EX-10.2








    Exhibit 10.2



 




    United
    States Department of the Treasury

    1500 Pennsylvania Avenue, NW

    Washington, D.C. 20220



 



    Dear Ladies and Gentlemen:



 



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



 



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 Except to the extent supplemented or superseded by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



 



    Each of the Company and the Investor hereby agrees that the
    Closing shall take place on the earlier of (i) the second
    business day following the termination of the Agreement and Plan
    of Merger (the “Merger Agreement”), dated as of
    September 15, 2008, by and between the Company and Bank of
    America Corporation (“Bank of America”) and
    (ii) a date during the period beginning on January 2,
    2009 and ending on January 31, 2009 specified by the
    Company on no less than three business days’ prior notice
    to the Investor, if the Merger Agreement is still in effect but
    the closing of the transactions contemplated by the Merger
    Agreement (the “Merger Closing”) has not
    occurred by such specified date, but, in the case of either
    clauses (i) or (ii), in no event later than
    January 31, 2009. Notwithstanding the foregoing sentence,
    prior to January 2, 2009, if the Merger Agreement is still
    in effect but the Merger Closing has not occurred the Company
    shall have the right, after consultation with the Federal
    Reserve and Bank of America, to request that the Investor
    consummate the Purchase on or prior to January 1, 2009 and,
    if the Investor so agrees, the Closing shall occur at such
    place, time and date as shall be agreed between the Company and
    the Investor. The Company agrees that the Investor will have no
    obligation to purchase any Purchased Securities from the Company
    pursuant to clause (ii) of the first sentence of this
    paragraph or the second sentence of this paragraph if the
    issuance and sale of such Purchased Securities by the Company
    would be in breach of its obligations and covenants under the
    Merger Agreement, as modified by that certain letter agreement,
    dated the date hereof, between the Company and Bank of America
    (a copy of which has been provided to the Investor).



 



    If the Merger Closing occurs prior to the Closing, this letter
    agreement shall automatically terminate upon the Merger Closing
    without any further action by the parties hereto and this letter
    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 letter agreement. If Closing has not occurred by
    January 31, 2009, this letter agreement shall automatically
    terminate at 12:01 a.m., New York time, on February 1,
    2009, without any further action by the parties hereto and this
    letter 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 letter agreement.













 






    For the avoidance of doubt, the parties agree that the
    restrictions set forth in Sections 4.8 and 4.10 of the
    Securities Purchase Agreement shall apply to the Company as if
    the Closing had occurred on October 28, 2008 and the
    Investor had acquired the Purchased Securities as of such date.
    In addition, the Company shall take all actions necessary to
    satisfy the conditions set forth in Sections 1.2(d)(iv) and
    (v) of the Securities Purchase Agreement by
    October 28, 2008 as fully as if the purchase of the
    Purchased Securities shall have occurred on such date. For
    purposes of Section 4.4 of the Securities Purchase
    Agreement, issuances of capital stock to Bank of America or any
    of its Affiliates shall not be considered a Qualified Equity
    Offering. For purposes of Section 1.2(d)(i)(A) of the
    Securities Purchase Agreement, the representations and
    warranties set forth in Sections 2.2(g) and 2.2(l) thereof
    shall be deemed made as of October 28, 2008, provided that
    the Company has, at or prior to the Closing, provided the
    Investor with written notice of any events, changes or
    developments which constitute an exception thereto.



 



    Each of the Company and the Investor hereby confirms its
    agreement with the other party with respect to the issuance by
    the Company of the Purchased Securities and the purchase by the
    Investor of the Purchased Securities pursuant to this letter
    agreement and the Securities Purchase Agreement on the terms
    specified on Schedule A hereto.



 



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



 



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



 




    * * *













 






    In witness whereof, this letter agreement has been duly executed
    and delivered by the duly authorized representatives of the
    parties hereto as of the date written below.



 



    UNITED STATES DEPARTMENT OF THE TREASURY



 



    By: ­
    ­




       Name:

       Title:



 



    COMPANY: MERRILL LYNCH & CO., INC.



 



    By: ­
    ­




       Name:

       Title:



 



    Date: ­
    ­













 







    EXHIBIT A



 




    SECURITIES
    PURCHASE AGREEMENT



 



    STANDARD TERMS













 







    TABLE OF
    CONTENTS



 


	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Page

	 

	

    Article I



	

    Purchase; Closing



	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
    1.1
	
 
	
 
	
    Purchase
	
 
	
 
	
    A-1
	
 

	
 
	
    1.2
	
 
	
 
	
    Closing
	
 
	
 
	
    A-1
	
 

	
 
	
    1.3
	
 
	
 
	
    Interpretation
	
 
	
 
	
    A-3
	
 

	
 

	

    Article II



	

    Representations and Warranties



	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
    2.1
	
 
	
 
	
    Disclosure
	
 
	
 
	
    A-4
	
 

	
 
	
    2.2
	
 
	
 
	
    Representations and Warranties of the Company
	
 
	
 
	
    A-4
	
 

	
 

	

    Article III



	

    Covenants



	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
    3.1
	
 
	
 
	
    Commercially Reasonable Efforts
	
 
	
 
	
    A-11
	
 

	
 
	
    3.2
	
 
	
 
	
    Expenses
	
 
	
 
	
    A-12
	
 

	
 
	
    3.3
	
 
	
 
	
    Sufficiency of Authorized Common Stock; Exchange Listing
	
 
	
 
	
    A-12
	
 

	
 
	
    3.4
	
 
	
 
	
    Certain Notifications Until Closing
	
 
	
 
	
    A-12
	
 

	
 
	
    3.5
	
 
	
 
	
    Access, Information and Confidentiality
	
 
	
 
	
    A-12
	
 

	
 

	

    Article IV



	

    Additional Agreements



	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
    4.1
	
 
	
 
	
    Purchase for Investment
	
 
	
 
	
    A-13
	
 

	
 
	
    4.2
	
 
	
 
	
    Legends
	
 
	
 
	
    A-13
	
 

	
 
	
    4.3
	
 
	
 
	
    Certain Transactions
	
 
	
 
	
    A-15
	
 

	
 
	
    4.4
	
 
	
 
	
    Transfer of Purchased Securities and Warrant Shares;
    Restrictions on Exercise of the Warrant
	
 
	
 
	
    A-15
	
 

	
 
	
    4.5
	
 
	
 
	
    Registration Rights
	
 
	
 
	
    A-15
	
 

	
 
	
    4.6
	
 
	
 
	
    Voting of Warrant Shares
	
 
	
 
	
    A-24
	
 

	
 
	
    4.7
	
 
	
 
	
    Depositary Shares
	
 
	
 
	
    A-24
	
 

	
 
	
    4.8
	
 
	
 
	
    Restriction on Dividends and Repurchases
	
 
	
 
	
    A-25
	
 

	
 
	
    4.9
	
 
	
 
	
    Repurchase of Investor Securities
	
 
	
 
	
    A-26
	
 

	
 
	
    4.10
	
 
	
 
	
    Executive Compensation
	
 
	
 
	
    A-27
	
 





    

    A-i








 





	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Page

	 

	

    Article V



	

    Miscellaneous



	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
    5.1
	
 
	
 
	
    Termination
	
 
	
 
	
    A-27
	
 

	
 
	
    5.2
	
 
	
 
	
    Survival of Representations and Warranties
	
 
	
 
	
    A-27
	
 

	
 
	
    5.3
	
 
	
 
	
    Amendment
	
 
	
 
	
    A-27
	
 

	
 
	
    5.4
	
 
	
 
	
    Waiver of Conditions
	
 
	
 
	
    A-28
	
 

	
 
	
    5.5
	
 
	
 
	
    Governing Law: Submission to Jurisdiction, Etc. 
	
 
	
 
	
    A-28
	
 

	
 
	
    5.6
	
 
	
 
	
    Notices
	
 
	
 
	
    A-28
	
 

	
 
	
    5.7
	
 
	
 
	
    Definitions
	
 
	
 
	
    A-28
	
 

	
 
	
    5.8
	
 
	
 
	
    Assignment
	
 
	
 
	
    A-29
	
 

	
 
	
    5.9
	
 
	
 
	
    Severability
	
 
	
 
	
    A-29
	
 

	
 
	
    5.10
	
 
	
 
	
    No Third Party Beneficiaries
	
 
	
 
	
    A-29
	
 










    A-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




    

    A-iii








 







    INDEX OF
    DEFINED TERMS



 


	 	 	 
	

    Term


	
 
	
    Location of Definition

	 

	

    Affiliate


	
 
	
    5.7(b)

	

    Agreement


	
 
	
    Recitals

	

    Appraisal Procedure


	
 
	
    4.9(c)(i)

	

    Appropriate Federal Banking Agency


	
 
	
    2.2(s)

	

    Bankruptcy Exceptions


	
 
	
    2.2(d)

	

    Benefit Plans


	
 
	
    1.2(d)(iv)

	

    Board of Directors


	
 
	
    2.2(f)

	

    Business Combination


	
 
	
    4.4

	

    business day


	
 
	
    1.3

	

    Capitalization Date


	
 
	
    2.2(b)

	

    Certificate of Designations


	
 
	
    1.2(d)(iii)

	

    Charter


	
 
	
    1.2(d)(iii)

	

    Closing


	
 
	
    1.2(a)

	

    Closing Date


	
 
	
    1.2(a)

	

    Code


	
 
	
    2.2(n)

	

    Common Stock


	
 
	
    Recitals

	

    Company


	
 
	
    Recitals

	

    Company Financial Statements


	
 
	
    2.2(h)

	

    Company Material Adverse Effect


	
 
	
    2.1(a)

	

    Company Reports


	
 
	
    2.2(i)(i)

	

    Company Subsidiary; Company Subsidiaries


	
 
	
    2.2(i)(i)

	

    control; controlled by; under common control with


	
 
	
    5.7(b)

	

    Controlled Group


	
 
	
    2.2(n)

	

    CPP


	
 
	
    Recitals

	

    EESA


	
 
	
    1.2(d)(iv)

	

    ERISA


	
 
	
    2.2(n)

	

    Exchange Act


	
 
	
    2.1(b)

	

    Fair Market Value


	
 
	
    4.9(c)(ii)

	

    GAAP


	
 
	
    2.1(a)

	

    Governmental Entities


	
 
	
    1.2(c)

	

    Holder


	
 
	
    4.5(k)(i)

	

    Holders’ Counsel


	
 
	
    4.5(k)(ii)

	

    Indemnitee


	
 
	
    4.5(g)(i)

	

    Information


	
 
	
    3.5(b)

	

    Initial Warrant Shares


	
 
	
    Recitals

	

    Investor


	
 
	
    Recitals

	

    Junior Stock


	
 
	
    4.8(c)

	

    knowledge of the Company; Company’s knowledge


	
 
	
    5.7(c)

	

    Last Fiscal Year


	
 
	
    2.1(b)

	

    Letter Agreement


	
 
	
    Recitals

	

    officers


	
 
	
    5.7(c)





    

    A-iv








 





	 	 	 
	

    Term


	
 
	
    Location of Definition

	 

	

    Parity Stock


	
 
	
    4.8(c)

	

    Pending Underwritten Offering


	
 
	
    4.5(l)

	

    Permitted Repurchases


	
 
	
    4.8(a)(ii)

	

    Piggyback Registration


	
 
	
    4.5(a)(iv)

	

    Plan


	
 
	
    2.2(n)

	

    Preferred Shares


	
 
	
    Recitals

	

    Preferred Stock


	
 
	
    Recitals

	

    Previously Disclosed


	
 
	
    2.1(b)

	

    Proprietary Rights


	
 
	
    2.2(u)

	

    Purchase


	
 
	
    Recitals

	

    Purchase Price


	
 
	
    1.1

	

    Purchased Securities


	
 
	
    Recitals

	

    Qualified Equity Offering


	
 
	
    4.4

	

    register; registered; registration


	
 
	
    4.5(k)(iii)

	

    Registrable Securities


	
 
	
    4.5(k)(iv)

	

    Registration Expenses


	
 
	
    4.5(k)(v)

	

    Regulatory Agreement


	
 
	
    2.2(s)

	

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


	
 
	
    4.5(k)(vi)

	

    Schedules


	
 
	
    Recitals

	

    SEC


	
 
	
    2.1(b)

	

    Securities Act


	
 
	
    2.2(a)

	

    Selling Expenses


	
 
	
    4.5(k)(vii)

	

    Senior Executive Officers


	
 
	
    4.10

	

    Share Dilution Amount


	
 
	
    4.8(a)(ii)

	

    Shelf Registration Statement


	
 
	
    4.5(a)(ii)

	

    Signing Date


	
 
	
    2.1(a)

	

    Special Registration


	
 
	
    4.5(i)

	

    Stockholder Proposals


	
 
	
    3.1(b)

	

    subsidiary


	
 
	
    5.8(a)

	

    Tax; Taxes


	
 
	
    2.2(o)

	

    Transfer


	
 
	
    4.4

	

    Warrant


	
 
	
    Recitals

	

    Warrant Shares


	
 
	
    2.2(d)










    A-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”.




    

    A-1








 






    (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 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




    

    A-2








 






    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



 



    (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.




    

    A-3








 







    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 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.




    

    A-4








 






    (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 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
    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




    

    A-5








 






    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 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




    

    A-6








 






    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 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




    

    A-7








 






    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 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




    

    A-8








 






    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
    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.



 



    (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




    

    A-9








 






    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.



 



    (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




    

    A-10








 






    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 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




    

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    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.



 



    (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




    

    A-12








 






    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 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.”




    

    A-13








 






    (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 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




    

    A-14








 






    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, 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




    

    A-15








 






    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.



 



    (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




    

    A-16








 






    (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 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 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




    

    A-17








 






    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;



 



    (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.




    

    A-18








 






    (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 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




    

    A-19








 






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




    

    A-20








 






    (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 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




    

    A-21








 






    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,
    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




    

    A-22








 






    (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
    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).




    

    A-23








 






    (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
    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.



 



    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




    

    A-24








 






    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
    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,




    

    A-25








 






    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.



 



    (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




    

    A-26








 






    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.



 




    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,




    

    A-27








 






    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
    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.



 



    (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




    

    A-28








 






    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.



 



    * * *




    

    A-29








 







    ANNEX A



 




    FORM OF
    CERTIFICATE OF DESIGNATIONS



 



    [SEE ATTACHED]













 







    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



 



    [SEE ATTACHED]













 







    SCHEDULE A



 




    ADDITIONAL
    TERMS AND CONDITIONS



 


			
	
    Company Information:		

	 
	
      Name of the Company:
    		
    Merrill Lynch & Co., Inc.
    
	 
	
      Corporate or other
    organizational form:
    		
    Corporation
    
	 
	
      Jurisdiction of
    Organization:
    		
    Delaware
    
	 
	
      Appropriate Federal
    Banking Agency:
    		
    Office of Thrift Supervision
    
	 
	
      Notice Information:
    		

    Merrill Lynch & Co.,
    Inc.

    4 World Financial Center

    250 Vesey Street

    New York, NY 10080

    Attention: Rosemary T. Berkery

    Vice-Chairman and General Counsel

    


	 
	
		
    For notices prior to termination
    of the Merger

    Agreement, provide a copy to:

    
	 
	
		

    Bank of America Corporation

    Bank of America Corporate Center

    100 North Tryon Street

    Charlotte, NC 28255

    Attention: Timothy J. Mayopoulos

    Executive Vice President and General Counsel

    Facsimile:
    (704) 370-3515
    


	 
	
    Terms of the
    Purchase:		

	 
	
      Series of Preferred
    Stock Purchased:
    		
    Fixed Rate Cumulative Perpetual
    Preferred Stock, Series T
    
	 
	
      Per Share Liquidation
    Preference of Preferred Stock:
    		
    $25,000
    
	 
	
      Number of Shares of
    Preferred Stock Purchased:
    		
    400,000
    
	 
	
      Dividend Payment Dates
    on the Preferred Stock:
    		
    February 15, May 15,
    August 15, November 15
    
	 
	
      Number of Initial
    Warrant Shares:
    		
    64,991,334
    
	 
	
      Exercise Price of the
    Warrant:
    		
    $23.08
    
	 
	
      Purchase Price:
    		
    $10,000,000,000
    
	 
	
    Closing:		

	 
	
      Location of Closing:
    		
    Simpson Thacher &
    Bartlett LLP

    425 Lexington Avenue

    New York, NY 10017
    
	 
	
      Time of Closing:
    		
    As determined pursuant to the
    Letter Agreement.
    
	 
	
      Date of Closing:
    		
    As determined pursuant to the
    Letter Agreement.
    
	 
	
      Wire Information
    for Closing:
    		
    To be advised in notice of Closing.