or of Parity
Stock or trust preferred securities for or into other Parity Stock (with the
same or lesser aggregate liquidation amount) or Junior Stock, in each case set
forth in this clause (G), solely to the extent required pursuant to binding
contractual agreements entered into prior to the Signing Date or any subsequent
agreement for the accelerated exercise, settlement or exchange thereof for
Common Stock (clauses (C) and (F), collectively, the “Permitted Repurchases”). “Share Dilution Amount” means the increase
in the number of diluted shares outstanding (determined in accordance with
GAAP, and as measured from the date of the Company’s most recently filed
Company Financial Statements prior to the Closing Date) resulting from the
grant, vesting or exercise of equity-based compensation to employees and
equitably adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction.


 


(b)           Until such time as the Investor ceases to own any
Preferred Shares, the Company shall not repurchase any Preferred Shares from
any holder thereof, whether by means of open market purchase, negotiated
transaction, or otherwise, other than Permitted Repurchases, unless it offers
to repurchase a ratable portion of the Preferred Shares then held by the
Investor on the same terms and conditions.


 


(c)           “Junior Stock” means
Common Stock and any other class or series of stock of the Company the terms of
which expressly provide that it ranks junior to the Preferred Shares as to
dividend rights and/or as to rights on liquidation, dissolution or winding up
of the Company. “Parity Stock” means
any class or series of stock of the Company the terms of which do not expressly
provide that such class or series will rank senior or junior to the Preferred
Shares as to dividend rights and/or as to rights on liquidation, dissolution or
winding up of the Company (in each case without regard to whether dividends
accrue cumulatively or non-cumulatively).


 


4.9           Repurchase of Investor Securities.


 


(a)           Following the redemption in whole of the Preferred
Shares held by the Investor or the Transfer by the Investor of all of the
Preferred Shares to one or more third parties not affiliated with the Investor,
the Company may repurchase, in whole or in part, at any time any other equity
securities of the Company purchased by the Investor pursuant to this Agreement
or the Warrant and then held by the Investor, upon notice given as provided in
clause (b) below, at the Fair Market Value of the equity security.


 


(b)           Notice of every repurchase of equity securities of
the Company held by the Investor shall be given at the address and in the
manner set forth for such party in Section 5.6. Each notice of repurchase
given to the Investor shall state: (i) the number and type of securities
to be repurchased, (ii) the Board of Director’s determination of Fair
Market Value of such securities and (iii) the place or places where
certificates representing such securities are to be surrendered for payment of
the repurchase price. The repurchase of the securities specified in the notice
shall occur as soon as practicable following the determination of the Fair
Market Value of the securities.


 


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(c)           As used in this Section 4.9, the following
terms shall have the following respective meanings:


 


(i)            “Appraisal Procedure”
means a procedure whereby two independent appraisers, one chosen by the Company
and one by the Investor, shall mutually agree upon the Fair Market Value. Each
party shall deliver a notice to the other appointing its appraiser within 10
days after the Appraisal Procedure is invoked. If within 30 days after
appointment of the two appraisers they are unable to agree upon the Fair Market
Value, a third independent appraiser shall be chosen within 10 days thereafter
by the mutual consent of such first two appraisers. The decision of the third
appraiser so appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be appointed and
the determination of one appraiser is disparate from the middle determination
by more than twice the amount by which the other determination is disparate
from the middle determination, then the determination of such appraiser shall
be excluded, the remaining two determinations shall be averaged and such
average shall be binding and conclusive upon the Company and the Investor;
otherwise, the average of all three determinations shall be binding upon the
Company and the Investor. The costs of conducting any Appraisal Procedure shall
be borne by the Company.


 


(ii)         “Fair Market Value” means,
with respect to any security, the fair market value of such security as
determined by the Board of Directors, acting in good faith in reliance on an
opinion of a nationally recognized independent investment banking firm retained
by the Company for this purpose and certified in a resolution to the Investor.
If the Investor does not agree with the Board of Director’s determination, it
may object in writing within 10 days of receipt of the Board of Director’s
determination. In the event of such an objection, an authorized representative
of the Investor and the chief executive officer of the Company shall promptly
meet to resolve the objection and to agree upon the Fair Market Value. If the
chief executive officer and the authorized representative are unable to agree
on the Fair Market Value during the 10-day period following the delivery of the
Investor’s objection, the Appraisal Procedure may be invoked by either party to
determine the Fair Market Value by delivery of a written notification thereof
not later than the 30th day after delivery of the Investor’s
objection.


 


4.10         Executive Compensation. 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 Executive Officers comply in all
respects with Section 111(b) of the EESA as implemented by any
guidance or regulation thereunder that has been issued and is in effect as of
the Closing Date, and shall not adopt any new Benefit Plan with respect to its
Senior Executive Officers that does not comply therewith. “Senior Executive Officers” means the
Company’s “senior executive officers” as defined in subsection 111 (b)(3) of
the EESA and regulations issued thereunder, including the rules set forth
in 31 C.F.R. Part 30.


 


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Article V

Miscellaneous


 


5.1           Termination. This Agreement may be terminated at any time prior to the Closing:


 


(a)           by either the Investor or the Company if the
Closing shall not have occurred by the 30th calendar day
following the Signing Date; provided,
however, that in the event the
Closing has not occurred by such 30th calendar day, the parties will consult in good
faith to determine whether to extend the term of this Agreement, it being
understood that the parties shall be required to consult only until the fifth
day after such 30th calendar day
and not be under any obligation to extend the term of this Agreement
thereafter; provided, further, that the right to terminate this
Agreement under this Section 5.1(a) shall not be available to any
party whose breach of any representation or warranty or failure to perform any
obligation under this Agreement shall have caused or resulted in the failure of
the Closing to occur on or prior to such date; or


 


(b)           by either the Investor or the Company in the event
that any Governmental Entity shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable; or


 


(c)           by the mutual written consent of the Investor and
the Company.


 


In the event of termination of
this Agreement as provided in this Section 5.1, this Agreement shall
forthwith become void and there shall be no liability on the part of either
party hereto except that nothing herein shall relieve either party from liability
for any breach of this Agreement.


 


5.2           Survival of Representations and Warranties. All covenants and agreements, other than those
which by their terms apply in whole or in part after the Closing, shall
terminate as of the Closing. The representations and warranties of the Company
made herein or in any certificates delivered in connection with the Closing
shall survive the Closing without limitation.


 


5.3           Amendment. No amendment of any provision of this Agreement will be effective unless
made in writing and signed by an officer or a duly authorized representative of
each party; provided that the
Investor may unilaterally amend any provision of this Agreement to the extent
required to comply with any changes after the Signing Date in applicable
federal statutes. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise of
any other right, power or privilege. The rights and remedies herein provided
shall be cumulative of any rights or remedies provided by law.


 


5.4           Waiver of Conditions. The conditions to each party’s obligation to
consummate the Purchase are for the sole benefit of such party and may be waived
by such party in whole or in part to the extent permitted by applicable law. No
waiver will be effective unless it is in a


 


-34-

















 


writing signed by a duly
authorized officer of the waiving party that makes express reference to the
provision or provisions subject to such waiver.


 


5.5           Governing Law: Submission to
Jurisdiction, Etc. This Agreement will be governed
by and construed in accordance with the federal law of the United States if and
to the extent such law is applicable, and otherwise in accordance with the laws
of the State of New York applicable to contracts made and to be performed
entirely within such State. Each of the parties hereto agrees (a) to
submit to the exclusive jurisdiction and venue of the United States District
Court for the District of Columbia and the United States Court of Federal
Claims for any and all civil actions, suits or proceedings arising out of or
relating to this Agreement or the Warrant or the transactions contemplated hereby
or thereby, and (b) that notice may be served upon (i) the Company at
the address and in the manner set forth for notices to the Company in Section 5.6
and (ii) the Investor in accordance with federal law. To the extent
permitted by applicable law, each of the parties hereto hereby unconditionally
waives trial by jury in any civil legal action or proceeding relating to this
Agreement or the Warrant or the transactions contemplated hereby or thereby.


 


5.6           Notices.
Any notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly
given (a) on the date of delivery if delivered personally, or by
facsimile, upon confirmation of receipt, or (b) on the second business day
following the date of dispatch if delivered by a recognized next day courier
service. All notices to the Company shall be delivered as set forth in Schedule
A, or pursuant to such other instruction as may be designated in writing by
the Company to the Investor. All notices to the Investor shall be delivered as
set forth below, or pursuant to such other instructions as may be designated in
writing by the Investor to the Company.


 


If to the Investor:


 


United States Department of the
Treasury


1500 Pennsylvania Avenue, NW, Room 2312


Washington, D.C. 20220


Attention: Assistant General
Counsel (Banking and Finance)


Facsimile: (202) 622-1974


 


5.7           Definitions


 


(a)           When a reference is made in this Agreement to a
subsidiary of a person, the term “subsidiary”
means any corporation, partnership, joint venture, limited liability company or
other entity (x) of which such person or a subsidiary of such person is a
general partner or (y) of which a majority of the voting securities or
other voting interests, or a majority of the securities or other interests of
which having by their terms ordinary voting power to elect a majority of the
board of directors or persons performing similar functions with respect to such
entity, is directly or indirectly owned by such person and/or one or more
subsidiaries thereof.


 


-35-

















 


(b)           The term “Affiliate”
means, with respect to any person, any person directly or indirectly
controlling, controlled by or under common control with, such other person. For
purposes of this definition, “control”
(including, with correlative meanings, the terms “controlled by” and “under
common control with”) when used with respect to any person, means
the possession, directly or indirectly, of the power to cause the direction of
management and/or policies of such person, whether through the ownership of
voting securities by contract or otherwise.


 


(c)           The terms “knowledge
of the Company” or “Company’s
knowledge” mean the actual knowledge after reasonable and due inquiry
of the “officers” (as such term
is defined in Rule 3b-2 under the Exchange Act, but excluding any Vice
President or Secretary) of the Company.


 


5.8           Assignment. Neither this Agreement nor any right, remedy, obligation nor liability
arising hereunder or by reason hereof shall be assignable by any party hereto
without the prior written consent of the other party, and any attempt to assign
any right, remedy, obligation or liability hereunder without such consent shall
be void, except (a) an assignment, in the case of a Business Combination
where such party is not the surviving entity, or a sale of substantially all of
its assets, to the entity which is the survivor of such Business Combination or
the purchaser in such sale and (b) as provided in Section 4.5.


 


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


 


5.10         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 referred to in that Section.


 


* * *


 


-36-

















 


ANNEX A


 


 


FORM OF CERTIFICATE OF DESIGNATIONS


 


 

















 


ANNEX A


 


CERTIFICATE OF DESIGNATIONS


 


OF


 


FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES [·]


 


OF


 


[·]


 


[Insert name of Corporation], a
[corporation] organized and existing under the laws of the [Insert jurisdiction of organization] (the “Corporation”),
in accordance with the provisions of Section[s] [·]
of the [Insert applicable statute]
thereof, does hereby certify:


 


The board of
directors of the Corporation (the “Board of Directors”) or an applicable
committee of the Board of Directors, in accordance with the [certificate of
incorporation and bylaws] of the Corporation and applicable law, adopted the
following resolution on [·]
creating a series of [·]
shares of Preferred Stock of the Corporation designated as “Fixed Rate
Cumulative Perpetual Preferred Stock, Series [·]”.


 


RESOLVED,
that pursuant to the provisions of the [certificate of incorporation and the
bylaws] of the Corporation and applicable law, a series of Preferred Stock, par
value $[·] per share, of the
Corporation 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 preferred stock of the Corporation a series of preferred
stock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock,
Series [·]”
(the “Designated Preferred Stock”). The authorized number of shares of
Designated Preferred Stock shall be [·].


 


Part 2. Standard
Provisions. The Standard Provisions contained in Annex A attached hereto
are incorporated herein by reference in their entirety and shall be deemed to
be a part of this Certificate of Designations to the same extent as if such
provisions had been set forth in full herein.


 


Part. 3. Definitions.
The following terms are used in this Certificate of Designations (including the
Standard Provisions in Annex A hereto) as defined below:


 


(a)           “Common
Stock” means the common stock, par value $[·]
per share, of the Corporation.


 


(b)           “Dividend
Payment Date” means [February 15, May 15, August 15 and
November 15] of each year.


 


(c)           “Junior Stock”
means the Common Stock, [Insert titles of any existing Junior Stock]
and any other class or series of stock of the Corporation the terms of which
expressly


 


1

















 


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 Corporation.


 


(d)           “Liquidation Amount”
means $[1,000](1) per share of Designated Preferred Stock.


 


(e)           “Minimum Amount”
means $[Insert $ amount equal to
25% of the aggregate value of the Designated Preferred Stock issued on the
Original Issue Date].


 


(f)            “Parity Stock”
means any class or series of stock of the Corporation (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
Corporation (in each case without regard to whether dividends accrue cumulatively
or non-cumulatively). Without limiting the foregoing, Parity Stock shall
include the Corporation’s [Insert
title(s) of existing classes or series of Parity Stock].


 


(g)           “Signing Date”
means [Insert date of applicable
securities purchase agreement].


 


Part. 4. Certain
Voting Matters. [To be
inserted if the Charter provides for voting in proportion to liquidation
preferences: 
Whether the vote or consent of the holders of a plurality, majority or
other portion of the shares of Designated Preferred Stock and any Voting Parity
Stock has been cast or given on any matter on which the holders of shares of
Designated Preferred Stock are entitled to vote shall be determined by the
Corporation by reference to the specified liquidation amount of the shares
voted or covered by the consent as if the Corporation were liquidated on the
record date for such vote or consent, if any, or, in the absence of a record
date, on the date for such vote or consent. For purposes of determining the
voting rights of the holders of Designated Preferred Stock under Section 7
of the Standard Provisions forming part of this Certificate of Designations,
each holder will be entitled to one vote for each $1,000 of liquidation
preference to which such holder’s shares are entitled.]  [To be inserted if the
Charter does not provide for voting in proportion to liquidation preferences:
Holders of shares of Designated Preferred Stock will be entitled to one vote
for each such share on any matter on which holders of Designated Preferred
Stock are entitled to vote, including any action by written consent.]


 


[Remainder of
Page Intentionally Left Blank]


 






(1) If
issuer desires to issue shares with a higher dollar amount liquidation
preference, liquidation preference references will be modified accordingly. In
such case (in accordance with Section 4.7 of the Securities Purchase
Agreement), the issuer will be required to enter into a deposit agreement.


 


2

















 


IN WITNESS
WHEREOF, [Insert name of Corporation]
has caused this Certificate of Designations to be signed by [·], its [·], this [·] day of [·].


 


	
   

  	
  [Insert name of Corporation]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


3
















 


ANNEX 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 Corporation.


 


Section 2. Standard Definitions. As used herein with
respect to Designated Preferred Stock:


 


(a)           “Applicable
Dividend Rate” means (i) during the period from the Original Issue
Date to, but excluding, the first day of the first Dividend Period commencing
on or after the fifth anniversary of the Original Issue Date, 5% per annum and (ii) from
and after the first day of the first Dividend Period commencing on or after the
fifth anniversary of the Original Issue Date, 9% per annum.


 


(b)           “Appropriate
Federal Banking Agency” means the “appropriate Federal banking agency” with
respect to the Corporation as defined in Section 3(q) of the Federal
Deposit Insurance Act (12 U.S.C. Section 1813(q)), or any successor
provision.


 


(c)           “Business
Combination” means a merger, consolidation, statutory share exchange or
similar transaction that requires the approval of the Corporation’s
stockholders.


 


(d)           “Business Day”
means 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.


 


(e)           “Bylaws”
means the bylaws of the Corporation, as they may be amended from time to time.


 


(f)            “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.


 


(g)           “Charter”
means the Corporation’s certificate or articles of incorporation, articles of
association, or similar organizational document.


 


(h)           “Dividend Period”
has the meaning set forth in Section 3(a).


 


(i)            “Dividend Record
Date” has the meaning set forth in Section 3(a).


 


(j)            “Liquidation
Preference” has the meaning set forth in Section 4(a).


 


A-1

















 


(k)           “Original Issue
Date” means the date on which shares of Designated Preferred Stock are
first issued.


 


(l)            “Preferred
Director” has the meaning set forth in Section 7(b).


 


(m)          “Preferred Stock”
means any and all series of preferred stock of the Corporation, including the
Designated Preferred Stock.


 


(n)           “Qualified Equity
Offering” means the sale and issuance for cash by the Corporation to
persons other than the Corporation or any of its subsidiaries after the
Original Issue Date 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 Corporation at the time of issuance under the
applicable risk-based capital guidelines of the Corporation’s Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant
to agreements or arrangements entered into, or pursuant to financing plans
which were publicly announced, on or prior to October 13, 2008).


 


(o)           “Share Dilution
Amount” has the meaning set forth in Section 3(b).


 


(p)           “Standard
Provisions” mean these Standard Provisions that form a part of the
Certificate of Designations relating to the Designated Preferred Stock.


 


(q)           “Successor
Preferred Stock” has the meaning set forth in Section 5(a).


 


(r)            “Voting Parity
Stock” means, with regard to any matter as to which the holders of
Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and
7(b) of these Standard Provisions that form 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 respect 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, cumulative cash dividends with respect to
each Dividend Period (as defined below) at a rate per annum equal to the
Applicable Dividend Rate on (i) the Liquidation Amount per share of
Designated Preferred Stock and (ii) the amount of accrued and unpaid
dividends for any prior Dividend Period on such share of Designated Preferred
Stock, if any.  Such dividends shall
begin to accrue and be cumulative from the Original Issue Date, shall compound
on each subsequent Dividend Payment Date (i.e.,
no dividends shall accrue on other dividends unless and until the first
Dividend Payment Date for such other dividends has passed without such other
dividends having been paid on such date) and shall be payable quarterly in
arrears on each Dividend Payment Date, commencing with the first such Dividend
Payment Date to occur at least 20 calendar days after the Original Issue
Date.  In the event that any Dividend
Payment Date would otherwise fall on a day that is not a Business Day, the
dividend payment due on that date will be postponed to the next day that is a
Business Day and no additional dividends will accrue as a result of that
postponement. The period from and including any Dividend Payment Date to, but 


 


A-2

















 


excluding, the
next Dividend Payment Date is a “Dividend Period”, provided that the
initial Dividend Period shall be the period from and including the Original
Issue Date to, but excluding, the next Dividend Payment Date.


 


Dividends that are payable on Designated Preferred Stock in respect of
any Dividend Period shall be computed on the basis 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 actual days elapsed over a 30-day
month.


 


Dividends that are payable on Designated Preferred Stock on any
Dividend Payment Date will be payable to holders of record of Designated
Preferred Stock as they appear on the stock register of the Corporation on the
applicable record date, which shall be the 15th calendar day immediately
preceding such Dividend Payment Date or such other record date fixed by the
Board 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 “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)           Priority of
Dividends.  So long as any share of
Designated Preferred 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, subject to the immediately following paragraph in the case of Parity
Stock, and no Common Stock, Junior Stock or Parity Stock shall be, directly or
indirectly,  purchased, redeemed or
otherwise acquired for consideration by the Corporation or any of its subsidiaries
unless all accrued and unpaid dividends for all past Dividend Periods,
including the latest completed Dividend Period (including, if applicable as
provided in Section 3(a) above, dividends on such amount), on all
outstanding shares of Designated Preferred Stock have been or are
contemporaneously declared and paid in full (or have been declared and a sum
sufficient for the payment thereof has been set aside for the benefit 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 (including purchases
to offset the Share Dilution Amount (as defined below) pursuant to a publicly
announced repurchase plan) and consistent with past practice, provided that any purchases to offset the
Share Dilution Amount shall in no event exceed the Share Dilution Amount; (ii) purchases
or other acquisitions by a broker-dealer subsidiary of the Corporation solely
for the purpose of market-making, stabilization or customer facilitation
transactions in Junior Stock or Parity Stock in the ordinary course of its
business; (iii) purchases by a broker-dealer subsidiary of the Corporation
of capital stock of the Corporation for resale pursuant to an offering by the
Corporation of such capital stock underwritten by such broker-dealer
subsidiary; (iv) any dividends or distributions of rights or Junior Stock
in connection with a stockholders’ 


 


A-3

















 


rights plan or
any redemption or repurchase of rights pursuant to any stockholders’ rights
plan; (v) the acquisition by the Corporation or any of its subsidiaries of
record ownership in Junior Stock or Parity Stock for the beneficial ownership
of any other persons (other than the Corporation or any of its subsidiaries),
including as trustees or custodians; and (vi) the exchange or conversion
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.  “Share Dilution Amount”
means the increase in the number of diluted shares outstanding (determined in
accordance with generally accepted accounting principles in the United States,
and as measured from the date of the Corporation’s consolidated financial
statements most recently filed with the Securities and Exchange Commission
prior to the Original Issue Date) resulting from the grant, vesting or exercise
of equity-based compensation to employees and equitably adjusted for any stock
split, stock dividend, reverse stock split, reclassification or similar
transaction.


 


When dividends are not paid (or declared and a sum sufficient for
payment 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 from the Dividend Payment Dates,
on a dividend payment date falling within a Dividend Period related to such
Dividend Payment Date) in full upon Designated Preferred Stock and any shares
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 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 declared shall
bear the same ratio to each other as all accrued and unpaid dividends per share
on the shares of Designated Preferred Stock (including, if applicable as
provided in Section 3(a) above, dividends on such amount) and all
Parity Stock payable on such Dividend Payment Date (or, in the case of Parity
Stock having dividend payment dates different from the Dividend Payment Dates,
on a dividend payment date falling within the Dividend Period related to such
Dividend Payment Date) (subject to their having been declared by the Board 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 accrued 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 Corporation 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-4

















 


 


(a)           Voluntary or
Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
holders of Designated Preferred Stock shall be entitled to receive for each
share of Designated Preferred Stock, out of the assets of the Corporation or
proceeds thereof (whether capital or surplus) available for distribution to
stockholders of the Corporation, subject to the rights of any creditors of the
Corporation, 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
Corporation ranking junior to Designated Preferred Stock as to such
distribution, payment in full in an amount equal to the sum of (i) the
Liquidation Amount per share and (ii) the amount of any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above,
dividends on such amount), whether or not declared, to the date of payment
(such amounts collectively, the “Liquidation Preference”).


 


(b)           Partial Payment.
If in any distribution described in Section 4(a) above the assets of
the Corporation 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 Corporation ranking equally with Designated Preferred Stock as to such
distribution, holders of Designated Preferred 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 Preferred Stock and the corresponding amounts payable
with respect of any other stock of the Corporation ranking equally with
Designated Preferred Stock as to such distribution has been paid in full, the
holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their
respective rights and preferences.


 


(d)           Merger,
Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 4,
the merger or consolidation of the Corporation with any other corporation or
other entity, including a merger or consolidation in which the holders of
Designated Preferred Stock receive 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 Corporation, shall not
constitute a liquidation, dissolution or winding up of the Corporation.


 


Section 5.       Redemption.


 


(a)           Optional
Redemption. Except as provided below, the Designated Preferred Stock may
not be redeemed prior to the first Dividend Payment Date falling on or after
the third anniversary of the Original Issue Date.  On or after the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date, the
Corporation, 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, any accrued and unpaid
dividends (including, if applicable as 


 


A-5

















 


provided in Section 3(a) above,
dividends on such amount) (regardless of whether any dividends are actually
declared) to, but excluding, the date fixed for redemption.


 


Notwithstanding
the foregoing, prior to the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, 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 Preferred Stock at the time outstanding, upon notice given as
provided in Section 5(c) below, at a redemption price equal to the
sum of (i) the Liquidation Amount per share and (ii) except as
otherwise provided below, any accrued and unpaid dividends (including, if
applicable as provided in Section 3(a) above, dividends on such
amount) (regardless of whether any dividends are actually declared) to, but
excluding, the date fixed for redemption; provided
that (x) the Corporation (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 Corporation (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 the
redemption date to the holder of such shares against surrender of the
certificate(s) evidencing such shares to the Corporation or its agent. Any
declared but unpaid dividends payable on a redemption date that occurs
subsequent to the Dividend Record Date for a Dividend Period shall not be paid
to the holder entitled to receive the redemption price on the redemption date,
but rather 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 Corporation. Such mailing shall be at
least 30 days and not more than 60 days before the date fixed for redemption.
Any notice mailed as provided in this Subsection shall be conclusively presumed
to have been duly given, whether or not the holder receives such notice, but failure
duly to give such notice by mail, or any defect in such notice or in the
mailing thereof, to any holder 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 Corporation or any other
similar facility, notice of 


 


A-6

















 


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: (1) 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 surrendered for payment of the redemption price.


 


(d)           Partial
Redemption. In case of any redemption of part of the shares of Designated
Preferred 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 committee
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.


 


(e)           Effectiveness of
Redemption. If 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 Corporation, in trust for the pro rata benefit of the holders of the
shares called for redemption, with a bank or trust 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 of 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 Corporation, after which time the
holders of the shares so called for redemption shall look only to the
Corporation 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 Corporation 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 Preferred
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.


 


A-7

















 


(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 Corporation shall
automatically be increased by two and the holders of the Designated Preferred
Stock shall have the right, with holders of shares of any one or more other
classes or series of  Voting Parity Stock
outstanding at the time, voting together as a class, to elect two directors
(hereinafter the “Preferred
Directors” and each a “Preferred Director”) to fill such newly created
directorships at the Corporation’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 all accrued and unpaid
dividends for all past Dividend Periods, including the latest completed
Dividend Period (including, if applicable as provided in Section 3(a) above,
dividends on such amount), on all outstanding shares of Designated Preferred
Stock have been declared and paid in full at which time such right shall
terminate with respect to the Designated Preferred Stock, except as herein or
by law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned; provided that it shall be a qualification for election for
any Preferred Director that the election of such Preferred Director shall not
cause the Corporation to violate any corporate governance requirements of any
securities exchange or other trading facility on which securities of the
Corporation may then be listed or traded that listed or traded companies must
have a majority of independent directors. 
Upon any termination 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 removed at any
time, with or without cause, and any vacancy created thereby may be filled,
only by the affirmative 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 Parity Stock, to the extent the
voting rights 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 Corporation ranking senior to
Designated Preferred 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 Corporation;


 


A-8

















 


(ii)           Amendment of
Designated Preferred 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; or


 


(iii)          Share Exchanges,
Reclassifications, Mergers and Consolidations. Any consummation of a
binding share exchange or reclassification involving the Designated Preferred
Stock, or of a merger or consolidation of the Corporation with another
corporation or other entity, unless in each case (x) the shares of
Designated Preferred Stock remain outstanding or, in the case of any such
merger or consolidation with respect to which the Corporation is not the
surviving or resulting entity, are converted 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, preferences, privileges and voting
powers, and limitations and restrictions thereof, of Designated Preferred Stock
immediately prior to such consummation, taken as a whole;


 


provided, however, that for all purposes of this Section 7(c),
any increase in the amount of the authorized Preferred Stock, including any
increase in the authorized amount of Designated Preferred Stock necessary to
satisfy preemptive or similar rights granted by the Corporation to other persons
prior to the Signing Date, or the creation and issuance, or an increase in the
authorized or issued amount, whether pursuant to preemptive or similar rights
or otherwise, of any other series 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 Corporation will not be deemed to adversely
affect the rights, preferences, privileges or voting powers, 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) above if,
at or prior to the time when any such vote or consent would otherwise 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.


 


(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 shall 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


 


A-9

















 


time, which rules and procedures shall
conform to the requirements of the Charter, the Bylaws, and applicable law and
the rules of any national securities exchange or other trading facility on
which Designated Preferred Stock is listed or traded at the time.


 


Section 8.       Record
Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for Designated Preferred Stock may deem and treat the
record holder of any share of Designated Preferred Stock as the true and lawful
owner thereof for all purposes, and neither the Corporation nor such transfer
agent shall be affected by any notice to the contrary.


 


Section 9.       Notices.
All notices or communications in respect of Designated Preferred Stock shall be
sufficiently given if given in writing and delivered in person or by first
class mail, postage prepaid, or if given in such other manner as may be
permitted in this 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 Corporation
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 Corporation, or any
warrants, rights 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 Corporation shall replace any mutilated certificate at
the holder’s expense upon surrender of that certificate to the Corporation. The
Corporation shall replace certificates that become destroyed, stolen or lost at
the holder’s expense upon delivery to the Corporation of reasonably
satisfactory evidence that the certificate has been destroyed, stolen or lost,
together with any indemnity that may be reasonably required by the Corporation.


 


Section 12.     Other
Rights. The shares 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-10
















 


ANNEX B


 


FORM OF WAIVER


 


In consideration for the benefits I will
receive as a result of my employer’s participation in the United States
Department of the Treasury’s TARP Capital Purchase Program, I hereby
voluntarily waive any claim against the United States or my employer for any
changes to my compensation or benefits that are required to comply with the
regulation issued by the Department of the Treasury as published in the Federal
Register on October 20, 2008.


 


I acknowledge that this regulation may require
modification of the compensation, bonus, incentive and other benefit plans,
arrangements, policies and agreements (including so-called “golden parachute”
agreements) that I have with my employer or in which I participate as they
relate to the period the United States holds any equity or debt securities of
my employer acquired through the TARP Capital Purchase Program.


 


This waiver includes all claims I may have
under the laws of the United States or any state related to the requirements
imposed by the aforementioned regulation, including without limitation a claim
for any compensation or other payments I would otherwise receive, any challenge
to the process by which this regulation was adopted and any tort or
constitutional claim about the effect of these regulations on my employment
relationship.


 

















 


ANNEX C


 


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 Preferred Shares have been duly and validly
authorized, and, when issued and delivered pursuant to the Agreement, the
Preferred Shares will be duly and validly issued and fully paid and
non-assessable, will not be issued in violation of any preemptive rights, and
will rank pari passu with or
senior to all other series or classes of Preferred Stock issued on the Closing
Date with respect to the payment of dividends and the distribution of assets in
the event of any dissolution, liquidation or winding up of the Company.


 


(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 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.


 


(d)                                 The shares of Common Stock issuable upon exercise
of the Warrant have been duly authorized and reserved for issuance upon
exercise of the Warrant and when so issued in accordance with the terms of the
Warrant will be validly issued, fully paid and non-assessable [insert, if
applicable: , subject to the approvals of the Company’s
stockholders set forth on Schedule C].


 


(e)                                  The Company has the corporate power and authority
to execute and deliver the Agreement and the Warrant and [insert, if applicable: , subject to the approvals of the Company’s
stockholders set forth on Schedule C,]
to carry out its obligations thereunder (which includes the issuance
of the Preferred Shares, Warrant and Warrant Shares).


 


(f)                                    The execution, delivery and performance by the
Company of the Agreement and the Warrant and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of the Company and its stockholders, and no
further approval or authorization is required on the part of the Company [insert, if
applicable: , subject, in each case, to the approvals of
the Company’s stockholders set forth on Schedule C].


 


(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(g) or
the severability provisions of the Agreement insofar as Section 4.5(g) is
concerned.


 

















 


ANNEX D


 


FORM OF WARRANT


 

















 


ANNEX D


 


FORM OF
WARRANT TO PURCHASE COMMON STOCK


 


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


 


WARRANT 

to purchase




	
   

  	
   

  	
   

  



Shares of
Common Stock


 


	
   

  	
  of

  	
   

  	
   

  



 


	
   

  	
  Issue Date:

  	
   

  	
   

  



 


1.                                       Definitions. 
Unless the context otherwise requires, when used herein the following
terms shall have the meanings indicated.


 


“Affiliate”
has the meaning ascribed to it in the Purchase Agreement.


 


“Appraisal
Procedure” means a procedure whereby two independent appraisers, one
chosen by the Company and one by the Original Warrantholder, shall mutually
agree upon the determinations then the subject of appraisal.  Each party shall deliver a notice to the other
appointing its appraiser within 15 days after the Appraisal Procedure is
invoked.  If within 30 days after
appointment of the two appraisers they are unable to agree upon the amount in
question, a third independent appraiser shall be chosen within 10 days
thereafter by the mutual consent of such first two appraisers.  The decision of the third appraiser so
appointed and chosen shall be given within 30 days after the selection of such
third appraiser.  If three appraisers
shall be appointed and the determination of one appraiser is disparate from the
middle determination by more than twice the amount by which the other
determination is disparate from the middle determination, then the
determination of such appraiser shall be excluded, the remaining two
determinations shall be averaged and such average shall be binding and
conclusive upon the 


 

















 


Company and the Original
Warrantholder; otherwise, the average of all three determinations shall be
binding upon the Company and the Original Warrantholder.  The costs of conducting any Appraisal Procedure
shall be borne by the Company.


 


“Board of
Directors” means the board of directors of the Company, including
any duly authorized committee thereof.


 


“Business
Combination” means a merger, consolidation, statutory share exchange
or similar transaction that requires the approval of the Company’s
stockholders.


 


“business day” means 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.


 


“Capital
Stock” means (A) with respect to any Person that is a
corporation or company, any and all shares, interests, participations or other
equivalents (however designated) of capital or capital stock of such Person and
(B) with respect to any Person that is not a corporation or company, any
and all partnership or other equity interests of such Person.


 


“Charter”
means, with respect to any Person, its certificate or articles of
incorporation, articles of association, or similar organizational document.


 


“Common Stock”
has the meaning ascribed to it in the Purchase Agreement.


 


“Company”
means the Person whose name, corporate or other organizational form and
jurisdiction of organization is set forth in Item 1 of Schedule A hereto.


 


“conversion”
has the meaning set forth in Section 13(B).


 


“convertible
securities” has the meaning set forth in Section 13(B).


 


“CPP”
has the meaning ascribed to it in the Purchase Agreement.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.


 


“Exercise
Price” means the amount set forth in Item 2 of Schedule A hereto.


 


“Expiration
Time” has the meaning set forth in Section 3.


 


“Fair Market
Value” means, with respect to any security or other property, the
fair market value of such security or other property as determined by the Board
of Directors, acting in good faith or, with respect to Section 14, as
determined by the Original Warrantholder acting in good faith.  For so long as the Original Warrantholder
holds this Warrant or any portion thereof, it may object in writing to the
Board of Director’s calculation of fair market value within 10 days of receipt
of written notice thereof.  If the
Original Warrantholder and the Company are unable to agree on fair market value
during the 10-day period following the delivery of the Original Warrantholder’s
objection, the Appraisal Procedure may be invoked by either party to 


 


2

















 


determine Fair Market Value by
delivering written notification thereof not later than the 30th day
after delivery of the Original Warrantholder’s objection.


 


“Governmental
Entities” has the meaning ascribed to it in the Purchase Agreement.


 


“Initial
Number” has the meaning set forth in Section 13(B).


 


“Issue Date”
means the date set forth in Item 3 of Schedule A hereto.


 


“Market Price”
means, with respect to a particular security, on any given day, the last
reported sale price regular way or, in case no such reported sale takes place
on such day, the average of the last closing bid and ask prices regular way, in
either case on the principal national securities exchange on which the
applicable securities are listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and ask prices as furnished by two members of the Financial
Industry Regulatory Authority, Inc. selected from time to time by the
Company for that purpose.  “Market Price”
shall be determined without reference to after hours or extended hours
trading.  If such security is not listed
and traded in a manner that the quotations referred to above are available for
the period required hereunder, the Market Price per share of Common Stock shall
be deemed to be (i) in the event that any portion of the Warrant is held
by the Original Warrantholder, the fair market value per share of such security
as determined in good faith by the Original Warrantholder or (ii) in all
other circumstances, the fair market value per share of such security as
determined in good faith by the Board of Directors in reliance on an opinion of
a nationally recognized independent investment banking corporation retained by
the Company for this purpose and certified in a resolution to the
Warrantholder.  For the purposes of
determining the Market Price of the Common Stock on the “trading day”
preceding, on or following the occurrence of an event, (i) that trading
day shall be deemed to commence immediately after the regular scheduled closing
time of trading on the New York Stock Exchange or, if trading is closed at an
earlier time, such earlier time and (ii) that trading day shall end at the
next regular scheduled closing time, or if trading is closed at an earlier time,
such earlier time (for the avoidance of doubt, and as an example, if the Market
Price is to be determined as of the last trading day preceding a specified
event and the closing time of trading on a particular day is 4:00 p.m. and
the specified event occurs at 5:00 p.m. on that day, the Market Price
would be determined by reference to such 4:00 p.m. closing price).


 


“Ordinary
Cash Dividends” means a regular quarterly cash dividend on shares of
Common Stock out of surplus or net profits legally available therefor
(determined in accordance with generally accepted accounting principles in
effect from time to time), provided that
Ordinary Cash Dividends shall not include any cash dividends paid subsequent to
the Issue Date to the extent the aggregate per share dividends paid on the
outstanding Common Stock in any quarter exceed the amount set forth in Item 4
of Schedule A hereto, as adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.


 


“Original
Warrantholder” means the United States Department of the
Treasury.  Any actions specified to be
taken by the Original Warrantholder hereunder may only be taken by such Person
and not by any other Warrantholder.


 


3

















 


“Permitted
Transactions” has the meaning set forth in Section 13(B).


 


“Person”
has the meaning given to it in Section 3(a)(9) of the Exchange Act
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.


 


“Per Share
Fair Market Value” has the meaning set forth in Section 13(C).


 


“Preferred
Shares” means the perpetual preferred stock issued to
the Original Warrantholder on the Issue Date pursuant to the Purchase
Agreement.


 


“Pro Rata
Repurchases” means any purchase of shares of Common Stock by the
Company or any Affiliate thereof pursuant to (A) any tender offer or
exchange offer subject to Section 13(e) or 14(e) of the Exchange
Act or Regulation 14E promulgated thereunder or (B) any other offer
available to substantially all holders of Common Stock, in the case of both (A) or
(B), whether for cash, shares of Capital Stock of the Company, other securities
of the Company, evidences of indebtedness of the Company or any other Person or
any other property (including, without limitation, shares of Capital Stock,
other securities or evidences of indebtedness of a subsidiary), or any
combination thereof, effected while this Warrant is outstanding.  The “Effective Date”
of a Pro Rata Repurchase shall mean the date of acceptance of shares for
purchase or exchange by the Company under any tender or exchange offer which is
a Pro Rata Repurchase or the date of purchase with respect to any Pro Rata
Repurchase that is not a tender or exchange offer.


 


“Purchase
Agreement” means the Securities Purchase Agreement — Standard Terms
incorporated into the Letter Agreement, dated as of the date set forth in Item
5 of Schedule A hereto, as amended from time to time, between the Company and
the United States Department of the Treasury (the “Letter
Agreement”), including all annexes and schedules thereto.


 


“Qualified
Equity Offering” has the meaning ascribed to it in the Purchase
Agreement.


 


“Regulatory
Approvals” with respect to the Warrantholder, means, to the extent
applicable and required to permit the Warrantholder to exercise this Warrant
for shares of Common Stock and to own such Common Stock without the
Warrantholder being in violation of applicable law, rule or regulation,
the receipt of any necessary approvals and authorizations of, filings and
registrations with, notifications to, or expiration or termination of any
applicable waiting period under, the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the rules and regulations thereunder.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.


 


“Shares”
has the meaning set forth in Section 2.


 


“trading day” means (A) if the shares of Common Stock
are not traded on any national or regional securities exchange or association
or over-the-counter market,  a business
day or (B) if the shares of Common Stock are traded on any national or
regional securities exchange or 


 


4

















 


association
or over-the-counter market, a business day on which such relevant exchange or
quotation system is scheduled to be open for business and on which the shares
of  Common Stock (i) are not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market for any period or periods aggregating
one half hour or longer; and (ii) have traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the shares of Common
Stock.


 


“U.S. GAAP” means United
States generally accepted accounting principles.


 


“Warrantholder”
has the meaning set forth in Section 2.


 


“Warrant”
means this Warrant, issued pursuant to the Purchase Agreement.


 


2.                                       Number
of Shares; Exercise Price.  This
certifies that, for value received, the United States Department of the
Treasury or its permitted assigns (the “Warrantholder”)
is entitled, upon the terms and subject to the conditions hereinafter set
forth, to acquire from the Company, in whole or in part, after the receipt of
all applicable Regulatory Approvals, if any, up to an aggregate of the number
of fully paid and nonassessable shares of Common Stock set forth in Item 6 of
Schedule A hereto, at a purchase price per share of Common Stock equal to the
Exercise Price.  The number of shares of
Common Stock (the “Shares”) and
the Exercise Price are subject to adjustment as provided herein, and all
references to “Common Stock,” “Shares” and “Exercise Price” herein shall be
deemed to include any such adjustment or series of adjustments.


 


3.                                       Exercise
of Warrant; Term.  Subject to Section 2,
to the extent permitted by applicable laws and regulations, the right to
purchase the Shares represented by this Warrant is exercisable, in whole or in
part by the Warrantholder, at any time or from time to time after the execution
and delivery of this Warrant by the Company on the date hereof, but in no event
later than 5:00 p.m., New York City time on the tenth anniversary of the
Issue Date (the “Expiration Time”), by (A) the
surrender of this Warrant and Notice of Exercise annexed hereto, duly completed
and executed on behalf of the Warrantholder, at the principal executive office
of the Company located at the address set forth in Item 7 of Schedule A hereto
(or such other office or agency of the Company in the United States as it may
designate by notice in writing to the Warrantholder at the address of the
Warrantholder appearing on the books of the Company), and (B) payment of
the Exercise Price for the Shares thereby purchased:


 


(i) by having the Company withhold, from the shares of Common
Stock that would otherwise be delivered to the Warrantholder upon such
exercise, shares of Common stock issuable upon exercise of the Warrant equal in
value to the aggregate Exercise Price as to which this Warrant is so exercised
based on the Market Price of the Common Stock on the trading day on which this
Warrant is exercised and the Notice of Exercise is delivered to the Company
pursuant to this Section 3, or


 


(ii) with the consent of both the Company and the Warrantholder,
by tendering in cash, by certified or cashier’s check payable to the order of
the Company, or by wire transfer of immediately available funds to an account designated
by the Company.


 


5

















 


If the Warrantholder does not exercise this Warrant in its entirety,
the Warrantholder will be entitled to receive from the Company within a
reasonable time, and in any event not exceeding three business days, a new
warrant in substantially identical form for the purchase of that number of
Shares equal to the difference between the number of Shares subject to this
Warrant and the number of Shares as to which this Warrant is so exercised.  Notwithstanding anything in this Warrant to
the contrary, the Warrantholder hereby acknowledges and agrees that its
exercise of this Warrant for Shares is subject to the condition that the
Warrantholder will have first received any applicable Regulatory Approvals.


 


4.                                       Issuance
of Shares; Authorization; Listing. 
Certificates for Shares issued upon exercise of this Warrant will be
issued in such name or names as the Warrantholder may designate and will be
delivered to such named Person or Persons within a reasonable time, not to
exceed three business days after the date on which this Warrant has been duly
exercised in accordance with the terms of this Warrant.  The Company hereby represents and warrants
that any Shares issued upon the exercise of this Warrant in accordance with the
provisions of Section 3 will be duly and validly authorized and issued,
fully paid and nonassessable and free from all taxes, liens and charges (other
than liens or charges created by the Warrantholder, income and franchise taxes
incurred in connection with the exercise of the Warrant or taxes in respect of
any transfer occurring contemporaneously therewith).  The Company agrees that the Shares so issued
will be deemed to have been issued to the Warrantholder as of the close of
business on the date on which this Warrant and payment of the Exercise Price
are delivered to the Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may then be closed
or certificates representing such Shares may not be actually delivered on such
date.  The Company will at all times
reserve and keep available, out of its authorized but unissued Common Stock,
solely for the purpose of providing for the exercise of this Warrant, the
aggregate number of shares of Common Stock then issuable upon exercise of this
Warrant at any time.  The Company will (A) procure,
at its sole expense, the listing of the Shares issuable upon exercise of this
Warrant at any time, subject to issuance or notice of issuance, on all
principal stock exchanges on which the Common Stock is then listed or traded
and (B) maintain such listings of such Shares at all times after
issuance.  The Company will use
reasonable best efforts to ensure that the Shares may be issued without
violation of any applicable law or regulation or of any requirement of any
securities exchange on which the Shares are listed or traded.


 


5.                                       No
Fractional Shares or Scrip.  No
fractional Shares or scrip representing fractional Shares shall be issued upon
any exercise of this Warrant.  In lieu of
any fractional Share to which the Warrantholder would otherwise be entitled,
the Warrantholder shall be entitled to receive a cash payment equal to the
Market Price of the Common Stock on the last trading day preceding the date of
exercise less the pro-rated Exercise Price for such fractional share.


 


6.                                       No
Rights as Stockholders; Transfer Books. 
This Warrant does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Company prior to the date of exercise
hereof.  The Company will at no time
close its transfer books against transfer of this Warrant in any manner which
interferes with the timely exercise of this Warrant.


 


6

















 


7.                                       Charges,
Taxes and Expenses.  Issuance of
certificates for Shares to the Warrantholder upon the exercise of this Warrant
shall be made without charge to the Warrantholder for any issue or transfer tax
or other incidental expense in respect of the issuance of such certificates,
all of which taxes and expenses shall be paid by the Company.


 


8.                                       Transfer/Assignment.


 


(A)                              Subject to compliance
with clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in part, upon the books of the Company
by the registered holder hereof in person or by duly authorized attorney, and a
new warrant shall be made and delivered by the Company, of the same tenor and
date as this Warrant but registered in the name of one or more transferees, upon
surrender of this Warrant, duly endorsed, to the office or agency of the
Company described in Section 3.  All
expenses (other than stock transfer taxes) and other charges payable in
connection with the preparation, execution and delivery of the new warrants
pursuant to this Section 8 shall be paid by the Company.


 


(B)                                The transfer of the
Warrant and the Shares issued upon exercise of the Warrant are subject to the
restrictions set forth in Section 4.4 of the Purchase Agreement.  If and for so long as required by the
Purchase Agreement, this Warrant shall contain the legends as set forth in
Sections 4.2(a) and 4.2(b) of the Purchase Agreement.


 


9.                                       Exchange
and Registry of Warrant.  This
Warrant is exchangeable, upon the surrender hereof by the Warrantholder to the
Company, for a new warrant or warrants of like tenor and representing the right
to purchase the same aggregate number of Shares.  The Company shall maintain a registry showing
the name and address of the Warrantholder as the registered holder of this
Warrant.  This Warrant may be surrendered
for exchange or exercise in accordance with its terms, at the office of the
Company, and the Company shall be entitled to rely in all respects, prior to
written notice to the contrary, upon such registry.


 


10.                                 Loss,
Theft, Destruction or Mutilation of Warrant.  Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and in the case of any such loss, theft or destruction, upon
receipt of a bond, indemnity or security reasonably satisfactory to the
Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company shall make and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same aggregate number of Shares as
provided for in such lost, stolen, destroyed or mutilated Warrant.


 


11.                                 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any
action or the expiration of any right required or granted herein shall not be a
business day, then such action may be taken or such right may be exercised on
the next succeeding day that is a business day.


 


12.                                 Rule 144
Information.  The Company covenants
that it will use its reasonable best efforts to timely file all reports and
other documents required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations promulgated by the SEC
thereunder (or, if the Company is not required to file such reports, it will,
upon the request of any 


 


7

















 


Warrantholder, make publicly
available such information as necessary to permit sales pursuant to Rule 144
under the Securities Act), and it will use reasonable best efforts to take such
further action as any Warrantholder may reasonably request, in each case to the
extent required from time to time to enable such holder to, if permitted by the
terms of this Warrant and the Purchase Agreement, sell this Warrant without
registration under the Securities Act within the limitation of the exemptions
provided by (A) Rule 144 under the Securities Act, as such rule may
be amended from time to time, or (B) any successor rule or regulation
hereafter adopted by the SEC.  Upon the
written request of any Warrantholder, the Company will deliver to such
Warrantholder a written statement that it has complied with such requirements.


 


13.                                 Adjustments
and Other Rights.  The Exercise Price
and the number of Shares issuable upon exercise of this Warrant shall be
subject to adjustment from time to time as follows; provided,
that if more than one subsection of this Section 13 is applicable to a
single event, the subsection shall be applied that produces the largest
adjustment and no single event shall cause an adjustment under more than one
subsection of this Section 13 so as to result in duplication:


 


(A)                              Stock
Splits, Subdivisions, Reclassifications or Combinations.  If the Company shall (i) declare and pay
a dividend or make a distribution on its Common Stock in shares of Common
Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock
into a greater number of shares, or (iii) combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares, the number
of Shares issuable upon exercise of this Warrant at the time of the record date
for such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
Warrantholder after such date shall be entitled to purchase the number of
shares of Common Stock which such holder would have owned or been entitled to
receive in respect of the shares of Common Stock subject to this Warrant after
such date had this Warrant been exercised immediately prior to such date.  In such event, the Exercise Price in effect
at the time of the record date for such dividend or distribution or the
effective date of such subdivision, combination or reclassification shall be
adjusted to the number obtained by dividing (x) the product of (1) the
number of Shares issuable upon the exercise of this Warrant before such
adjustment and (2) the Exercise Price in effect immediately prior to the
record or effective date, as the case may be, for the dividend, distribution,
subdivision, combination or reclassification giving rise to this adjustment by (y) the
new number of Shares issuable upon exercise of the Warrant determined pursuant
to the immediately preceding sentence.


 


(B)                                Certain
Issuances of Common Shares or Convertible Securities.  Until the earlier of (i) the date on
which the Original Warrantholder no longer holds this Warrant or any portion
thereof and (ii) the third anniversary of the Issue Date, if the Company
shall issue shares of Common Stock (or rights or warrants or other securities
exercisable or convertible into or exchangeable (collectively, a “conversion”) for shares of Common Stock) (collectively, “convertible securities”) (other than in Permitted
Transactions (as defined below) or a transaction to which subsection (A) of
this Section 13 is applicable) without consideration or at a consideration
per share (or having a conversion price per share) that is less than 90% of the
Market Price on the last trading day preceding the date of the agreement on
pricing such shares (or such convertible securities) then, in such event:


 


8
















 


(A) the number of Shares issuable upon the exercise of this
Warrant immediately prior to the date of the agreement on pricing of such
shares (or of such convertible securities) (the “Initial
Number”) shall be increased to the number obtained by multiplying
the Initial Number by a fraction (A) the numerator of which shall be the
sum of (x) the number of shares of Common Stock of the Company outstanding
on such date and (y) the number of additional shares of Common Stock
issued (or into which convertible securities may be exercised or convert) and (B) the
denominator of which shall be the sum of (I) the number of shares of
Common Stock outstanding on such date and (II) the number of shares of
Common Stock which the aggregate consideration receivable by the Company for
the total number of shares of Common Stock so issued (or into which convertible
securities may be exercised or convert) would purchase at the Market Price on
the last trading day preceding the date of the agreement on pricing such shares
(or such convertible securities); and


 


(B) the Exercise Price payable upon exercise of the Warrant shall
be adjusted by multiplying such Exercise Price in effect immediately prior to
the date of the agreement on pricing of such shares (or of such convertible
securities) by a fraction, the numerator of which shall be the number of shares
of Common Stock issuable upon exercise of this Warrant prior to such date and
the denominator of which shall be the number of shares of Common Stock issuable
upon exercise of this Warrant immediately after the adjustment described in
clause (A) above.


 


For purposes of the foregoing,
the aggregate consideration receivable by the Company in connection with the
issuance of such shares of Common Stock or convertible securities shall be deemed
to be equal to the sum of the net offering price (including the Fair Market
Value of any non-cash consideration and after deduction of any related expenses
payable to third parties) of all such securities plus the minimum aggregate
amount, if any, payable upon exercise or conversion of any such convertible
securities into shares of Common Stock; and “Permitted
Transactions” shall mean issuances (i) as consideration for or
to fund the acquisition of businesses and/or related assets, (ii) in
connection with employee benefit plans and compensation related arrangements in
the ordinary course and consistent with past practice approved by the Board of
Directors, (iii) in connection with a public or broadly marketed offering
and sale of Common Stock or convertible securities for cash conducted by the
Company or its affiliates pursuant to registration under the Securities Act or Rule 144A
thereunder on a basis consistent with capital raising transactions by
comparable financial institutions and (iv) in connection with the exercise
of preemptive rights on terms existing as of the Issue Date.  Any adjustment made pursuant to this Section 13(B) shall
become effective immediately upon the date of such issuance.


 


(C)                                Other
Distributions.  In case the Company
shall fix a record date for the making of a distribution to all holders of
shares of its Common Stock of securities, evidences of indebtedness, assets,
cash, rights or warrants (excluding Ordinary Cash Dividends, dividends of its
Common Stock and other dividends or distributions referred to in Section 13(A)),
in each such case, the Exercise Price in effect prior to such record date shall
be reduced immediately thereafter to the price determined by multiplying the
Exercise Price in effect immediately prior to the reduction by the quotient of (x) the
Market Price of the Common Stock on the last trading day preceding the first
date on which the Common Stock trades regular way on the principal 


 


9

















 


national securities exchange on
which the Common Stock is listed or admitted to trading without the right to
receive such distribution, minus the amount of cash and/or the Fair Market
Value of the securities, evidences of indebtedness, assets, rights or warrants
to be so distributed in respect of one share of Common Stock (such amount
and/or Fair Market Value, the “Per Share Fair Market
Value”) divided by (y) such Market Price on such date specified
in clause (x); such adjustment shall be made successively whenever such a record
date is fixed.  In such event, the number
of Shares issuable upon the exercise of this Warrant shall be increased to the
number obtained by dividing (x) the product of (1) the number of
Shares issuable upon the exercise of this Warrant before such adjustment, and (2) the
Exercise Price in effect immediately prior to the distribution giving rise to
this adjustment by (y) the new Exercise Price determined in accordance
with the immediately preceding sentence. 
In the case of adjustment for a cash dividend that is, or is coincident
with, a regular quarterly cash dividend, the Per Share Fair Market Value would
be reduced by the per share amount of the portion of the cash dividend that
would constitute an Ordinary Cash Dividend. 
In the event that such distribution is not so made, the Exercise Price
and the number of Shares issuable upon exercise of this Warrant then in effect
shall be readjusted, effective as of the date when the Board of Directors
determines not to distribute such shares, evidences of indebtedness, assets,
rights, cash or warrants, as the case may be, to the Exercise Price that would
then be in effect and the number of Shares that would then be issuable upon
exercise of this Warrant if such record date had not been fixed.


 


(D)                               Certain
Repurchases of Common Stock.  In case
the Company effects a Pro Rata Repurchase of Common Stock, then the Exercise
Price shall be reduced to the price determined by multiplying the Exercise
Price in effect immediately prior to the Effective Date of such Pro Rata Repurchase
by a fraction of which the numerator shall be (i) the product of (x) the
number of shares of Common Stock outstanding immediately before such Pro Rata
Repurchase and (y) the Market Price of a share of Common Stock on the
trading day immediately preceding the first public announcement by the Company
or any of its Affiliates of the intent to effect such Pro Rata Repurchase,
minus (ii) the aggregate purchase price of the Pro Rata Repurchase, and of
which the denominator shall be the product of (i) the number of shares of
Common Stock outstanding immediately prior to such Pro Rata Repurchase minus
the number of shares of Common Stock so repurchased and (ii) the Market
Price per share of Common Stock on the trading day immediately preceding the
first public announcement by the Company or any of its Affiliates of the intent
to effect such Pro Rata Repurchase.  In
such event, the number of shares of Common Stock issuable upon the exercise of
this Warrant shall be increased to the number obtained by dividing (x) the
product of (1) the number of Shares issuable upon the exercise of this
Warrant before such adjustment, and (2) the Exercise Price in effect
immediately prior to the Pro Rata Repurchase giving rise to this adjustment by (y) the
new Exercise Price determined in accordance with the immediately preceding
sentence.  For the avoidance of doubt, no
increase to the Exercise Price or decrease in the number of Shares issuable
upon exercise of this Warrant shall be made pursuant to this Section 13(D).


 


(E)                                 Business
Combinations.  In case of any
Business Combination or reclassification of Common Stock (other than a
reclassification of Common Stock referred to in Section 13(A)), the
Warrantholder’s right to receive Shares upon exercise of this Warrant shall be
converted into the right to exercise this Warrant to acquire the number of
shares of stock or other securities or property (including cash) which the
Common Stock issuable (at the time of such Business Combination or
reclassification) upon exercise of this Warrant immediately prior to such 


 


10

















 


Business Combination or
reclassification would have been entitled to receive upon consummation of such
Business Combination or reclassification; and in any such case, if necessary,
the provisions set forth herein with respect to the rights and interests
thereafter of the Warrantholder shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to the Warrantholder’s right to
exercise this Warrant in exchange for any shares of stock or other securities
or property pursuant to this paragraph. 
In determining the kind and amount of stock, securities or the property
receivable upon exercise of this Warrant following the consummation of such
Business Combination, if the holders of Common Stock have the right to elect
the kind or amount of consideration receivable upon consummation of such
Business Combination, then the consideration that the Warrantholder shall be
entitled to receive upon exercise shall be deemed to be the types and amounts
of consideration received by the majority of all holders of the shares of
common stock that affirmatively make an election (or of all such holders if
none make an election).


 


(F)                                 Rounding
of Calculations; Minimum Adjustments. 
All calculations under this Section 13 shall be made to the nearest
one-tenth (1/10th) of a cent or to the nearest one-hundredth (1/100th) of a
share, as the case may be.  Any provision
of this Section 13 to the contrary notwithstanding, no adjustment in the
Exercise Price or the number of Shares into which this Warrant is exercisable
shall be made if the amount of such adjustment would be less than $0.01 or
one-tenth (1/10th) of a share of Common Stock, but any such amount shall be
carried forward and an adjustment with respect thereto shall be made at the
time of and together with any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward, shall aggregate
$0.01 or 1/10th of a share of Common Stock, or more.


 


(G)                                Timing
of Issuance of Additional Common Stock Upon Certain Adjustments.  In any case in which the provisions of this Section 13
shall require that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence of such
event (i) issuing to the Warrantholder of this Warrant exercised after
such record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such exercise by reason of the adjustment
required by such event over and above the shares of Common Stock issuable upon
such exercise before giving effect to such adjustment and (ii) paying to
such Warrantholder any amount of cash in lieu of a fractional share of Common
Stock; provided, however,
that the Company upon request shall deliver to such Warrantholder a due bill or
other appropriate instrument evidencing such Warrantholder’s right to receive
such additional shares, and such cash, upon the occurrence of the event
requiring such adjustment.


 


(H)                               Completion
of Qualified Equity Offering.  In the
event the Company (or any successor by Business Combination) completes one or
more Qualified Equity Offerings on or prior to December 31, 2009 that
result in the Company (or any such successor ) receiving aggregate gross
proceeds of not less than 100% of the aggregate liquidation preference of the
Preferred Shares (and
any preferred stock issued by any such successor to the Original
Warrantholder under the CPP), the number of shares of Common Stock
underlying the portion of this Warrant then held by the Original Warrantholder
shall be thereafter reduced by a number of shares of Common Stock equal to the
product of (i) 0.5 and (ii) the number of shares underlying 


 


11

















 


the Warrant on the Issue Date
(adjusted to take into account all other theretofore made adjustments pursuant
to this Section 13).


 


(I)                                    Other
Events.  For so long as the Original
Warrantholder holds this Warrant or any portion thereof, if any event occurs as
to which the provisions of this Section 13 are not strictly applicable or,
if strictly applicable, would not, in the good faith judgment of the Board of
Directors of the Company, fairly and adequately protect the purchase rights of
the Warrants in accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make such adjustments in the
application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in the good faith opinion of the
Board of Directors, to protect such purchase rights as aforesaid.  The Exercise Price or the number of Shares
into which this Warrant is exercisable shall not be adjusted in the event of a
change in the par value of the Common Stock or a change in the jurisdiction of
incorporation of the Company.


 


(J)                                   Statement
Regarding Adjustments.  Whenever the
Exercise Price or the number of Shares into which this Warrant is exercisable
shall be adjusted as provided in Section 13, the Company shall forthwith
file at the principal office of the Company a statement showing in reasonable
detail the facts requiring such adjustment and the Exercise Price that shall be
in effect and the number of Shares into which this Warrant shall be exercisable
after such adjustment, and the Company shall also cause a copy of such
statement to be sent by mail, first class postage prepaid, to each
Warrantholder at the address appearing in the Company’s records.


 


(K)                               Notice
of Adjustment Event.  In the event
that the Company shall propose to take any action of the type described in this
Section 13 (but only if the action of the type described in this Section 13
would result in an adjustment in the Exercise Price or the number of Shares
into which this Warrant is exercisable or a change in the type of securities or
property to be delivered upon exercise of this Warrant), the Company shall give
notice to the Warrantholder, in the manner set forth in Section 13(J),
which notice shall specify the record date, if any, with respect to any such
action and the approximate date on which such action is to take place.  Such notice shall also set forth the facts
with respect thereto as shall be reasonably necessary to indicate the effect on
the Exercise Price and the number, kind or class of shares or other securities
or property which shall be deliverable upon exercise of this Warrant.  In the case of any action which would require
the fixing of a record date, such notice shall be given at least 10 days prior
to the date so fixed, and in case of all other action, such notice shall be
given at least 15 days prior to the taking of such proposed action.  Failure to give such notice, or any defect
therein, shall not affect the legality or validity of any such action.


 


(L)                                 Proceedings
Prior to Any Action Requiring Adjustment. 
As a condition precedent to the taking of any action which would require
an adjustment pursuant to this Section 13, the Company shall take any
action which may be necessary, including obtaining regulatory, New York Stock
Exchange, NASDAQ Stock Market or other applicable national securities exchange
or stockholder approvals or exemptions, in order that the Company may
thereafter validly and legally issue as fully paid and nonassessable all shares
of Common Stock that the Warrantholder is entitled to receive upon exercise of
this Warrant pursuant to this Section 13.


 


12

















 


(M)                            Adjustment
Rules.  Any adjustments pursuant to
this Section 13 shall be made successively whenever an event referred to
herein shall occur.  If an adjustment in
Exercise Price made hereunder would reduce the Exercise Price to an amount
below par value of the Common Stock, then such adjustment in Exercise Price
made hereunder shall reduce the Exercise Price to the par value of the Common
Stock.


 


14.                                 Exchange.  At any time following the date on which the
shares of Common Stock of the Company are no longer listed or admitted to
trading on a national securities exchange (other than in connection with any
Business Combination), the Original Warrantholder may cause the Company to
exchange all or a portion of this Warrant for an economic interest (to be
determined by the Original Warrantholder after consultation with the Company)
of the Company classified as permanent equity under U.S. GAAP having a value
equal to the Fair Market Value of the portion of the Warrant so exchanged.   The Original Warrantholder shall calculate
any Fair Market Value required to be calculated pursuant to this Section 14,
which shall not be subject to the Appraisal Procedure.


 


15.                                 No
Impairment.  The Company will not, by
amendment of its Charter or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Company, but will at
all times in good faith assist in the carrying out of all the provisions of
this Warrant and in taking of all such action as may be necessary or
appropriate in order to protect the rights of the Warrantholder.


 


16.                                 Governing Law. 
This Warrant will be governed by and construed in accordance with the
federal law of the United States if and to the extent such law is applicable,
and otherwise in accordance with the laws of the State of New York applicable
to contracts made and to be performed entirely within such State. Each of the
Company and the Warrantholder agrees (a) to submit to the exclusive
jurisdiction and venue of the United States District Court for the District of
Columbia for any civil action, suit or proceeding arising out of or relating to
this Warrant or the transactions contemplated hereby, and (b) that notice
may be served upon the Company at the address in Section 20 below and upon
the Warrantholder at the address for the Warrantholder set forth in the
registry maintained by the Company pursuant to Section 9 hereof.  To the extent permitted by applicable law,
each of the Company and the Warrantholder hereby unconditionally waives trial
by jury in any civil legal action or proceeding relating to the Warrant or the
transactions contemplated hereby or thereby.


 


17.                                 Binding
Effect.  This Warrant shall be
binding upon any successors or assigns of the Company.


 


18.                                 Amendments.  This Warrant may be amended and the
observance of any term of this Warrant may be waived only with the written
consent of the Company and the Warrantholder.


 


19 .                              Prohibited
Actions.  The Company agrees that it
will not take any action which would entitle the Warrantholder to an adjustment
of the Exercise Price if the total number of shares of Common Stock issuable
after such action upon exercise of this Warrant, together with


 


13

















 


all shares of Common Stock then
outstanding and all shares of Common Stock then issuable upon the exercise of
all outstanding options, warrants, conversion and other rights, would exceed
the total number of shares of Common Stock then authorized by its Charter.


 


20.                                 Notices.  Any
notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly
given (a) on the date of delivery if delivered personally, or by facsimile,
upon confirmation of receipt, or (b) on the second business day following
the date of dispatch if delivered by a recognized next day courier
service.  All notices hereunder shall be
delivered as set forth in Item 8 of Schedule A hereto, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice.


 


21.                                 Entire Agreement.  This
Warrant, the forms attached hereto and Schedule A hereto (the terms of which
are incorporated by reference herein), and the Letter Agreement (including all
documents incorporated therein), contain the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or undertakings with respect thereto.


 


[Remainder of page intentionally left blank]


 


14

















 


[Form of Notice of Exercise]


	
  Date:

  	
   

  	
   

  



 


TO:         [Company]


 


RE:          Election
to Purchase Common Stock


 


The undersigned, pursuant to
the provisions set forth in the attached Warrant, hereby agrees to subscribe
for and purchase the number of shares of the Common Stock set forth below
covered by such Warrant.  The
undersigned, in accordance with Section 3 of the Warrant, hereby agrees to
pay the aggregate Exercise Price for such shares of Common Stock in the manner
set forth below.  A new warrant
evidencing the remaining shares of Common Stock covered by such Warrant, but
not yet subscribed for and purchased, if any, should be issued in the name set
forth below.


 


	
  Number of
  Shares of Common Stock

  	
   

  	
   

  



 


	
  Method of
  Payment of Exercise Price (note if cashless exercise pursuant to
  Section 3(i) of the Warrant or cash exercise pursuant to 

  
	
  Section 3(ii) of
  the Warrant, with consent of the Company and the Warrantholder)

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Aggregate Exercise
  Price:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Holder:

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


15

















 


IN WITNESS WHEREOF, the Company
has caused this Warrant to be duly executed by a duly authorized officer.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
						



 


 


[Signature
Page to Warrant]


 


16

















 


SCHEDULE A


 


Item 1


 


Name:


Corporate or other organizational form:


Jurisdiction of organization:


 


Item 2


 


Exercise Price:  (1)


 


Item 3


 


Issue Date:


 


Item 4


 


Amount of last dividend declared prior to the Issue Date:


 


Item 5


 


Date of Letter Agreement between the Company and the United States
Department of the Treasury:


 


Item 6


 


Number of shares of Common Stock:


 


Item 7


 


Company’s address:


 


Item 8


 


Notice information:


 






(1)                                  Initial
exercise price to be calculated based on the average of closing prices of the
Common Stock on the 20 trading days ending on the last trading day prior to the
date the Company’s application for participation in the Capital Purchase
Program was approved by the United States Department of the Treasury.


 
















 


SCHEDULE A


 


ADDITIONAL TERMS AND CONDITIONS


 


	
  Company
  Information:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name of the Company:

  	
   

  	
  Comerica Incorporated

  
	
   

  	
   

  	
   

  
	
  Corporate or other organizational form:

  	
   

  	
  Corporation

  
	
   

  	
   

  	
   

  
	
  Jurisdiction of Organization:

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Appropriate Federal Banking Agency:

  	
   

  	
  Board of Governors of the Federal Reserve System

  
	
   

  	
   

  	
   

  
	
  Notice Information:

  	
   

  	
  Comerica Incorporated

  Comerica Bank
  Tower

  1717 Main Street, MC 6404

  Dallas, Texas
  75201

  
	
   

  	
   

  	
  Attention:

  

  

  Facsimile:

  	
  Jon W. Bilstrom

  Executive Vice President - Governance,

  Regulatory
  Relations and Legal Affairs

  (214) 462-4440

  
	
   

  	
   

  	
   

  
	
  Terms
  of the Purchase:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Series of Preferred Stock Purchased:

  	
   

  	
  Fixed Rate Cumulative Perpetual Preferred Stock,
  Series F

  
	
   

  	
   

  	
   

  
	
  Per Share Liquidation Preference of Preferred
  Stock:

  	
   

  	
  $1,000

  
	
   

  	
   

  	
   

  
	
  Number of Shares of Preferred Stock Purchased:

  	
   

  	
  2,250,000

  
	
   

  	
   

  	
   

  
	
  Dividend Payment Dates on the Preferred Stock:

  	
   

  	
  February 15,
  May 15, August 15 and November 15

  
	
   

  	
   

  	
   

  
	
  Number of Initial Warrant Shares:

  	
   

  	
  11,479,592

  
	
   

  	
   

  	
   

  
	
  Exercise Price of the Warrant:

  	
   

  	
  $29.40

  
	
   

  	
   

  	
   

  
	
  Purchase Price:

  	
   

  	
  $2,250,000,000

  
	
   

  	
   

  	
   

  
	
  Closing:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Location of Closing:

  	
   

  	
  Simpson Thacher & Bartlett LLP

  425 Lexington Avenue

  New York, NY 10017

  
	
   

  	
   

  	
   

  
	
  Time of Closing:

  	
   

  	
  9:00 a.m., New York time

  
	
   

  	
   

  	
   

  
	
  Date of Closing:

  	
   

  	
  November 14, 2008

  
	
   

  	
   

  	
   

  
	
  Wire Information for Closing:

  	
   

  	
  ABA Number:

  Bank:

  Account Name:

  Account Number:

  Beneficiary: