ex101.htm


     

     

     

    Exhibit
10.1

     

     

    UNITED
STATES DEPARTMENT OF THE TREASURY

    1500
PENNSYLVANIA AVENUE, NW

    WASHINGTON,
D.C. 20220

     

     

    Dear
Ladies and Gentlemen:

     

     

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

     

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superseded by the terms set forth herein or in the Schedules hereto, the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

     

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

     

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

     

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

     

     

    * *
*

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

     

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

     

    
      	 
      	
              UNITED
      STATES DEPARTMENT OF THE TREASURY

            
	 
      	 
      
	 
      	 
      
	 
      	
              By:
      /s/Neel
      Kashkari                                                            
      

            
	 
      	
              Name:
      Neel Kashkari

            
	 
      	
              Title:
      Interim Assistant Secretary

            
	 
      	
              for
      Financial Stability

            
	 
      	 
      
	 
      	 
      
	 
      	
              COMPANY: Alaska Pacific
      Bancshares, Inc.

            
	 
      	 
      
	 
      	 
      
	 
      	
              By:
      /s/Craig E.
      Dahl      
                                                         

            
	 
      	
              Craig
      E. Dahl

            
	 
      	
              President
      and Chief Executive Officer

            


    

     

    Date: February 6,
2009

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      EXHIBIT
A

       

       

      
        
          

        

      

       

      SECURITIES
PURCHASE AGREEMENT

       

      STANDARD
TERMS

       

        
          

        

      

       

       

       

       

      


      
        
          
            
               

            

             


          

          
             


            
              

            

          

          
             


          

        

      

      


      TABLE
OF CONTENTS

      
      

       

      
        	 	 	
                 

              	
                 Page

              
	
                Article
      I 

              
	 
	
                 Purchase;
      Closing

              
	 	 	 	 
	 	1.1  	Purchase 	
                1 

              
	 	1.2 	Closing 	
                2 

              
	 	1.3 	Interpretation  	
                4 

              
	 	 	 	 
	
                 Article
      II

              
	 	 	 	 
	
                 Representations
      and Warranties

              
	 	 	 	 
	 	2.1 	Disclosure 	
                4 

              
	 	2.2  	Representations and
      Warranties of the Company 	
                5 

              
	 	 	 	 
	
                 Article
      III

              
	 	 	 	 
	
                 Covenants

              
	 	 	 	
                 13   
      

              
	 	3.1 	Commercially
      Reasonable Efforts 	
                14  

              
	 	3.2  	Expenses 	
                14  
      

              
	 	3.3 	Sufficiency of
      Authorized Common Stock; Exchange Listing 	
                15 
      

              
	 	3.4 	Certain
      Notifications Until Closing  	
                  
      15     

              
	 	3.5 	Access, Information
      and Confidentiality 	
                 

              
	 	 	 	 
	
                 Article
      IV

              
	 	 	 	 
	
                 Additional
      Agreements

              
	 	 	 	 
	 	4.1 	Purchase for
      Investment 	
                16  
      

              
	 	4.2 	Legends  	
                16  
      

              
	 	4.3 	Certain
      Transactions 	
                18  
      

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

              	
                18  
      

              
	 	4.5 	Registration
      Rights 	
                19  
      

              
	 	4.6  	Voting of Warrant
      Shares  	
                30  
      

              
	 	4.7 	Depositary
      Shares 	
                31  
      

              
	 	4.8 	Restriction on
      Dividends and Repurchases 	
                31  
      

              
	 	4.9  	Repurchase of
      Investor Securities 	
                32  
      

              
	 	4.10 	Executive
      Compensation 	
                33  
      

              
	 	4.11 	Bank and Thrift
      Holding Company Status 	
                33  
      

              


      

                              

      


      
        
          
            
              -i-

            

            
               

            

          

          
             


            
              

            

          

          
             


          

        

      

      


       

      
        	 	4.12  	   
      Predominantly Financial 	
                 34  

              


      

       

      Article
V

       

      Miscellaneous

       

      
        	 	
                5.1

              	
                Termination                                                                                                                  

              	
                34

              
	 	
                5.2

              	
                Survival
      of Representations and
      Warranties                                                                                                                  

              	
                35

              
	 	
                5.3

              	
                Amendment                                                                                                                  

              	
                35

              
	 	
                5.4

              	
                Waiver
      of
      Conditions                                                                                                                 

              	
                35

              
	 	
                5.5

              	
                Governing Law: Submission to
      Jurisdiction,
      Etc.                                                                                                                  

              	
                35

              
	 	
                5.6

              	
                Notices                                                                                                                 

              	
                35

              
	 	
                5.7

              	
                Definitions                                                                                                                 

              	
                36

              
	 	
                5.8

              	
                Assignment                                                                                                                 

              	
                36

              
	 	
                5.9

              	
                Severability                                                                                                                 

              	
                36

              
	 	
                5.10

              	
                No
      Third Party
      Beneficiaries                                                                                                                  

              	
                36

              


      

       

       

      
 

      
        
          
            
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                LIST OF
      ANNEXES

              
	 	 	 
	 	 	 
	ANNEX
    A: 	 	FORM OF CERTIFICATE
      OF DESIGNATIONS FOR PREFERRED STOCK ANNEX B: FORM OF
  WAIVER 
	 	 	 
	ANNEX
    B: 	 	FORM OF
      WAIVER 
	 	 	 
	ANNEX
      C:  	 	FORM OF
      OPINION 
	 	 	 
	ANNEX
    D: 	 	FORM OF
      WARRANT 
	 	 	 
	 	 	 
	 	 	 


      

       

       

       

       

      


      
        
          
            
              
                	
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      INDEX
OF DEFINED TERMS

       

      
        	
                Term

              	 
      	
                Location
      of 

                Definition

              
	Affiliate   	 	5.7(b) 
	Agreement 	 	Recitals 
	Appraisal
      Procedure 	 	4.9(c)(i) 
	Appropriate
      Federal Banking Agency  	 	2.2(s) 
	Bank
      Holding Company	 	4.11 
	Bankruptcy
      Exceptions 	 	2.2(d) 
	Benefit
      Plans  	 	1
      .2(d)(iv) 
	Board
      of Directors 	 	2.2(f) 
	Business
      Combination 	 	4.4 
	business
      day 	 	1.3 
	Capitalization
      Date 	 	2.2(b) 
	Certificate
      of Designations 	 	1.2(d)
      (iii) 
	Charter  	 	1
      .2 (d)(iii)
	Closing  	 	1.2 (a)
	Closing
      Date 	 	1.2(a) 
	Code  	 	2.2 (n)
	Common
      Stock  	 	Recitals 
	Company 	 	Recitals 
	Company
      Financial Statements 	 	2.2(h) 
	Company
      Material Adverse Effect  	 	2.1(a) 
	Company
      Reports 	 	2.2(i)(i) 
	Company
      Subsidiary; Company Subsidiaries  	 	2.2(i)(i) 
	control;
      controlled by; under common control with  	 	5.7(b) 
	Controlled
      Group  	 	2.2(n) 
	CPP  	 	Recitals 
	EESA  	 	1.2(d)(iv) 
	ERISA  	 	2.2(n) 
	Exchange
      Act  	 	2.1(b) 
	Fair
      Market Value 	 	4.9 (c)(ii) 
	Federal
      Reserve 	 	4.11 
	GAAP 	 	2.1(a) 
	Governmental
      Entities 	 	1.2(c) 
	Holder  	 	4.5(k)(i) 
	Holders’
      Counsel  	 	4.5(k)(ii) 
	Indemnitee  	 	4.
      5(g)(i) 
	Information 
      	 
      	3.5(b)
      
	Initial
      Warrant Shares  	 	Recitals 
	Investor  	 	Recitals 
	Junior
      Stock 	 	4.8(c) 
	knowledge
      of the Company; Company’s knowledge 	 	5.7(c) 
	Last
      Fiscal Year 	 	2.1(b) 

`

       

       

       

      


      
        
          
            
              
                	
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                Term

              	 
      	
                Location
      of 

                Definition

              
	
                Letter
      Agreement 

              	 	Recitals  
	
                officers 

              	 	5.7(c)  
	
                Parity
      Stock 

              	 	 4.8(c) 
	Pending
      Underwritten Offering  	 	 4.5(l)
	
                Permitted
      Repurchases 

              	 	 4.
      8(a)(ii)
	Piggyback
      Registration 	 	 4.5(a)(iv)
	Plan  	 	 2.2(n)
	Preferred
      Shares  	 	 Recitals
	Preferred
      Stock  	 	 Recitals
	Previously
      Disclosed  	 	 2.1(b)
	Proprietary
      Rights  	 	 2.2(u)
	Purchase  	 	 Recitals
	Purchase
      Price 	 	 1.1
	Purchased
      Securities  	 	 Recitals
	Qualified
      Equity Offering  	 	 4.4
	register;
      registered; registration	 	 4.5(k)(iii)
	Registrable
      Securities 	 	 4.5(k)(iv)
	Registration
      Expenses 	 	 4.5(k)(v)
	Regulatory
      Agreement 	 	 2.2(s)
	Rule
      144; Rule 144A; Rule 159A; Rule 405; Rule 415	 	 4.5(k)(vi)
	Savings
      and Loan Holding Company 	 	4.11 
	Schedules 	 	 Recitals
	SEC 	 	 2.1(b)
	Securities
      Act 	 	 2.2(a)
	Selling
      Expenses 	 	 4.5(k)(vii)
	Senior
      Executive Officers 	 	 4.10
	Share
      Dilution Amount 	 	 4.8(a)(ii)
	Shelf
      Registration Statement 	 	 4.
      5(a)(ii)
	Signing
      Date  	 	 2.1(a)
	Special
      Registration 	 	 4.5(i)
	Stockholder
      Proposals  	 	 3.1(b)
	subsidiary  	 	 5.8(a)
	Tax;
      Taxes  	 	 2.2(o)
	Transfer  	 	 4.4
	Warrant  	 	 Recitals
	Warrant
      Shares  	 	 2.2(d)


      

       

       

      


      
        
          
            
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      SECURITIES
PURCHASE AGREEMENT – STANDARD TERMS

       

      Recitals:

       

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

       

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

       

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

       

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

       

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

       

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

       

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

       

      Article
I

      Purchase;
Closing

       

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

      


      
        
          
            
               

            

            
               

            

          

          
             


            
              

            

          

          
             


          

        

      

      


      1.2    Closing.

       

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

       

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

       

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

       

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

       

      
      

      
         

        
          	
                   
      

                	
                   

                	
                  
                            (i)        (A) the
      representations and warranties of the Company set forth in (x)
      Section
      2.2(g) of this Agreement shall be true and correct in all respects as
      though made on and as of the Closing Date, (y) Sections 2.2(a) through (f)
      shall be true and correct in all material respects as though made on and
      as of the Closing Date (other than representations
      and warranties that by their terms speak as of another date, which
      representations and warranties shall be true and correct in all material
      respects as of such other date) and (z) Sections 2.2(h) through (v)
      (disregarding all qualifications or limitations set forth in such
      representations and warranties as to “materiality”, “Company Material
      Adverse Effect” and words of similar import) shall be true and correct as
      though made on and as of the Closing Date (other than representations and
      warranties that by their terms speak as of another date, which
      representations and warranties shall be true and correct as of such other
      date), except to the extent that the failure of such representations and
      warranties referred to in this Section 1 .2(d)(i)(A)(z) to be so true and
      correct, individually or in the aggregate, does not have and would not
      reasonably be expected to have a Company Material Adverse Effect and (B)
      the Company shall have

                  

                
	 	 	 
	 	 	 


        

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

       

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

       

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

       

      (iv)     (A) the
Company shall have effected such changes to its compensation, bonus, incentive
and other benefit plans, arrangements and agreements (including golden
parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect
to its Senior Executive Officers (and to the extent necessary for such changes
to be legally enforceable, each of its Senior Executive Officers shall have duly
consented in writing to such changes), as may be necessary, during the period
that the Investor owns any debt or equity securities of the Company acquired
pursuant to this Agreement or the Warrant, in order to comply with Section
111(b) of the Emergency Economic Stabilization Act of 2008 (“EESA”) as implemented by
guidance or regulation thereunder that has been issued and is in effect as of
the Closing Date, and (B) the Investor shall have received a certificate signed
on behalf of the Company by a senior executive officer certifying to the effect
that the condition set forth in Section 1 .2(d)(iv)(A) has been
satisfied;

       

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

       

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

       

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

      


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

       

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

       

      Article
II

      Representations
and Warranties

       

      2.1    Disclosure.

       

                     (a)    “Company Material Adverse
Effect” means a material adverse effect on (i) the business,
results of operation or financial condition of the Company and its consolidated
subsidiaries taken as a whole; provided, however, that Company
Material Adverse Effect shall not be deemed to include the effects of (A)
changes after the date of the Letter Agreement (the “Signing Date”) in general
business, economic or market conditions (including changes generally in
prevailing interest rates, credit availability and liquidity, currency exchange
rates and price levels or trading volumes in the United States or foreign
securities or credit markets), or any outbreak or escalation of hostilities,
declared or undeclared acts of war or terrorism, in each case generally
affecting the industries in which the Company and its subsidiaries operate, (B)
changes or proposed changes after the Signing Date in generally accepted
accounting principles in the United States (“GAAP”) or regulatory
accounting requirements, or authoritative interpretations thereof, (C) changes
or proposed changes after the Signing Date in securities, banking and other laws
of general applicability or related policies or interpretations of Governmental
Entities (in the case of each of these clauses (A), (B) and (C), other than
changes

      


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

       

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

       

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

       

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

       

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

      


      
        
          
            
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      specified
on Schedule B,
and the Company has not made any other commitment to authorize, issue or sell
any Common Stock. Since the Capitalization Date, the Company has not issued any
shares of Common Stock, other than (i) shares issued upon the exercise of stock
options or delivered under other equity-based awards or other convertible
securities or warrants which were issued and outstanding on the Capitalization
Date and disclosed on Schedule B and (ii)
shares disclosed on Schedule
B.

       

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

       

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

       

      (e)    Authorization,
Enforceability.

       

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

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

              


      

       

      


      
        
          
            
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                thereof,
      will not (A) violate, conflict with, or result in a breach of any
      provision of, or constitute
      a default (or an event which, with notice or lapse of time or both, would
      constitute a default) under, or result in the termination of, or
      accelerate the performance required by, or result in a right of
      termination or acceleration of, or result in the creation of, any lien,
      security interest, charge or encumbrance upon any of the properties or
      assets of
      the Company or any Company Subsidiary under any of the terms, conditions
      or provisions of (i) subject, if applicable, to the approvals of the
      Company’s stockholders set forth
      on Schedule
      C, its organizational documents or (ii) any note, bond, mortgage,
      indenture, deed of trust, license, lease, agreement or other instrument or
      obligation to which the Company or any Company Subsidiary is a party or by
      which it or any Company Subsidiary may be bound, or to which the Company
      or any Company Subsidiary or any of the properties or assets of the
      Company or any Company Subsidiary may be subject, or (B) subject to
      compliance with the statutes and regulations referred to in the next
      paragraph, violate any statute, rule or regulation or any judgment,
      ruling, order, writ, injunction or decree applicable to the Company or any
      Company Subsidiary or any of their respective properties or assets except,
      in the case of clauses (A)(ii) and (B), for those occurrences that,
      individually or in the aggregate, have not had and would not reasonably be
      expected to have a Company Material Adverse
  Effect. 

              
	 	 
	 	     (iii)        Other than the
      filing of the Certificate of Designations with the Secretary
      of
      State of its jurisdiction of organization or other applicable Governmental
      Entity, any  current
      report on Form 8-K required to be filed with the SEC, such filings and
      approvals as are required to be made or obtained under any state “blue
      sky” laws, the filing of any
      proxy statement
      contemplated by Section 3.1 and such as have been made or obtained, no
      notice to, filing with, exemption or review by, or authorization, consent
      or  approval
      of, any Governmental Entity is required to be made or obtained by the
      Company in connection with the consummation by the Company of the Purchase
      except for  any
      such notices, filings, exemptions, reviews, authorizations, consents and
      approvals the failure of which
      to make or obtain would not, individually or in the aggregate, 
      reasonably
      be expected to have a Company Material Adverse
    Effect. 


      

        

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

       

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

       

      
        
          -7-

        

        
          
             

          

          
            

          

        

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

      

       

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

       

       (i)    Reports.

       

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

                  


          

           

        

      

       

       

       

      


      
        
          
            
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      Company
Subsidiaries or their accountants (including all means of access thereto and
therefrom), except for any non-exclusive ownership and non-direct control that
would not reasonably
be expected to have a material adverse effect on the system of internal
accounting controls described below in this Section 2.2(i)(ii). The Company (A)
has implemented and maintains disclosure controls and procedures (as defined in
Rule 1
3a- 15(e) of the Exchange Act) to ensure that material information relating to
the Company, including the consolidated Company Subsidiaries, is made known to
the chief executive officer and the chief financial officer of the Company by
others within those entities, and (B) has disclosed, based on its most recent
evaluation prior to the Signing Date, to
the Company’s outside auditors and the audit committee of the Board of Directors
(x) any significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting (as defined in Rule
13a-15(f) of the Exchange Act) that are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information and (y) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal
controls over financial reporting.

       

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

       

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

       

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

       

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

       

      
        
          -9-

        

        
          
          

          
            

          

        

        
          
          

        

      

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

       

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

      


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

       

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

       

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

       

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

       

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

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

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

                  


          

           

        

         

         

      

       

       

      


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

       

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

       

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

      


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

       

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

       

      Article
III

      Covenants

       

      3.1            Commercially Reasonable
Efforts.

       

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

       

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

      


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

       

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

       

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

       

      3.3            Sufficiency of Authorized
Common Stock; Exchange Listing.

      


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

       

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

       

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

       

      3.5          Access, Information and
Confidentiality.

       

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

      


      
        
          
            
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      expected
to cause a violation of any agreement to which the Company or any Company
Subsidiary is a party or would cause a risk of a loss of privilege to the
Company or any Company Subsidiary (provided that the Company
shall use commercially reasonable efforts to make appropriate substitute
disclosure arrangements under circumstances where the restrictions in this
clause (ii) apply).

       

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

       

      Article
IV

      Additional
Agreements

       

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

       

      4.2          Legends.

       

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

       

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

      


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

       

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

       

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

       

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

       

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

      


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

       

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

       

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

       

                    4.4        Transfer of Purchased
Securities and Warrant Shares; Restrictions on Exercise of the Warrant. Subject
to compliance with applicable securities laws, the Investor shall be permitted
to transfer, sell, assign or otherwise dispose of (“Transfer”) all or a portion
of the Purchased Securities or Warrant Shares at any time, and the Company shall
take all steps as may be reasonably requested by the Investor to facilitate the
Transfer of the Purchased Securities and the Warrant Shares; provided that the Investor
shall not Transfer a portion or portions of the Warrant with respect to, and/or
exercise the Warrant for, more than one-half of the Initial Warrant Shares (as
such number may be adjusted from time to time pursuant to Section 13 thereof) in
the aggregate until the earlier of (a) the date on which the Company (or any
successor by Business Combination) has received aggregate gross proceeds of not
less than the Purchase Price (and the purchase price paid by the Investor to any
such successor for securities of such successor purchased under the CPP) from
one or more Qualified Equity Offerings (including Qualified Equity Offerings of
such successor) and (b) December 31, 2009. “Qualified Equity Offering” means the sale and
issuance for cash by the Company to persons other than the Company or any of the
Company Subsidiaries after the Closing Date of shares of perpetual Preferred
Stock, Common Stock or any combination of such stock, that, in each case,
qualify as and may be included in Tier 1 capital of the Company at the time of
issuance under the applicable risk-based capital guidelines of the Company’s
Appropriate Federal Banking Agency (other than any such sales and issuances made
pursuant to agreements or arrangements entered into, or pursuant to financing
plans which were publicly announced, on or prior to October 13,

      


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

       

      4.5        Registration
Rights.

       

      (a)        Registration.

       

      
         

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

                
	 	 
	 	
                          (ii)       Any
      registration pursuant to Section 4.5(a)(i) shall be effected by means of a
      shelf registration on an appropriate form under Rule 415 under the
      Securities Act  (a
      “Shelf Registration
      Statement”). If the Investor or any other Holder intends to
      distribute any Registrable Securities by means of an underwritten offering
      it shall promptly so  advise
      the Company and the Company shall take all reasonable steps to facilitate
      such distribution, including the actions required pursuant to Section
      4.5(c); provided
      that the  Company
      shall not be required to facilitate an underwritten offering of
      Registrable Securities unless the expected gross proceeds from such
      offering exceed (i) 2% of the initial  aggregate
      liquidation preference of the Preferred Shares if such initial aggregate
      liquidation preference is less than $2 billion and (ii) $200 million if
      the initial aggregate  liquidation
      preference of the Preferred Shares is equal to or greater than $2 billion.
      The lead underwriters in any such distribution shall be selected by the
      Holders of a majority  of
      the Registrable Securities to be distributed; provided that to the
      extent appropriate and permitted under applicable law, such Holders shall
      consider the qualifications of any  broker-dealer
      Affiliate of the Company in selecting the lead underwriters in any such
      distribution. 

                


        

         

      

       

      


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

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

                
	 	 
	 	
                          (v)       If the registration
      referred to in Section 4.5(a)(iv) is proposed to be underwritten, the
      Company will so advise Investor and all other Holders as a part of the
      written notice given pursuant to Section 4. 5(a)(iv). In such event, the
      right of Investor and all other Holders to registration pursuant to
      Section 4.5(a) will be conditioned upon such persons’ participation in
      such underwriting and the inclusion of such person’s Registrable
      Securities in the underwriting if such securities are of the same class of
      securities as the securities to be offered in the underwritten offering,
      and each such person will (together with the Company and the other persons
      distributing their securities through such underwriting) enter into an
      underwriting agreement in customary form with the underwriter or
      underwriters selected for such underwriting by the Company; provided that the
      Investor (as opposed to other Holders) shall not be required to indemnify
      any person in connection with any registration. If any participating
      person disapproves of the terms of the underwriting, such person may elect
      to withdraw therefrom by written
notice

                


        

      

      
         



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

       

      
        	 	           (vi)      If either (x) the Company
      grants “piggyback” registration rights to one ormore
      third parties to include their securities in an underwritten offering
      under the Shelf Registration Statement pursuant to Section 4 .5(a) (ii) or
      (y) a Piggyback Registration under Section 4.5(a)(iv) relates to an
      underwritten offering on behalf of the Company, and in either case the
      managing underwriters advise the Company that in their reasonable opinion
      the number of securities requested to be included in such offering exceeds
      the number which can be sold without adversely affecting the marketability
      of such offering (including an adverse effect on the per share offering
      price), the Company will include insuch
      offering only such number of securities that in the reasonable opinion of
      such managing underwriters can be sold without adversely affecting the
      marketability of the offering (including an adverse effect on the per
      share offering price), which securities will be so included in the
      following order of priority: (A) first, in the case of a Piggyback
      Registration under Section 4.5(a)(iv), the securities the Company proposes
      to sell, (B) then the Registrable Securities of the Investor and all other
      Holders who have requested inclusion of Registrable Securities pursuant to
      Section 4.5(a)(ii) or Section 4.5(a)(iv), as applicable, pro rata on the basis
      of the aggregate number of such securities or shares owned by each such
      person and (C) lastly, any other securities of the Company that have
      been
      requested to be so included, subject to the terms of this Agreement; provided, however, that if the
      Company has, prior to the Signing Date, entered into an agreement with
      respect to its securities that is inconsistent with the order of priority
      contemplated hereby then it shall apply the order of priority in such
      conflicting agreement to the extent that it would otherwise result in a
      breach under such agreement. 


      

       

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

       

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

      
        
        

         

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


        

         

         

      

      
 

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

       

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

       

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

       

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

       

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

       

      (vi)     Give
written notice to the Holders:

       

      
      

       

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


      

       

       

      


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

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

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

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

                


        

      

       

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

       

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

       

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

       

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

      


      
        
          
            
              -23-

            

             


          

          
             


            
              

            

          

          
             


          

        

      

      


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

       

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

       

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

      


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

       

      
      

       

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

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

              


      

       

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

       

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

       

      (f)             Furnishing
Information.

       

      
         

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

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

                


        

      

      


      
        
          
            
              -25-

            

            
            

          

          
             


            
              

            

          

          
             


          

        

      

      


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

       

      (g)            Indemnification.

       

       (i)         The
Company agrees to indemnify each Holder and, if a Holder is a person other than
an individual, such Holder’s officers, directors, employees, agents,
representatives and Affiliates, and each Person, if any, that controls a Holder
within the meaning of the Securities Act (each, an “Indemnitee”), against any and
all losses, claims, damages, actions, liabilities, costs and expenses (including
reasonable fees, expenses and disbursements of attorneys and other professionals
incurred in connection with investigating, defending, settling, compromising or
paying any such losses, claims, damages, actions, liabilities, costs and
expenses), joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of material fact contained in any registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any documents incorporated
therein by reference or contained in any free writing prospectus (as such term
is defined in Rule 405) prepared by the Company or authorized by it in writing
for use by such Holder (or any amendment or supplement thereto); or any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, that the Company
shall not be liable to such Indemnitee in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (A) an untrue statement or omission
made in such registration statement, including any such preliminary prospectus
or final prospectus contained therein or any such amendments or supplements
thereto or contained in any free writing prospectus (as such term is defined in
Rule 405) prepared by the Company or authorized by it in writing for use by such
Holder (or any amendment or supplement thereto), in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing to the
Company by such Indemnitee for use in connection with such registration
statement, including any such preliminary prospectus or final prospectus
contained therein or any such amendments or supplements thereto, or (B) offers
or sales effected by or on behalf of such Indemnitee “by means of” (as defined
in Rule 1 59A) a “free writing prospectus” (as defined in Rule 405) that was not
authorized in writing by the Company.

       

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

      


      
        
          
            
              
                	-26-


              

               

            

             


          

          
             


            
              

            

          

          
             


          

        

      

      


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

       

      (h)             Assignment of Registration
Rights. The rights of the Investor to registration of Registrable
Securities pursuant to Section 4.5(a) may be assigned by the Investor to a
transferee or assignee of Registrable Securities with a liquidation preference
or, in the case of Registrable Securities other than Preferred Shares, a market
value, no less than an amount equal to (i) 2% of the initial aggregate
liquidation preference of the Preferred Shares if such initial aggregate
liquidation preference is less than $2 billion and (ii) $200 million if the
initial aggregate liquidation preference of the Preferred Shares is equal to or
greater than $2 billion; provided, however, the transferor
shall, within ten days after such transfer, furnish to the Company written
notice of the name and address of such transferee or assignee and the number and
type of Registrable Securities that are being assigned. For purposes of this
Section 4.5(h), “market value” per share of Common Stock shall be the last
reported sale price of the Common Stock on the national securities exchange on
which the Common Stock is listed or admitted to trading on the last trading day
prior to the proposed transfer, and the “market value” for the Warrant (or any
portion thereof) shall be the market value per share of Common Stock into which
the Warrant (or such portion) is exercisable less the exercise price per
share.

       

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

       

       

      
        
          -27-

        

        
          
          

          
            

          

        

        
          
          

        

      

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

       

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

       

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

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

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

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

              


      

       

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

       

      
      

       

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

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

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

              


      

      


      
        
          
            
              -28-

            

            
            

          

          
             


            
              

            

          

          
             


          

        

      

      


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

      
         

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

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

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

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

                


        

      

       

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

       

      
        
          -29-

        

        
          
          

          
            

          

        

        
          
          

        

      

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

       

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

       

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

       

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

       

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

       

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

       

       

      
        
          -30-

        

        
          
          

          
            

          

        

        
          
          

        

      

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

       

      4.8            Restriction on Dividends and
Repurchases.

       

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

       

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

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

              


      

      


      
        
          
            
              -31-

            

            
            

          

          
             


            
              

            

          

          
             


          

        

      

      


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

       

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

       

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

       

      4.9            Repurchase of Investor
Securities.

       

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

       

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

       

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

       

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

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

                


        

         

      

      4.10            Executive
Compensation. Until such time as the Investor ceases to own any debt or
equity securities of the Company acquired pursuant to this Agreement or the
Warrant, the Company shall take all necessary action to ensure that its Benefit
Plans with respect to its Senior Executive Officers comply in all respects with
Section 111(b) of the EESA as implemented by any guidance or regulation
thereunder that has been issued and is in effect as of the Closing Date, and
shall not adopt any new Benefit Plan with respect to its Senior Executive
Officers that does not comply therewith. “Senior Executive Officers”
means the Company's "senior executive officers" as defined in subsection 111
(b)(3) of the EESA and regulations issued thereunder, including the rules set
forth in 31 C.F.R. Part 30.

       

      
        4.11           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 

         

         

        
          
            
            

          

          
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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.

        

         

        4.12           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:

       

      (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.  

       

       

      
        
          
          

        

        
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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 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 

       

       

      
        
          
          

        

        
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      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 policies of
such person, whether through the ownership of voting securities by contract or
otherwise.

       

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

       

      5.8            Assignment. Neither
this Agreement nor any right, remedy, obligation nor

      liability
arising hereunder or by reason hereof shall be assignable by any party hereto
without the prior written consent of the other party, and any attempt to assign
any right, remedy, obligation or liability hereunder without such consent shall
be void, except (a) an assignment, in the case of a Business Combination where
such party is not the surviving entity, or a sale of substantially all of its
assets, to the entity which is the survivor of such Business Combination or the
purchaser in such sale and (b) as provided in Section 4.5.

       

                    5.9            Severability. If any
provision of this Agreement or the Warrant, or the application thereof
to any person or circumstance, is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such 

       

       

       

      
        
          
          

        

        
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      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.

       

      * *
*

      





       

      
        	
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