ex101.htm


    Exhibit
10.1

    


    


    United
States Department of the Treasury

     

    1500
Pennsylvania Avenue, Nw

     

    Washington,
D.C.  20220

     

     

    Dear
Ladies and Gentlemen:

     

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

     

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extent supplemented or superseded by the terms set forth herein or in the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

     

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

     

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

     

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

     

    *           *           *

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


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

     

    


      
        	
                UNITED
      STATES DEPARTMENT OF THE TREASURY

              	 
	 
      	 
	
                
                  By:       
      /s/Neel
      Kashkari

                

              	 
	
                Name:  
      Neel Kashkari

              	 
	
                Title:    
      Interim Assistant Secretary for Financial Stability

              	 


      


      
        	
                COMPANY:
      TRUSTMARK CORPORATION

              	 
	 	 
	By:      
      /s/Richard G.
      Hickson	 
	
                Name:  Richard
      G. Hickson

              	 
	
                Title:    Chairman
      of the Board, President and CEO

              	 


      




     

     

    
 

    Date:
November 21,
2008


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

     

    


     

    


     

    
      
        

      



     

    
      


    

    


     

    SECURITIES
PURCHASE AGREEMENT

     

    STANDARD
TERMS

     

    
       

    

    


    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    TABLE
OF CONTENTS

     

    Page

     

     

    Article
I

     

    Purchase;
Closing

    

      
        	
                1.1

              	
                Purchase

              	
                1

              
	
                1.2

              	
                Closing

              	
                2

              
	
                1.3

              	
                Interpretation

              	
                4

              


      

    

     

    Article
II

     

    Representations
and Warranties

    

      
        	
                2.1

              	
                Disclosure

              	
                4

              
	
                2.2

              	
                Representations
      and Warranties of the Company

              	
                5

              


      

    

     

    Article
III

     

    Covenants

    

      
        	
                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

    

      
        	
                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

              	
                17

              
	
                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

              	
                31

              
	
                4.10

              	
                Executive
      Compensation

              	
                32

              


      



     

    
      
        -i-

      

      
        
        

        
          

        

      

      
        
        

      

    

    Article
V

     

    Miscellaneous

    

      
        	
                5.1

              	
                Termination

              	
                32

              
	
                5.2

              	
                Survival
      of Representations and Warranties

              	
                33

              
	
                5.3

              	
                Amendment

              	
                33

              
	
                5.4

              	
                Waiver
      of Conditions

              	
                33

              
	
                5.5

              	
                Governing Law: Submission to
      Jurisdiction, Etc.

              	
                33

              
	
                5.6

              	
                Notices

              	
                33

              
	
                5.7

              	
                Definitions

              	
                34

              
	
                5.8

              	
                Assignment

              	
                34

              
	
                5.9

              	
                Severability

              	
                34

              
	
                5.10

              	
                No
      Third Party Beneficiaries

              	
                35

              


      




    
      
        
          -ii-

        

         


      

      
         


        
          

        

      

      
         


      

    


    LIST OF
ANNEXES

     

    


    ANNEX
A:                                FORM
OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK

     

    ANNEX
B:                                FORM
OF WAIVER

     

    ANNEX
C:                                FORM
OF OPINION

     

    ANNEX
D:                                FORM
OF WARRANT

     

    


    
       

      
        
          -iii-

        

        
          
          

          
            

          

        

         

      

    

    INDEX
OF DEFINED TERMS

     

    
      	
              
                Term

              

            	 	
              
                Location
      of Definition

              

            
	
              Affiliate

            	 	
              5.7(b)

            
	
              Agreement

            	 	
              Recitals

            
	
              Appraisal
      Procedure

            	 	
              4.9(c)(i)

            
	
              Appropriate
      Federal Banking Agency

            	 	
              2.2(s)

            
	
              Bankruptcy
      Exceptions

            	 	
              2.2(d)

            
	
              Benefit
      Plans

            	 	
              1.2(d)(iv)

            
	
              Board
      of Directors

            	 	
              2.2(f)

            
	
              Business
      Combination

            	 	
              4.4

            
	
              business
      day

            	 	
              1.3

            
	
              Capitalization
      Date

            	 	
              2.2(b)

            
	
              Certificate
      of Designations

            	 	
              1.2(d)(iii)

            
	
              Charter

            	 	
              1.2(d)(iii)

            
	
              Closing

            	 	
              1.2(a)

            
	
              Closing
      Date

            	 	
              1.2(a)

            
	
              Code

            	 	
              2.2(n)

            
	
              Common
      Stock

            	 	
              Recitals

            
	
              Company

            	 	
              Recitals

            
	
              Company
      Financial Statements

            	 	
              2.2(h)

            
	
              Company
      Material Adverse Effect

            	 	
              2.1(a)

            
	
              Company
      Reports

            	 	
              2.2(i)(i)

            
	
              Company
      Subsidiary; Company Subsidiaries

            	 	
              2.2(i)(i)

            
	
              control;
      controlled by; under common control with

            	 	
              5.7(b)

            
	
              Controlled
      Group

            	 	
              2.2(n)

            
	
              CPP

            	 	
              Recitals

            
	
              EESA

            	 	
              1.2(d)(iv)

            
	
              ERISA

            	 	
              2.2(n)

            
	
              Exchange
      Act

            	 	
              2.1(b)

            
	
              Fair
      Market Value

            	 	
              4.9(c)(ii)

            
	
              GAAP

            	 	
              2.1(a)

            
	
              Governmental
      Entities

            	 	
              1.2(c)

            
	
              Holder

            	 	
              4.5(k)(i)

            
	
              Holders’
      Counsel

            	 	
              4.5(k)(ii)

            
	
              Indemnitee

            	 	
              4.5(g)(i)

            
	
              Information

            	 	
              3.5(b)

            
	
              Initial
      Warrant Shares

            	 	
              Recitals

            
	
              Investor

            	 	
              Recitals

            
	
              Junior
      Stock

            	 	
              4.8(c)

            
	
              knowledge
      of the Company; Company’s knowledge

            	 	
              5.7(c)

            
	
              Last
      Fiscal Year

            	 	
              2.1(b)

            
	
              Letter
      Agreement

            	 	
              Recitals

            
	
              officers

            	 	
              5.7(c)

            
	
              Parity
      Stock

            	 	
              4.8(c)

            


    

     

     

    
      
        -iv-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              Term

            	 	Location
      of Definition
	
              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)

            


    

     

    
      
        
          -v-

        

         


      

      
         


        
          

        

      

      
         


      

    


    SECURITIES
PURCHASE AGREEMENT – STANDARD TERMS

     

    Recitals:

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

    Article
I

    Purchase;
Closing

     

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

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.2 Closing.

     

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

     

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

     

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

     

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

     

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

    
      
        -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 Section 1.2(d)(i) have been satisfied;

     

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

     

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

     

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

     

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

     

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

     

    (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.

    
      
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    (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 Section 3.1 and such as have been made or
obtained, no notice to, filing with, exemption or review by, or authorization,
consent or approval of, any Governmental Entity is required to be made or
obtained by the Company in connection with the consummation by the Company of
the Purchase except for any such notices, filings, exemptions, reviews,
authorizations, consents and approvals the failure of which to make or obtain
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.

     

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

     

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

     

    (h) Company Financial
Statements.  Each of the consolidated financial statements of
the Company and its consolidated subsidiaries (collectively the “Company Financial
Statements”) included or incorporated by reference in the Company Reports
filed with the SEC since December 31, 2006, present fairly in all material
respects the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated therein (or if amended prior to the
Signing Date, as of the date of such amendment) and the consolidated results of
their operations for the periods specified therein; and except as stated
therein, such financial statements (A) were prepared in conformity with GAAP
applied on a consistent basis (except as may be noted therein), (B) have been
prepared from, and are in accordance with, the books and records of the Company
and the Company Subsidiaries and (C) complied as to form, as of their
respective dates of filing with the SEC, in all 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
December 31, 2006, the Company and each subsidiary of the Company (each a “Company Subsidiary” and,
collectively, the “Company
Subsidiaries”) has timely filed all
reports, registrations, documents, filings, statements and submissions, together
with any amendments thereto, that it was required to file with any Governmental
Entity (the foregoing, collectively, the “Company Reports”) and has
paid all fees and assessments due and payable in connection therewith, except,
in each case, as would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.  As of their
respective dates of filing, the Company Reports complied in all material
respects with all statutes and applicable rules and regulations of the
applicable Governmental Entities.  In the case of each such Company
Report filed with or furnished to the SEC, such Company Report (A) did not, as
of its date or if amended prior to the Signing Date, as of the date of such
amendment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading, and (B)
complied as to form in all material respects with the applicable requirements of
the Securities Act and the Exchange Act.  With respect to all other
Company Reports, the Company Reports were complete and accurate in all material
respects as of their respective dates.  No executive officer of the
Company or any Company Subsidiary has failed in any respect to make the
certifications required of him or her under Section 302 or 906 of the
Sarbanes-Oxley Act of 2002.

     

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

    
      
        -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 Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)) providing benefits
to any current or former employee, officer or director of the Company or any
member of its “Controlled
Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “Code”)) that is sponsored,
maintained or contributed to by the Company or any member of its Controlled
Group and for which the Company or any member of its Controlled Group would have
any liability, whether actual or contingent (each, a “Plan”) has been maintained in
compliance with its terms and with the requirements of all applicable statutes,
rules and regulations, including ERISA and the Code; (B) with respect to each
Plan subject to Title IV of ERISA (including, for purposes of this clause (B),
any plan subject to Title IV of ERISA that the Company or any member of its
Controlled Group previously maintained or contributed to in the six years prior
to the Signing Date), (1) no “reportable event” (within the meaning of Section
4043(c) of ERISA),  other than a reportable event for which the notice
period referred to in Section 4043(c) of ERISA has been waived, has occurred in
the three years prior to the Signing Date or is reasonably expected to occur,
(2) no “accumulated funding deficiency” (within the meaning of Section 302 of
ERISA or Section 412 of the Code), whether or not waived, has occurred in the
three years prior to the Signing Date or is reasonably expected to occur, (3)
the fair market value of the assets under each Plan exceeds the present value of
all benefits accrued under such Plan (determined based on the assumptions used
to fund such Plan) and (4) neither the Company nor any member of its Controlled
Group has incurred in the six years prior to the Signing Date, or reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC in the ordinary course and
without default) in respect of a Plan (including any Plan that is a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and
(C) each Plan that is intended to be qualified under Section 401(a) of the Code
has received a favorable determination letter from the Internal Revenue Service
with respect to its qualified status that has not been revoked, or such a
determination letter has been timely applied for but not received by the Signing
Date, and nothing has occurred, whether by action or by failure to act, which
could reasonably be expected to cause the loss, revocation or denial of such
qualified status or favorable determination letter.

     

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

    
      
        -10-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

     

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

     

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

     

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

    
      
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    (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 January 1,
2006 alleging that any person has infringed, diluted, misappropriated or
violated, any of the Proprietary Rights owned by the Company and the Company
Subsidiaries.

    
      
        -12-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

    Article
III

    Covenants

     

    3.1 Commercially Reasonable
Efforts.

     

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

     

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

    
      
        -13-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

    3.3 Sufficiency of Authorized
Common Stock; Exchange Listing.

     

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

     

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

     

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

    
      
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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 Section 3.5 shall be conducted during normal
business hours and in such manner as not to interfere unreasonably with the
conduct of the business of the Company, and nothing herein shall require the
Company or any Company Subsidiary to disclose any information to the Investor to
the extent (i) prohibited by applicable law or regulation, or (ii)  that
such disclosure would reasonably be expected to cause a violation of any
agreement to which the Company or any Company Subsidiary is a party or would
cause a risk of a loss of privilege to the Company or any Company Subsidiary
(provided that the
Company shall use commercially reasonable efforts to make appropriate substitute
disclosure arrangements under circumstances where the restrictions in this
clause (ii) apply).

     

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

     

    Article
IV

    Additional
Agreements

     

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

    
      
        -15-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    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.

    
      
        -16-

      

      
        
        

        
          

        

      

      
        
        

      

    

    


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

    


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

     

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

     

    4.4 Transfer of Purchased
Securities and Warrant Shares; Restrictions on Exercise of the
Warrant.  Subject to compliance with applicable securities
laws, the Investor shall be permitted to transfer, sell, assign or otherwise
dispose of (“Transfer”)
all or a portion of the Purchased Securities or Warrant Shares at any time, and
the Company shall take all steps as may be reasonably requested by the Investor
to facilitate the Transfer of the Purchased Securities and the Warrant Shares;
provided that the
Investor shall not Transfer a portion or portions of the Warrant with respect
to, and/or exercise the Warrant for, more than one-half of the Initial Warrant
Shares (as such number may be adjusted from time to time pursuant to Section 13
thereof) in the aggregate until the earlier of (a) the date on which the Company
(or any successor by Business Combination) has received aggregate gross proceeds
of not less than the Purchase Price (and the purchase price paid by the Investor
to any such successor for securities of such successor purchased under the CPP)
from one or more Qualified Equity Offerings (including Qualified Equity
Offerings of such successor) and (b) December 31, 2009.  “Qualified Equity Offering”
means the sale and issuance for cash by the Company to persons other than
the Company or any of the Company Subsidiaries after the Closing Date of shares
of perpetual Preferred Stock, Common Stock or any combination of such stock,
that, in each case, qualify as and may be included in Tier 1 capital of the
Company at the time of issuance under the applicable risk-based capital
guidelines of the Company’s Appropriate Federal Banking Agency (other than any
such sales and issuances made pursuant to agreements or arrangements entered
into, or pursuant to financing plans which were publicly announced, on or prior
to October 13, 2008). “Business Combination” means a
merger, consolidation, statutory share exchange or similar transaction that
requires the approval of the Company’s stockholders.

    
      
        -17-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

    
      
        -19-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

    
      
        -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 Section 4.5(d), keep such registration statement effective
and keep such prospectus supplement current until the securities described
therein are no longer Registrable Securities.

     

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

     

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

     

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

     

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

     

    (vi) Give
written notice to the Holders:

     

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

    
      
        -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 Section 4.5(c)(x) cease to be true and
correct.

     

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

     

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

     

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

    
      
        -22-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (x) If an
underwritten offering is requested pursuant to Section 4.5(a)(ii), enter into an
underwriting agreement in customary form, scope and substance and take all such
other actions reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith or by the managing
underwriter(s), if any, to expedite or facilitate the underwritten disposition
of such Registrable Securities, and in connection therewith in any underwritten
offering (including making members of management and executives of the Company
available to participate in “road shows”, similar sales events and other
marketing activities), (A) make such representations and warranties to the
Holders that are selling stockholders and the managing underwriter(s), if any,
with respect to the business of the Company and its subsidiaries, and the Shelf
Registration Statement, prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in customary form,
substance and scope, and, if true, confirm the same if and when requested, (B)
use its reasonable best efforts to furnish the underwriters with opinions of
counsel to the Company, addressed to the managing underwriter(s), if any,
covering the matters customarily covered in such opinions requested in
underwritten offerings, (C) use its reasonable best efforts to obtain “cold
comfort” letters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public accountants
of any business acquired by the Company for which financial statements and
financial data are included in the Shelf Registration Statement) who have
certified the financial statements included in such Shelf Registration
Statement, addressed to each of the managing underwriter(s), if any, such
letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters, (D) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures customary
in underwritten offerings (provided that the Investor shall not be obligated to
provide any indemnity), and (E) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority of the Registrable
Securities being sold in connection therewith, their counsel and the managing
underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.

     

    (xi) Make
available for inspection by a representative of Holders that are selling
stockholders, the managing underwriter(s), if any, and any attorneys or
accountants retained by such Holders or managing underwriter(s), at the offices
where normally kept, during reasonable business hours, financial and other
records, pertinent corporate documents and properties of the Company, and cause
the officers, directors and employees of the Company to supply all 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.

    
      
        -23-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

     

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

     

    (f) Furnishing
Information.

     

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

     

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

    
      
        -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 Section 4.5(g)(i) is unavailable to an
Indemnitee with respect to any losses, claims, damages, actions, liabilities,
costs or expenses referred to therein or is insufficient to hold the Indemnitee
harmless as contemplated therein, then the Company, in lieu of indemnifying such
Indemnitee, shall contribute to the amount paid or payable by such Indemnitee as
a result of such losses, claims, damages, actions, liabilities, costs or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnitee, on the one hand, and the Company, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, actions, liabilities, costs or expenses as well as any other
relevant equitable considerations.  The relative fault of the Company,
on the one hand, and of the Indemnitee, on the other hand, shall be determined
by reference to, among other factors, whether the untrue statement of a material
fact or omission to state a material fact relates to information supplied by the
Company or by the Indemnitee and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission;  the Company and each Holder agree that it would not be just
and equitable if contribution pursuant to this Section 4.5(g)(ii) were
determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 4.5(g)(i).  No
Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from the
Company if the Company was not guilty of such fraudulent
misrepresentation.

    
      
        -25-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

    
      
        -26-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

    
      
        -27-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

     

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

    
      
        -28-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

     

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

    
      
        -29-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

    
      
        -30-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

    4.9 Repurchase of Investor
Securities.

     

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

     

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

     

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

     

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

    
      
        -31-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

    Article
V

    Miscellaneous

     

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

     

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

     

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

    
      
        -32-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

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

     

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

     

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

     

    5.4 Waiver of Conditions.
The conditions to each party’s obligation to consummate the Purchase are for the
sole benefit of such party and may be waived by such party in whole or in part
to the extent permitted by applicable law. No waiver will be effective unless it
is in a writing signed by a duly authorized officer of the waiving party that
makes express reference to the provision or provisions subject to such
waiver.

     

    5.5 Governing Law: Submission to
Jurisdiction, Etc. This Agreement will be governed by and construed in
accordance with the federal law of the United States if and to 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.

    
      
        -33-

      

      
        
        

        
          

        

      

      
        
        

      

    

                    

    
      	
               If
      to the Investor:

            
	 
	     United States
      Department of the Treasury
	     1500
      Pennsylvania Avenue, NW, Room 2312
	     Washington,
      D.C. 20220
	     Attention:
      Assistant General Counsel (Banking and Finance)
	     Facsimile:
      (202) 622-1974


    

     

    5.7 Definitions

     

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

     

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

     

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

     

    5.8 Assignment. Neither
this Agreement nor any right, remedy, obligation nor liability arising hereunder
or by reason hereof shall be assignable by any party hereto without the prior
written consent of the other party, and any attempt to assign any right, remedy,
obligation or liability hereunder without such consent shall be void, except (a)
an assignment, in the case of a Business Combination where such party is not the
surviving entity, or a sale of substantially all of its assets, to the entity
which is the survivor of such Business Combination or the purchaser in such sale
and (b) as provided in Section 4.5.

     

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

    
      
        -34-

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

    *  *  *

     


    
      
        -35- 


      

      
         


        
          

        

      

      
         


      

    


    ANNEX
A

    


    FORM OF CERTIFICATE OF
DESIGNATIONS

    


    


    [SEE
ATTACHED]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ANNEX
B

    


    FORM OF
WAIVER

    


    


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

    


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

    


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


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ANNEX
C

    


    FORM OF
OPINION

    


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

     

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

     

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

     

    (d) The
shares of Common Stock issuable upon exercise of the Warrant have been duly
authorized and reserved for issuance upon exercise of the Warrant and when so
issued in accordance with the terms of the Warrant will be validly issued, fully
paid and non-assessable [insert, if
applicable: , subject to the approvals
of the Company’s stockholders set forth on Schedule C].

     

    (e) The
Company has the corporate power and authority to execute and deliver the
Agreement and the Warrant and [insert, if
applicable: , subject to the approvals
of the Company’s stockholders set forth on Schedule C,] to carry out its obligations
thereunder (which includes the issuance of the Preferred Shares, Warrant and
Warrant Shares).

     

    (f) The
execution, delivery and performance by the Company of the Agreement and the
Warrant and the consummation of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of the Company and
its stockholders, and no further approval or authorization is required on the
part of the Company [insert, if
applicable: , subject, in each case,
to the approvals of the Company’s stockholders set forth on Schedule C].

     

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

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    ANNEX
D

    


    FORM OF
WARRANT

    


    [SEE
ATTACHED]

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    SCHEDULE
A

     

    ADDITIONAL TERMS AND
CONDITIONS

     

    Company
Information:

    
      	
              Name
      of the Company:

            	
              Trustmark
      Corporation

            
	
              Corporate
      or other organizational form:

            	
              Corporation

            
	
              Jurisdiction
      of Organization:

            	
              Mississippi

            
	
              Appropriate
      Federal Banking Agency:

               

               

               

            	
              Trustmark
      Corp. - Federal Reserve Bank of Atlanta

              (Trustmark
      National Bank - OCC)

            
	
              Notice
      Information:

            	
              With copies
      to:

              Bruce
      C. Bennett

              Covington
      & Burling LLP

              The
      New York Times Building

              620
      Eighth Avenue

              New
      York, NY 10018-1405

              212-841-1000
      (Phone)

              212-841-1010
      (Fax)

            
	
              Louis
      E. Greer

              Treasurer
      and Principal Financial Officer

              Trustmark
      Corporation

              248
      East Capitol Street

              Jackson,
      MS 39201

              601-208-2310
      (Phone)

              601-208-7966
      (Fax)

            


    

    


    Terms of the
Purchase:

    
      	
              Series
      of Preferred Stock Purchased:

            	
              Fixed
      Rate Cumulative Perpetual Preferred Stock, Series A

            
	
              Per
      Share Liquidation Preference of Preferred Stock:

            	
              $1,000

            
	
              Number
      of Shares of Preferred Stock Purchased:

            	
              215,000
      Shares

            
	
              Dividend
      Payment Dates on the Preferred Stock:

            	
              February
      15, May 15, August 15, November 15

            
	
              Number
      of Initial Warrant Shares:

            	
              1,647,931

            
	
              Exercise
      Price of the Warrant:

            	
              $19.57

            
	
              Purchase
      Price:

            	
              $215,000,000

            


    

    


    Closing:

    
      	
              Location
      of Closing:

            	
              Hughes
      Hubbard & Reed LLP

              One
      Battery Park Plaza

              New
      York, New York 10004-1482

            
	
              Time
      of Closing:

            	
              9:00
      a.m. (Eastern Standard Time)

            
	
              Date
      of Closing:

            	
              November
      21, 2008

            
	 
      	 
      


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    SCHEDULE
B

     

    CAPITALIZATION

     

    Capitalization
Date: October 31, 2008

    Common
Stock

    
      	
              Par
      value:

            	 
      	
              $0
      (No par)

            
	
              Total
      Authorized:

            	 
      	
              250,000,000

            
	
              Outstanding:

            	 
      	
              57,324,629

            
	
              Subject
      to warrants, options, convertible

                    securities,
      etc.:

            	 
      	
              2,149,143
      (plus an additional 1,647,931 shares in respect of the Warrant issued
      hereby)

            
	
              Reserved
      for benefit plans and other

                    issuances:

               

            	 
      	
              5,519,263

            
	
              Remaining
      authorized but unissued:

            	 
      	
              185,006,965 (less
      1,647,931 shares in respect of the Warrant issued
  hereby)

            
	
              Shares
      issued after Capitalization Date (other than pursuant to warrants,
      options, convertible securities, etc. as set forth above):

            	 
      	
              None

            
	 
      	 
      	 
      
	 
      	 
      	 
      


    

    


    Preferred
Stock

    
      	
              Par
      value:

            	 
      	
              $0
      (No par)

            
	
              Total
      Authorized:

            	 
      	
              20,000,000

            
	
              Outstanding
      (by series):

            	 
      	
              None

            
	
              Reserved
      for issuance:

            	 
      	
              None

            
	
              Remaining
      authorized but unissued:

            	 
      	
              20,000,000
      (less 215,000 shares of Fixed Rate Cumulative Perpetual Preferred Stock,
      Series A issued hereby)

            


    

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    SCHEDULE
C

     

    


     

    REQUIRED STOCKHOLDER
APPROVALS

     

    
      	 
      	
              Required1

            	
              %
      Vote Required

            
	
              Warrants -- Common
      Stock Issuance

            	 
      	 
      
	 
      	 
      	 
      
	
              Charter
      Amendment

            	 
      	 
      
	 
      	 
      	 
      
	
              Stock
      Exchange Rules

            	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      


    

    


    If no
stockholder approvals are required, please so indicate by checking the
box:  R.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    

      

    

      
      1 If
stockholder approval is required, indicate applicable class/series of capital
stock that are required to vote.

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    SCHEDULE
D

     

    


     

    LITIGATION

     

    List any
exceptions to the representation and warranty in Section 2.2(l) of the
Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    


    


    If none,
please so indicate by checking the box:  R.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    


    SCHEDULE
E

     

    


     

    COMPLIANCE WITH
LAWS

     

    List any
exceptions to the representation and warranty in the second sentence of Section
2.2(m) of the Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    If none,
please so indicate by checking the box:  R.

    


    List any
exceptions to the representation and warranty in the last sentence of Section
2.2(m) of the Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    If none,
please so indicate by checking the box:  R.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    SCHEDULE
F

     

    


     

    REGULATORY
AGREEMENTS

     

    List any
exceptions to the representation and warranty in Section 2.2(s) of the
Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    


    


    If none,
please so indicate by checking the box: R.