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        supplemented or superseded by the terms set forth herein or in the Schedules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.

       

      *
        * *
        *

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

         

      

      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

                         
                  Finance Stability

              


      

      


       

      
        
          	 	 	 
	 	CATHAY
                  GENERAL
                  BANCORP
	 
 	 
 	 
 
	 	By:  	/s/
                  Dunson K. Cheng 
	 	Name:Dunson K. Cheng
	 	Title Chairman,
                  President and Chief Executive Officer


        

        


        
          Date:
            December 5, 2008

           

          
            
              
              

            

            
              2

              
                

              

            

            
              
              

            

          

        

      

       

      EXHIBIT
        A 

      
 

      
        

      

       

      SECURITIES
        PURCHASE AGREEMENT 

       

      STANDARD
        TERMS 

       

      
        

      

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      

        TABLE
          OF CONTENTS

        


        Page


      

    

    
      
        
          	
                  ARTICLE
                    I

                	
                  PURCHASE;
                    CLOSING

                	
                  1

                
	
                  1.1

                	
                  Purchase

                	
                  1

                
	
                  1.2

                	
                  Closing

                	
                  2

                
	
                  1.3

                	
                  Interpretation

                	
                  4

                
	
                  ARTICLE
                    II

                	
                  REPRESENTATIONS
                    AND WARRANTIES

                	
                  4

                
	
                  2.1

                	
                  Disclosure

                	
                  4

                
	
                  2.2

                	
                  Representations
                    and Warranties of the Company

                	
                  5

                
	
                  ARTICLE
                    III

                	
                  COVENANTS

                	
                  13

                
	
                  3.1

                	
                  Commercially
                    Reasonable Efforts

                	
                  13

                
	
                  3.2

                	
                  Expenses

                	
                  14

                
	
                  3.3

                	
                  Sufficiency
                    of Authorized Common Stock; Exchange Listing

                	
                  14

                
	
                  3.4

                	
                  Certain
                    Notifications Until Closing

                	
                  14

                
	
                  3.5

                	
                  Access,
                    Information and Confidentiality

                	
                  15

                
	
                  ARTICLE
                    IV

                	
                  ADDITIONAL
                    AGREEMENTS

                	
                  15

                
	
                  4.1

                	
                  Purchase
                    for Investment

                	
                  15

                
	
                  4.2

                	
                  Legends

                	
                  16

                
	
                  4.3

                	
                  Certain
                    Transactions

                	
                  17

                
	
                  4.4

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

                	
                  18

                
	
                  4.5

                	
                  Registration
                    Rights

                	
                  18

                
	
                  4.6

                	
                  Voting
                    of Warrant Shares

                	
                  29

                
	
                  4.7

                	
                  Depositary
                    Shares

                	
                  29

                
	
                  4.8

                	
                  Restriction
                    on Dividends and Repurchases

                	
                  29

                
	
                  4.9

                	
                  Repurchase
                    of Investor Securities

                	
                  30

                
	
                  4.10

                	
                  Executive
                    Compensation

                	
                  31

                
	
                  ARTICLE
                    V

                	
                  MISCELLANEOUS

                	
                  32

                
	
                  5.1

                	
                  Termination

                	
                  32

                
	
                  5.2

                	
                  Survival
                    of Representations and Warranties

                	
                  32

                
	
                  5.3

                	
                  Amendment

                	
                  32

                
	
                  5.4

                	
                  Waiver
                    of Conditions

                	
                  33

                
	
                  5.5

                	
                  Governing
                    Law: Submission to Jurisdiction, Etc

                	
                  33

                
	
                  5.6

                	
                  Notices

                	
                  33

                
	
                  5.7

                	
                  Definitions

                	
                  33

                
	
                  5.8

                	
                  Assignment

                	
                  34

                
	
                  5.9

                	
                  Severability

                	
                  34

                
	
                  5.10

                	
                  No
                    Third Party Beneficiaries

                	
                  34

                


        

         

        
          
            
            

          

          
            -i-

            
              

            

          

          
            
            

          

        

      

       

      LIST
        OF
        ANNEXES

       

      ANNEX
        A:
        FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK

       

      ANNEX
        B:
        FORM OF WAIVER

       

      ANNEX
        C:
        FORM OF OPINION

       

      ANNEX
        D:
        FORM OF WARRANT

       

      
        
          
          

        

        
          -ii-

          
            

          

        

        
          
          

        

      

       

      INDEX
        OF DEFINED TERMS 

       

      
        	
                Term

              	 	
                Location
                  of Definition

              
	
                Affiliate

              	 	
                5.7(b)

              
	
                Agreement

              	 	
                Recitals

              
	
                Appraisal
                  Procedure

              	 	
                4.9(c)(i)

              
	
                Appropriate
                  Federal Banking Agency

              	 	
                2.2(s)

              
	
                Bankruptcy
                  Exceptions

              	 	
                2.2(d)

              
	
                Benefit
                  Plans

              	 	
                1.2(d)(iv)

              
	
                Board
                  of Directors

              	 	
                2.2(f)

              
	
                Business
                  Combination

              	 	
                4.4

              
	
                business
                  day

              	 	
                1.3

              
	
                Capitalization
                  Date

              	 	
                2.2(b)

              
	
                Certificate
                  of Designations

              	 	
                1.2(d)(iii)

              
	
                Charter

              	 	
                1.2(d)(iii)

              
	
                Closing

              	 	
                1.2(a)

              
	
                Closing
                  Date

              	 	
                1.2(a)

              
	
                Code

              	 	
                2.2(n)

              
	
                Common
                  Stock

              	 	
                Recitals

              
	
                Company

              	 	
                Recitals

              
	
                Company
                  Financial Statements

              	 	
                2.2(h)

              
	
                Company
                  Material Adverse Effect

              	 	
                2.1(a)

              
	
                Company
                  Reports

              	 	
                2.2(i)(i)

              
	
                Company
                  Subsidiary; Company Subsidiaries

              	 	
                2.2(i)(i)

              
	
                control;
                  controlled by; under common control with

              	 	
                5.7(b)

              
	
                Controlled
                  Group

              	 	
                2.2(n)

              
	
                CPP

              	 	
                Recitals

              
	
                EESA

              	 	
                1.2(d)(iv)

              
	
                ERISA

              	 	
                2.2(n)

              
	
                Exchange
                  Act

              	 	
                2.1(b)

              
	
                Fair
                  Market Value

              	 	
                4.9(c)(ii)

              
	
                GAAP

              	 	
                2.1(a)

              
	
                Governmental
                  Entities

              	 	
                1.2(c)

              
	
                Holder

              	 	
                4.5(k)(i)

              
	
                Holders’
                  Counsel

              	 	
                4.5(k)(ii)

              
	
                Indemnitee

              	 	
                4.5(g)(i)

              
	
                Information

              	 	
                3.5(b)

              
	
                Initial
                  Warrant Shares

              	 	
                Recitals

              
	
                Investor

              	 	
                Recitals

              
	
                Junior
                  Stock

              	 	
                4.8(c)

              
	
                knowledge
                  of the Company; Company’s knowledge

              	 	
                5.7(c)

              
	
                Last
                  Fiscal Year

              	 	
                2.1(b)

              


      

       

      
        
          
          

        

        
          -iii-

          
            

          

        

        
          
          

        

      

       

      
        	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)

              
	
                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)

              


      

       

      
        
          
          

        

        
          -iv-

          
            

          

        

        
          
          

        

      

       

      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

          
            

          

        

        
          
          

        

      

       

      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
        Section1.2, 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)Section2.2(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
        Section1.2(d)(i)(A)(z) to be so true and correct, individually or in the
        aggregate, does not have and would not reasonably be expected to have a Company
        Material Adverse Effect and (B)the Company shall have performed in all material
        respects all obligations required to be performed by it under this Agreement
        at
        or prior to the Closing; 

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      (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 Section1.2(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
        Section111(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 Section1.2(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 Section111(b) of the
        EESA as
        implemented by guidance or regulation thereunder that has been issued and
        is in
        effect as of the Closing Date; 

       

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

       

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

       

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

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      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 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. 

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      (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
        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.
        

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

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

       

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

       

      (e) Authorization,
        Enforceability.
        

       

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

       

      (ii) The
        execution, delivery and performance by the Company of this Agreement and
        the
        Warrant and the consummation of the transactions contemplated hereby and
        thereby
        and compliance by the Company with the provisions hereof and thereof, will
        not
        (A)violate, conflict with, or result in a breach of any provision of, or
        constitute a default (or an event which, with notice or lapse of time or
        both,
        would constitute a default) under, or result in the termination of, or
        accelerate the performance required by, or result in a right of termination
        or
        acceleration of, or 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. 

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      (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 Section3.1 and such
        as
        have been made or obtained, no notice to, filing with, exemption or review
        by,
        or authorization, consent or approval of, any Governmental Entity is required
        to
        be made or obtained by the Company in connection with the consummation by
        the
        Company of the Purchase except for any such notices, filings, exemptions,
        reviews, authorizations, consents and approvals the failure of which to make
        or
        obtain would not, individually or in the aggregate, reasonably be expected
        to
        have a Company Material Adverse Effect. 

       

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

       

      (g) No
        Company Material Adverse Effect.
        Since
        the last day of the last completed fiscal period for which the Company has
        filed
        a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K with the
        SEC
        prior to the Signing Date, no fact, circumstance, event, change, occurrence,
        condition or development has occurred that, individually or in the aggregate,
        has had or would reasonably be expected to have a Company Material Adverse
        Effect. 

       

      (h) Company
        Financial Statements.
        Each of
        the consolidated financial statements of the Company and its consolidated
        subsidiaries (collectively the “Company
        Financial Statements”)
        included or incorporated by reference in the Company Reports filed with the
        SEC
        since December31, 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. 

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      (i) Reports.
        

       

      (i) Since
        December31, 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 Section302 or 906 of
        the
        Sarbanes-Oxley Act of 2002. 

       

      (ii) The
        records, systems, controls, data and information of the Company and the Company
        Subsidiaries are recorded, stored, maintained and operated under means
        (including any electronic, mechanical or photographic process, whether
        computerized or not) that are under the exclusive ownership and direct control
        of the Company or the Company Subsidiaries or their accountants (including
        all
        means of access thereto and therefrom), except for any non-exclusive ownership
        and non-direct control that would not reasonably be expected to have a material
        adverse effect on the system of internal accounting controls described below
        in
        this Section2.2(i)(ii). The Company (A)has implemented and maintains disclosure
        controls and procedures (as defined in Rule13a-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
        Rule13a-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. 

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

       

      (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 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.
        

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

       

      (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 Section3(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 Section414 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 Section4043(c) of ERISA), other than a reportable
        event for which the notice period referred to in Section4043(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 Section302 of ERISA or Section412 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 Section4001(c)(3) of
        ERISA); and (C)each Plan that is intended to be qualified under Section401(a)
        of
        the Code has received a favorable determination letter from the Internal
        Revenue
        Service with respect to its qualified status that has not been revoked, or
        such
        a determination letter has been timely applied for but not received by the
        Signing Date, and nothing has occurred, whether by action or by failure to
        act,
        which could reasonably be expected to cause the loss, revocation or denial
        of
        such qualified status or favorable determination letter. 

       

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

       

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

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

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

       

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

       

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

       

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

       

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

       

      
        
          
          

        

        
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      (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 December31,
        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 December31,
        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 Section3(q) of the Federal
        Deposit Insurance Act (12 U.S.C. Section1813(q)). 

       

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

       

      (u) Intellectual
        Property.
        Except
        as would not, individually or in the aggregate, reasonably be expected to
        have a
        Company Material Adverse Effect, (i)the Company and each Company Subsidiary
        owns
        or otherwise has the right to use, all intellectual property rights, including
        all trademarks, trade dress, trade names, service marks, domain names, patents,
        inventions, trade secrets, know-how, works of authorship and copyrights therein,
        that are used in the conduct of their existing businesses and all rights
        relating to the plans, design and specifications of any of its branch facilities
        (“Proprietary
        Rights”)
        free
        and clear of all liens and any claims of ownership by current or former
        employees, contractors, designers or others and (ii)neither the Company nor
        any
        of the Company Subsidiaries is materially infringing, diluting, misappropriating
        or violating, nor has the Company or any or the Company Subsidiaries received
        any written (or, to the knowledge of the Company, oral) communications alleging
        that any of them has materially infringed, diluted, misappropriated or violated,
        any of the Proprietary Rights owned by any other person. Except as would
        not,
        individually or in the aggregate, reasonably be expected to have a Company
        Material Adverse Effect, to the Company’s knowledge, no other person is
        infringing, diluting, misappropriating or violating, nor has the Company
        or any
        or the Company Subsidiaries sent any written communications since January1,
        2006
        alleging that any person has infringed, diluted, misappropriated or violated,
        any of the Proprietary Rights owned by the Company and the Company Subsidiaries.
        

       

      
        
          
          

        

        
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      (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 Section3.1(b) and Section3.1(c). The Company
        shall call a special meeting of its stockholders, as promptly as practicable
        following the Closing, to vote on proposals (collectively, the “Stockholder
        Proposals”)
        to
        (i)approve the exercise of the Warrant for Common Stock for purposes of the
        rules of the national security exchange on which the Common Stock is listed
        and/or (ii)amend the Company’s Charter to increase the number of authorized
        shares of Common Stock to at least such number as shall be sufficient to
        permit
        the full exercise of the Warrant for Common Stock and comply with the other
        provisions of this Section3.1(b) and Section3.1(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 January1, 2009 until
        all
        such approvals are obtained or made. 

       

      
        
          
          

        

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

       

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

       

      3.3 Sufficiency
        of Authorized Common Stock; Exchange Listing.
        

       

      (a) During
        the period from the Closing Date (or, if the approval of the Stockholder
        Proposals is required, the date of such approval) until the date on which
        the
        Warrant has been fully exercised, the Company shall at all times have reserved
        for issuance, free of preemptive or similar rights, a sufficient number of
        authorized and unissued Warrant Shares to effectuate such exercise. Nothing
        in
        this Section3.3 shall preclude the Company from satisfying its obligations
        in
        respect of the exercise of the Warrant by delivery of shares of Common Stock
        which are held in the treasury of the Company. As soon as reasonably practicable
        following the Closing, the Company shall, at its expense, cause the Warrant
        Shares to be listed on the same national securities exchange on which the
        Common
        Stock is listed, subject to official notice of issuance, and shall maintain
        such
        listing for so long as any Common Stock is listed on such exchange.


       

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


       

      3.4 Certain
        Notifications Until Closing.
        From
        the Signing Date until the Closing, the Company shall promptly notify the
        Investor of (i)any fact, event or circumstance of which it is aware and which
        would reasonably be expected to cause any representation or warranty of the
        Company contained in this Agreement to be untrue or inaccurate in any material
        respect or to cause any covenant or agreement of the Company contained in
        this
        Agreement not to be complied with or satisfied in any material respect and
        (ii)except as Previously Disclosed, any fact, circumstance, event, change,
        occurrence, condition or development of which the Company is aware and which,
        individually or in the aggregate, has had or would reasonably be expected
        to
        have a Company Material Adverse Effect; provided,
        however,
        that
        delivery of any notice pursuant to this Section3.4 shall not limit or affect
        any
        rights of or remedies available to the Investor; provided,
        further,
        that a
        failure to comply with this Section3.4 shall not constitute a breach of this
        Agreement or the failure of any condition set forth in Section1.2 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
        Section1.2 to be satisfied. 

       

      
        
          
          

        

        
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      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 Section3.5 shall be conducted during normal
        business hours and in such manner as not to interfere unreasonably with the
        conduct of the business of the Company, and nothing herein shall require
        the
        Company or any Company Subsidiary to disclose any information to the Investor
        to
        the extent (i)prohibited by applicable law or regulation, or (ii)that such
        disclosure would reasonably be expected to cause a violation of any agreement
        to
        which the Company or any Company Subsidiary is a party or would cause a risk
        of
        a loss of privilege to the Company or any Company Subsidiary (provided
        that the
        Company shall use commercially reasonable efforts to make appropriate substitute
        disclosure arrangements under circumstances where the restrictions in this
        clause (ii)apply). 

       

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

       

      ARTICLE
        IV

       

      Additional
        Agreements 

       

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

       

      
        
          
          

        

        
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      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.” 

       

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


       

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


       

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

       

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

       

      
        
          
          

        

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

       

      (d) In
        the
        event that any Purchased Securities or Warrant Shares (i)become registered
        under
        the Securities Act or (ii)are eligible to be transferred without restriction
        in
        accordance with Rule 144 or another exemption from registration under the
        Securities Act (other than Rule 144A), the Company shall issue new certificates
        or other instruments representing such Purchased Securities or Warrant Shares,
        which shall not contain the applicable legends in Sections 4.2(a) and (c)above;
        provided
        that the
        Investor surrenders to the Company the previously issued certificates or
        other
        instruments. Upon Transfer of all or a portion of the Warrant in compliance
        with
        Section4.4, the Company shall issue new certificates or other instruments
        representing the Warrant, which shall not contain the applicable legend in
        Section4.2(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. 

       

      
        
          
          

        

        
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      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 Section13
        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)December31, 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 October13,
        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.

       

      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

       

      (ii) Any
        registration pursuant to Section4.5(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 Section4.5(c);
provided
        that the
        Company shall not be required to facilitate an underwritten offering of
        Registrable Securities unless the expected gross proceeds from such offering
        exceed (i)2% of the initial aggregate liquidation preference of the Preferred
        Shares if such initial aggregate liquidation preference is less than $2 billion
        and (ii)$200 million if the initial aggregate liquidation preference of the
        Preferred Shares is equal to or greater than $2 billion. The lead underwriters
        in any such distribution shall be selected by the Holders of a majority of
        the
        Registrable Securities to be distributed; provided
        that to
        the extent appropriate and permitted under applicable law, such Holders shall
        consider the qualifications of any broker-dealer Affiliate of the Company
        in
        selecting the lead underwriters in any such distribution.

       

      (iii) The
        Company shall not be required to effect a registration (including a resale
        of
        Registrable Securities from an effective Shelf Registration Statement) or
        an
        underwritten offering pursuant to Section4.5(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 Section4.5(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 Section4.5(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. 

       

      
        
          
          

        

        
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      (v) If
        the
        registration referred to in Section4.5(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 Section4.5(a)(iv). In such event, the right
        of
        Investor and all other Holders to registration pursuant to Section4.5(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 to the Company, the managing underwriters and
        the
        Investor (if the Investor is participating in the underwriting). 

       

      (vi) If
        either
        (x)the Company grants “piggyback” registration rights to one or more third
        parties to include their securities in an underwritten offering under the
        Shelf
        Registration Statement pursuant to Section4.5(a)(ii) or (y)a Piggyback
        Registration under Section4.5(a)(iv) relates to an underwritten offering
        on
        behalf of the Company, and in either case the managing underwriters advise
        the
        Company that in their reasonable opinion the number of securities requested
        to
        be included in such offering exceeds the number which can be sold without
        adversely affecting the marketability of such offering (including an adverse
        effect on the per share offering price), the Company will include in such
        offering only such number of securities that in the reasonable opinion of
        such
        managing underwriters can be sold without adversely affecting the marketability
        of the offering (including an adverse effect on the per share offering price),
        which securities will be so included in the following order of priority:
        (A)first, in the case of a Piggyback Registration under Section4.5(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 Section4.5(a)(ii) or Section4.5(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: 

       

      
        
          
          

        

        
          20

          
            

          

        

        
          
          

        

      

       

      (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 Section4.5(d), keep such registration statement effective
        and keep such prospectus supplement current until the securities described
        therein are no longer Registrable Securities. 

       

      (ii) Prepare
        and file with the SEC such amendments and supplements to the applicable
        registration statement and the prospectus or prospectus supplement used in
        connection with such 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 Section4.5(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;


       

      
        
          
          

        

        
          21

          
            

          

        

        
          
          

        

      

       

      (B) of
        any
        request by the SEC for amendments or supplements to any registration statement
        or the prospectus included therein or for additional information; 

       

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

       

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

       

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

       

      (F) if
        at any
        time the representations and warranties of the Company contained in any
        underwriting agreement contemplated by Section4.5(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
        Section4.5(c)(vi)(C) at the earliest practicable time. 

       

      (viii) Upon
        the
        occurrence of any event contemplated by Section4.5(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 Section4.5(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).

       

      
        
          
          

        

        
          22

          
            

          

        

        
          
          

        

      

       

      (x) If
        an
        underwritten offering is requested pursuant to Section4.5(a)(ii), enter into
        an
        underwriting agreement in customary form, scope and substance and take all
        such
        other actions reasonably requested by the Holders of a majority of the
        Registrable Securities being sold in connection therewith or by the managing
        underwriter(s), if any, to expedite or facilitate the underwritten disposition
        of such Registrable Securities, and in connection therewith in any underwritten
        offering (including making members of management and executives of the Company
        available to participate in “road shows”, similar sales events and other
        marketing activities), (A)make such representations and warranties to the
        Holders that are selling stockholders and the managing underwriter(s), if
        any,
        with respect to the business of the Company and its subsidiaries, and the
        Shelf
        Registration Statement, prospectus and documents, if any, incorporated or
        deemed
        to be incorporated by reference therein, in each case, in customary form,
        substance and scope, and, if true, confirm the same if and when requested,
        (B)use its reasonable best efforts to furnish the underwriters with opinions
        of
        counsel to the Company, addressed to the managing underwriter(s), if any,
        covering the matters customarily covered in such opinions requested in
        underwritten offerings, (C)use its reasonable best efforts to obtain “cold
        comfort” letters from the independent certified public accountants of the
        Company (and, if necessary, any other independent certified public accountants
        of any business acquired by the Company for which financial statements and
        financial data are included in the Shelf Registration Statement) who have
        certified the financial statements included in such Shelf Registration
        Statement, addressed to each of the managing underwriter(s), if any, such
        letters to be in customary form and covering matters of the type customarily
        covered in “cold comfort” letters, (D)if an underwriting agreement is entered
        into, the same shall contain indemnification provisions and procedures customary
        in underwritten offerings (provided that the Investor shall not be obligated
        to
        provide any indemnity), and (E)deliver such documents and certificates as
        may be
        reasonably requested by the Holders of a majority of the Registrable Securities
        being sold in connection therewith, their counsel and the managing
        underwriter(s), if any, to evidence the continued validity of the
        representations and warranties made pursuant to clause (i)above and to evidence
        compliance with any customary conditions contained in the underwriting agreement
        or other agreement entered into by the Company. 

       

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

       

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

       

      
        
          
          

        

        
          23

          
            

          

        

        
          
          

        

      

       

      (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
        Section11(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 Section4.5(c) that Investor and/or the selling Holders and the
        underwriters, if any, shall furnish to the Company such information regarding
        themselves, the Registrable Securities held by them and the intended method
        of
        disposition of such securities as shall be required to effect the registered
        offering of their Registrable Securities. 

       

      
        
          
          

        

        
          24

          
            

          

        

        
          
          

        

      

       

      (g) Indemnification.

       

      (i) The
        Company agrees to indemnify each Holder and, if a Holder is a person other
        than
        an individual, such Holder’s officers, directors, employees, agents,
        representatives and Affiliates, and each Person, if any, that controls a
        Holder
        within the meaning of the Securities Act (each, an “Indemnitee”),
        against any and all losses, claims, damages, actions, liabilities, costs
        and
        expenses (including reasonable fees, expenses and disbursements of attorneys
        and
        other professionals incurred in connection with investigating, defending,
        settling, compromising or paying any such losses, claims, damages, actions,
        liabilities, costs and expenses), joint or several, arising out of or based
        upon
        any untrue statement or alleged untrue statement of material fact contained
        in
        any registration statement, including any preliminary prospectus or final
        prospectus contained therein or any amendments or supplements thereto or
        any
        documents incorporated therein by reference or contained in any free writing
        prospectus (as such term is defined in Rule 405) prepared by the Company
        or
        authorized by it in writing for use by such Holder (or any amendment or
        supplement thereto); or any omission to state therein a material fact required
        to be stated therein or necessary to make the statements therein, in light
        of
        the circumstances under which they were made, not misleading; provided,
        that
        the Company shall not be liable to such Indemnitee in any such case to the
        extent that any such loss, claim, damage, liability (or action or proceeding
        in
        respect thereof) or expense arises out of or is based upon (A)an untrue
        statement or omission made in such registration statement, including any
        such
        preliminary prospectus or final prospectus contained therein or any such
        amendments or supplements thereto or contained in any free writing prospectus
        (as such term is defined in Rule 405) prepared by the Company or authorized
        by
        it in writing for use by such Holder (or any amendment or supplement thereto),
        in reliance upon and in conformity with information regarding such Indemnitee
        or
        its plan of distribution or ownership interests which was furnished in writing
        to the Company by such Indemnitee for use in connection with such registration
        statement, including any such preliminary prospectus or final prospectus
        contained therein or any such amendments or supplements thereto, or (B)offers
        or
        sales effected by or on behalf of such Indemnitee “by means of” (as defined in
        Rule 159A) a “free writing prospectus” (as defined in Rule 405) that was not
        authorized in writing by the Company. 

       

      (ii) If
        the
        indemnification provided for in Section4.5(g)(i)is unavailable to an Indemnitee
        with respect to any losses, claims, damages, actions, liabilities, costs
        or
        expenses referred to therein or is insufficient to hold the Indemnitee harmless
        as contemplated therein, then the Company, in lieu of indemnifying such
        Indemnitee, shall contribute to the amount paid or payable by such Indemnitee
        as
        a result of such losses, claims, damages, actions, liabilities, costs or
        expenses in such proportion as is appropriate to reflect the relative fault
        of
        the Indemnitee, on the one hand, and the Company, on the other hand, in
        connection with the statements or omissions which resulted in such losses,
        claims, damages, actions, liabilities, costs or expenses as well as any other
        relevant equitable considerations. The relative fault of the Company, on
        the one
        hand, and of the Indemnitee, on the other hand, shall be determined by reference
        to, among other factors, whether the untrue statement of a material fact
        or
        omission to state a material fact relates to information supplied by the
        Company
        or by the Indemnitee and the parties’ relative intent, knowledge, access to
        information and opportunity to correct or prevent such statement or omission;
        the Company and each Holder agree that it would not be just and equitable
        if
        contribution pursuant to this Section4.5(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 Section4.5(g)(i). No Indemnitee
        guilty of fraudulent misrepresentation (within the meaning of Section11(f)of
        the
        Securities Act) shall be entitled to contribution from the Company if the
        Company was not guilty of such fraudulent misrepresentation. 

       

      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

       

      (h) Assignment
        of Registration Rights.
        The
        rights of the Investor to registration of Registrable Securities pursuant
        to
        Section4.5(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 Section4.5(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 Section4.5, the Company agrees not to effect
        (other than pursuant to such registration or pursuant to a Special Registration)
        any public sale or distribution, or to file any Shelf Registration Statement
        (other than such registration or a Special Registration) covering, in the
        case
        of an underwritten offering of Common Stock or Warrants, any of its equity
        securities or, in the case of an underwritten offering of Preferred Shares,
        any
        Preferred Stock of the Company, or, in each case, any securities convertible
        into or exchangeable or exercisable for such securities, during the period
        not
        to exceed ten days prior and 60 days following the effective date of such
        offering or such longer period up to 90 days as may be requested by the managing
        underwriter for such underwritten offering. The Company also agrees to cause
        such of its directors and senior executive officers to execute and deliver
        customary lock-up agreements in such form and for such time period up to
        90 days
        as may be requested by the managing underwriter. “Special
        Registration”
means
        the registration of (A)equity securities and/or options or other rights in
        respect thereof solely registered on Form S-4 or Form S-8 (or successor form)
        or
        (B)shares of equity securities and/or options or other rights in respect
        thereof
        to be offered to directors, members of management, employees, consultants,
        customers, lenders or vendors of the Company or Company Subsidiaries or in
        connection with dividend reinvestment plans. 

       

      (j) Rule144;
        Rule 144A.
        With a
        view to making available to the Investor and Holders the benefits of certain
        rules and regulations of the SEC which may permit the sale of the Registrable
        Securities to the public without registration, the Company agrees to use
        its
        reasonable best efforts to: 

       

      (i) make
        and
        keep public information available, as those terms are understood and defined
        in
        Rule144(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 Rule144 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 

       

      
        
          
          

        

        
          26

          
            

          

        

        
          
          

        

      

       

      (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 Section4.5, 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 Section4.5(h) hereof. 

       

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

       

      (iii) “Register,”
        “registered,”
and
        “registration”
shall
        refer to a registration effected by preparing and (A)filing a registration
        statement in compliance with the Securities Act and applicable rules and
        regulations thereunder, and the declaration or ordering of effectiveness
        of such
        registration statement or (B)filing a prospectus and/or prospectus supplement
        in
        respect of an appropriate effective registration statement on Form S-3.


       

      (iv) “Registrable
        Securities”
means
        (A)all Preferred Shares, (B)the Warrant (subject to Section4.5(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 Section4.5(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 Section4.5,
        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.
        

       

      
        
          
          

        

        
          27

          
            

          

        

        
          
          

        

      

       

      (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 Section4.5 from that date forward; provided,
        that a
        Holder forfeiting such rights shall nonetheless be entitled to participate
        under
        Section4.5(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
        Section4.5(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 Section4.5(l),
        any
        underwritten offering of Registrable Securities in which such Holder has
        advised
        the Company of its intent to register its Registrable Securities either pursuant
        to Section4.5(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 Section4.5 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 Section4.5 in accordance with the terms and conditions of this Section4.5.
        

       

      (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 Section4.5 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 Section4.5. 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 Section4.5 (including agreements that are inconsistent
        with
        the order of priority contemplated by Section4.5(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 Section4.5. 

       

      
        
          
          

        

        
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      (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 Section4.5(c), Section4.5(g) and Section4.5(i) shall continue
        to
        apply until such securities otherwise cease to be Registrable Securities.
        In any
        such case, an “underwritten” offering or other disposition shall include any
        distribution of such securities on behalf of the Investor by one or more
        broker-dealers, an “underwriting agreement” shall include any purchase agreement
        entered into by such broker-dealers, and any “registration statement” or
“prospectus” shall include any offering document approved by the Company and
        used in connection with such distribution. 

       

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

       

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

       

      4.7 Depositary
        Shares.
        Upon
        request by the Investor at any time following the Closing Date, the Company
        shall promptly enter into a depositary arrangement, pursuant to customary
        agreements reasonably satisfactory to the Investor and with a depositary
        reasonably acceptable to the Investor, pursuant to which the Preferred Shares
        may be deposited and depositary shares, each representing a 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 October14, 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 

       

      
        
          
          

        

        
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      (ii) redeem,
        purchase or acquire any shares of Common Stock or other capital stock or
        other
        equity securities of any kind of the Company, or any trust preferred securities
        issued by the Company or any Affiliate of the Company, other than
        (A)redemptions, purchases or other acquisitions of the Preferred Shares,
        (B)redemptions, purchases or other acquisitions of shares of Common Stock
        or
        other Junior Stock, in each case in this clause (B)in connection with the
        administration of any employee benefit plan in the ordinary course of business
        (including purchases to offset the Share Dilution Amount (as defined below)
        pursuant to a publicly announced repurchase plan) and consistent with past
        practice; provided
        that any
        purchases to offset the Share Dilution Amount shall in no event exceed the
        Share
        Dilution Amount, (C)purchases or other acquisitions by a broker-dealer
        subsidiary of the Company solely for the purpose of market-making, stabilization
        or customer facilitation transactions in Junior Stock or Parity Stock in
        the
        ordinary course of its business, (D)purchases by a broker-dealer subsidiary
        of
        the Company of capital stock of the Company for resale pursuant to an offering
        by the Company of such capital stock underwritten by such broker-dealer
        subsidiary, (E)any redemption or repurchase of rights pursuant to any
        stockholders’ rights plan, (F)the acquisition by the Company or any of the
        Company Subsidiaries of record ownership in Junior Stock or Parity Stock
        for the
        beneficial ownership of any other persons (other than the Company or any
        other
        Company Subsidiary), including as trustees or custodians, and (G)the exchange
        or
        conversion of Junior Stock for or into other Junior Stock or of Parity Stock
        or
        trust preferred securities for or into other Parity Stock (with the same
        or
        lesser aggregate liquidation amount) or Junior Stock, in each case set forth
        in
        this clause (G), solely to the extent required pursuant to binding contractual
        agreements entered into prior to the Signing Date or any subsequent agreement
        for the accelerated exercise, settlement or exchange thereof for Common Stock
        (clauses (C)and (F), collectively, the “Permitted
        Repurchases”).
        “Share
        Dilution Amount”
means
        the increase in the number of diluted shares outstanding (determined in
        accordance with GAAP, and as measured from the date of the Company’s most
        recently filed Company Financial Statements prior to the Closing Date) resulting
        from the grant, vesting or exercise of equity-based compensation to employees
        and equitably adjusted for any stock split, stock dividend, reverse stock
        split,
        reclassification or similar transaction. 

       

      (b) Until
        such time as the Investor ceases to own any Preferred Shares, the Company
        shall
        not repurchase any Preferred Shares from any holder thereof, whether by means
        of
        open market purchase, 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. 

       

      
        
          
          

        

        
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      (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
        Section5.6. Each notice of repurchase given to the Investor shall state:
        (i)the
        number and type of securities to be repurchased, (ii)the Board of Director’s
        determination of Fair Market Value of such securities and (iii)the place
        or
        places where certificates representing such securities are to be surrendered
        for
        payment of the repurchase price. The repurchase of the securities specified
        in
        the notice shall occur as soon as practicable following the determination
        of the
        Fair Market Value of the securities. 

       

      (c) As
        used
        in this Section4.9, 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 Section111(b) of the
        EESA
        as implemented by any guidance or regulation thereunder that has been issued
        and
        is in effect as of the Closing Date, and shall not adopt any new Benefit
        Plan
        with respect to its Senior Executive Officers that does not comply therewith.
        “Senior
        Executive Officers”
means
        the Company’s “senior executive officers” as defined in subsection 111(b)(3) of
        the EESA and regulations issued thereunder, including the rules set forth
        in 31
        C.F.R. Part 30. 

       

      
        
          
          

        

        
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      ARTICLE
        V

       

      Miscellaneous
        

       

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

       

      (a) by
        either
        the Investor or the Company if the Closing shall not have occurred by the
        30th
        calendar
        day following the Signing Date; provided,
        however,
        that in
        the event the Closing has not occurred by such 30th
        calendar
        day, the parties will consult in good faith to determine whether to extend
        the
        term of this Agreement, it being understood that the parties shall be required
        to consult only until the fifth day after such 30th
        calendar
        day and not be under any obligation to extend the term of this Agreement
        thereafter; provided,
        further,
        that
        the right to terminate this Agreement under this Section5.1(a) shall not
        be
        available to any party whose breach of any representation or warranty or
        failure
        to perform any obligation under this Agreement shall have caused or resulted
        in
        the failure of the Closing to occur on or prior to such date; or 

       

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

       

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

       

      In
        the
        event of termination of this Agreement as provided in this Section5.1, 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. 

       

      
        
          
          

        

        
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      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 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.
        

       

      
        
          
          

        

        
          33

          
            

          

        

        
          
          

        

      

       

      (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 Rule3b-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 Section4.5. 

       

      5.9 Severability.
        If any
        provision of this Agreement or the Warrant, or the application thereof to
        any
        person or circumstance, is determined by a court of competent jurisdiction
        to be
        invalid, void or unenforceable, the remaining provisions hereof, or the
        application of such provision to persons or circumstances other than those
        as to
        which it has been held invalid or unenforceable, will remain in full force
        and
        effect and shall in no way be affected, impaired or invalidated thereby,
        so long
        as the economic or legal substance of the transactions contemplated hereby
        is
        not affected in any manner materially adverse to any party. Upon such
        determination, the parties shall negotiate in good faith in an effort to
        agree
        upon a suitable and equitable substitute provision to effect the original
        intent
        of the parties. 

       

      5.10 No
        Third Party Beneficiaries.
        Nothing
        contained in this Agreement, expressed or implied, is intended to confer
        upon
        any person or entity other than the Company and the Investor any benefit,
        right
        or remedies, except that the provisions of Section4.5 shall inure to the
        benefit
        of the persons referred to in that Section. 

       

       

      *
        * *


       

      
        
          
          

        

        
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