Exhibit 10.8


 


EXHIBIT A


(Non-Exchange-Traded QFIs, excluding S Corps

and Mutual Organizations)


 




 


 





SECURITIES PURCHASE AGREEMENT




STANDARD TERMS




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Article I

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Purchase; Closing

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Purchase

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Closing

  	
   

  	
  2

  
	
  1.3

  	
   

  	
  Interpretation

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Article II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Representations and Warranties

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Disclosure

  	
   

  	
  4

  
	
  2.2

  	
   

  	
  Representations
  and Warranties of the Company

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Article III

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Commercially
  Reasonable Efforts

  	
   

  	
  13

  
	
  3.2

  	
   

  	
  Expenses

  	
   

  	
  13

  
	
  3.3

  	
   

  	
  Sufficiency
  of Authorized Warrant Preferred Stock; Exchange Listing

  	
   

  	
  13

  
	
  3.4

  	
   

  	
  Certain
  Notifications Until Closing

  	
   

  	
  13

  
	
  3.5

  	
   

  	
  Access,
  Information and Confidentiality

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Article IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Additional Agreements

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Purchase
  for Investment

  	
   

  	
  15

  
	
  4.2

  	
   

  	
  Legends

  	
   

  	
  15

  
	
  4.3

  	
   

  	
  Certain
  Transactions

  	
   

  	
  17

  
	
  4.4

  	
   

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

  	
   

  	
  17

  
	
  4.5

  	
   

  	
  Registration
  Rights

  	
   

  	
  18

  
	
  4.6

  	
   

  	
  Depositary
  Shares

  	
   

  	
  29

  
	
  4.7

  	
   

  	
  Restriction
  on Dividends and Repurchases

  	
   

  	
  30

  
	
  4.8

  	
   

  	
  Executive
  Compensation

  	
   

  	
  32

  
	
  4.9

  	
   

  	
  Related
  Party Transactions

  	
   

  	
  32

  
	
  4.10

  	
   

  	
  Bank
  and Thrift Holding Company Status

  	
   

  	
  32

  
	
  4.11

  	
   

  	
  Predominantly
  Financial

  	
   

  	
  32

  



 


i

















 


	
   

  	
   

  	
  Article V

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Miscellaneous

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Termination

  	
   

  	
  32

  
	
  5.2

  	
   

  	
  Survival
  of Representations and Warranties

  	
   

  	
  33

  
	
  5.3

  	
   

  	
  Amendment

  	
   

  	
  33

  
	
  5.4

  	
   

  	
  Waiver
  of Conditions

  	
   

  	
  33

  
	
  5.5

  	
   

  	
  Governing Law: Submission to Jurisdiction, Etc.

  	
   

  	
  33

  
	
  5.6

  	
   

  	
  Notices

  	
   

  	
  34

  
	
  5.7

  	
   

  	
  Definitions

  	
   

  	
  34

  
	
  5.8

  	
   

  	
  Assignment

  	
   

  	
  35

  
	
  5.9

  	
   

  	
  Severability

  	
   

  	
  35

  
	
  5.10

  	
   

  	
  No
  Third Party Beneficiaries

  	
   

  	
  35

  



 


ii

















 


LIST OF ANNEXES


 


	
  ANNEX
  A:

  	
  FORM OF
  CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK

  
	
   

  	
   

  
	
  ANNEX
  B:

  	
  FORM OF
  CERTIFICATE OF DESIGNATIONS FOR WARRANT PREFERRED STOCK

  
	
   

  	
   

  
	
  ANNEX
  C:

  	
  FORM OF
  WAIVER

  
	
   

  	
   

  
	
  ANNEX
  D:

  	
  FORM OF
  OPINION

  
	
   

  	
   

  
	
  ANNEX
  E:

  	
  FORM OF
  WARRANT

  



 


iii

















 


INDEX
OF DEFINED TERMS


 


	
   

  	
   

  	
  Location of

  
	
  Term

  	
   

  	
  Definition

  
	
  Affiliate

  	
   

  	
  5.7(b)

  
	
  Agreement

  	
   

  	
  Recitals

  
	
  Appropriate
  Federal Banking Agency

  	
   

  	
  2.2(s)

  
	
  Bank
  Holding Company

  	
   

  	
  4.10

  
	
  Bankruptcy
  Exceptions

  	
   

  	
  2.2(d)

  
	
  Benefit
  Plans

  	
   

  	
  1.2(d)(iv)

  
	
  Board
  of Directors

  	
   

  	
  2.2(f)

  
	
  Business
  Combination

  	
   

  	
  5.8

  
	
  business
  day

  	
   

  	
  1.3

  
	
  Capitalization
  Date

  	
   

  	
  2.2(b)

  
	
  Certificates
  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

  	
   

  	
  2.2(b)

  
	
  Company

  	
   

  	
  Recitals

  
	
  Company
  Financial Statements

  	
   

  	
  2.2(h)

  
	
  Company
  Material Adverse Effect

  	
   

  	
  2.1(b)

  
	
  Company
  Reports

  	
   

  	
  2.2(i)(i)

  
	
  Company
  Subsidiary; Company Subsidiaries

  	
   

  	
  2.2(e)(ii)

  
	
  control;
  controlled by; under common control with

  	
   

  	
  5.7(b)

  
	
  Controlled
  Group

  	
   

  	
  2.2(n)

  
	
  CPP

  	
   

  	
  Recitals

  
	
  Disclosure
  Schedule

  	
   

  	
  2.1(a)

  
	
  EESA

  	
   

  	
  1.2(d)(iv)

  
	
  ERISA

  	
   

  	
  2.2(n)

  
	
  Exchange
  Act

  	
   

  	
  4.4

  
	
  Federal
  Reserve

  	
   

  	
  4.10

  
	
  GAAP

  	
   

  	
  2.1(b)

  
	
  Governmental
  Entities

  	
   

  	
  1.2(c)

  
	
  Holder

  	
   

  	
  4.5(1)(i)

  
	
  Holders’
  Counsel

  	
   

  	
  4.5(1)(ii)

  
	
  Indemnitee

  	
   

  	
  4.5(h)(i)

  
	
  Information

  	
   

  	
  3.5(c)

  
	
  Investor

  	
   

  	
  Recitals

  
	
  Junior
  Stock

  	
   

  	
  4.7(f)

  
	
  knowledge
  of the Company; Company’s knowledge

  	
   

  	
  5.7(c)

  
	
  Letter
  Agreement

  	
   

  	
  Recitals

  
	
  officers

  	
   

  	
  5.7(c)

  
	
  Parity
  Stock

  	
   

  	
  4.7(f)

  



 


iv

















 


	
   

  	
   

  	
  Location of

  
	
  Term

  	
   

  	
  Definition

  
	
  Pending
  Underwritten Offering

  	
   

  	
  4.5(m)

  
	
  Permitted
  Repurchases

  	
   

  	
  4.7(c)

  
	
  Piggyback
  Registration

  	
   

  	
  4.5(b)(iv)

  
	
  Plan

  	
   

  	
  2.2(n)

  
	
  Preferred
  Shares

  	
   

  	
  Recitals

  
	
  Preferred
  Stock

  	
   

  	
  Recitals

  
	
  Previously
  Disclosed

  	
   

  	
  2.1(c)

  
	
  Proprietary
  Rights

  	
   

  	
  2.2(u)

  
	
  Purchase

  	
   

  	
  Recitals

  
	
  Purchase
  Price

  	
   

  	
  1.1

  
	
  Purchased
  Securities

  	
   

  	
  Recitals

  
	
  register;
  registered; registration

  	
   

  	
  4.5(l)(iii)

  
	
  Registrable
  Securities

  	
   

  	
  4.5(l)(iv)

  
	
  Registration
  Expenses

  	
   

  	
  4.5(l)(v)

  
	
  Regulatory
  Agreement

  	
   

  	
  2.2(s)

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

  	
   

  	
  4.5(l)(vi)

  
	
  Savings
  and Loan Holding Company

  	
   

  	
  4.10

  
	
  Schedules

  	
   

  	
  Recitals

  
	
  SEC

  	
   

  	
  2.2(k)

  
	
  Securities
  Act

  	
   

  	
  2.2(a)

  
	
  Selling
  Expenses

  	
   

  	
  4.5(l)(vii)

  
	
  Senior
  Executive Officers

  	
   

  	
  4.8

  
	
  Shelf
  Registration Statement

  	
   

  	
  4.5(b)(ii)

  
	
  Signing
  Date

  	
   

  	
  2.1(b)

  
	
  Special
  Registration

  	
   

  	
  4.5(j)

  
	
  subsidiary

  	
   

  	
  5.7(a)

  
	
  Tax;
  Taxes

  	
   

  	
  2.2(o)

  
	
  Transfer

  	
   

  	
  4.4

  
	
  Warrant

  	
   

  	
  Recitals

  
	
  Warrant
  Preferred Stock

  	
   

  	
  Recitals

  
	
  Warrant
  Shares

  	
   

  	
  2.2(d)

  



 


v

















 


SECURITIES PURCHASE AGREEMENT — STANDARD TERMS




Recitals:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Article I


Purchase; Closing


 


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


 

















 


1.2                                 Closing.


 


(a)                                  On the terms
and subject to the conditions set forth in this Agreement, the closing of the
Purchase (the “Closing”) will take place at the
location specified in Schedule A, at the time and on the date
set forth in Schedule A or as soon as practicable
thereafter, or at such other place, time and date as shall be agreed between
the Company and the Investor. The time and date on which the Closing occurs is
referred to in this Agreement as the “Closing Date”.


 


(b)                                 Subject to the
fulfillment or waiver of the conditions to the Closing in this Section 1.2,
at the Closing the Company will deliver the Preferred Shares and the Warrant,
in each case as evidenced by one or more certificates dated the Closing Date
and bearing appropriate legends as hereinafter provided for, in exchange for
payment in full of the Purchase Price by wire transfer of immediately available
United States funds to a bank account designated by the Company on Schedule A.


 


(c)                                  The respective
obligations of each of the Investor and the Company to consummate the Purchase
are subject to the fulfillment (or waiver by the Investor and the Company, as
applicable) prior to the Closing of the conditions that (i) any approvals
or authorizations of all United States and other governmental, regulatory or
judicial authorities (collectively, “Governmental Entities”) required for
the consummation of the Purchase shall have been obtained or made in form and
substance reasonably satisfactory to each party and shall be in full force and
effect and all waiting periods required by United States and other applicable
law, if any, shall have expired and (ii) no provision of any applicable
United States or other law and no judgment, injunction, order or decree of any
Governmental Entity shall prohibit the purchase and sale of the Purchased
Securities as contemplated by this Agreement.


 


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


 


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


 


2

















 


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


 


(ii)                                  the Investor
shall have received a certificate signed on behalf of the Company by a senior
executive officer certifying to the effect that the conditions set forth in Section 1.2(d)(i) have
been satisfied;


 


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


 


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


 


(v)                                 each of the
Company’s Senior Executive Officers shall have delivered to the Investor a
written waiver in the form attached hereto as Annex C 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 D;


 


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


 


3

















 


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


 


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


 


Article II


Representations and Warranties


 


2.1                                 Disclosure.


 


(a)                                  On or prior to
the Signing Date, the Company delivered to the Investor a schedule (“Disclosure Schedule”)  setting forth, among other
things, items the disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a provision hereof
or as an exception to one or more representations or warranties contained in Section 2.2.


 


(b)                                 “Company Material Adverse 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


 


4

















 


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, or (C) changes or
proposed changes after the Signing Date in securities, banking and other laws
of general applicability or related policies or interpretations of Governmental
Entities (in the case of each of these clauses (A), (B) and (C), other
than changes or occurrences to the extent that such changes or occurrences have
or would reasonably be expected to have a materially disproportionate adverse
effect on the Company and its consolidated subsidiaries taken as a whole
relative to comparable U.S. banking or financial services organizations); or (ii) the
ability of the Company to consummate the Purchase and other transactions
contemplated by this Agreement and the Warrant and perform its obligations
hereunder or thereunder on a timely basis.


 


(c)                                  “Previously Disclosed”  means information set forth
on the Disclosure Schedule, provided, however, that disclosure in any section
of such Disclosure Schedule shall apply only to the indicated section of this
Agreement except to the extent that it is reasonably apparent from the face of
such disclosure that such disclosure is relevant to another section of this
Agreement.


 


2.2                                 Representations
and Warranties of the Company. Except as Previously
Disclosed,  the Company represents and warrants to the Investor that as of the
Signing Date and as of the Closing Date (or such other date specified 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 would be considered a
“significant subsidiary” within the meaning of Rule 1-02(w) of
Regulation S-X under the Securities Act of 1933 (the “Securities Act”),  has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of organization.
The Charter and bylaws of the Company, copies of which have been provided to
the Investor prior to the Signing Date, are true, complete and correct copies
of such documents as in full force and effect as of the Signing Date.


 


(b)                                 Capitalization. The
authorized capital stock of the Company, and the outstanding capital stock of
the Company (including securities convertible into, or exercisable or
exchangeable for, capital stock of the Company) as of the most recent fiscal
month-end preceding the Signing Date (the “Capitalization Date”)  is set forth on Schedule B.
The outstanding shares of capital stock of the Company have been duly
authorized and are validly issued and outstanding, fully paid and
nonassessable, and subject to no preemptive rights (and were not issued in
violation of any preemptive rights). As of the Signing Date, the Company does
not have outstanding any securities or other obligations providing the holder
the right to


 


5






 


 










 


acquire
its Common Stock (“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.
Each holder of 5% or more of any class of capital stock of the Company and such
holder’s primary address are set forth on Schedule B.


 


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


 


(e)                                  Authorization,
Enforceability.


 


(i)                                     The Company has
the corporate power and authority to execute and  deliver this Agreement and
the Warrant and to carry out its obligations hereunder and thereunder (which
includes the issuance of the 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. This Agreement is a valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms, subject to the Bankruptcy Exceptions.


 


6

















 


(ii)                                  The execution,
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 result in the creation of, any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company or any
subsidiary of the Company (each a “Company Subsidiary”  and, collectively, the “Company
Subsidiaries”)  under
any of the terms, conditions or provisions of (i) its organizational
documents or (ii) any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which the
Company or any Company Subsidiary is a party or by which it or any Company
Subsidiary may be bound, or to which the Company or any Company Subsidiary or
any of the properties or assets of the Company or any Company Subsidiary may be
subject, or (B) subject to compliance with the statutes and regulations
referred to in the next paragraph, violate any statute, rule or regulation
or any judgment, ruling, order, writ, injunction or decree applicable to the
Company or any Company Subsidiary or any of their respective properties or
assets except, in the case of clauses (A)(ii) and (B), for those
occurrences that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Company Material Adverse Effect.


 


(iii)                               Other than the
filing of the Certificates of Designations with the Secretary of State of its
jurisdiction of organization or other applicable Governmental Entity, such
filings and approvals as are required to be made or obtained under any state
“blue sky” laws and such as have been made or obtained, no notice to, filing
with, exemption or review by, or authorization, consent or approval of, any
Governmental Entity is required to be made or obtained by the Company in
connection with the consummation by the Company of the Purchase except for any
such notices, filings, exemptions, reviews, authorizations, consents and
approvals the failure of which to make or obtain would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse
Effect.


 


(f)                                    Anti-takeover
Provisions and Rights Plan. The Board of Directors of
the  Company (the “Board of Directors”)  has taken all necessary action to
ensure that the transactions contemplated by this Agreement and the Warrant and
the consummation of the transactions contemplated hereby and thereby, including
the exercise of the 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.


 


(g)                                 No Company
Material Adverse Effect. Since the last day of the
last completed  fiscal period for which financial statements
are included in the Company Financial Statements (as defined below), no fact,
circumstance, event, change, occurrence, condition or development


 


7

















 


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. The Company has Previously Disclosed each of  the
consolidated financial statements of the Company and its consolidated
subsidiaries for each of the last three completed fiscal years of the Company
(which shall be audited to the extent audited financial statements are
available prior to the Signing Date) and each completed quarterly period since
the last completed fiscal year (collectively the “Company Financial Statements”).  The Company Financial Statements present fairly in
all material respects the consolidated financial position of the Company and
its consolidated subsidiaries as of the dates indicated therein and the
consolidated results of their operations for the periods specified therein; and
except as stated therein, such financial statements (A) were prepared in
conformity with GAAP applied on a consistent basis (except as may be noted
therein) and (B) have been prepared from, and are in accordance with, the
books and records of the Company and the Company Subsidiaries.


 


(i)                                     Reports.


 


(i)                                     Since December 31,
2006, the Company and each Company Subsidiary has filed all reports,
registrations, documents, filings, 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.


 


(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 adequate disclosure controls and procedures to ensure that material
information relating to the Company, including the consolidated Company
Subsidiaries, is made known to the chief executive officer and the chief
financial officer of the Company by others within those entities, and (B) has
disclosed, based on its most recent evaluation prior to the Signing Date, to
the Company’s outside auditors and the audit committee of the Board of
Directors (x) any significant deficiencies and material weaknesses in the
design or operation of internal controls that are reasonably likely to adversely
affect the Company’s ability to record, process, summarize and report financial
information and (y) any fraud, whether or not material, that involves
management or


 


8

















 


other
employees who have a significant role in the Company’s internal controls over
financial reporting.


 


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


 


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


 


(l)                                     Litigation and
Other Proceedings. Except (i) as set forth on Schedule C
or (ii) as  would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect, there is no (A) pending
or, to the knowledge of the Company, threatened, claim, action, suit,
investigation or proceeding, against the Company or any Company Subsidiary or
to which any of their assets are subject nor is the Company or any Company Subsidiary
subject to any order, judgment or decree or (B) unresolved violation,
criticism or exception by any 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 D, the Company and the
Company Subsidiaries have complied in all respects and are not in default or
violation of, and none of them is, to the knowledge of the Company, under
investigation with respect to or, to the knowledge of the Company, have been
threatened to be charged with or given notice of any violation of, any
applicable domestic (federal, state or local) or foreign law, statute,
ordinance, license, 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 D, no Governmental Entity has placed any
restriction on the business or properties of


 


9

















 


the
Company or any Company Subsidiary that would, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.


 


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


 


10

















 


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 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.


 


11

















 


(s)                                  Agreements with
Regulatory Agencies. Except as set forth on Schedule E, 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


 


12

















 


expected
to have a Company Material Adverse Effect, to the Company’s knowledge, no other
person is infringing, diluting, misappropriating or violating, nor has the
Company or any or the Company Subsidiaries sent any written communications
since January 1, 2006 alleging that any person has infringed, diluted,
misappropriated or violated, any of the Proprietary Rights owned by the Company
and the Company Subsidiaries.


 


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


 


Article III


Covenants


 


3.1                                 Commercially
Reasonable Efforts. 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.


 


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 Warrant Preferred Stock; Exchange Listing.


 


(a)                                  During the
period from the Closing Date until the date on which the Warrant has been fully
exercised, the Company shall at all times have reserved for issuance, free of
preemptive or similar rights, a sufficient number of authorized and unissued
Warrant Shares to effectuate such exercise.


 


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


 


3.4                                 Certain
Notifications Until Closing. From the Signing Date
until the Closing, the  Company shall promptly notify the Investor of
(i) any fact, event or circumstance of which it is aware and which would
reasonably be expected to cause any representation or warranty of the Company
contained in this Agreement to be untrue or inaccurate in any material respect
or to


 


13

















 


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


 


3.5                                 Access,
Information and Confidentiality.


 


(a)                                  From the
Signing Date until the date when the Investor holds an amount of Preferred
Shares having an aggregate liquidation value of less than 10% of the Purchase
Price, the Company will permit the Investor and its agents, consultants,
contractors and advisors (x) acting through the Appropriate Federal
Banking Agency, or otherwise to the extent necessary to evaluate, manage, or
transfer its investment in the Company, to examine the corporate books and make
copies thereof and to discuss the affairs, finances and accounts of the Company
and the Company Subsidiaries with the principal 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)                                 From the
Signing Date until the date on which all of the Preferred Shares and Warrant
Shares have been redeemed in whole, the Company will deliver, or will cause to
be delivered, to the Investor:


 


(i)                                     as soon as
available after the end of each fiscal year of the Company, and  in any event
within 90 days thereafter, a consolidated balance sheet of the Company as of
the end of such fiscal year, and consolidated statements of income, retained
earnings and  cash flows of the Company for such year, in
each case prepared in accordance with GAAP and setting forth in each case in
comparative form the figures for the previous fiscal year of the Company, and
which shall be audited to the extent audited financial statements are
available; and


 


14

















 


(ii)                                  as soon as
available after the end of the first, second and third quarterly  periods in each
fiscal year of the Company, a copy of any quarterly reports provided to other
stockholders of the Company or Company management.


 


(c)                                  The Investor
will use reasonable best efforts to hold, and will use reasonable best efforts
to cause its agents, consultants, contractors and advisors to hold, in
confidence all 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.


 


(d)                                 The Investor’s
information rights pursuant to Section 3.5(b) may be assigned by the
Investor to a transferee or assignee of the Purchased Securities or the Warrant
Shares or with a liquidation preference or, in the case of the Warrant, the
liquidation preference of the underlying shares of Warrant Preferred Stock, no
less than an amount equal to 2% of the initial aggregate liquidation preference
of the Preferred Shares.


 


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 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


 


15














 


OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS
IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.


 


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


 


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


 


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


 


THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES 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


 


16

















 


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.


 


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 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 (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 any Purchased Securities or Warrant Shares if
such transfer would require the Company to be subject to the periodic reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
“Exchange
Act”).  In
furtherance of the foregoing, the Company shall provide reasonable cooperation
to facilitate any Transfers of the Purchased Securities or Warrant Shares,
including, as is reasonable under the circumstances, by furnishing such
information concerning the Company and its business as a proposed transferee
may reasonably request (including such information as is required by Section 4.5(k))
and making management of the Company


 


17

















 


reasonably available to
respond to questions of a proposed transferee in accordance with customary
practice, subject in all cases to the proposed transferee agreeing to a
customary confidentiality agreement.


 


4.5                                 Registration
Rights.


 


(a)                                  Unless and
until the Company becomes subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall have no obligation to comply
with the provisions of this Section 4.5 (other than Section 4.5(b)(iv)-(vi)); provided that the Company
covenants and agrees that it shall comply with this Section 4.5 as soon as
practicable after the date that it becomes subject to such reporting
requirements.


 


(b)                                 Registration.


 


(i)                                     Subject to the
terms and conditions of this Agreement, the Company covenants and agrees that
as promptly as practicable after the date that the Company becomes subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act (and in
any event no later than 30 days thereafter), 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).
Notwithstanding the foregoing, if the Company is not eligible to file a
registration statement on Form S-3, then the Company shall not be obligated to
file a Shelf Registration Statement unless and until requested to do so in
writing by the Investor.


 


(ii)                                  Any
registration pursuant to Section 4.5(b)(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(d); provided that the
Company shall not be required to facilitate an underwritten offering of
Registrable Securities unless the expected gross proceeds from such offering
exceed (i) 2% of the initial aggregate liquidation preference of the Preferred
Shares if such initial aggregate liquidation preference is less than $2 billion
and (ii) $200 million if the initial aggregate liquidation preference of the
Preferred Shares is equal to or greater than $2 billion. The lead underwriters
in any such distribution shall be selected by the Holders of a majority


 


18

















 


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(b): (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(b)(i) or a Special Registration, and
the registration form to be filed may be used for the registration or
qualification for distribution of Registrable Securities, the Company will give
prompt 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(b)(iv) prior to the effectiveness of such registration,
whether or not Investor or any other Holders have elected to include
Registrable Securities in such registration.


 


(v)                                 If the
registration referred to in Section 4.5(b)(iv) is proposed to be underwritten,
the Company will so advise Investor and all other Holders as a part of the
written notice given pursuant to Section 4.5(b)(iv). In such event, the right
of Investor and all other Holders to registration pursuant to Section 4.5(b) will
be conditioned upon such persons’ participation in such underwriting and the
inclusion of such person’s Registrable Securities in the underwriting if such
securities are of the same class of securities as the securities to be offered
in the underwritten offering, and each such person will (together with the
Company and the other persons distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with


 


19

















 


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(b)(ii) or (y) a Piggyback
Registration under Section 4.5(b)(iv) relates to an underwritten offering
on behalf of the Company, and in either case the managing 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(b)(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(b)(ii) or Section 4.5(b)(iv), as applicable,
pro
rata on the basis of the aggregate number of such securities or shares owned
by each such person and (C) lastly, any other securities of the Company that
have been requested to be so included, subject to the terms of this Agreement; provided, however, that if the
Company has, prior to the Signing Date, entered into an agreement with respect
to its securities that is inconsistent with the order of priority contemplated
hereby then it shall apply the order of priority in such conflicting agreement
to the extent that it would otherwise result in a breach under such agreement.


 


(c)                                  Expenses of
Registration.  All
Registration Expenses incurred in connection with any registration,
qualification or compliance hereunder shall be 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.


 


(d)                                 Obligations of
the Company.  Whenever
required to effect the registration of any Registrable Securities or facilitate
the distribution of Registrable Securities pursuant to an effective Shelf
Registration Statement, the Company shall, as expeditiously as reasonably
practicable:


 


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


 


20

















 


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 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;


 


21

















 


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


 


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


 


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


 


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


 


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


 


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


 


(ix)                                Use reasonable
best efforts to procure the cooperation of the Company’s transfer agent in
settling any offering or sale of Registrable Securities, including with respect
to the transfer of physical stock certificates into book-entry 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(b)(ii), enter
into an underwriting agreement in customary form, scope and substance and take
all


 


22

















 


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 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


 


23

















 


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.


 


(e)                                  Suspension of
Sales. Upon receipt of written notice from the Company that a registration
statement, prospectus or prospectus supplement contains or may contain an
untrue statement of a material fact or omits or may omit to state a material
fact required to be stated therein or 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.


 


(f)                                    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.


 


(g)                                 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(d) 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


 


24

















 


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


 


(h)                                 Indemnification.


 


(i)                                     The Company
agrees to indemnify each Holder and, if a Holder is a person other than an
individual, 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(h)(i) is unavailable to an
Indemnitee with respect to any losses, claims, damages, actions, liabilities,
costs or expenses referred to therein or is insufficient to hold the Indemnitee
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


 


25

















 


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(h)(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(h)(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.


 


(i)                                     Assignment of
Registration Rights. The rights of the Investor to registration of
Registrable Securities pursuant to Section 4.5(b) may be assigned by the
Investor to a transferee or assignee of Registrable Securities with a
liquidation preference or, in the case of the Warrant, the liquidation
preference of the underlying shares of Warrant Preferred Stock, no less than an
amount equal to (i) 2% of the initial aggregate liquidation preference of the
Preferred Shares if such initial aggregate liquidation preference is less than
$2 billion and (ii) $200 million if the initial aggregate liquidation
preference of the 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.


 


(j)                                     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 any preferred stock
of the Company or any securities convertible into or exchangeable or
exercisable for preferred stock of the Company, during the period not to exceed
ten days prior and 60 days following the effective date of such offering or
such longer period up to 90 days as may be requested by the managing
underwriter for such 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.


 


(k)                                  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:


 


26






 










 


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


 


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


 


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


 


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


 


(I)                                    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 or amendment
thereto in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of effectiveness of
such registration statement or amendment thereto or (B) filing a
prospectus and/or prospectus supplement in respect of an appropriate effective
registration statement on Form S-3.


 


(iv)                       “Registrable Securities”  means (A) all Preferred
Shares, (B) the Warrant (subject to Section 4.5(q)) and (C) any equity
securities issued or issuable directly or indirectly with respect to the securities
referred to in the foregoing clauses (A) or (B) by way of conversion, exercise
or exchange thereof, including the Warrant Shares, or share dividend or share
split or in connection with a combination of shares, recapitalization,
reclassification, merger, amalgamation, arrangement, consolidation or other


 


27

















 


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(p), they may be sold pursuant to Rule 144
without limitation thereunder on volume or manner of sale, (3) they shall have
ceased to be outstanding or (4) they have been sold in a private transaction in
which the transferor’s rights under this Agreement are not assigned to the
transferee of the securities. No Registrable Securities may be registered under
more than one registration statement at 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).


 


(m)                               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(b)(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(g) 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(m), 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(b)(ii)
or 4.5(b)(iv) prior to the date of such Holder’s forfeiture.


 


(n)                                 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


 


28

















 


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.


 


(o)                                 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(b)(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.


 


(p)                                 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(b)(ii), clauses (iv), (ix) and (x)-(xii) of Section 4.5(d),
Section 4.5(h) and Section 4.5(j) 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.


 


(q)                                 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                                 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 or the Warrant Shares may be deposited and depositary shares,
each representing a fraction of a Preferred Share or Warrant Share, as applicable,
as specified by the Investor, may be issued. From and after the execution of
any such depositary arrangement, and the deposit of any Preferred Shares or
Warrant Shares, as applicable, pursuant thereto, the depositary shares issued
pursuant thereto shall be deemed “Preferred Shares”, “Warrant Shares” and, as
applicable, “Registrable Securities” for purposes of this Agreement.


 


29

















 


4.7                                 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 all of the Preferred Shares and Warrant Shares have been redeemed
in whole or the Investor has transferred all of the Preferred Shares and
Warrant Shares to third parties which are not Affiliates of the Investor,
neither the Company nor any Company Subsidiary shall, without the consent of
the Investor, declare or pay any dividend or make any distribution on capital
stock or other equity securities of any kind of the Company or any Company
Subsidiary (other than (i) regular quarterly cash dividends of not more than
the amount of the last quarterly cash dividend per share declared or, if lower,
announced to its holders of Common Stock an intention to declare, on the Common
Stock prior to November 17, 2008, as adjusted for any stock split, stock
dividend, reverse stock split, reclassification or similar transaction, (ii) dividends
payable solely in shares of Common Stock, (iii) regular dividends on
shares of preferred stock in accordance with the terms thereof and which are
permitted under the terms of the Preferred Shares and the Warrant Shares, (iv) dividends
or distributions by any wholly-owned Company Subsidiary or (v) dividends or
distributions by any Company Subsidiary required pursuant to binding
contractual agreements entered into prior to November 17, 2008).


 


(b)                                 During the
period beginning on the third anniversary of the Closing Date and ending on the
earlier of (i) the tenth anniversary of the Closing Date and (ii) the date
on which all of the Preferred Shares and Warrant Shares have been redeemed in
whole or the Investor has transferred all of the Preferred Shares and Warrant
Shares to third parties which are not Affiliates of the Investor, neither the
Company nor any Company Subsidiary shall, without the consent of the Investor, (A)
pay any per share dividend or distribution on capital stock or other equity
securities of any kind of the Company at a per annum rate that is in excess of
103% of the aggregate per share dividends and distributions for the immediately
prior fiscal year (other than regular dividends on shares of preferred stock in
accordance with the terms thereof and which are permitted under the terms of
the Preferred Shares and the Warrant Shares); provided
that no increase in the aggregate amount of dividends or
distributions on Common Stock shall be permitted as a result of any dividends
or distributions paid in shares of Common Stock, any stock split or any similar
transaction or (B) pay aggregate dividends or distributions on capital stock or
other equity securities of any kind of any Company Subsidiary that is in excess
of 103% of the aggregate dividends and distributions paid for the immediately
prior fiscal year (other than in the case of this clause (B), (1) regular
dividends on shares of preferred stock in accordance with the terms thereof and
which are permitted under the terms of the Preferred Shares and the Warrant
Shares, (2) dividends or distributions by any wholly-owned Company Subsidiary, (3)
dividends or distributions by any Company Subsidiary required pursuant to
binding contractual agreements entered into prior to November 17, 2008) or (4) dividends
or distributions on newly issued shares of capital stock for cash or other
property.


 


(c)                                  Prior to the earlier
of (x) the tenth anniversary of the Closing Date and (y) the date on which all
of the Preferred Shares and Warrant Shares have been redeemed in whole or the
Investor has transferred all of the Preferred Shares and Warrant Shares to
third parties which are not Affiliates of the Investor, neither the Company nor
any Company Subsidiary shall, without the consent of the Investor, redeem,
purchase or acquire any shares of Common Stock or other capital stock or other
equity securities of any kind of the Company or any Company Subsidiary, or any
trust preferred securities issued by the Company or any Affiliate of the
Company, other


 


30

















 


than (i) redemptions, purchases or other
acquisitions of the Preferred Shares and Warrant Shares, (ii) in connection
with the administration of any employee benefit plan in the ordinary course of
business and consistent with past practice, (iii) the acquisition by the
Company or any of the Company Subsidiaries of record ownership in Junior Stock
or Parity Stock for the beneficial ownership of any other persons (other than
the Company or any other Company Subsidiary), including as trustees or
custodians, (iv) the exchange or conversion of Junior Stock for or into other
Junior Stock or of Parity Stock or 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 (iv), solely to the extent
required pursuant to binding contractual agreements entered into prior to the
Signing Date or any subsequent agreement for the accelerated exercise,
settlement or exchange thereof for Common Stock (clauses (ii) and (iii),
collectively, the “Permitted Repurchases”),  (v) redemptions of
securities held by the Company or any wholly-owned Company Subsidiary or (vi) redemptions,
purchases or other acquisitions of capital stock or other equity securities of
any kind of any Company Subsidiary required pursuant to binding contractual
agreements entered into prior to November 17, 2008.


 


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


 


(e)                                  During the
period beginning on the tenth anniversary of the Closing and ending on the date
on which all of the Preferred Shares and Warrant Shares have been redeemed in
whole or the Investor has transferred all of the Preferred Shares and Warrant
Shares to third parties which are not Affiliates of the Investor, neither the
Company nor any Company Subsidiary shall, without the consent of the Investor, (i) declare
or pay any dividend or make any distribution on capital stock or other equity
securities of any kind of the Company or any Company Subsidiary; or (ii) redeem,
purchase or acquire any shares of Common Stock or other capital stock or other
equity securities of any kind of the Company or any Company Subsidiary, or any
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 and Warrant Shares, (B) regular dividends on shares
of preferred stock in accordance with the terms thereof and which are permitted
under the terms of the Preferred Shares and the Warrant Shares, or (C) dividends
or distributions by any wholly-owned Company Subsidiary.


 


(f)                                    “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).


 


31

















 


4.8                                 Executive
Compensation. Until such time as the Investor ceases to own any
debt or equity securities of the Company acquired pursuant to this Agreement or
the Warrant, the Company shall take all necessary action to ensure that its
Benefit Plans with respect to its Senior 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.


 


4.9                                 Related Party
Transactions. Until such time as the Investor ceases to own any Purchased
Securities or Warrant Shares, the Company and the Company Subsidiaries shall
not enter into transactions with Affiliates or related persons (within the
meaning of Item 404 under the SEC’s Regulation S-K) unless (i) such
transactions are on terms no less favorable to the Company and the Company
Subsidiaries than could be obtained from an unaffiliated third party, and (ii) have
been approved by the audit committee of the Board of Directors or comparable
body of independent directors of the Company.


 


4.10                           Bank and Thrift
Holding Company Status. If the Company is a Bank Holding Company or
a Savings and Loan Holding Company on the Signing Date, then the Company shall
maintain its status as a Bank Holding Company or Savings and Loan Holding
Company, as the case may be, for as long as the Investor owns any Purchased Securities
or Warrant Shares. The Company shall redeem all Purchased Securities and
Warrant Shares held by the Investor prior to terminating its status as a Bank
Holding Company or Savings and Loan Holding Company, as applicable. “Bank
Holding Company”  means
a company registered as such with the Board of Governors of the Federal Reserve
System (the “Federal Reserve”)  pursuant to 12 U.S.C. § 1842 and
the regulations of the Federal Reserve promulgated thereunder. “Savings
and Loan Holding Company”  means
a company registered as such with the Office of Thrift Supervision pursuant to
12 U.S.C. § 1467(a) and the regulations of the Office of Thrift
Supervision promulgated thereunder.


 


4.11                           Predominantly
Financial. For as long as the Investor owns any Purchased
Securities or Warrant Shares, the Company, to the extent it is not itself an
insured depository institution, agrees to remain predominantly engaged in
financial activities. A company is predominantly engaged in financial
activities if the annual gross revenues derived by the company and all
subsidiaries of the company (excluding revenues derived from subsidiary
depository institutions), on a consolidated basis, from engaging in activities
that are financial in nature or are incidental to a financial activity under
subsection (k) of Section 4 of the Bank Holding Company Act of 1956
(12 U.S.C. 1843(k)) represent at least 85 percent of the consolidated annual
gross revenues of the company.


 


Article V


Miscellaneous


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


33

















 


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


 


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


 


If
to the Investor:


 


United States Department of
the Treasury


1500 Pennsylvania Avenue,
NW, Room 2312


Washington, D.C. 20220


Attention: Assistant General
Counsel (Banking and Finance)


Facsimile: (202) 622-1974


 


5.7                                 Definitions


 


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


 


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


 


34

















 


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 merger, consolidation,
statutory share exchange or similar transaction that requires the approval of
the Company’s stockholders (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 Sections 3.5 and 4.5.


 


5.9                                 Severability. If any
provision of this Agreement or the Warrant, or the application thereof to any
person or circumstance, is 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.


 


*
* *


 


35