ex10_1.htm


  
    Exhibit 10.1

    
      


      


      VALLEY
NATIONAL BANCORP

      


      Up to
5,670,000

      Shares of
Common Stock

      (no par
value)

      


      EQUITY DISTRIBUTION
AGREEMENT

      


      


      June
8,
2009

      


      STIFEL,
NICOLAUS & COMPANY, INCORPORATED

      One South
Street, 15th
Floor

      Baltimore,
Maryland 21202

      


      RBC
CAPITAL MARKETS CORPORATION

      Three
World Financial Center

      200 Vesey
Street, 8th
Floor

      New York,
New York 10281

      


      Ladies
and Gentlemen:

      


      Valley
National Bancorp, a New Jersey corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell from time
to time to or through Stifel, Nicolaus & Company, Incorporated (“Stifel Nicolaus”) and
RBC Capital Markets Corporation (“RBC” and, together
with Stifel Nicolaus, the “Agents”), as sales
agent and/or principal, up to 5,670,000 shares (the “Shares”) of the Company’s common
stock, no par value (the “Common Stock”) on the
terms set forth in Section 2 of this Equity Distribution Agreement (the “Agreement”).  The
Company agrees that whenever it determines to sell Shares directly to an Agent,
as principal, it will enter into a separate agreement (each, a “Terms Agreement”) in
substantially the form of Annex I hereto, relating to such sale in accordance
with Section 3 of this Agreement.

      


      Section
1.  Representations and
Warranties.  The Company represents and warrants to the Agents
that as of the date of this Agreement, any applicable Registration Statement
Amendment Date (as defined in Section 3 below), each Company Periodic Report
Date (as defined in Section 3 below), each Company Earnings Report date (as
defined in Section 3 below), each Applicable Time (as defined in Section 1(c)
below) and each Settlement Date (as defined in Section 2 below):

      


      (a)           Compliance with Registration
Requirements.  The Company has filed with the Securities and
Exchange Commission (the “Commission”) an
“automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “1933 Act”), on Form
S-3 (File No. 333-157561), in respect of the Company’s Common Stock (including
the Shares) (collectively, the “Securities”) not
earlier than three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the Commission, and
no notice of objection of the Commission to the use of such form of registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the 1933 Act has been received by the Company (the base prospectus filed
as part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Basic Prospectus”;
the various parts of such registration statement, including all exhibits thereto
and any prospectus supplement relating to the Shares that is filed with the
Commission and deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “Registration
Statement”; the prospectus supplement specifically relating to the Shares
prepared and filed with the Commission pursuant to Rule 424(b) under the 1933
Act is hereinafter called the “Prospectus
Supplement”; the Basic Prospectus, as amended and supplemented by the
Prospectus Supplement, is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act; any
reference to any amendment or supplement to the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Shares filed with the Commission pursuant to Rule
424(b) under the 1933 Act and any documents filed under the Securities Exchange
Act of 1934, as amended (the “1934 Act”), and
incorporated therein, in each case after the date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the 1934 Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under the 1933 Act relating to
the Shares is hereinafter called an “Issuer Free Writing
Prospectus”).

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      2

       

      No order
preventing or suspending the use of the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued
by the Commission, and the Basic Prospectus and the Prospectus Supplement, at
the time of filing thereof, conformed in all material respects to the
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder (the “1933
Act Regulations”) and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.

      


      For the
purposes of this Agreement, the “Applicable Time”
means, with respect to any Shares, the time of sale of such Shares pursuant to
this Agreement; the Prospectus and the applicable Issuer Free Writing
Prospectus(es) issued at or prior to such Applicable Time, taken together
(collectively, and, with respect to any Shares, together with the public
offering price of such Shares, the “General Disclosure
Package”) as of each Applicable Time and each Settlement Date, will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each applicable
Issuer Free Writing Prospectus will not conflict with the information contained
in the Registration Statement, the Prospectus Supplement or the Prospectus and
each such Issuer Free Writing Prospectus, as supplemented by and taken together
with the General Disclosure Package as of such Applicable Time, will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Agent expressly for use therein.

      


      (b)           Incorporation of Documents
by Reference.  The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
complied in all material respects with the requirements of the 1934 Act and the
1934 Act Regulations, and, when read together with the other information in the
Prospectus, (a) at the time the Registration Statement became effective, (b) at
the time the Prospectus was issued and (c) on the date of this Agreement, did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.

      


      (c)           Independent
Accountants.  The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.

      


      (d)           Financial
Statements.  The financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and
the Prospectus, together with the related schedules and notes, present fairly,
in all material respects, the financial position of the Company and its
consolidated subsidiaries  at the dates indicated and the statement of
operations, shareholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
in the United States (“GAAP”) applied on a
consistent basis throughout the periods involved.  The supporting
schedules, if any, present fairly, in all material respects, in accordance with
GAAP the information required to be stated therein.  The selected
financial data and the summary financial information included in the Prospectus
present fairly, in all material respects, the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement.  All disclosures contained in the Registration Statement,
the General Disclosure Package or the Prospectus, or incorporated by reference
therein, regarding “non-GAAP financial measures” (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G of the 1934
Act and Item 10 of Regulation S-K of the 1933 Act, to the extent
applicable.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      3

       

      (e)           No Material Adverse Change
in Business.  Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure
Package or the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
consolidated direct or indirect subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the
Company or any of its consolidated direct or indirect subsidiaries, other than
those in the ordinary course of business, which are material with respect to the
Company and its direct or indirect subsidiaries considered as one enterprise,
and (C) except for cash and stock dividends on the Common Stock as
described in the Registration Statement, the General Disclosure Package and the
Prospectus in amounts per share that are consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.

      


      (f)           Good Standing of the
Company.  The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its organization and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.  The Company is duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended (the “BHCA”).

      


      (g)           Status of Significant
Subsidiaries.  Valley National Bank (the “Bank”) is a duly
organized and validly existing national banking association and each of VNB
Realty, Inc., VNB Capital Corp., Shrewsbury Capital Corporation, VN Investments,
Inc. and Shrewsbury State Investment Co., Inc. (each, including the Bank, a
“significant subsidiary” (as such term is defined in Rule 1-02(w) of Regulation
S-X under the 1933 Act) (collectively with the Bank, the “Significant
Subsidiaries”)) has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
such Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock of
any Significant Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Significant Subsidiary.  The Bank
is the only depository institution subsidiary of the Company.

      


      (h)           Capitalization.  The
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.  The Company’s
Common Stock has been registered pursuant to Section 12(b) of the 1934 Act and
is listed on the New York Stock Exchange (the “NYSE”), and the
Company has taken no action designed to, or likely to have the effect of,
terminating the registration or listing of the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.  The
outstanding shares of the Common Stock have been approved for listing and the
Shares being sold hereunder have been approved for listing, subject only to
official notice of issuance, on the NYSE.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      4

       

      (i)           Authorization of
Agreements.  This Agreement and any Terms Agreement have been
duly authorized by the Company.  This Agreement has been, and any
Terms Agreement will be, duly executed and delivered by the
Company.

      


      (j)           Authorization and
Description of Securities.  The Shares have been duly
authorized and reserved for issuance and sale pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement or any Terms
Agreement against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectus in all material respects
and such description conforms to the rights set forth in the Certificate of
Incorporation of the Company; no holder of the Shares will be subject to
personal liability by reason of being such a holder; and the issuance of the
Shares is not subject to the preemptive or other similar rights of any
securityholder of the Company.

      


      (k)           Absence of Defaults and
Conflicts.  (a) Neither the Company nor the Significant
Subsidiaries is (i) in violation of its charter or by-laws, (ii) in default, and
no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or the Significant Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or the Significant Subsidiaries is subject (collectively, “Agreements and
Instruments”), except for such default that would not, individually or in
the aggregate, have a Material Adverse Effect, or (iii) in violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or the Significant Subsidiaries or any of their
assets, properties or operations, except for such violation that would not,
individually or in the aggregate, have a Material Adverse Effect; (b)(i) and the
execution, delivery and performance of this Agreement or of any Terms Agreement
and the consummation of the transactions contemplated herein or in any Terms
Agreement and in the Registration Statement (including the issuance and sale of
the Shares and the use of the proceeds from the sale of the Shares as described
in the Prospectus under the caption “Use of Proceeds”) and compliance by the
Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or the Significant Subsidiaries pursuant to, the
Agreements and Instruments, (ii) nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or the Significant
Subsidiaries, (iii) nor will such action result in any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or the Significant Subsidiaries or any of their
assets, properties or operations, except for such violation that would not,
individually or in the aggregate, have a Material Adverse Effect.  As
used herein, a “Repayment Event”
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or the Significant
Subsidiaries.

      


      (l)           Absence of Labor
Dispute.  No labor dispute with the employees of the Company or
the Significant Subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or the Significant Subsidiaries’
principal suppliers, manufacturers, customers or contractors.

       

      (m)           Absence of
Proceedings.  There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or the Significant Subsidiaries,
which is required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein), or which would reasonably be
expected to result in a Material Adverse Effect, or which might materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or any Terms Agreement or the
performance by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or the Significant Subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the Registration
Statement or the Prospectus, including ordinary routine litigation incidental to
the business, would not reasonably be expected to result in a Material Adverse
Effect.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      5

       

      (n)           Accuracy of
Exhibits.  There are no contracts or documents which are
required to be described in the Registration Statement or the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required.

      


      (o)           Possession of Intellectual
Property.  The Company and the Significant Subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, and
neither the Company nor the Significant Subsidiaries has received any notice or
is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or the Significant Subsidiaries
therein.

      


      (p)           Absence of Further
Requirements.  No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Shares hereunder or the consummation of the transactions
contemplated by this Agreement or any Terms Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.

      


      (q)           Absence of
Manipulation.   Neither the Company nor any affiliate of
the Company has taken, nor will the Company take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected
to cause or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.

       

      (r)           Possession of Licenses and
Permits.  The Company and the Significant Subsidiaries possess
such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
them; the Company and the Significant Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses; all of the Governmental
Licenses are valid and in full force and effect; and neither the Company nor the
Significant Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses.

      


      (s)           Title to
Property.  The Company and the Significant Subsidiaries have
good and marketable title to all real property owned by the Company and the
Significant Subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (a)
are described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or the Significant
Subsidiaries; and all of the leases and subleases material to the business of
the Company and the Significant Subsidiaries, considered as one enterprise, and
under which the Company or the Significant Subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor the Significant Subsidiaries has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the Company
or the Significant Subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or the Significant
Subsidiaries to the continued possession of the leased or subleased premises
under any such lease or sublease.

      


      (t)           Investment Company
Act.  The Company is not required, and upon the issuance and
sale of the Shares as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required, to
register as an “investment company” within the meaning of the Investment Company
Act of 1940, as amended (the “1940
Act”).

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      6

       

      (u)           Environmental
Laws.  Except as described in the Prospectus and as would not,
individually or in the aggregate, have a Material Adverse Effect, (A) neither
the Company nor the Significant Subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold
(collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”),
(B) the Company and the Significant Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or the Significant Subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or the
Significant Subsidiaries relating to Hazardous Materials or any Environmental
Laws.

      


      (v)           Registration
Rights.  Other than pursuant to agreements for which the
Company has fully satisfied its registration obligations, there are no persons
with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.

      


      (w)           Accounting Controls and
Disclosure Controls.  The Company and the Significant
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance
with management’s general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.  Except as described in the Prospectus,
since the end of the Company’s most recent audited fiscal year, there has been
(1) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over
financial reporting.

       

      The
Company and its consolidated subsidiaries employ disclosure controls and
procedures that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, and is accumulated and communicated to the
Company’s management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.

       

      (x)           Well-Known Seasoned
Issuer.  (A)(i)  At the time of filing the
Registration Statement, (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether
such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), and
(iii) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) under the 1933 Act) made any offer
relating to the Shares in reliance on the exemption of Rule 163 under the 1933
Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under
the 1933 Act and (B) at the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the 1933 Act) of the Shares,
the Company was not an “ineligible issuer” as defined in Rule 405 under the 1933
Act.

      


      (y)           No
Commissions.  Neither the Company nor the Significant
Subsidiaries is a party to any contract, agreement or understanding with any
person (other than as contemplated by this Agreement or any Terms Agreement)
that would give rise to a valid claim against the Company or the Significant
Subsidiaries or the Agents for a brokerage commission, finder’s fee or like
payment in connection with the offering and sale of the Shares.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      7

       

      (z)           Actively-Traded
Security.  The Common Stock is an “actively-traded security”
exempted from the requirements of Rule 101 of Regulation M under the 1934 Act by
subsection (c)(1) of such rule.

      


      (aa)           Deemed
Representation.  Any certificate signed by any officer of the
Company delivered to the Agents or to counsel for the Agents pursuant to or in
connection with this Agreement or any Terms Agreement shall be deemed a
representation and warranty by the Company to the Agent as to the matters
covered thereby as of the date or dates indicated in such
certificate.

      


      (bb)           Compliance with the
Sarbanes-Oxley Act.  There is and has been no failure on the
part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.

       

      (cc)           Payment of
Taxes.  All United States federal income tax returns of the
Company and the Significant Subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed, which are due
and payable, have been paid, except assessments against which appeals have been
or will be promptly taken and as to which adequate reserves have been
provided.  The United States federal income tax returns of the Company
through the fiscal year ended December 31, 2008 have been settled and no
assessment in connection therewith has been made against the Company. The
Company and the Significant Subsidiaries have filed all other tax returns that
are required to have been filed by them pursuant to applicable foreign, state,
local or other law and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company and the Significant
Subsidiaries, except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. The charges,
accruals and reserves on the books of the Company in respect of any income and
corporation tax liability for any years not finally determined are adequate to
meet any assessments or re-assessments for additional income tax for any years
not finally determined.

       

      (dd)           Insurance.  The
Company and the Significant Subsidiaries carry or are entitled to the benefits
of insurance, with, to the best knowledge of each of the Company and the
Significant Subsidiaries, financially sound and reputable insurers, in such
amounts and covering such risks as is generally maintained by companies of
established repute engaged in the same or similar business, and all such
insurance is in full force and effect.  The Company has no reason to
believe that it or the Significant Subsidiaries will not be able (A) to
renew its existing insurance coverage as and when such policies expire or
(B) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost
that would not result in a Material Adverse Effect.  Neither of the
Company nor the Significant Subsidiaries has been denied any insurance coverage
which it has sought or for which it has applied.

       

      (ee)           Statistical and
Market-Related Data.  Any statistical and market-related data
included in the Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived from sources that the Company believes to be
reliable and accurate, and, where required, the Company has obtained the written
consent to the use of such data from such sources.

       

      (ff)           Foreign Corrupt Practices
Act.  Neither the Company nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate or other person acting on
behalf of the Company or the Significant Subsidiaries is aware of or has taken
any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      8

       

      (gg)           Money Laundering
Laws.  Except as set forth on Schedule I hereto, the operations
of the Company are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened.

       

      (hh)           OFAC.  Neither the Company nor,
to the knowledge of the Company, any director, officer, agent, employee,
affiliate or person acting on behalf of the Company is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to the Significant Subsidiaries, joint venture
partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by
OFAC.

       

      (ff)           Regulatory.  The
Company and the Significant Subsidiaries are in compliance with all laws, rules
and regulations of, or administered or promulgated by, the Office of the
Comptroller of Currency (the “OCC”), the Federal
Deposit Insurance Corporation (“FDIC”) and the Board
of Governors of the Federal Reserve System (the “Federal Reserve
Board”) and any other federal or state bank, insurance or other financial
regulatory authorities (collectively with the OCC, FDIC and the Federal Reserve
Board, the “Regulatory
Authorities”) with jurisdiction over the Company or any of its
Significant Subsidiaries to the extent such laws or regulations apply to the
Company or any of its Significant Subsidiaries, except where the failure to be
so in compliance would not, individually or in the aggregate, have a Material
Adverse Effect; and neither the Company nor any of its Significant Subsidiaries
is a party to any written agreement or memorandum of understanding with, or is
subject to any order or directive by, or has adopted any board resolutions at
the request of, any Regulatory Authority which restricts materially the conduct
of its business, or in any material manner relates to its capital adequacy, its
credit policies or its management, nor have any of them been advised by any
Regulatory Authority that such Regulatory Authority is contemplating issuing or
requesting (or considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding or similar
submission, or any such board resolutions; the deposit accounts of the Bank are
insured with the FDIC up to applicable limits to the fullest extent permitted by
law; and no proceeding for the termination or revocation of such insurance is
pending or, to the knowledge of the Company or the Bank,
threatened.

       

      (gg)           No Restrictions on
Subsidiaries.  No direct or indirect subsidiary of the Company
is currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or
assets to the Company or any other direct or indirect subsidiary of the Company,
except, in each case, as described in the Registration Statement, the General
Disclosure Package or the Prospectus and for generally applicable laws, rules
and regulations.

       

      (hh)           Margin
Rules.  Neither the issuance, sale and delivery of the Shares
nor the application of the proceeds thereof by the Company as described in the
Registration Statement, the General Disclosure Package and the Prospectus will
violate Regulation T, U or X of the Federal Reserve Board or any other
regulation of the Federal Reserve Board.

       

      Section 2.  Sale and Delivery of
Shares.

      


      (a)           Subject
to the terms and conditions set forth herein, the Company agrees to issue and
sell exclusively through Stifel Nicolaus or RBC, as the case may be, acting as
sales agent or directly to such Agent acting as principal from time to time, and
such Agent agrees to use its commercially reasonable efforts to sell as sales
agent for the Company, the Shares.  Sales of the Shares, if any,
through Stifel Nicolaus or RBC, as the case may be, acting as sales agent or
directly to such Agent acting as principal will be made by means of ordinary
brokers’ transactions on the NYSE, in privately negotiated transactions or
otherwise at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at negotiated prices.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      9

       

      (b)           The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the
Company and Stifel Nicolaus or RBC, as the case may be, on that trading day
(other than a day on which the NYSE is scheduled to close prior to its regular
weekday closing time, each, a “Trading Day”) that
the Company has satisfied its obligations under Section 6 of this Agreement and
that the Company has instructed such Agent to make such sales.  For
the avoidance of doubt, the foregoing limitation shall not apply to sales solely
to employees or security holders of the Company or its direct or indirect
subsidiaries, or to a trustee or other person acquiring such securities for the
accounts of such persons in which Stifel Nicolaus or RBC, as the case may be, is
acting for the Company in a capacity other than as Agent under this
Agreement.  On any Trading Day, the Company may instruct Stifel
Nicolaus or RBC, as the case may be, by telephone or email (confirmed promptly
by telecopy or email, which confirmation will be promptly acknowledged by such
Agent) as to the maximum number of Shares to be sold by such Agent on such day
(in any event not in excess of the number available for issuance under the
Prospectus and the currently effective Registration Statement) and the minimum
price per Share at which such Shares may be sold.  Subject to the
terms and conditions hereof, Stifel Nicolaus or RBC, as the case may be, shall
use its commercially reasonable efforts to sell as sales agent all of the Shares
so designated by the Company.  The Company and the Agents, acting
severally and not jointly, each acknowledge and agree that (A) there can be no
assurance that Stifel Nicolaus or RBC, as the case may be, will be successful in
selling the Shares, (B) such Agent will incur no liability or obligation to the
Company or any other person or entity if they do not sell Shares for any reason
other than a failure by such Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable law and
regulations to sell such Shares as required by this Agreement and (C) such Agent
shall be under no obligation to purchase Shares on a principal basis except as
otherwise specifically agreed by each of such Agent and the Company pursuant to
a Terms Agreement.  In the event of a conflict between the terms of
this Agreement and the terms of a Terms Agreement, the terms of such Terms
Agreement will control.

      


      (c)  Notwithstanding
the foregoing, the Company shall not authorize the issuance and sale of, and
Stifel Nicolaus or RBC, as the case may be, as sales agent shall not be
obligated to use its commercially reasonable efforts to sell, any Shares (i) at
a price lower than the minimum price therefor authorized from time to time, or
(ii) in a number in excess of the number of Shares authorized from time to time
to be issued and sold under this Agreement, in each case, by the Company’s board
of directors, or a duly authorized committee thereof, and notified to such Agent
in writing.  In addition, the Company may, upon notice to Stifel
Nicolaus or RBC, as the case may be, suspend the offering of the Shares or such
Agent may, upon notice to the Company, suspend the offering of the Shares with
respect to which such Agent is acting as sales agent for any reason and at any
time; provided,
however, that
such suspension or termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder prior to the
giving of such notice.  Any notice given pursuant to the preceding
sentence may be given by telephone or email (confirmed promptly by telecopy or
email, which confirmation will be promptly acknowledged).

      


      (d)  The
gross sales price of any Shares sold pursuant to this Agreement by Stifel
Nicolaus or RBC, as the case may be, acting as sales agent of the Company shall
be the market price prevailing at the time of sale for shares of the Company’s
Common Stock sold by such Agent on the NYSE or otherwise, at prices relating to
prevailing market prices or at negotiated prices.  The compensation
payable to the Agents for sales of Shares with respect to which the Agents act
as sales agent shall be equal to 1.75% of the gross sales price of the Shares
for amounts of Shares sold pursuant to this Agreement.  The Company
may sell Shares to Stifel Nicolaus or RBC, as the case may be, acting as
principal, at a price agreed upon with such Agent at the relevant Applicable
Time and pursuant to a separate Terms Agreement.  The remaining
proceeds, after further deduction for any transaction fees imposed by any
governmental, regulatory or self-regulatory organization in respect of such
sales, shall constitute the net proceeds to the Company for such Shares (the
“Net
Proceeds”).  Stifel Nicolaus or RBC, as the case may be, shall
notify the Company as promptly as practicable if any deduction referenced in the
preceding sentence will be required.

      


      (e)  If
acting as a sales agent hereunder, Stifel Nicolaus or RBC, as the case may be,
shall provide written confirmation to the Company following the close of trading
on the NYSE, each day in which Shares are sold under this Agreement setting
forth the number of Shares sold on such day, the aggregate gross sales proceeds
of the Shares, the Net Proceeds to the Company and the compensation payable by
the Company to such Agent with respect to such sales.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      10

       

      (f)  Under
no circumstances shall the aggregate offering price or number, as the case may
be, of Shares sold pursuant to this Agreement and any Terms Agreement
exceed the aggregate offering price or number, as the case may be, of Shares of
Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii)
available for issuance under the Prospectus and the then currently effective
Registration Statement or (iii) authorized from time to time to be issued and
sold under this Agreement or any Terms Agreement by the Company’s board of
directors, or a duly authorized committee thereof, and notified to Stifel
Nicolaus or RBC, as the case may be, in writing. In addition, under no
circumstances shall any Shares with respect to which Stifel Nicolaus or RBC, as
the case may be, acts as sales agent be sold at a price lower than the minimum
price therefor authorized from time to time by the Company’s board of directors,
or a duly authorized committee thereof, and notified to such Agent in
writing.

      


      (g)           If
either the Company or Stifel Nicolaus or RBC, as the case may be, believes that
the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the
1934 Act (applicable to securities with an average daily trading volume of
$1,000,000 that are issued by an issuer whose common equity securities have a
public float value of at least $150,000,000) are not satisfied with respect to
the Company or the Shares, such party shall promptly notify the other parties
and sales of Shares under this Agreement and any Terms Agreement shall be
suspended until that or other exemptive provisions have been satisfied in the
judgment of each party.

      


      (h)           Settlement
for sales of Shares pursuant to this Section 2 will occur on the third business
day that is also a Trading Day following the trade date on which such sales are
made, unless another date shall be agreed to by the Company and Stifel Nicolaus
or RBC, as the case may be (each such day, a “Settlement
Date”).  On each Settlement Date, the Shares sold through
Stifel Nicolaus or RBC, as the case may be, for settlement on such date shall be
delivered by the Company to such Agent against payment of the Net Proceeds from
the sale of such Shares.  Settlement for all Shares shall be effected
by book-entry delivery of Shares to Stifel Nicolaus’s or RBC’s, as the case may
be, account at The Depository Trust Company against payments by such Agent of
the Net Proceeds from the sale of such Shares in same day funds delivered to an
account designated by the Company.  If the Company shall default on
its obligation to deliver Shares on any Settlement Date, the Company shall (i)
indemnify and hold Stifel Nicolaus or RBC, as the case may be, harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) pay such Agent any commission to which it would otherwise be
entitled absent such default.

      


      (i)           Notwithstanding
any other provision of this Agreement, the Company and the Agents agree that no
sales of Shares shall take place, and the Company shall not request the sale of
any Shares that would be sold, and the Agents shall not be obligated to sell,
during any period (x) unless otherwise agreed by the Company and the Agents, in
which the Company’s insider trading policy, as it exists on the date of the
Agreement, would prohibit the purchases or sales of the Company’s Common Stock
by its officers or directors, or (y) in which the Company is, or could be deemed
to be, in possession of material non-public information; provided that, unless
otherwise agreed between the Company and such Agent, for purposes of clause (y)
of this paragraph (i) any such period shall be deemed to end on the date on
which the Company’s next subsequent Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, is filed with the
Commission.

      


      (j)           At
each Applicable Time, Settlement Date, Registration Amendment Date, Company
Earnings Report Date (as defined below) and each Company Periodic Report Date,
the Company shall be deemed to have affirmed each representation and warranty
contained in this Agreement.  Any obligation of the Agents to use
their commercially reasonable efforts to sell the Shares on behalf of the
Company as sales agent shall be subject to the continuing accuracy of the
representations and warranties of the Company herein, to the performance by the
Company of its obligations hereunder and to the continuing satisfaction of the
additional conditions specified in Section 6 of this Agreement.

      


      Section 3.  Covenants.   The
Company agrees with the Agents:

      


      (a)           During
any period when the delivery of a prospectus is required in connection with the
offering or sale of Shares (whether physically or through compliance with Rule
153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the
1933 Act), (i) to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to any Settlement Date which
shall be disapproved by either Agent promptly after reasonable notice thereof
and to advise the Agents, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any amendment or supplement to the Prospectus has been filed and to
furnish the Agents with copies thereof, (ii) to file promptly all other material
required to be filed by the Company with the Commission pursuant to Rule 433(d)
under the 1933 Act, (iii) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, (iv)
to advise the Agents, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of the Prospectus or other prospectus in respect of the Shares, of any
notice of objection of the Commission to the use of the form of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the 1933 Act, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the form of the Registration Statement or the
Prospectus or for additional information, and (v) in the event of the issuance
of any such stop order or of any such order preventing or suspending the use of
the Prospectus in respect of the Shares or suspending any such qualification, to
promptly use its commercially reasonable efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection,
promptly to take such reasonable steps as may be necessary to permit offers and
sales of the Shares by the Agents, which may include, without limitation,
amending the Registration Statement or filing a new registration statement, at
the Company’s expense (references herein to the Registration Statement shall
include any such amendment or new registration statement).

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      11

       

      (b)           Promptly
from time to time to take such action as either Agent may reasonably request to
qualify the Shares for offering and sale under the securities laws of such
jurisdictions as such Agent may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the sale of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction; and to
promptly advise the Agents of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for offer or
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.

      


      (c)           During
any period when the delivery of a prospectus is required (whether physically or
through compliance with Rules 153 or 172, or in lieu thereof, a notice referred
to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of
Shares, the Company will make available to the Agents, as soon as practicable
after the execution of this Agreement, and thereafter from time to time furnish
to the Agents, copies of the most recent Prospectus in such quantities and at
such locations as either Agent may reasonably request for the purposes
contemplated by the 1933 Act.  During any period when the delivery of
a prospectus is required (whether physically or through compliance with Rules
153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the
1933 Act) in connection with the offering or sale of Shares, and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the 1934 Act any document incorporated by reference in the Prospectus
in order to comply with the 1933 Act or the 1934 Act, to notify the Agents and
to file such document and to prepare and furnish without charge to the Agents as
many written and electronic copies as either Agent may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance.

      


      (d)           (i)           To
make generally available to its securityholders as soon as practicable, but in
any event not later than sixteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the 1933 Act), an
earnings statement of the Company and the Significant Subsidiaries (which need
not be audited) complying with Section 11(a) of the 1933 Act and the rules
and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).

      


      (ii)           If
the Company makes any public announcement or release disclosing its results of
operations or financial condition for a completed quarterly or annual fiscal
period and the Company has not yet filed a Quarterly Report on Form 10-Q or an
Annual Report on Form 10-K with respect to such information, as applicable,
then, prior to any sale of Shares, the Company shall be obligated to either (x)
file a prospectus supplement with the Commission under the applicable paragraph
of Rule 424(b), which prospectus supplement shall include the applicable
financial information, (y) file a Current Report on Form 8-K, which report shall
include the applicable financial information or (z) furnish a Current Report on
Form 8-K pursuant to Item 2.02 thereof, which current report shall specifically
state that the applicable financial information shall be deemed “filed” under
the 1934 Act.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      12

       

      (e)           To
pay the required Commission filing fees relating to the Shares within the time
required by Rule 456(b)(1) under the 1933 Act without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) under the 1933
Act.

      


      (f)           To
use the Net Proceeds received by it from the sale of the Shares pursuant to this
Agreement and any Terms Agreement in the manner specified in the General
Disclosure Package.

      


      (g)           In
connection with the offering and sale of the Shares, the Company will file with
the NYSE all documents and notices, and make all certifications, required by the
NYSE of companies that have securities that are listed or quoted on the NYSE and
will maintain such listings or quotations.

      


      (h)           To
not take, directly or indirectly, and to cause its affiliates to refrain from
taking, any action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, under the 1934 Act or otherwise, the
stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Shares.

      


      (i)           At
each Applicable Time, each Settlement Date, each Registration Statement
Amendment Date (as defined below), each Company Earnings Report Date (as defined
below), each Company Periodic Report Date (as defined below) and each date on
which Shares are delivered to the Agents pursuant to a Terms Agreement, the
Company shall be deemed to have affirmed each representation, warranty, covenant
and other agreement contained in this Agreement or any Terms
Agreement.  In each Annual Report on Form 10-K or Quarterly Report on
Form 10-Q filed by the Company in respect of any quarter in which sales of
Shares were made by or through the Agents under this Agreement or any Terms
Agreement (each date on which any such document is filed, and any date on which
an amendment to any such document is filed, a “Company Periodic Report
Date”), the Company shall set forth with regard to such quarter the
number of Shares sold through such Agent under this Agreement or any Terms
Agreement and the Net Proceeds received by the Company with respect to sales of
Shares pursuant to this Agreement or any Terms Agreement.

      


      (j)           Upon
commencement of the offering of Shares under this Agreement and each time the
Shares are delivered to the Agents as principal on a Settlement Date and
promptly after each (i) date the Registration Statement or the Prospectus shall
be amended or supplemented (other than (1) by an amendment or supplement
providing solely for the determination of the terms of the Shares, (2) in
connection with the filing of a prospectus supplement that contains solely the
information set forth in Section 3(i), (3) in connection with the filing of any
current reports on Form 8-K (other than any current reports on Form 8-K which
contain financial statements, supporting schedules or other financial data,
including any current report on Form 8-K under Item 2.02 of such form that is
considered “filed” under the 1934 Act) or (4) by a prospectus supplement
relating to the offering of other securities (including, without limitation,
other shares of Common Stock)) (each such date, a “Registration Statement
Amendment Date”), (ii) date on which a current report on Form 8-K shall
be furnished by the Company under Item 2.02 of such form in respect of a public
disclosure or material non-public information regarding the Company’s results of
operations or financial condition for a completed quarterly or annual fiscal
period (a “Company
Earnings Report Date”) and (iii) Company Periodic Report Date, the
Company will furnish or cause to be furnished forthwith to the Agents a
certificate dated the date of effectiveness of such amendment or the date of
filing with the Commission of such supplement or other document, as the case may
be, in a form reasonably satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section 6(e) of this
Agreement which were last furnished to the Agents are true and correct at the
time of such amendment, supplement or filing, as the case may be, as though made
at and as of such time (except that such statements shall be deemed to relate to
the Registration Statement, the General Disclosure Package and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in said Section
6(e), but modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented, or to the document incorporated by
reference into the Prospectus, to the time of delivery of such certificate. As
used in this paragraph, to the extent there shall be an Applicable Time on or
following the date referred to in clause (i), (ii) or (iii) above, promptly
shall be deemed to be on or prior to the next succeeding Applicable
Time.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      13

       

      (k)           Upon
commencement of the offering of Shares under this Agreement and each time the
Shares are delivered to the Agents as principal on a Settlement Date, and
promptly after each (i) Registration Statement Amendment Date, (ii) Company
Earnings Report Date and (iii) Company Periodic Report Date, the Company will
furnish or cause to be furnished to the Agents and to counsel to the Agents the
written opinion and letter of each Company Counsel or other counsel reasonably
satisfactory to the Agents, dated the date of effectiveness of such amendment or
the date of filing with the Commission of such supplement or other document, as
the case may be, in a form and substance reasonably satisfactory to the Agents
and their counsel, of the same tenor as the opinions and letters referred to in
Section 6(c) of this Agreement, but modified as necessary to relate to the
Registration Statement, the General Disclosure Package and the Prospectus as
amended and supplemented, or to the document incorporated by reference into the
Prospectus, to the time of delivery of such opinion and letter or, in lieu of
such opinion and letter, counsel last furnishing such letter to the Agents shall
furnish the Agents with a letter substantially to the effect that the Agents may
rely on such last opinion and letter to the same extent as though each were
dated the date of such letter authorizing reliance (except that statements in
such last letter shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance). As used in this paragraph, to the extent there shall be
an Applicable Time on or following the date referred to in clause (i), (ii) or
(iii) above, promptly shall be deemed to be on or prior to the next succeeding
Applicable Time.

      


      (l)           Upon
commencement of the offering of Shares under this Agreement and each time the
Shares are delivered to the Agents as principal on a Settlement Date, and
promptly after each (i) Registration Statement Amendment Date, (ii) Company
Earnings Report Date and (iii) Company Periodic Report Date, the Company will
cause KPMG LLP, or other independent accountants reasonably satisfactory to the
Agents, to furnish to the Agents a letter, dated the date of effectiveness of
such amendment or the date of filing of such supplement or other document with
the Commission, as the case may be, in form reasonably satisfactory to the
Agents and its counsel, of the same tenor as the letter referred to in Section
6(d) hereof, but modified as necessary to relate to the Registration Statement,
the General Disclosure Package and the Prospectus, as amended and supplemented,
or to the document incorporated by reference into the Prospectus, to the date of
such letter. As used in this paragraph, to the extent there shall be an
Applicable Time on or following the date referred to in clause (i), (ii) or
(iii) above, promptly shall be deemed to be on or prior to the next succeeding
Applicable Time.

      


      (m)           The
Company consents to Stifel Nicolaus and RBC trading in the Company’s Common
Stock for their respective accounts and for the account of their respective
clients at the same time as sales of Shares occur pursuant to this Agreement or
any Terms Agreement.

      


      (n)           If,
to the knowledge of the Company, all filings required by Rule 424 in connection
with this offering shall not have been made or the representations in Section
1(a) shall not be true and correct on the applicable Settlement Date, the
Company will offer to any person who has agreed to purchase Shares from the
Company as the result of an offer to purchase solicited by the Agents the right
to refuse to purchase and pay for such Shares.

      


      (o)           The
Company will cooperate timely with any reasonable due diligence review conducted
by the Agents or their counsel from time to time in connection with the
transactions contemplated hereby or in any Terms Agreement, including, without
limitation, and upon reasonable notice providing information and making
available documents and appropriate corporate officers, during regular business
hours and at the Company’s principal offices, as the Agents may reasonably
request.

      


      (p)           The
Company will not, without (i) giving the Agents at least five business days’
prior written notice specifying the nature of the proposed sale and the date of
such proposed sale and (ii) the Agents suspending activity under this program
for such period of time as requested by the Company or as deemed appropriate by
the Agents in light of the proposed sale, (A) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, lend or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for or repayable with Common Stock, or file any
registration statement under the 1933 Act with respect to any of the foregoing
(other than a shelf registration statement under Rule 415 under the 1933 Act, a
registration statement on Form S-8 or post-effective amendment to the
Registration Statement) or (B) enter into any swap or other agreement or any
transaction that transfers in whole or in part, directly or indirectly, any of
the economic consequence of ownership of the Common Stock, or any securities
convertible into or exchangeable or exercisable for or repayable with Common
Stock, whether any such swap or transaction described in clause (A) or (B) above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise. The foregoing sentence shall not apply to (y) the Shares to be
offered and sold through the Agents pursuant to this Agreement or any Terms
Agreement and (z) equity incentive awards approved by the board of directors of
the Company or the compensation committee thereof or the issuance of Common
Stock upon exercise thereof.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      14

       

      (q)           If
immediately prior to the third anniversary (the “Renewal Deadline”) of
the initial effective date of the Registration Statement, any of the Shares
remain unsold, the Company will, prior to the Renewal Deadline file, if it has
not already done so and is eligible to do so, an “automatic shelf registration
statement” (as defined in Rule 405 under the 1933 Act) relating to the Shares,
in a form satisfactory to the Agents.  If the Company is not eligible
to file an automatic shelf registration statement, the Company will, prior to
the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Shares, in a form satisfactory to the
Agents, and will use its best efforts to cause such registration statement to be
declared effective within 60 days after the Renewal Deadline.  The
Company will take all other action necessary or appropriate to permit the
issuance and sale of the Shares to continue as contemplated in the expired
registration statement relating to the Shares.  References herein to
the Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may
be.

      


      (r)           During
the term of this Agreement, the Company agrees that any offer to sell, any
solicitation of an offer to buy, or any sales of the Shares pursuant to this
Agreement by the Company, shall only be effected by or through only one of
Stifel Nicolaus or RBC on any single given day, but in no event by more than one
Agent, and the Company shall in no event request that Stifel Nicolaus and RBC
sell Shares on the same day.

      


      Section 4.  Free Writing
Prospectus.

       

      
        (a)           (i)           The
Company represents and agrees that without the prior consent of the Agents, it
has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 under the
1933 Act; and

        


        (ii)           each
of the Agents, acting severally and not jointly, represents and agrees that,
without the prior consent of the Company, it has not made and will not make any
offer relating to the Shares that would constitute a free writing prospectus
required to be filed with the Commission.

        


        (b)           The
Company has complied and will comply with the requirements of Rule 433 under the
1933 Act applicable to any Issuer Free Writing Prospectus (including any free
writing prospectus identified in Section 4(a) hereof), including timely filing
with the Commission or retention where required and
legending.

      

      
        
Section
5.  Payment
of Expenses.

      

      


      (a)           The
Company covenants and agrees with the Agents that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the registration of the
Shares under the 1933 Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, the Basic
Prospectus, Prospectus Supplement, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Agents; (ii) the cost of printing or producing this
Agreement or any Terms Agreement, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 3(b)
hereof, including the reasonable fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the Blue Sky
and Legal Investment Surveys; (iv) any filing fees incident to, and the
reasonable fees and disbursements of counsel for the Agents in connection with,
any required review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the terms
of the sale of the Shares; (v) all fees and expenses in connection with listing
or quoting the Shares on the NYSE; (vi) the cost of preparing the Shares; (vii)
the costs and charges of any transfer agent or registrar or any dividend
distribution agent; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Section 7 hereof, each Agent will pay all of its
own costs and expenses, including the fees of its counsel, transfer taxes on
resale of any of the Shares by it, and any advertising expenses connected with
any offers it may make.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      15

       

      (b)           If
either (i) an aggregate of 1,134,000 Shares or (ii) a lesser number of Shares
having an aggregate offering price of at least $14,000,000.00 have not been
offered and sold under this Agreement by six months from the date hereof (or
such earlier date on which the Company terminates this Agreement), the Company
shall reimburse the Agents for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of a single counsel for the
Agents incurred by the Agents in connection with the offering contemplated by
this Agreement.

      


      Section 6.  Conditions of Agents’
Obligation.  The obligations of each of the Agents hereunder
shall be subject, in its discretion, to the condition that all representations
and warranties and other statements of the Company herein or in certificates of
any officer of the Company delivered pursuant to the provisions hereof are true
and correct as of the time of the execution of this Agreement, the date of any
executed Terms Agreement and as of each Registration Statement Amendment Date,
Company Earnings Report Date, Company Periodic Report Date, Applicable Time and
Settlement Date, to the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:

      


      (a)           The
Prospectus Supplement shall have been filed with the Commission pursuant to Rule
424(b) under the 1933 Act on or prior to the date hereof and in accordance with
Section 3(a) hereof, any other material required to be filed by the Company
pursuant to Rule 433(d) under the 1933 Act shall have been filed with the
Commission within the applicable time periods prescribed for such filings by
Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and no notice
of objection of the Commission to the use of the form of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the 1933 Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of the Agents.

      


      (b)           On
every date specified in Section 3(k) hereof and on such other dates as
reasonably requested by the Agents, Simpson Thacher & Bartlett LLP, counsel
for the Agents, shall have furnished to the Agents such written opinion or
opinions, dated as of such date, with respect to such matters as the Agents may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.

      


      (c)           (i)           On
every date specified in Section 3(k) hereof and on such other dates as
reasonably requested by the Agents, Day Pitney LLP, counsel for the Company,
shall have furnished to the Agents written opinion or opinions, dated as of such
date, in form and substance reasonably satisfactory to the Agents, to the effect
set forth in Annex II hereto.

      


      (ii)           On
every date specified in Section 3(k) hereof and on such other dates as
reasonably requested by the Agents, the General Counsel of the Company shall
have furnished to the Agents written opinion or opinions, dated as of such date,
in form and substance reasonably satisfactory to the Agents, to the effect set
forth in Annex III hereto

      


      (d)           At
the dates specified in Section 3(l) hereof and on such other dates as
reasonably requested by the Agents, the independent accountants of the Company
who have certified the financial statements of the Company and the Significant
Subsidiaries included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus shall have
furnished to the Agents a letter dated as of the date of delivery thereof and
addressed to the Agents in form and substance reasonably satisfactory to the
Agents and their counsel, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements of the Company and the Significant
Subsidiaries included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      16

       

      (e)           (i)
Upon commencement of the offering of Shares under this Agreement and on such other dates as
reasonably requested by the Agents, the Company will furnish or cause to be
furnished promptly to the Agents a certificate of an officer in a form
satisfactory to the Agents stating the minimum price for the sale of such Shares
pursuant to this Agreement and the maximum number of Shares that may be issued
and sold pursuant to this Agreement or, alternatively, maximum gross proceeds
from such sales, as authorized from time to time by the Company’s board of
directors or a duly authorized committee thereof or, in connection with any
amendment, revision or modification of such minimum price or maximum Share
number or amount, a new certificate with respect thereto and (ii) on each date
specified in Section 3(j) and on such other dates as
reasonably requested by an Agent (which may include, without limitation, each
date on which the Company requests that sales of Shares be effected), the Agents
shall have received a certificate of executive officers of the Company, one of
whom shall be the Chief Financial Officer, dated as of the date thereof, to the
effect that (A) there has been no Material Adverse Effect since the date as of
which information is given in the General Disclosure Package and the Prospectus
as then amended or supplemented, (B) the representations and warranties in
Section 1 hereof are true and correct as of such date and (C) the Company
has complied with all of the agreements entered into in connection with the
transaction contemplated herein and satisfied all conditions on its part to be
performed or satisfied.

      


      (f)           Since
the date of the latest audited financial statements then included or
incorporated by reference in the General Disclosure Package and the Prospectus,
no Material Adverse Effect shall have occurred.

      


      (g)           The
Company shall have complied with the provisions of Section 3(c) hereof with
respect to the timely furnishing of prospectuses.

      


      (h)           On
such dates as reasonably requested by the Agents, the Company shall have
conducted due diligence sessions, in form and substance satisfactory to the
Agents.

      


      (i)           All
filings with the Commission required by Rule 424 under the 1933 Act to have been
filed by each Applicable Time or related Settlement Date shall have been made
within the applicable time period prescribed for such filing by Rule 424
(without reliance on Rule 424(b)(8)).

      


      (j)           The
Shares shall have received approval for listing on the NYSE prior to the first
Settlement Date.

      


      (k)           Prior
to any Settlement Date, the Company shall have furnished to the Agents such
further information, documents or certificates as the Agents may reasonably
request.

      


      Section 7.  Indemnification.

      


      (a)           The
Company will indemnify and hold harmless each of the Agents against any losses,
claims, damages or liabilities, joint or several, to which such Agent may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus or any amendment or supplement thereto, any Issuer
Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse such Agent for any legal or other expenses reasonably
incurred by such Agent in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in strict conformity with written information
furnished to the Company by such Agent expressly for use therein.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      17

       

      (b)           Each
Agent, acting severally and not jointly, will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus, or any amendment or supplement thereto,
or any Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus, or any such amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in strict conformity with written
information furnished to the Company by such Agent expressly for use therein (it
being understood that such information shall consist solely of the following:
the first (only the third sentence thereof), second (only the first and third
sentences thereof) and fourth paragraphs under the heading “Plan of
Distribution”); and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.

      


      (c)           Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection except and then only to the extent such indemnifying party
is materially prejudiced thereby. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.

      


      (d)           If
the indemnification provided for in this Section 7 is unavailable to hold
harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agents on the other from the offering of the Shares to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Agents on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agents on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total commissions received by the
Agents.  The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Agents on the other
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.  The
Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection
(d).  The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.  Notwithstanding
the provisions of this subsection (d), an Agent shall not be required to
contribute any amount in excess of the amount by which the total compensation
received by such Agent with respect to sales of the Shares sold by it to the
public exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.  No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      18

       

      (e)           The
obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to the directors, officers, employees, attorneys and
agents of each of the Agents and to each person, if any, who controls such Agent
within the meaning of the 1933 Act and each broker dealer affiliate of such
Agent; and the obligations of such Agent under this Section 7 shall be in
addition to any liability which such Agent may otherwise have and shall extend,
upon the same terms and conditions, to each director, officer, employee,
attorney and agent of the Company and to each person, if any, who controls the
Company within the meaning of the 1933 Act.

      


      Section 8.  Representations, Warranties
and Agreements to Survive Delivery.  The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the Agents, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Agents or any controlling person of the
Agents, or the Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the Shares.

      


      Section 9.  No Advisory or Fiduciary
Relationship.  The Company acknowledges and agrees that (i)
each Agent is acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Shares contemplated
hereby (including in connection with determining the terms of such offering) and
(ii) neither Agent has assumed an advisory or fiduciary responsibility in favor
of the Company with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Agent has advised or is currently
advising the Company on other matters) or any other obligation to the Company
except the obligations expressly set forth in this Agreement and (iii) the
Company has consulted its own legal and financial advisors to the extent it
deemed appropriate. The Company agrees that it will not claim that any Agent has
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process
leading thereto.

      


      Section 10. Termination.

      


      (a)           The
Company shall have the right, by giving written notice to all parties to this
Agreement as hereinafter specified, to terminate this Agreement in its sole
discretion at any time.  Any such termination shall be without
liability of any party to any other party, except that (i) with respect to any
pending sale through the Agents for the Company, the obligations of the Company,
including in respect of compensation of the Agents, shall remain in full force
and effect notwithstanding such termination; and (ii) the provisions of Section
1, Section 5(b), Section 7 and Section 8 of this Agreement shall remain in full
force and effect notwithstanding such termination.

      


      (b)           Each
Agent shall have the right, by giving written notice to all parties to this
Agreement as hereinafter specified, to terminate this Agreement with respect to
such Agent in its sole discretion at any time.  Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 1, Section 5(b), Section 7 and Section 8 of this Agreement
shall remain in full force and effect notwithstanding such
termination.

      


      (c)           This
Agreement shall remain in full force and effect until and unless terminated
pursuant to Section 10(a) or (b) above or otherwise by mutual agreement of the
parties; provided that any such
termination by mutual agreement or pursuant to this clause (c) shall in all
cases be deemed to provide that Section 1, Section 5(b), Section 7 and Section 8
of this Agreement shall remain in full force and effect.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      19

       

      (d)           Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of
such notice by the Agent or the Company, as the case may be.  If such
termination shall occur prior to the Settlement Date for any sale of Shares,
such sale shall settle in accordance with the provisions of Section 2(h)
hereof.

      


      (e)           In
the case of any purchase by an Agent pursuant to a Terms Agreement, such Agent
may terminate this Agreement, at any time at or prior to the Settlement Date (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the General Disclosure
Package or the Prospectus, any Material Adverse Effect, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of such Agent, impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of Shares, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission, the NYSE or NASDAQ, or if trading generally on the NYSE Alternext US
or the NYSE or NASDAQ has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, FINRA or any other governmental authority, or (iv) a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (v) if a banking moratorium has been
declared by either Federal or New York authorities.

      


      Section 11.  Notices.  All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Agents shall be delivered or sent by mail, telex or facsimile
transmission to:

      


      Stifel,
Nicolaus & Company, Incorporated

      One South
Street, 15th
Floor

      Baltimore,
Maryland 21202

      Fax
No.  (443) 224-1257

      Attention:
Syndicate Department

      


      RBC
Capital Markets Corporation

      Three World Financial
Center

      200 Vesey Street, 8th
Floor

      New York,
New York 10281

      Fax
No.  (212) 428-6260

      Attention:
Equity Capital Markets Group

      


      and if to
the Company to:

      


      Valley
National Bancorp

      1455
Valley Road

      Wayne,
New Jersey 07470

      Fax
No.  (973) 305-8415

      Attention:
Alan D. Eskow, Executive Vice President and Chief Financial
Officer.

      


      Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.

      


      Section 12.  Parties.  This
Agreement shall be binding upon, and inure solely to the benefit of, the Agents
and the Company and, to the extent provided in Sections 7 and 8 hereof, the
officers, directors, employees, attorneys and agents of the Company and the
Agents and each person who controls the Company or the Agents, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement.  No purchaser of Shares through the Agents shall be deemed
a successor or assign by reason merely of such purchase.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      20

       

      Section 13.  Time of the
Essence.  Time shall be of the essence of this
Agreement.  As used herein, the term “business day” shall mean any day
when the Commission’s office in Washington, D.C. is open for
business.

      


      Section 14.  Waiver of Jury
Trial.  The Company and the Agents hereby irrevocably waive, to
the fullest extent permitted by applicable law, any and all right to jury trial
by jury in any legal proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.

      


      Section 15.  Governing
Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
PRINCIPLES OF CONFLICTS OF LAW.

      


      Section 16.  Counterparts.  This
Agreement and any Terms Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.  This Agreement and any Terms
Agreement may be delivered by any party by facsimile or other electronic
transmission.

      


      Section 17.   Severability.  The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof.  If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.

       

       

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Agents and
the Company in accordance with its terms.

      


      


      
        
          
            
              
                
                  
                    
                      
                        
                          	 	Very
      truly yours,	 
	 	 	 
	 	VALLEY
      NATIONAL BANCORP	 
	 	 	 	 
	
                                    
      

                                	
                                  By:
      

                                	
                                  /s/
      Gerald H. Lipkin 

                                	 
	 	 	Name: 
      	Gerald H.
      Lipkin 	 
	 	 	Title:	
                                  Chairman,
      President and

                                  Chief Executive Officer

                                	 


                        

                      

                    

                  

                

              

            

          

        



      
 

       

       

      Accepted
as of the date hereof:

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	STIFEL,
      NICOLAUS & COMPANY, INCORPORATED	 
	 	 
	 	 	 
	
                                    By:
      

                                  	
                                    /s/ Ben
      A. Plotkin

                                  	 
	 	Name: 
      	Ben A.
      Plotkin	 
	 	Title:	EVP 	 


                          

                        

                      

                    

                  

                

              

            

          

        

      

      

         

        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	RBC
      CAPITAL MARKETS CORPORATION	 
	 	 
	 	 	 
	
                                        By:
      

                                      	
                                        /s/ Michael
      D. Bennett

                                      	 
	 	Name: 
      	Michael
      D. Bennett	 
	 	Title:	Director 	 


                              

                            

                          

                        

                      

                    

                  

                

              

            

          



      

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      ANNEX I

       

      VALLEY
NATIONAL BANCORP

       

      Common
Stock

      (no par
value)

       

      TERMS
AGREEMENT

       

      


       

      [STIFEL,
NICOLAUS & COMPANY, INCORPORATED

      One South
Street, 15th
Floor

      Baltimore,
Maryland 21202

      Attn:
Syndicate Department]

      


      [RBC
CAPITAL MARKETS CORPORATION

      Three
World Financial Center

      200 Vesey
Street, 8th
Floor

      New York,
New York 10281

      Attn:
Equity Capital Markets Group]

      


       

      Ladies
and Gentlemen:

       

      Valley
National Bancorp, a New Jersey corporation (the “Company”), proposes,
subject to the terms and conditions stated herein and in the Equity Distribution
Agreement, dated June 8,
2009 (the “Distribution
Agreement”), between the Company and Stifel, Nicolaus & Company,
Incorporated (“Stifel Nicolaus”) and RBC Capital Markets Corporation (“RBC” and, together
with Stifel Nicolaus, the “Agents”), to issue
and sell to [Stifel Nicolaus][RBC] the securities specified in the Schedule
hereto (the “Purchased
Securities”) [, and solely for the purpose of covering over-allotments,
to grant to [Stifel Nicolaus][RBC] the option to purchase the additional
securities specified in the Schedule hereto (the “Additional
Securities”)]*.

       

      [[Stifel
Nicolaus][RBC] shall have the right to purchase from the Company all or a
portion of the Additional Securities as may be necessary to cover
over-allotments made in connection with the offering of the Purchased
Securities, at the same purchase price per share to be paid by such Agent to the
Company for the Purchased Securities.  This option may be exercised by
[Stifel Nicolaus][RBC] at any time (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the Company. Such
notice shall set forth the aggregate number of shares of Additional Securities
as to which the option is being exercised, and the date and time when the
Additional Securities are to be delivered (such date and time being herein
referred to as the “Option Closing
Date”); provided, however, that the
Option Closing Date shall not be earlier than the Time of Delivery (as set forth
in the Schedule hereto) nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised. Payment of the
purchase price for the Additional Securities shall be made at the Option Closing
Date in the same manner and at the same office as the payment for the Purchased
Securities.]*

       

      Each of
the provisions of the Distribution Agreement not specifically related to the
solicitation by [Stifel Nicolaus][RBC], as agent of the Company, of offers to
purchase securities is incorporated herein by reference in its entirety, and
shall be deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Terms Agreement [and] [,] the Applicable Time [and any Option
Closing Date]*, except that each representation and warranty in Section 1
of the Distribution Agreement which makes reference to the Prospectus (as
therein defined) shall be deemed to be a representation and warranty as of the
date of the Distribution Agreement in relation to the Prospectus, and also a
representation and warranty as of the date of this Terms Agreement [and] [,] the
Settlement Date [and any Option Closing Date]* in relation to the Prospectus as
amended and supplemented to relate to the Purchased Securities.

       

      
        
          
          

        

        
          Annex
I-1

          
            

          

        

        
          
          

        

      

       

      An
amendment to the Registration Statement (as defined in the Distribution
Agreement), or a supplement to the Prospectus, as the case may be, relating to
the Purchased Securities [and the Additional Securities]*, in the form
heretofore delivered to [Stifel Nicolaus][RBC] is now proposed to be filed with
the Securities and Exchange Commission.

       

      Subject
to the terms and conditions set forth herein and in the Distribution Agreement
which are incorporated herein by reference, the Company agrees to issue and sell
to [Stifel Nicolaus][RBC] and the latter agrees to purchase from the Company the
number of shares of the Purchased Securities at the time and place and at the
purchase price set forth in the Schedule hereto.

       

      If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between [Stifel
Nicolaus][RBC] and the Company in accordance with its terms.

       

       

       

      
        
          
            
              
                
                  
                    
                      
                        	 	Very
      truly yours,	 
	 	 	 
	 	VALLEY
      NATIONAL BANCORP	 
	 	 	 
	 	 	 
	 	 	 	 
	
                                 

                              	
                                By:
      

                              	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 


                      

                    

                  

                

              

            

          

        

      

       

      
 

      


      


      


      Accepted
as of the date hereof:

       

      
        
          
            
              
                
                  
                    
                      
                        	
                                [STIFEL,
      NICOLAUS & COMPANY, INCORPORATED]

                                [RBC
      CAPITAL MARKETS CORPORATION]

                              	 
	 	 
	 	 
	 	 	 
	
                                By:
      

                              	 	 
	 	Name:	 
	 	Title:	 


                      

                    

                  

                

              

            

          

        

      

      


      *           Include
only if the Agents has an over-allotment option.

       

       

       

      
        
          
          

        

        
          Annex
I-2

          
            

          

        

        
          
          

        

      

       

      Schedule
to Terms Agreement

       

       

      
        	
                1.  

              	
                Title
      of Purchased Securities [and Additional
  Securities]:

              


      

       

      Common Stock, no par value

       

      
        	
                2.  

              	
                Number
      of Shares of Purchased Securities:

              


      

       

      
        	
                3.  

              	
                [Number
      of Shares of Additional
Securities:]

              


      

       

      
        	
                4.  

              	
                Price
      to Public:

              


      

       

      
        	
                5.  

              	
                Purchase
      Price by [Stifel][RBC]:

              


      

       

      
        	
                6.  

              	
                Settlement
      Date:

              


      

       

      
        	
                7.  

              	
                Closing
      Location:

              


      

       

      
        	
                8.  

              	
                Lock-up
      Agreements:

              


      

       

       

      
         

        
           Annex I-3