Exhibit 10.1


 


UST 170


 


 


UNITED STATES DEPARTMENT OF THE TREASURY


1500 PENNSYLVANIA AVENUE, NW


WASHINGTON, D.C. 20220


 


Dear Ladies and Gentlemen:


 


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


 


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superseded by the terms set forth herein or in the Schedules hereto, the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


 


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


 


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


 


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


 


*
* *


 

















 


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


 


 


	
   

  	
  UNITED STATES DEPARTMENT
  OF THE

  
	
   

  	
  TREASURY

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neel Kashkari

  
	
   

  	
   

  	
  Name: Neel Kashkari

  
	
   

  	
   

  	
  Title: Interim Asst. Secty
  for Financial Stability

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  MISSION COMMUNITY BANCORP

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anita M. Robinson

  
	
   

  	
   

  	
  Name:

  	
  Anita M. Robinson

  
	
   

  	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: January 9, 2009

  	
   

  	
   

  



 

















 


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


 


	
  Term

  	
   

  	
  Location of

  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(l)(i)

  	
   

  
	
  Holders’ Counsel

  	
   

  	
  4.5(l)(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

















 


	
  Term

  	
   

  	
  Location of

  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 cause any covenant or
agreement of the Company contained in this Agreement not to be 


 


13

















 


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.


 


(l)            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 reorganization,   provided that, once issued, such securities will not be
Registrable


 


27

















 


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 enforceable under applicable law shall be entitled to compel
specific performance of the


 


28

















 


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

















 


ANNEX A


 


FORM OF CERTIFICATE OF DESIGNATIONS FOR
PREFERRED STOCK


 


[SEE ATTACHED]


 

















 


ANNEX B


 


FORM OF CERTIFICATE OF
DESIGNATIONS

FOR WARRANT PREFERRED STOCK


 


[SEE ATTACHED]


 

















 


ANNEX C


 


FORM OF WAIVER


 


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


 


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


 


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


 

















 


ANNEX D


 


FORM OF OPINION


 


(a)           The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of its
incorporation.


 


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


 


(c)           The Warrant has been duly authorized and, when executed
and delivered as contemplated by the Agreement, will constitute a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and general equitable
principles, regardless of whether such enforceability is considered in a
proceeding at law or in equity.


 


(d)           The shares of Warrant Preferred Stock issuable upon
exercise of the Warrant have been duly authorized and reserved for issuance
upon exercise of the Warrant and when so issued in accordance with the terms of
the Warrant will be validly issued, fully paid and non-assessable, and will
rank pari  passu with or
senior to all other series or classes of Preferred Stock, whether or not issued
or outstanding, with respect to the payment of dividends and the distribution
of assets in the event of any dissolution, liquidation or winding up of the
Company.


 


(e)           The Company has the corporate power and authority to
execute and deliver the Agreement and the Warrant and to carry out its
obligations thereunder (which includes the issuance of the Preferred Shares,
Warrant and Warrant Shares).


 


(f)            The execution, delivery and performance by the Company of
the Agreement and the Warrant and the consummation of the transactions
contemplated thereby have been duly authorized by all necessary corporate
action on the part of the Company and its stockholders, and no further approval
or authorization is required on the part of the Company.


 


(g)           The Agreement is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights
generally and general equitable principles, regardless of whether such
enforceability is considered in a proceeding at law or in equity; provided, however,
such counsel need express no opinion with respect to Section 4.5(h) or
the severability provisions of the Agreement insofar as Section 4.5(h) is
concerned.


 

















 


ANNEX E


 


FORM OF WARRANT


 


[SEE ATTACHED]