Exhibit
10.1

     

    
      
        


        


        


        


        


        


        


        


        
          
            

          



        


        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

                	 
      	 
      
	 
      	 
      	
                  Location
  of

                
	
                  Term

                	 
      	
                  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-

           

           

          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          



         

        
          	 
      	 
      	
                  Location
  of

                
	
                  Term

                	 
      	
                  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

        


        


        
          
            
            

          

          
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        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
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        (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
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        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

         

        
 

        
          
            
            

          

          
            - 5
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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

        


        


        
          
            
            

          

          
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        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

        


         

        
          
            
            

          

          
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        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

        


         

        
          
            
            

          

          
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        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

        


         

        
          
            
            

          

          
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        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

        


        


        


        
          
            
            

          

          
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        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

        


        


        
          
            
            

          

          
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        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 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 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
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        (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
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        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 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.

         

        (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

      


      
        
          
          

        

        
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      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

      


      
        
          
          

        

        
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      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

      


      
        
          
          

        

        
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      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

      


      
        
          
          

        

        
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      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 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 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 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]

      


      


      
        
          
          

        

        
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      [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.