Exhibit 10.1


 


UNITED STATES DEPARTMENT OF THE TREASURY 1500
 PENNSYLVANIA AVENUE, NW WASHINGTON, D.C. 20220


 


Dear
Ladies and Gentlemen:


 


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


 


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supplemented or superseded by the terms set forth herein or in the Schedules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


 


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


 


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


 


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


 


* * *


 

















 


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


 


 


	
   

  	
  UNITED
  STATES DEPARTMENT OF THE TREASURY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Neel Kashkari

  
	
   

  	
   

  	
    Name:

  	
  Neel Kashkari

  
	
   

  	
   

  	
    Title:

  	
  Interim Assistant Secretary 

  
	
   

  	
   

  	
  for Financial Stability

  
	
   

  	
   

  
	
   

  	
  COMPANY:
  COBIZ FINANCIAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Steven Bangert

  
	
   

  	
   

  	
    Name:

  	
  Steven
  Bangert

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Executive Officer and Chairman

  
					



 


 


Date:  December 19, 2008


 

















 


EXHIBIT A


 


SECURITIES PURCHASE AGREEMENT


 

















 


 


EXHIBIT A


 






 


SECURITIES PURCHASE AGREEMENT

STANDARD TERMS


 






 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  Article I

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Purchase; Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Purchase

  	
  1

  
	
  1.2

  	
  Closing

  	
  2

  
	
  1.3

  	
  Interpretation

  	
  4

  
	
   

  	
   

  	
   

  
	
   

  	
  Article II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Disclosure

  	
  4

  
	
  2.2

  	
  Representations
  and Warranties of the Company

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  Article III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Commercially
  Reasonable Efforts

  	
  13

  
	
  3.2

  	
  Expenses

  	
  14

  
	
  3.3

  	
  Sufficiency
  of Authorized Common Stock; Exchange Listing

  	
  14

  
	
  3.4

  	
  Certain
  Notifications Until Closing

  	
  15

  
	
  3.5

  	
  Access,
  Information and Confidentiality

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  Article IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Additional Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Purchase
  for Investment

  	
  16

  
	
  4.2

  	
  Legends

  	
  16

  
	
  4.3

  	
  Certain
  Transactions

  	
  18

  
	
  4.4

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

  	
  18

  
	
  4.5

  	
  Registration
  Rights

  	
  19

  
	
  4.6

  	
  Voting
  of Warrant Shares

  	
  30

  
	
  4.7

  	
  Depositary
  Shares

  	
  31

  
	
  4.8

  	
  Restriction
  on Dividends and Repurchases

  	
  31

  
	
  4.9

  	
  Repurchase
  of Investor Securities

  	
  32

  
	
  4.10

  	
  Executive
  Compensation

  	
  33

  



 


i

















 


Article V


 


Miscellaneous


 


	
  5.1

  	
  Termination

  	
  34

  
	
  5.2

  	
  Survival
  of Representations and Warranties

  	
  34

  
	
  5.3

  	
  Amendment

  	
  34

  
	
  5.4

  	
  Waiver
  of Conditions

  	
  34

  
	
  5.5

  	
  Governing Law: Submission to Jurisdiction, Etc.

  	
  35

  
	
  5.6

  	
  Notices

  	
  35

  
	
  5.7

  	
  Definitions

  	
  35

  
	
  5.8

  	
  Assignment

  	
  36

  
	
  5.9

  	
  Severability

  	
  36

  
	
  5.10

  	
  No
  Third Party Beneficiaries

  	
  36

  



 


ii

















 


LIST OF ANNEXES


 


ANNEX
A:   FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED
STOCK


 


ANNEX
B:   FORM OF WAIVER


 


ANNEX
C:   FORM OF OPINION


 


ANNEX
D:   FORM OF WARRANT


 


iii

















 


INDEX OF
DEFINED TERMS


 


	
   

  	
   

  	
  Location of

  
	
  Term

  	
   

  	
  Definition

  
	
  Affiliate

  	
   

  	
  5.7(b)

  
	
  Agreement

  	
   

  	
  Recitals

  
	
  Appraisal
  Procedure

  	
   

  	
  4.9(c)(i)

  
	
  Appropriate
  Federal Banking Agency

  	
   

  	
  2.2(s)

  
	
  Bankruptcy
  Exceptions

  	
   

  	
  2.2(d)

  
	
  Benefit
  Plans

  	
   

  	
  1.2(d)(iv)

  
	
  Board
  of Directors

  	
   

  	
  2.2(f)

  
	
  Business
  Combination

  	
   

  	
  4.4

  
	
  business
  day

  	
   

  	
  1.3

  
	
  Capitalization
  Date

  	
   

  	
  2.2(b)

  
	
  Certificate
  of Designations

  	
   

  	
  1.2(d)(iii)

  
	
  Charter

  	
   

  	
  1.2(d)(iii)

  
	
  Closing

  	
   

  	
  1.2(a)

  
	
  Closing
  Date

  	
   

  	
  1.2(a)

  
	
  Code

  	
   

  	
  2.2(n)

  
	
  Common
  Stock

  	
   

  	
  Recitals

  
	
  Company

  	
   

  	
  Recitals

  
	
  Company
  Financial Statements

  	
   

  	
  2.2(h)

  
	
  Company
  Material Adverse Effect

  	
   

  	
  2.1(a)

  
	
  Company
  Reports

  	
   

  	
  2.2(i)(i)

  
	
  Company
  Subsidiary; Company Subsidiaries

  	
   

  	
  2.2(i)(i)

  
	
  control;
  controlled by; under common control with

  	
   

  	
  5.7(b)

  
	
  Controlled
  Group

  	
   

  	
  2.2(n)

  
	
  CPP

  	
   

  	
  Recitals

  
	
  EESA

  	
   

  	
  1.2(d)(iv)

  
	
  ERISA

  	
   

  	
  2.2(n)

  
	
  Exchange
  Act

  	
   

  	
  2.1(b)

  
	
  Fair
  Market Value

  	
   

  	
  4.9(c)(ii)

  
	
  GAAP

  	
   

  	
  2.1(a)

  
	
  Governmental
  Entities

  	
   

  	
  1.2(c)

  
	
  Holder

  	
   

  	
  4.5(k)(i)

  
	
  Holders’
  Counsel

  	
   

  	
  4.5(k)(ii)

  
	
  Indemnitee

  	
   

  	
  4.5(g)(i)

  
	
  Information

  	
   

  	
  3.5(b)

  
	
  Initial
  Warrant Shares

  	
   

  	
  Recitals

  
	
  Investor

  	
   

  	
  Recitals

  
	
  Junior
  Stock

  	
   

  	
  4.8(c)

  
	
  knowledge
  of the Company; Company’s knowledge

  	
   

  	
  5.7(c)

  
	
  Last
  Fiscal Year

  	
   

  	
  2.1(b)

  
	
  Letter
  Agreement

  	
   

  	
  Recitals

  
	
  officers

  	
   

  	
  5.7(c)

  



 


iv

















 


	
   

  	
   

  	
  Location of

  
	
  Term

  	
   

  	
  Definition

  
	
  Parity
  Stock

  	
   

  	
  4.8(c)

  
	
  Pending
  Underwritten Offering

  	
   

  	
  4.5(l)

  
	
  Permitted
  Repurchases

  	
   

  	
  4.8(a)(ii)

  
	
  Piggyback
  Registration

  	
   

  	
  4.5(a)(iv)

  
	
  Plan

  	
   

  	
  2.2(n)

  
	
  Preferred
  Shares

  	
   

  	
  Recitals

  
	
  Preferred
  Stock

  	
   

  	
  Recitals

  
	
  Previously
  Disclosed

  	
   

  	
  2.1(b)

  
	
  Proprietary
  Rights

  	
   

  	
  2.2(u)

  
	
  Purchase

  	
   

  	
  Recitals

  
	
  Purchase
  Price

  	
   

  	
  1.1

  
	
  Purchased
  Securities

  	
   

  	
  Recitals

  
	
  Qualified
  Equity Offering

  	
   

  	
  4.4

  
	
  register;
  registered; registration

  	
   

  	
  4.5(k)(iii)

  
	
  Registrable
  Securities

  	
   

  	
  4.5(k)(iv)

  
	
  Registration
  Expenses

  	
   

  	
  4.5(k)(v)

  
	
  Regulatory
  Agreement

  	
   

  	
  2.2(s)

  
	
  Rule 144;
  Rule 144A; Rule 159A; Rule 405; Rule 415

  	
   

  	
  4.5(k)(vi)

  
	
  Schedules

  	
   

  	
  Recitals

  
	
  SEC

  	
   

  	
  2.1(b)

  
	
  Securities
  Act

  	
   

  	
  2.2(a)

  
	
  Selling
  Expenses

  	
   

  	
  4.5(k)(vii)

  
	
  Senior
  Executive Officers

  	
   

  	
  4.10

  
	
  Share
  Dilution Amount

  	
   

  	
  4.8(a)(ii)

  
	
  Shelf
  Registration Statement

  	
   

  	
  4.5(a)(ii)

  
	
  Signing
  Date

  	
   

  	
  2.1(a)

  
	
  Special
  Registration

  	
   

  	
  4.5(i)

  
	
  Stockholder
  Proposals

  	
   

  	
  3.1(b)

  
	
  subsidiary

  	
   

  	
  5.8(a)

  
	
  Tax;
  Taxes

  	
   

  	
  2.2(o)

  
	
  Transfer

  	
   

  	
  4.4

  
	
  Warrant

  	
   

  	
  Recitals

  
	
  Warrant
  Shares

  	
   

  	
  2.2(d)

  



 


v
















 


SECURITIES PURCHASE AGREEMENT — STANDARD TERMS


 


Recitals:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Article I

Purchase; Closing


 


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


 


1

















 


1.2         Closing.


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


(ii)          the
Investor shall have received a certificate signed on behalf of the Company by a
senior executive officer certifying to the effect that the conditions set forth
in Section 1.2(d)(i) have been satisfied;


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


Article II

Representations and Warranties


 


2.1           Disclosure.


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


(e)           Authorization, Enforceability.


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


(i)                                     Reports,


 


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


 


(ii)          The
records, systems, controls, data and information of the Company and the Company
Subsidiaries are recorded, stored, maintained and operated under means
(including any electronic, mechanical or photographic process, whether
computerized or not) that are under the exclusive ownership and direct control
of the Company or  the


 


8

















 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11
















 


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


 


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


 


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


 


12

















 


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


 


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


 


Article III

Covenants


 


3.1         Commercially
Reasonable Efforts.


 


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


 


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


 


13

















 


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


 


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


 


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


 


14

















 


3.3         Sufficiency of Authorized Common Stock;
Exchange Listing.


 


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


 


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


 


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


 


3.5         Access, Information
and Confidentiality.


 


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


 


15

















 


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


 


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


 


Article IV

Additional
Agreements


 


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


 


4.2         Legends.


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED
OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES
REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING
ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS
INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE
SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT,
(B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE I44A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION


 


17

















 


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


 


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


 


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


 


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


 


18

















 


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


 


4.5         Registration Rights.


 


(a)          Registration.


 


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


 


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


 


19

















 


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


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


 


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


 


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


 


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


 


(vi)          Give
written notice to the Holders:


 


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


 


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


 


22
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


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


 


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


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


(f)       Furnishing
Information.


 


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


 


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


 


25

















 


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


 


(g)      Indemnification.


 


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


 


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


 


26

















 


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


 


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


 


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


 


27

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


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


 


(1)       At any time, any holder of
Securities (including any Holder) may elect to forfeit its rights set forth in
this Section 4.5 from that date forward; provided,
that a Holder forfeiting such rights shall nonetheless be entitled
to participate under Section 4.5(a)(iv)— (vi) in any Pending Underwritten
Offering to the same extent that such Holder would have been entitled to if the
holder had not withdrawn; and provided,
further, that no such forfeiture shall terminate a Holder’s rights
or obligations under Section 4.5(f) with respect to any prior
registration or Pending Underwritten Offering. “Pending
Underwritten Offering” means, with respect to any Holder forfeiting
its rights pursuant to this Section 4.5(1), any underwritten offering of


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


30

















 


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


 


4.8           Restriction on
Dividends and Repurchases.


 


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


 


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


 


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


 


31

















 


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


 


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


 


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


 


4.9      Repurchase of Investor
Securities.


 


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


 


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


 


32
















 


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


 


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


 


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


 


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


 


33

















 


Article V

Miscellaneous


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5.4      Waiver of Conditions.
The conditions to each party’s obligation to consummate the Purchase are for
the sole benefit of such party and may be waived by such party in whole or in
part to the extent permitted by applicable law. No waiver will be effective
unless it is in a


 


34

















 


writing
signed by a duly authorized officer of the waiving party that makes express
reference to the provision or provisions subject to such waiver.


 


5.5      Governing Law: Submission to Jurisdiction, Etc.
This Agreement will be governed by and construed in accordance with the federal
law of the United States if and to the extent such law is applicable, and
otherwise in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State. Each of the
parties hereto agrees (a) to submit to the exclusive jurisdiction and
venue of the United States District Court for the District of Columbia and the
United States Court of Federal Claims for any and all civil actions, suits or
proceedings arising out of or relating to this Agreement or the Warrant or the
transactions contemplated hereby or thereby, and (b) that notice may be
served upon (i) the Company at the address and in the manner set forth for
notices to the Company in Section 5.6 and (ii) the Investor in
accordance with federal law. To the extent permitted by applicable law, each of
the parties hereto hereby unconditionally waives trial by jury in any civil
legal action or proceeding relating to this Agreement or the Warrant or the
transactions contemplated hereby or thereby.


 


5.6      Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly
given (a) on the date of delivery if delivered personally, or by
facsimile, upon confirmation of receipt, or (b) on the second business day
following the date of dispatch if delivered by a recognized next day courier
service. All notices to the Company shall be delivered as set forth in Schedule
A, or pursuant to such other instruction as may be designated in writing by
the Company to the Investor. All notices to the Investor shall be delivered as
set forth below, or pursuant to such other instructions as may be designated in
writing by the Investor to the Company.


 


If
to the Investor:


 


United
States Department of the Treasury


1500
Pennsylvania Avenue, NW, Room 2312


Washington,
D.C. 20220


Attention:
Assistant General Counsel (Banking and Finance)

Facsimile: (202) 622-1974


 


5.7      Definitions


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


* * *


 


36

















 


ANNEX A


 


FORM OF CERTIFICATE OF DESIGNATIONS




[SEE ATTACHED]


 

















 


ANNEX A


 


CERTIFICATE OF DESIGNATIONS


 


OF


 


FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK,
SERIES [·]


 


OF


 


[·]


 


[Insert
name of Corporation], a [corporation] organized and existing under
the laws of the [Insert jurisdiction of organization]  (the “Corporation”), in
accordance with the provisions of Section[s] [·] of the [Insert
applicable statute]  thereof,
does hereby certify:


 


The
board of directors of the Corporation (the “Board of Directors”) or an
applicable committee of the Board of Directors, in accordance with the
[certificate of incorporation and bylaws] of the Corporation and applicable
law, adopted the following resolution on [·] creating a series of [·] shares of Preferred Stock of the
Corporation designated as “Fixed Rate Cumulative Perpetual Preferred Stock, Series [·]”.


 


RESOLVED, that pursuant to the provisions of the [certificate of incorporation
and the bylaws] of the Corporation and applicable law, a series of Preferred
Stock, par value $[·] per share, of the Corporation be and hereby
is created, and that the designation and number of shares of such series, and
the voting and other powers, preferences and relative, participating, optional
or other rights, and the qualifications, limitations and restrictions thereof,
of the shares of such series, are as follows:


 


Part 1.
Designation and Number of Shares. There is hereby created out of the authorized
and unissued shares of preferred stock of the Corporation a series of preferred
stock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock, Series [·]” (the “Designated Preferred  Stock”). The authorized number of shares
of Designated Preferred Stock shall be [·].


 


Part 2.
Standard Provisions. The Standard Provisions contained in Annex A
attached hereto are incorporated herein by reference in their entirety and
shall be deemed to be a part of this Certificate of Designations to the same
extent as if such provisions had been set forth in full herein.


 


Part.
3. Definitions. The following terms are used in this Certificate of
Designations (including the Standard Provisions in Annex A hereto) as defined
below:


 


(a)       “Common
Stock” means the common stock, par value $[·] per share, of the Corporation.


 


(b)      “Dividend
Payment Date” means [February 15, May 15, August 15 and November 15]
of each year.


 


(c)       “Junior
Stock” means the Common Stock, [Insert titles of any existing Junior
Stock] and any other
class or series of stock of the Corporation the terms of which expressly


 


1

















 


provide
that it ranks junior to Designated Preferred Stock as to dividend rights and/or
as to rights on liquidation, dissolution or winding up of the Corporation.


 


(d)      “Liquidation
Amount” means $[1,000](1) per share of Designated Preferred Stock.


 


(e)       “Minimum
Amount” means $[Insert $
amount equal to 25% of the aggregate value of the Designated Preferred Stock
issued on the Original Issue Date].


 


(f)      “Parity Stock” means any
class or series of stock of the Corporation (other than Designated Preferred
Stock) the terms of which do not expressly provide that such class or series
will rank senior or junior to Designated Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of the
Corporation (in each case without regard to whether dividends accrue
cumulatively or non-cumulatively). Without limiting the foregoing, Parity Stock
shall include the Corporation’s [Insert title(s) of existing
classes or series of Parity Stock].


 


(g)     “Signing Date” means [Insert
date of applicable securities purchase agreement].


 


Part. 4. Certain Voting
Matters.  [To be
inserted if the Charter provides for voting in proportion to liquidation
preferences: Whether the
vote or consent of the holders of a plurality, majority or other portion of the
shares of Designated Preferred Stock and any Voting Parity Stock has been cast
or given on any matter on which the holders of shares of Designated Preferred
Stock are entitled to vote shall be determined by the Corporation by reference
to the specified liquidation amount of the shares voted or covered by the
consent as if the Corporation were liquidated on the record date for such vote
or consent, if any, or, in the absence of a record date, on the date for such
vote or consent. For purposes of determining the voting rights of the holders
of Designated Preferred Stock under Section 7 of the Standard Provisions
forming part of this Certificate of Designations, each holder will be entitled
to one vote for each $1,000 of liquidation preference to which such holder’s
shares are entitled.] [To be inserted if the Charter does
not provide for voting in proportion to liquidation preferences: Holders
of shares of Designated Preferred Stock will be entitled to one vote for each
such share on any matter on which holders of Designated Preferred Stock are
entitled to vote, including any action by written consent.]


 


[Remainder of Page Intentionally
Left Blank]


 






(1) If issuer desires to issue shares with a
higher dollar amount liquidation preference, liquidation preference references
will be modified accordingly. In such case (in accordance with Section 4.7
of the Securities Purchase Agreement), the issuer will be required to enter
into a deposit agreement.


 


2

















 


IN WITNESS WHEREOF, [Insert name of Corporation]  has caused this Certificate of Designations
to be signed by [·], its [·], this [·] day of [·].


 


	
   

  	
  [Insert
  name of Corporation]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


3
















 


ANNEX A


 


STANDARD PROVISIONS


 


Section 1.
General Matters. Each share of Designated Preferred Stock shall be
identical in all respects to every other share of Designated Preferred Stock.
The Designated Preferred Stock shall be perpetual, subject to the provisions of
Section 5 of these Standard Provisions that form a part of the Certificate
of Designations. The Designated Preferred Stock shall rank equally with Parity
Stock and shall rank senior to Junior Stock with respect to the payment of
dividends and the distribution of assets in the event of any dissolution,
liquidation or winding up of the Corporation.


 


Section 2.
Standard Definitions. As used herein with respect to Designated
Preferred Stock:


 


(a)       “Applicable Dividend Rate” means (i) during
the period from the Original Issue Date to, but excluding, the first day of the
first Dividend Period commencing on or after the fifth anniversary of the
Original Issue Date, 5% per annum and (ii) from and after the first day of
the first Dividend Period commencing on or after the fifth anniversary of the
Original Issue Date, 9% per annum.


 


(b)      “Appropriate Federal Banking Agency”
means the “appropriate Federal banking agency” with respect to the Corporation
as defined in Section 3(q) of the Federal Deposit Insurance Act (12
U.S.C. Section 1813(q)), or any successor provision.


 


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


 


(d)      “Business Day” means any day except
Saturday, Sunday and any day on which banking institutions in the State of New
York generally are authorized or required by law or other governmental actions
to close.


 


(e)       “Bylaws” means the bylaws of the
Corporation, as they may be amended from time to time.


 


(f)       “Certificate of Designations” means
the Certificate of Designations or comparable instrument relating to the
Designated Preferred Stock, of which these Standard Provisions form a part, as
it may be amended from time to time.


 


(g)      “Charter” means the Corporation’s
certificate or articles of incorporation, articles of association, or similar
organizational document.


 


(h)      “Dividend Period” has the meaning set
forth in Section 3(a).


 


(i)        “Dividend Record Date” has the meaning set forth in Section 3(a).


 


(j)        “Liquidation Preference” has the meaning set forth in Section 4(a).


 


A-1

















 


(k)       “Original Issue Date” means the date on which shares of
Designated Preferred Stock are first issued.


 


(l)        “Preferred Director” has the meaning set forth in Section 7(b).


 


(m)      “Preferred Stock” means any and all
series of preferred stock of the Corporation, including the Designated
Preferred Stock.


 


(n)      “Qualified
Equity Offering” means the sale and issuance for cash by the Corporation to
persons other than the Corporation or any of its subsidiaries after the
Original Issue Date of shares of perpetual Preferred Stock, Common Stock or any
combination of such stock, that, in each case, qualify as and may be included
in Tier 1 capital of the Corporation at the time of issuance under the
applicable risk-based capital guidelines of the Corporation’s Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant
to agreements or arrangements entered into, or pursuant to financing plans
which were publicly announced, on or prior to October 13, 2008).


 


(o)      “Share
Dilution Amount” has the meaning set forth in Section 3(b).


 


(p)      “Standard
Provisions” mean these Standard Provisions that form a part of the
Certificate of Designations relating to the Designated Preferred Stock.


 


(q)      “Successor
Preferred Stock” has the meaning set forth in Section 5(a).


 


(r)       “Voting
Parity Stock” means, with regard to any matter as to which the holders of
Designated Preferred Stock are entitled to vote as specified in Sections 7(a) and
7(b) of these Standard Provisions that form a part of the Certificate of
Designations, any and all series of Parity Stock upon which like voting rights
have been conferred and are exercisable with respect to such matter.


 


Section 3.  Dividends.


 


(a)       Rate. Holders of
Designated Preferred Stock shall be entitled to receive, on each share of
Designated Preferred Stock if, as and when declared by the Board of Directors
or any duly authorized committee of the Board of Directors, but only out of
assets legally available therefor, cumulative cash dividends with respect to
each Dividend Period (as defined below) at a rate per annum equal to the
Applicable Dividend Rate on (i) the Liquidation Amount per share of
Designated Preferred Stock and (ii) the amount of accrued and unpaid
dividends for any prior Dividend Period on such share of Designated Preferred
Stock, if any. Such dividends shall begin to accrue and be cumulative from the
Original Issue Date, shall compound on each subsequent Dividend Payment Date (i.e., no dividends shall accrue on other
dividends unless and until the first Dividend Payment Date for such other
dividends has passed without such other dividends having been paid on such date)
and shall be payable quarterly in arrears on each Dividend Payment Date,
commencing with the first such Dividend Payment Date to occur at least 20
calendar days after the Original Issue Date. In the event that any Dividend
Payment Date would otherwise fall on a day that is not a Business Day, the
dividend payment due on that date will be postponed to the next day that is a
Business Day and no additional dividends will accrue as a result of that
postponement. The period from and including any Dividend Payment Date to, but


 


A-2

















 


excluding,
the next Dividend Payment Date is a “Dividend Period”, provided that the
initial Dividend Period shall be the period from and including the Original
Issue Date to, but excluding, the next Dividend Payment Date.


 


Dividends
that are payable on Designated Preferred Stock in respect of any Dividend
Period shall be computed on the basis of a 360-day year consisting of twelve
30-day months. The amount of dividends payable on Designated Preferred Stock on
any date prior to the end of a Dividend Period, and for the initial Dividend
Period, shall be computed on the basis of a 360-day year consisting of twelve
30-day months, and actual days elapsed over a 30-day month.


 


Dividends
that are payable on Designated Preferred Stock on any Dividend Payment Date
will be payable to holders of record of Designated Preferred Stock as they
appear on the stock register of the Corporation on the applicable record date,
which shall be the 15th calendar day immediately preceding such Dividend
Payment Date or such other record date fixed by the Board of Directors or any
duly authorized committee of the Board of Directors that is not more than 60
nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend
Record Date”).  Any such day that is
a Dividend Record Date shall be a Dividend Record Date whether or not such day
is a Business Day.


 


Holders
of Designated Preferred Stock shall not be entitled to any dividends, whether
payable in cash, securities or other property, other than dividends (if any)
declared and payable on Designated Preferred Stock as specified in this Section 3
(subject to the other provisions of the Certificate of Designations).


 


(b)      Priority of Dividends.
So long as any share of Designated Preferred Stock remains outstanding, no
dividend or distribution shall be declared or paid on the Common Stock or any
other shares of Junior Stock (other than dividends payable solely in shares of
Common Stock) or Parity Stock, subject to the immediately following paragraph
in the case of Parity Stock, and no Common Stock, Junior Stock or Parity Stock
shall be, directly or indirectly, purchased, redeemed or otherwise acquired for
consideration by the Corporation or any of its subsidiaries unless all accrued
and unpaid dividends for all past Dividend Periods, including the latest
completed Dividend Period (including, if applicable as provided in Section 3(a) above,
dividends on such amount), on all outstanding shares of Designated Preferred
Stock have been or are contemporaneously declared and paid in full (or have
been declared and a sum sufficient for the payment thereof has been set aside
for the benefit of the holders of shares of Designated Preferred Stock on the
applicable record date). The foregoing limitation shall not apply to (i) redemptions,
purchases or other acquisitions of shares of Common Stock or other Junior Stock
in connection with the administration of any employee benefit plan in the
ordinary course of business (including purchases to offset the Share Dilution
Amount (as defined below) pursuant to a publicly announced repurchase plan) and
consistent with past practice, provided that
any purchases to offset the Share Dilution Amount shall in no event exceed the
Share Dilution Amount; (ii) purchases or other acquisitions by a
broker-dealer subsidiary of the Corporation solely for the purpose of
market-making, stabilization or customer facilitation transactions in Junior
Stock or Parity Stock in the ordinary course of its business; (iii) purchases
by a broker- dealer subsidiary of the Corporation of capital stock of the
Corporation for resale pursuant to an offering by the Corporation of such
capital stock underwritten by such broker-dealer subsidiary; (iv) any
dividends or distributions of rights or Junior Stock in connection with a
stockholders’


 


A-3

















 


rights plan or any redemption
or repurchase of rights pursuant to any stockholders’ rights plan; (v) the
acquisition by the Corporation or any of its subsidiaries of record ownership
in Junior Stock or Parity Stock for the beneficial ownership of any other
persons (other than the Corporation or any of its subsidiaries), including as
trustees or custodians; and (vi) the exchange or conversion of Junior Stock for
or into other Junior Stock or of Parity Stock for or into other Parity Stock
(with the same or lesser aggregate liquidation amount) or Junior Stock, in each
case, solely to the extent required pursuant to binding contractual agreements
entered into prior to the Signing Date or any subsequent agreement for the
accelerated exercise, settlement or exchange thereof for Common Stock. “Share
Dilution Amount” means the increase in the number of diluted shares
outstanding (determined in accordance with generally accepted accounting
principles in the United States, and as measured from the date of the
Corporation’s consolidated financial statements most recently filed with the
Securities and Exchange Commission prior to the Original Issue Date) resulting
from the grant, vesting or exercise of equity-based compensation to employees
and equitably adjusted for any stock split, stock dividend, reverse stock
split, reclassification or similar transaction.


 


When
dividends are not paid (or declared and a sum sufficient for payment thereof
set aside for the benefit of the holders thereof on the applicable record date)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment
date falling within a Dividend Period related to such Dividend Payment Date) in
full upon Designated Preferred Stock and any shares of Parity Stock, all
dividends declared on Designated Preferred Stock and all such Parity Stock and
payable on such Dividend Payment Date (or, in the case of Parity Stock having
dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend
Payment Date) shall be declared pro rata so
that the respective amounts of such dividends declared shall bear the same
ratio to each other as all accrued and unpaid dividends per share on the shares
of Designated Preferred Stock (including, if applicable as provided in Section 3(a) above,
dividends on such amount) and all Parity Stock payable on such Dividend Payment
Date (or, in the case of Parity Stock having dividend payment dates different
from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) (subject to their having
been declared by the Board of Directors or a duly authorized committee of the
Board of Directors out of legally available funds and including, in the case of
Parity Stock that bears cumulative dividends, all accrued but unpaid dividends)
bear to each other. If the Board of Directors or a duly authorized committee of
the Board of Directors determines not to pay any dividend or a full dividend on
a Dividend Payment Date, the Corporation will provide written notice to the
holders of Designated Preferred Stock prior to such Dividend Payment Date.


 


Subject
to the foregoing, and not otherwise, such dividends (payable in cash,
securities or other property) as may be determined by the Board of Directors or
any duly authorized committee of the Board of Directors may be declared and
paid on any securities, including Common Stock and other Junior Stock, from
time to time out of any funds legally available for such payment, and holders
of Designated Preferred Stock shall not be entitled to participate in any such
dividends.


 


A-4

















 


Section 4.  Liquidation
Rights.


 


(a)       Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, holders of
Designated Preferred Stock shall be entitled to receive for each share of
Designated Preferred Stock, out of the assets of the Corporation or proceeds
thereof (whether capital or surplus) available for distribution to stockholders
of the Corporation, subject to the rights of any creditors of the Corporation,
before any distribution of such assets or proceeds is made to or set aside for
the holders of Common Stock and any other stock of the Corporation ranking
junior to Designated Preferred Stock as to such distribution, payment in full
in an amount equal to the sum of (i) the Liquidation Amount per share and (ii) the
amount of any accrued and unpaid dividends (including, if applicable as
provided in Section 3(a) above, dividends on such amount), whether or
not declared, to the date of payment (such amounts collectively, the “Liquidation
Preference”).


 


(b)      Partial Payment. If in
any distribution described in Section 4(a) above the assets of the Corporation or proceeds thereof are
not sufficient to pay in full the amounts payable with respect to all
outstanding shares of Designated Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally
with Designated Preferred Stock as to
such distribution, holders of Designated Preferred Stock and the holders of
such other stock shall share ratably in any such distribution in proportion to
the full respective distributions to which they are entitled.


 


(c)       Residual Distributions.
If the Liquidation Preference has been paid in full to all holders of
Designated Preferred Stock and
the corresponding amounts payable with respect of any other stock of the
Corporation ranking equally with Designated Preferred Stock as to such
distribution has been paid in full, the holders of other stock of the
Corporation shall be entitled to receive all remaining assets of the
Corporation (or proceeds thereof) according to their respective rights and preferences.


 


(d)      Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 4, the
merger or consolidation of the Corporation with any other corporation or other
entity, including a merger or consolidation in which the holders of Designated
Preferred Stock receive cash, securities or other property for their shares, or
the sale, lease or exchange (for cash, securities or other property) of all or
substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.


 


Section 5.  Redemption.


 


(a)       Optional Redemption. Except as provided below, the Designated
Preferred Stock may not be redeemed prior to the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date. On or
after the first Dividend Payment Date falling on or after the third anniversary
of the Original Issue Date, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, in whole or in
part, at any time and from time to time, out of funds legally available
therefor, the shares of Designated Preferred Stock at the time outstanding,
upon notice given as provided in  Section 5(c) below, at a
redemption price equal to the sum of (i) the Liquidation Amount per share
and (ii) except as otherwise provided below, any accrued and unpaid dividends
(including, if applicable as


 


A-5

















 


provided in Section 3(a) above,
dividends on such amount) (regardless of whether any dividends are actually
declared) to, but excluding, the date fixed for redemption.


 


Notwithstanding
the foregoing, prior to the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, at its option,
subject to the approval of the Appropriate Federal Banking Agency, may redeem,
in whole or in part, at any time and from time to time, the shares of
Designated Preferred Stock at the time outstanding, upon notice given as
provided in Section 5(c) below, at a redemption price equal to the
sum of (i) the Liquidation Amount per share and (ii) except as
otherwise provided below, any accrued and unpaid dividends (including, if
applicable as provided in Section 3(a) above, dividends on such
amount) (regardless of whether any dividends are actually declared) to, but
excluding, the date fixed for redemption; provided
that (x) the Corporation (or any successor by Business
Combination) has received aggregate gross proceeds of not less than the Minimum
Amount (plus the “Minimum Amount” as defined in the relevant certificate of designations
for each other outstanding
series of preferred stock of such successor that was originally issued to the
United States Department of the Treasury (the “Successor Preferred Stock”)
in connection with the Troubled Asset Relief Program Capital Purchase Program)
from one or more Qualified Equity Offerings (including Qualified Equity
Offerings of such successor), and (y) the aggregate redemption price of
the Designated Preferred Stock (and any Successor Preferred Stock) redeemed
pursuant to this paragraph may not exceed the aggregate net cash proceeds
received by the Corporation (or any successor by Business Combination) from
such Qualified Equity Offerings (including Qualified Equity Offerings of such
successor).


 


The
redemption price for any shares of Designated Preferred Stock shall be payable
on the redemption date to the holder of such shares against surrender of the
certificate(s) evidencing such shares to the Corporation or its agent. Any
declared but unpaid dividends payable on a redemption date that occurs
subsequent to the Dividend Record Date for a Dividend Period shall not be paid
to the holder entitled to receive the redemption price on the redemption date,
but rather shall be paid to the holder of record of the redeemed shares on such
Dividend Record Date relating to the Dividend Payment Date as provided in Section 3 above.


 


(b)      No Sinking Fund. The Designated Preferred Stock will not be
subject to any mandatory redemption, sinking fund or other similar provisions.
Holders of Designated Preferred Stock will have no right to require redemption
or repurchase of any shares of Designated Preferred Stock.


 


(c)       Notice of Redemption.
Notice of every redemption of shares of Designated Preferred Stock shall be
given by first class mail, postage prepaid, addressed to the holders of record
of the shares to be redeemed at their respective last addresses appearing on
the books of the Corporation. Such mailing shall be at least 30 days and not
more than 60 days before the date fixed for redemption. Any notice mailed as
provided in this Subsection shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice, but failure duly to give
such notice by mail, or any defect in such notice or in the mailing thereof, to
any holder of shares of Designated Preferred Stock designated for redemption
shall not affect the validity of the proceedings for the redemption of any
other shares of Designated Preferred Stock. Notwithstanding the foregoing, if
shares of Designated Preferred Stock are issued in book-entry form through The
Depository Trust Corporation or any other similar facility, notice of


 


A-6

















 


redemption may be given to
the holders of Designated Preferred Stock at such time and in any manner
permitted by such facility. Each notice of redemption given to a holder shall
state: (1) the redemption date; (2) the number of shares of Designated
Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; and (4) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price.


 


(d)      Partial Redemption.
In case of any redemption of part of the shares of Designated Preferred Stock
at the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other manner as the Board of
Directors or a duly authorized committee thereof may determine to be fair and
equitable. Subject to the provisions hereof, the Board of Directors or a duly
authorized committee thereof shall have full power and authority to prescribe the terms and conditions upon
which shares of Designated
Preferred Stock shall be redeemed from time to time. If fewer than all the shares represented by any
certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without charge to the holder
thereof.


 


(e)       Effectiveness of Redemption. If notice of
redemption has been duly given and if on or before the redemption date specified in the notice all funds
necessary for the redemption have been deposited by the Corporation, in trust
for the pro
rata benefit of the holders
of the shares called for redemption, with a bank or trust company doing
business in the Borough of Manhattan, The City of New York, and having a
capital and surplus of at least $500 million and selected by the Board of
Directors, so as to be and continue to be available solely therefor, then,
notwithstanding that any certificate for any share so called for redemption has
not been surrendered for cancellation, on and after the redemption date dividends
shall cease to accrue on all shares so called for redemption, all shares so
called for redemption shall no longer be deemed outstanding and all rights with
respect to such shares shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to receive the amount
payable on such redemption from such bank or trust company, without interest.
Any funds unclaimed at the end of three years from the redemption date shall,
to the extent permitted by law, be released to the Corporation, after which
time the holders of the shares so called for redemption shall look only to the
Corporation for payment of the redemption price of such shares.


 


(f)       Status of Redeemed Shares.
Shares of Designated Preferred Stock that are redeemed, repurchased or otherwise acquired by the Corporation
shall revert to authorized but unissued shares of Preferred Stock (provided that any such cancelled shares of Designated Preferred Stock may be reissued only as
shares of any series of Preferred Stock other than Designated Preferred Stock).


 


Section 6. Conversion. Holders of Designated
Preferred Stock shares shall have no right to exchange or convert such shares
into any other securities.


 


Section 7.  Voting Rights.


 


(a)       General. The holders of Designated Preferred Stock
shall not have any voting rights except as set forth below or as otherwise from
time to time required by law.


 


A-7

















 


(b)      Preferred Stock Directors. Whenever, at any time or times, dividends
payable on the shares of Designated Preferred Stock have not been paid for an
aggregate of six quarterly Dividend Periods or more, whether or not
consecutive, the authorized number of directors of the Corporation shall
automatically be increased by two and the holders of the Designated Preferred
Stock shall have the right, with holders of shares of any one or more other
classes or series of Voting Parity Stock outstanding at the time, voting
together as a class, to elect two directors (hereinafter the “Preferred
Directors” and each a “Preferred Director”) to fill such newly
created directorships at the Corporation’s next annual meeting of stockholders
(or at a special meeting called for that purpose prior to such next annual
meeting) and at each subsequent annual meeting of stockholders until all
accrued and unpaid dividends for all past Dividend Periods, including the
latest completed Dividend Period (including, if applicable as provided in Section 3(a) above,
dividends on such amount), on all outstanding shares of Designated Preferred
Stock have been declared and paid in full at which time such right
shall terminate with respect to the Designated Preferred Stock, except as
herein or by law expressly provided, subject to revesting in the event of each
and every subsequent default of the character above mentioned; provided that it shall be a qualification
for election for any Preferred Director that the election of such Preferred
Director shall not cause the Corporation to violate any corporate governance
requirements of any securities exchange or other trading facility on which
securities of the Corporation may then be listed or traded that listed or
traded companies must have a majority of independent directors. Upon any
termination of the right of the holders of shares of Designated Preferred Stock
and Voting Parity Stock as a class to vote for directors as provided above, the
Preferred Directors shall cease to be qualified as directors, the term of
office of all Preferred Directors then in office shall terminate immediately
and the authorized number of directors shall be reduced by the number of
Preferred Directors elected pursuant hereto. Any Preferred Director may be
removed at any time, with or without cause, and any vacancy created thereby may
be filled, only by the affirmative vote of the holders a majority of the shares
of Designated Preferred Stock at the time outstanding voting separately as a
class together with the holders of shares of Voting Parity Stock, to the extent
the voting rights of such holders described above are then exercisable. If the
office of any Preferred Director becomes vacant for any reason other than
removal from office as aforesaid, the remaining Preferred Director may choose a
successor who shall hold office for the unexpired term in respect of which such
vacancy occurred.


 


(c)       Class Voting Rights as to Particular Matters. So long as any shares of Designated
Preferred Stock are outstanding, in addition to any other vote or
consent of stockholders required by law
or by the Charter, the vote or consent of the holders of at least  66 2/3%
of the shares of Designated Preferred Stock at the time outstanding, voting as
a separate class, given in person or by proxy, either in writing without a
meeting or by vote at any meeting called for the purpose, shall be necessary
for effecting or validating:


 


(i)         Authorization of Senior Stock. Any amendment or alteration of the Certificate
of Designations for the Designated Preferred Stock or the Charter to authorize
or create or increase the authorized amount of, or any issuance of, any shares
of, or any securities convertible into or exchangeable or exercisable for
shares of, any class or series of capital stock of the Corporation ranking
senior to Designated Preferred Stock with respect to either or both the payment
of dividends and/or the distribution of assets on any liquidation, dissolution
or winding up of the Corporation;


 


A-8

















 


(ii)        Amendment of Designated Preferred Stock. Any amendment, alteration or repeal of any
provision of the Certificate of Designations for the Designated Preferred Stock
or the Charter (including, unless no vote on such merger or consolidation is
required by Section 7(c)(iii) below, any amendment, alteration or
repeal by means of a merger, consolidation or otherwise) so as to adversely
affect the rights, preferences, privileges or voting powers of the Designated
Preferred Stock; or


 


(iii)       Share Exchanges, Reclassifications, Mergers
and Consolidations. Any
consummation of a binding share exchange or reclassification involving the
Designated Preferred Stock, or of a merger or consolidation of the Corporation
with another corporation or other entity, unless in each case (x) the
shares of Designated Preferred Stock remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the
surviving or resulting entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights, preferences,
privileges and voting powers, and limitations and restrictions thereof, taken
as a whole, as are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and limitations and
restrictions thereof, of Designated Preferred Stock immediately prior to such
consummation, taken as a whole;


 


provided, however, that for all purposes of this Section 7(c), any increase in the
amount of the authorized Preferred Stock, including any increase in the
authorized amount of Designated Preferred Stock necessary to satisfy preemptive
or similar rights granted by the Corporation to other persons prior to the
Signing Date, or the creation and issuance, or an increase in the authorized or
issued amount, whether pursuant to preemptive or similar rights or otherwise,
of any other series of Preferred Stock, or any securities convertible into or
exchangeable or exercisable for any other series of Preferred Stock, ranking
equally with and/or junior to Designated Preferred Stock with respect to the
payment of dividends (whether such dividends are cumulative or non-cumulative)
and the distribution of assets upon liquidation, dissolution or winding up of
the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and shall not require the affirmative vote or
consent of, the holders of outstanding shares of the Designated Preferred
Stock.


 


(d)      Changes after Provision for Redemption. No vote or consent of the holders of
Designated Preferred Stock shall be required pursuant to Section 7(c) above
if, at or prior to the time when any such vote or consent would otherwise be
required pursuant to such Section, all outstanding shares of
the Designated Preferred Stock shall have been redeemed, or shall have been
called for redemption upon proper notice and sufficient funds shall have been
deposited in trust for such redemption, in each case pursuant to Section 5
above.


 


(e)       Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting
of the holders of Designated Preferred Stock (including, without limitation,
the fixing of a record date in connection therewith), the solicitation and use
of proxies at such a meeting, the obtaining of written consents and any other
aspect or matter with regard to such a meeting or such consents shall be
governed by any rules of the Board of Directors or any duly authorized
committee of the Board of Directors, in its discretion, may adopt from time to


 


A-9

















 


time, which rules and
procedures shall conform to the requirements of the Charter, the Bylaws, and
applicable law and the rules of any national securities exchange or other
trading facility on which Designated Preferred Stock is listed or traded at the
time.


 


Section 8.  Record
Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for Designated Preferred Stock may deem and treat the
record holder of any share of Designated Preferred Stock as the true and lawful
owner thereof for all purposes, and neither the Corporation nor such transfer
agent shall be affected by any notice to the contrary.


 


Section 9.  Notices. All notices or
communications in respect of Designated Preferred Stock shall be sufficiently
given if given in writing and delivered in person or by first class mail,
postage prepaid, or if given in such other manner as may be permitted in this
Certificate of Designations, in the Charter or Bylaws or by applicable law. Notwithstanding the
foregoing, if shares of
Designated Preferred Stock are issued in book-entry form through The Depository
Trust Corporation or any similar facility, such notices may be given to the
holders of Designated Preferred Stock in any manner permitted by such facility.


 


Section 10.  No Preemptive Rights. No share of Designated Preferred Stock shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or
options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or
granted.


 


Section 11.  Replacement Certificates.
The Corporation shall replace any mutilated certificate at the holder’s expense
upon surrender of that certificate to the Corporation. The Corporation shall
replace certificates that become destroyed, stolen or lost at the holder’s expense upon delivery to the Corporation of reasonably satisfactory evidence
that the certificate has been destroyed, stolen or lost, together with any
indemnity that may be reasonably required by the Corporation.


 


Section 12.  Other Rights. The shares
of Designated Preferred Stock shall not have any rights, preferences,
privileges or voting powers or relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof, other
than as set forth herein or in the Charter or as provided by applicable law.


 


A-10
















 


ANNEX B


 


FORM OF WAIVER


 


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


 


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


 


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


 

















 


ANNEX C


 


FORM OF OPINION


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


ANNEX D


 


FORM OF WARRANT


 


[SEE
ATTACHED]


 

















 


ANNEX D


 


FORM OF WARRANT TO PURCHASE COMMON STOCK


 


THE SECURITIES REPRESENTED
BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER
AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE ISSUER OF
THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON
FILE WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY
SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.


 


WARRANT


to purchase


 






 


Shares of Common Stock


 


	
   

  	
  of

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Issue Date:

  	
   

  	
   

  
							



 


1.        Definitions. Unless the context
otherwise requires, when used herein the following terms shall have the
meanings indicated.


 


“Affiliate”  has the meaning ascribed to it in the
Purchase Agreement.


 


“Appraisal Procedure”  means
a procedure whereby two independent appraisers, one chosen by the Company and
one by the Original Warrantholder, shall mutually agree upon the determinations
then the subject of appraisal. Each party shall deliver a notice to the other
appointing its appraiser within 15 days after the Appraisal Procedure is
invoked. If within 30 days after appointment of the two appraisers they are
unable to agree upon the amount in question, a third independent appraiser
shall be chosen within 10 days thereafter by the mutual consent of such first
two appraisers. The decision of the third appraiser so appointed and chosen
shall be given within 30 days after the selection of such third appraiser. If
three appraisers shall be appointed and the determination of one appraiser is
disparate from the middle determination by more than twice the amount by which
the other determination is disparate from the middle determination, then the determination of such appraiser
shall be excluded, the remaining two determinations shall be averaged and such
average shall be binding and conclusive upon the


 

















 


Company and the Original
Warrantholder; otherwise, the average of all three determinations shall be
binding upon the Company and the Original Warrantholder. The costs of
conducting any Appraisal Procedure shall be borne by the Company.


 


“Board of Directors”  means the board of directors of the Company,
including any duly authorized committee thereof.


 


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


 


“business day”  means any day except Saturday, Sunday and any
day on which banking institutions in the State of New York generally are
authorized or required by law or other governmental actions to close.


 


“Capital Stock”  means (A) with respect to any Person
that is a corporation or company, any and all shares, interests, participations
or other equivalents (however designated) of capital or capital stock of such
Person and (B) with respect to any Person that is not a corporation or
company, any and all partnership or other equity interests of such Person.


 


“Charter”  means, with respect to any Person, its
certificate or articles of incorporation, articles of association, or similar
organizational document.


 


“Common Stock”  has the meaning ascribed to it in the
Purchase Agreement.


 


“Company”  means the Person whose name, corporate or
other organizational form and jurisdiction of organization is set forth in Item
1 of Schedule A hereto.


 


“conversion”  has the meaning set forth in Section 13(B).


 


“convertible securities”  has the meaning set forth in Section 13(B).


 


“CPP”  has the meaning ascribed to it in the
Purchase Agreement.


 


“Exchange Act”  means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations
promulgated thereunder.


 


“Exercise Price”  means the amount set forth in Item 2 of
Schedule A hereto.


 


“Expiration Time”  has the meaning set forth in Section 3.


 


“Fair Market Value”  means, with respect to any security or other
property, the fair market value of such security or other property as
determined by the Board of Directors, acting in good faith or, with respect to Section 14,
as determined by the Original Warrantholder acting in good faith. For so long
as the Original Warrantholder holds this Warrant or any portion thereof, it may
object in writing to the Board of Director’s calculation of fair market value
within 10 days of receipt of written notice thereof. If the Original
Warrantholder and the Company are unable to agree on fair market value during
the 10-day period following the delivery of the Original Warrantholder’s
objection, the Appraisal Procedure may be invoked by either party to


 


2

















 


determine Fair Market Value
by delivering written notification thereof not later than the 30th
day after delivery of the Original Warrantholder’s objection.


 


“Governmental Entities”  has the meaning ascribed to it in the
Purchase Agreement.


 


“Initial Number”  has the meaning set forth in Section 13(B).


 


“Issue Date”  means the date set forth in Item 3 of
Schedule A hereto.


 


“Market Price”  means, with respect to a particular security,
on any given day, the last reported sale price regular way or, in case no such
reported sale takes place on such day, the average of the last closing bid and
ask prices regular way, in either case on the principal national securities
exchange on which the applicable securities are listed or admitted to trading,
or if not listed or admitted to trading on any national securities exchange,
the average of the closing bid and ask prices as furnished by two members of
the Financial Industry Regulatory Authority, Inc. selected from time to
time by the Company for that purpose. “Market Price” shall be determined
without reference to after hours or extended hours trading. If such security is
not listed and traded in a manner that the quotations referred to above are
available for the period required hereunder, the Market Price per share of Common
Stock shall be deemed to be (i) in the event that any portion of the
Warrant is held by the Original Warrantholder, the fair market value per share
of such security as determined in good faith by the Original Warrantholder or (ii) in
all other circumstances, the fair market value per share of such security as
determined in good faith by the Board of Directors in reliance on an opinion of
a nationally recognized independent investment banking corporation retained by
the Company for this purpose and certified in a resolution to the
Warrantholder. For the purposes of determining the Market Price of the Common
Stock on the “trading day” preceding, on or following the occurrence of an
event, (i) that trading day shall be deemed to commence immediately after
the regular scheduled closing time of trading on the New York Stock Exchange
or, if trading is closed at an earlier time, such earlier time and (ii) that
trading day shall end at the next regular scheduled closing time, or if trading
is closed at an earlier time, such earlier time (for the avoidance of doubt,
and as an example, if the Market Price is to be determined as of the last
trading day preceding a specified event and the closing time of trading on a
particular day is 4:00 p.m. and the specified event occurs at 5:00 p.m.
on that day, the Market Price would be determined by reference to such 4:00 p.m.
closing price).


 


“Ordinary Cash Dividends”  means a regular quarterly cash dividend on
shares of Common Stock out of surplus or net profits legally available therefor
(determined in accordance with generally accepted accounting principles in
effect from time to time), provided that
Ordinary Cash Dividends shall not include any cash dividends paid subsequent to
the Issue Date to the extent the aggregate per share dividends paid on the
outstanding Common Stock in any quarter exceed the amount set forth in Item 4
of Schedule A hereto, as adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.


 


“Original Warrantholder”  means the United States Department of the
Treasury. Any actions specified to be taken by the Original Warrantholder
hereunder may only be taken by such Person and not by any other Warrantholder.


 


3

















 


“Permitted Transactions”  has the meaning set forth in Section 13(B).


 


“Person”
has the
meaning given to it in Section 3(a)(9) of the Exchange Act and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.


 


“Per Share Fair Market Value”  has the meaning set forth in Section 13(C).


 


“Preferred Shares”  means the perpetual preferred stock issued to the Original
Warrantholder on the Issue Date pursuant to the Purchase Agreement.


 


“Pro Rata Repurchases”  means any purchase of shares of Common Stock by the Company or any
Affiliate thereof pursuant to (A) any tender offer or exchange offer
subject to Section 13(e) or 14(e) of the Exchange Act or
Regulation 14E promulgated thereunder or (B) any  other offer
available to substantially all holders of Common Stock, in the case of both (A) or
(B), whether for cash, shares of Capital Stock of the Company, other securities
of the Company, evidences of indebtedness of the Company or any other Person or
any other property (including, without limitation, shares of Capital Stock,
other securities or evidences of indebtedness of a subsidiary), or any
combination thereof, effected while this Warrant is outstanding. The “Effective
Date”  of a Pro
Rata Repurchase shall mean the date of acceptance of shares for purchase or
exchange by the Company under any tender or exchange offer which is a Pro Rata
Repurchase or the date of purchase with respect to any Pro Rata Repurchase that
is not a tender or exchange offer.


 


“Purchase Agreement”  means the Securities Purchase Agreement — Standard Terms incorporated
into the Letter Agreement, dated as of the date set forth in Item 5 of Schedule
A hereto, as amended from time to time, between the Company and the United
States Department of the Treasury (the “Letter Agreement”), including all annexes and
schedules thereto.


 


“Qualified Equity Offering”  has the meaning ascribed to it in the Purchase Agreement.


 


“Regulatory Approvals”  with respect to the Warrantholder, means, to the extent applicable and
required to permit the Warrantholder to exercise this Warrant for shares of
Common Stock and to own such Common Stock without the Warrantholder being in
violation of applicable law, rule or regulation, the receipt of any
necessary approvals and authorizations of, filings and registrations with,
notifications to, or expiration or termination
of any applicable waiting period
under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and
regulations thereunder.


 


“SEC”  means the U.S. Securities and Exchange
Commission.


 


“Securities Act”  means
the Securities Act of 1933, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.


 


“Shares”
has the
meaning set forth in Section 2.


 


“trading day”  means
(A) if the shares of Common Stock are not traded on any national or
regional securities exchange or association or over-the-counter market, a
business day or (B) if the shares of Common Stock are traded on any
national or regional securities exchange or


 


4

















 


association or
over-the-counter market, a business day on which such relevant exchange or
quotation system is scheduled to be open for business and on which the shares
of Common Stock (i) are not suspended from trading on any national or
regional securities exchange or association or over-the-counter market for any
period or periods aggregating one half hour or longer; and (ii) have
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the shares of Common Stock.


 


“US. GAAP”
means United
States generally accepted accounting principles.


 


“Warrantholder”  has
the meaning set forth in Section 2.


 


“Warrant”
means this
Warrant, issued pursuant to the Purchase Agreement.


 


2.          Number of Shares; Exercise Price. This certifies that, for value received,
the United States Department of the Treasury or its permitted assigns (the “Warrantholder”) is
entitled, upon the terms and subject to the conditions hereinafter set forth,
to acquire from the Company, in whole or in part, after the receipt of all
applicable Regulatory Approvals, if any, up to an aggregate of the number of
fully paid and nonassessable shares of Common Stock set forth in Item 6 of
Schedule A hereto, at a purchase price per share of Common Stock equal to the
Exercise Price. The number of shares of Common Stock (the  “Shares”) and the Exercise Price are subject to adjustment as provided herein,
and all references to “Common Stock,” “Shares” and “Exercise Price” herein
shall be deemed to include any such adjustment or series of adjustments.


 


3.          Exercise of Warrant; Term. Subject to Section 2, to the extent
permitted by applicable laws and regulations, the right to purchase the Shares
represented by this Warrant is exercisable, in whole or in part by the
Warrantholder, at any time or from time to time after the execution and
delivery of this Warrant by the Company on the date hereof, but in no event
later than 5:00 p.m., New York City time on the tenth anniversary of the
Issue Date (the “Expiration Time”), by (A) the surrender of this Warrant and Notice of Exercise
annexed hereto, duly completed and executed on behalf of the Warrantholder, at
the principal executive office of the Company located at the address set forth
in Item 7 of Schedule A hereto (or such other office or agency of the Company
in the United States as it may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the books of the
Company), and (B) payment of the Exercise Price for the Shares thereby
purchased:


 


(i) by
having the Company withhold, from the shares of Common Stock that would
otherwise be delivered to the Warrantholder upon such exercise, shares of
Common stock issuable upon exercise of the Warrant equal in value to the
aggregate Exercise Price as to which this Warrant is so exercised based on the
Market Price of the Common Stock on the trading day on which this Warrant is
exercised and the Notice of Exercise is delivered to the Company pursuant to
this Section 3, or


 


(ii) with
the consent of both the Company and the Warrantholder, by tendering in cash, by
certified or cashier’s check payable to the order of the Company, or by wire
transfer of immediately available funds to an account designated by the
Company.


 


5
















 


If the Warrantholder does
not exercise this Warrant in its entirety, the Warrantholder will be entitled
to receive from the Company within a reasonable time, and in any event not
exceeding three business days, a new warrant in substantially identical form for the purchase of that number of Shares equal to the difference
between the number of Shares subject to this Warrant and the number of Shares as to which this Warrant is so exercised.
Notwithstanding anything in this Warrant to the contrary, the Warrantholder
hereby acknowledges and agrees that its exercise of this Warrant for Shares is
subject to the condition that the Warrantholder will have first received any
applicable Regulatory Approvals.


 


4.                                       Issuance of Shares; Authorization; Listing.
Certificates for Shares issued upon exercise of this Warrant will be issued
in such name or names as the Warrantholder may designate and will be delivered
to such named Person or Persons within a reasonable time, not to exceed three
business days after the date on which this Warrant has been duly exercised in accordance with the terms of this Warrant. The Company hereby
represents and warrants that any Shares issued upon the exercise of this
Warrant in accordance with the provisions of Section 3 will be duly and
validly authorized and issued, fully paid and nonassessable and free from all
taxes, liens and charges (other than liens or charges created by the
Warrantholder, income and franchise taxes incurred in connection with the
exercise of the Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so issued will
be deemed to have been issued to the Warrantholder as of the close of business
on the date on which this Warrant and payment of the Exercise Price are
delivered to the Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may then be closed
or certificates representing such Shares may not be actually delivered on such
date. The Company will at all times reserve and keep available, out of its
authorized but unissued Common Stock, solely for the purpose of providing for
the exercise of this Warrant, the aggregate number of shares of Common Stock
then issuable upon exercise of this Warrant at any time. The Company will (A) procure,
at its sole expense, the listing of the Shares issuable upon exercise of this
Warrant at any time, subject to issuance or notice of issuance, on all
principal stock exchanges on which the Common Stock is then listed or traded
and (B) maintain such listings of such Shares at all times after issuance.
The Company will use reasonable best efforts to ensure that the Shares may be issued without violation of any applicable law or regulation or of any
requirement of any securities exchange on which the Shares are listed or
traded.


 


5.                                       No Fractional Shares or Scrip. No fractional Shares or scrip representing fractional Shares shall be issued upon any
exercise of this Warrant. In lieu of any fractional Share to which the Warrantholder
would otherwise be entitled, the Warrantholder shall be entitled to receive a cash payment equal to the Market Price of the Common Stock on the last trading day preceding the date of exercise less the pro-rated
Exercise Price for such fractional share.


 


6.                                       No Rights as Stockholders; Transfer Books.
This Warrant does not entitle the Warrantholder to any voting rights or other
rights as a stockholder of the Company prior to the date of exercise hereof.
The Company will at no time close its transfer books against transfer of this
Warrant in any manner which interferes with the timely exercise of this
Warrant.


 


6

















 


7.                                       Charges. Taxes and Expenses. Issuance of certificates for Shares to the Warrantholder
upon the exercise of this Warrant shall be made without charge to the
Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company.


 


8.                                       Transfer/Assignment.


 


(A)                              Subject to compliance with clause (B) of
this Section 8, this Warrant and all rights hereunder are transferable, in
whole or in part, upon the books of the Company by the registered holder hereof
in person or by duly authorized attorney, and a new warrant shall be made and
delivered by the Company, of the same tenor and date as this Warrant but
registered in the name of one or more transferees, upon surrender of this
Warrant, duly endorsed, to the office or agency of the Company described in Section 3.
All expenses (other than stock transfer taxes) and other charges payable in
connection with the preparation, execution and delivery of the new warrants
pursuant to this Section 8 shall be paid by the Company.


 


(B)                                The transfer of the Warrant and the Shares
issued upon exercise of the Warrant are subject to the restrictions set forth
in Section 4.4 of the Purchase Agreement. If and for so long as required
by the Purchase Agreement, this Warrant shall contain the legends as set forth
in Sections 4.2(a) and 4.2(b) of the Purchase Agreement.


 


9.                                       Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender
hereof by the Warrantholder to the Company, for a new warrant or warrants of
like tenor and representing the right to purchase the same aggregate number of
Shares. The Company shall maintain a registry showing the name and address of
the Warrantholder as the registered holder of this Warrant. This Warrant may be
surrendered for exchange or exercise in accordance with its terms, at the
office of the Company, and the Company shall be entitled to rely in all
respects, prior to written notice to the contrary, upon such registry.


 


10.                                 Loss, Theft, Destruction or Mutilation of
Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of a bond, indemnity or security reasonably
satisfactory to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company shall make and deliver,
in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and representing the right to purchase the same aggregate number of
Shares as provided for in such lost, stolen, destroyed or mutilated Warrant.


 


11.                                 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking
of any action or the expiration of any right required or granted herein shall
not be a business day, then such action may be taken or such right may be
exercised on the next succeeding day that is a business day.


 


12.                                 Rule 144 Information. The Company covenants that it will use its
reasonable best efforts to timely file all reports and other documents required
to be filed by it under the Securities Act and the Exchange Act and the rules and
regulations promulgated by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any


 


7

















 


Warrantholder, make publicly
available such information as necessary to permit sales pursuant to Rule 144
under the Securities Act), and it will use reasonable best efforts to take such
further action as any Warrantholder may reasonably request, in each case to the
extent required from time to time to enable such holder to, if permitted by the
terms of this Warrant and the Purchase Agreement, sell this Warrant without
registration under the Securities Act within the limitation of the exemptions
provided by (A) Rule 144 under the Securities Act, as such rule may
be amended from time to time, or (B) any successor rule or regulation
hereafter adopted by the SEC. Upon the written request of any Warrantholder,
the Company will deliver to such Warrantholder a written statement that it has
complied with such requirements.


 


13.                                 Adjustments and Other Rights. The Exercise Price and the number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment from time to time as follows; provided, that if more than one subsection of this Section 13 is applicable to a single event, the subsection
shall be applied that produces the largest adjustment and no single event shall cause an adjustment under more than one
subsection of this Section 13 so as to result in duplication:


 


(A)                              Stock Splits, Subdivisions, Reclassifications
or Combinations. If the
Company shall (i) declare and pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, (ii) subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares, or (iii) combine
or reclassify the outstanding shares of Common Stock into a smaller number of
shares, the number of Shares issuable upon exercise of this Warrant at the time
of the record date for such dividend or distribution or the effective date of
such subdivision, combination or reclassification shall be proportionately
adjusted so that the Warrantholder after
such date shall be entitled to purchase the number of shares of Common
Stock which such holder would have owned or been entitled to receive in respect
of the shares of Common Stock subject to this Warrant after such date had this
Warrant been exercised immediately prior to such date. In such event, the
Exercise Price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted to the number obtained by dividing (x) the
product of (1) the number of Shares issuable upon the exercise of this
Warrant before such adjustment and (2) the Exercise Price in effect
immediately prior to the record or effective date, as the case may be, for the
dividend, distribution, subdivision, combination or reclassification giving rise
to this adjustment by (y) the new
number of Shares issuable upon
exercise of the Warrant determined pursuant to the immediately preceding sentence.


 


(B)                                Certain Issuances of Common Shares or
Convertible Securities.
Until the earlier of (i) the date on which the Original Warrantholder no
longer holds this Warrant or any portion thereof and (ii) the third
anniversary of the Issue Date, if the Company shall issue shares of Common
Stock (or rights or warrants or other securities exercisable or convertible into
or exchangeable (collectively, a “conversion”) for shares of Common Stock) (collectively, “convertible securities”) (other than in Permitted Transactions (as defined below) or a
transaction to which subsection (A) of this Section 13 is applicable)
without consideration or at a consideration per share (or having a conversion
price per share) that is less than 90% of the Market Price on the last trading
day preceding the date of the agreement on pricing such shares (or such
convertible securities) then, in such event:


 


8

















 


(A)  the number of Shares issuable upon the
exercise of this Warrant immediately prior to the date of the agreement on
pricing of such shares (or of such convertible securities) (the “Initial Number”) shall be increased to the number obtained by multiplying the Initial Number by a fraction (A) the numerator of
which shall be the sum of (x) the number of shares of Common Stock of the
Company outstanding on such date and (y) the number of additional shares
of Common Stock issued (or into which convertible securities may be exercised
or convert) and (B) the denominator of which shall be the sum of (I) the
number of shares of Common Stock outstanding on such date and (II) the
number of shares of Common Stock which the aggregate consideration receivable
by the Company for the total number of shares of Common Stock so issued (or
into which convertible securities may be exercised or convert) would purchase
at the Market Price on the last trading day preceding the date of the agreement
on pricing such shares (or such
convertible securities); and


 


(B)  the Exercise Price payable upon exercise of
the Warrant shall be adjusted by multiplying such Exercise Price in effect
immediately prior to the date of the agreement on pricing of such shares (or of
such convertible securities) by a fraction, the numerator of which shall be the
number of shares of Common Stock issuable upon exercise of this Warrant prior
to such date and the denominator of which shall be the number of shares of
Common Stock issuable upon exercise of this Warrant immediately after the
adjustment described in clause (A) above.


 


For purposes of the
foregoing, the aggregate consideration receivable by the Company in connection
with the issuance of such shares of Common Stock or convertible securities
shall be deemed to be equal to the sum of the net offering price (including the
Fair Market Value of any non-cash consideration and after deduction of any
related expenses payable to third parties) of all such securities plus the
minimum aggregate amount, if any, payable upon exercise or conversion of any
such convertible securities into shares of Common Stock; and “Permitted Transactions”  shall mean issuances (i) as
consideration for or to fund the acquisition of businesses and/or related
assets, (ii) in connection with employee benefit plans and compensation
related arrangements in the ordinary course and consistent with past practice
approved by the Board of Directors, (iii) in connection with a public or
broadly marketed offering and sale of Common Stock or convertible securities
for cash conducted by the Company or its affiliates pursuant to registration
under the Securities Act or Rule 144A thereunder on a basis consistent with capital raising transactions by comparable financial institutions and (iv) in
connection with the exercise of preemptive rights on terms existing as of the
Issue Date. Any adjustment made
pursuant to this Section 13(B) shall
become effective immediately upon the date of such issuance.


 


(C)                                Other Distributions.  In
case the Company shall fix a record date for the making of a distribution to
all holders of shares of its Common Stock of securities, evidences of
indebtedness, assets, cash, rights or warrants (excluding Ordinary Cash
Dividends, dividends of its Common Stock and other dividends or distributions
referred to in Section 13(A)), in each such case, the Exercise Price in
effect prior to such record date shall be reduced immediately thereafter to the
price determined by multiplying the Exercise Price in effect immediately prior
to the reduction by the quotient of (x) the Market Price of the Common
Stock on the last trading day preceding the first date on which the Common
Stock trades regular way on the principal


 


9

















 


national securities exchange
on which the Common Stock is listed or admitted to trading without the right to
receive such distribution, minus the amount of cash and/or the Fair Market
Value of the securities, evidences of indebtedness, assets, rights or warrants
to be so distributed in respect of one share of Common Stock (such amount
and/or Fair Market Value, the “Per Share Fair Market Value”) divided by (y) such Market Price on such date specified in clause
(x); such adjustment shall be made successively whenever such a record date is
fixed. In such event, the number of Shares issuable upon the exercise of this
Warrant shall be increased to the number obtained by dividing (x) the
product of (1) the number of Shares issuable upon the exercise of this
Warrant before such adjustment, and (2) the Exercise Price in effect
immediately prior to the distribution giving rise to this adjustment by (y) the
new Exercise Price determined in accordance with the immediately preceding
sentence. In the case of adjustment for a cash dividend that is, or is
coincident with, a regular quarterly cash dividend, the Per Share Fair Market
Value would be reduced by the per share amount of the portion of the cash
dividend that would constitute an Ordinary Cash Dividend. In the event that
such distribution is not so made, the Exercise Price and the number of Shares
issuable upon exercise of this Warrant then in effect shall be readjusted,
effective as of the date when the Board of Directors determines not to distribute
such shares, evidences of indebtedness, assets, rights, cash or warrants, as
the case may be, to the Exercise Price that would then be in effect and the
number of Shares that would then be
issuable upon exercise of this Warrant if such record date had not been fixed.


 


(D)                          Certain Repurchases of Common Stock.
In case the Company effects a Pro Rata Repurchase of Common Stock, then the
Exercise Price shall be reduced to the price determined by multiplying the
Exercise Price in effect immediately prior to the Effective Date of such Pro
Rata Repurchase by a fraction of which the numerator shall be (i) the
product of (x) the number of shares of Common Stock outstanding
immediately before such Pro Rata Repurchase and (y) the Market Price of a
share of Common Stock on the trading day immediately preceding the first public
announcement by the Company or any of its Affiliates of the intent to effect
such Pro Rata Repurchase, minus (ii) the aggregate purchase price of the
Pro Rata Repurchase, and of which the denominator shall be the product of (i) the
number of shares of Common Stock outstanding immediately prior to such Pro Rata
Repurchase minus the number of shares of Common Stock so repurchased and (ii) the
Market Price per share of Common Stock on the trading day immediately preceding
the first public announcement by the Company or any of its Affiliates of the
intent to effect such Pro Rata Repurchase. In such event, the number of shares
of Common Stock issuable upon the exercise of this Warrant shall be increased
to the number obtained by dividing (x) the product of (1) the number
of Shares issuable upon the exercise of this Warrant before such adjustment,
and (2) the Exercise Price in effect immediately prior to the Pro Rata
Repurchase giving rise to this adjustment by (y) the new Exercise Price
determined in accordance with the immediately preceding sentence. For the
avoidance of doubt, no increase to the Exercise Price or decrease in the number
of Shares issuable upon exercise of this Warrant shall be made pursuant to this
Section 13(D).


 


(E)                            Business Combinations. In case of any Business Combination or
reclassification of Common Stock (other than a reclassification of Common Stock
referred to in Section 13(A)), the Warrantholder’s right to receive Shares
upon exercise of this Warrant shall be converted into the right to exercise
this Warrant to acquire the number of shares of stock or other securities or
property (including cash) which the Common Stock issuable (at the time of such
Business Combination or reclassification) upon exercise of this Warrant
immediately prior to such


 


10

















 


Business Combination or
reclassification would have been entitled to receive upon consummation of such
Business Combination or reclassification; and in any such case, if necessary,
the provisions set forth herein with respect to the rights and interests
thereafter of the Warrantholder shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to the Warrantholder’s right to
exercise this Warrant in exchange for any shares of stock or other securities
or property pursuant to this paragraph. In determining the kind and amount of
stock, securities or the property receivable upon exercise of this Warrant
following the consummation of such Business Combination, if the holders of
Common Stock have the right to elect the kind or amount of consideration
receivable upon consummation of such Business Combination, then the
consideration that the Warrantholder shall be entitled to receive upon exercise
shall be deemed to be the types and amounts of consideration received by the
majority of all holders of the shares of common stock that affirmatively make
an election (or of all such holders if none make an election).


 


(F)                                      Rounding of Calculations; Minimum Adjustments. All calculations under this Section 13
shall be made to the nearest one-tenth (1/10th) of a cent or to the nearest
one- hundredth (1/100th) of a share, as the case may be. Any provision of this Section 13
to the contrary notwithstanding, no adjustment in the Exercise Price or the
number of Shares into which this Warrant is exercisable shall be made  if
the amount of such adjustment would be less than $0.01 or one-tenth (1/10th) of
a share of Common Stock, but any such amount shall be carried forward and an
adjustment with respect thereto shall be made at the time of and together with
any subsequent adjustment which, together with such amount and any other amount
or amounts so carried forward, shall aggregate $0.01 or 1/10th of a share of
Common Stock, or more.


 


(G)                                     Timing of Issuance of Additional Common Stock
Upon Certain Adjustments. In
any case in which the provisions of this Section 13 shall require that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) issuing to the Warrantholder of this Warrant
exercised after such record date and before the occurrence of
such event the additional shares of Common Stock issuable upon such exercise by
reason of the adjustment required by such event over and above the shares of
Common Stock issuable upon such exercise before giving effect to such
adjustment and (ii) paying to such Warrantholder any amount of cash in lieu
of a fractional share of Common Stock; provided,
however, that the Company upon request shall deliver to such
Warrantholder a due bill or other appropriate instrument evidencing such
Warrantholder’s right to receive such additional shares, and such cash, upon
the occurrence of the event requiring such adjustment.


 


(H)                                    Completion of Qualified Equity Offering. In the event the Company (or any successor
by Business Combination) completes one or more Qualified Equity Offerings on or
prior to December 31, 2009 that result in the Company (or any such
successor ) receiving aggregate gross proceeds of not less than 100% of the
aggregate liquidation preference of the Preferred Shares (and any preferred
stock issued by any such successor to the Original Warrantholder under the
CPP), the number of shares of Common Stock underlying the portion of this
Warrant then held by the Original Warrantholder shall be thereafter reduced by
a number of shares of Common Stock equal to the product of (i) 0.5 and (ii) the number of shares underlying


 


11

















 


the Warrant on the Issue
Date (adjusted to take into account all other theretofore made adjustments
pursuant to this Section 13).


 


(I)                                    Other Events. For so long as the Original Warrantholder
holds this Warrant or any portion thereof, if any event occurs as to which the
provisions of this Section 13 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board of Directors of
the Company, fairly and adequately protect the purchase rights of the Warrants
in accordance with the essential intent and principles of such provisions, then
the Board of Directors shall make such adjustments in the application of such
provisions, in accordance with such essential intent and principles, as shall
be reasonably necessary, in the good faith opinion of the Board of Directors,
to protect such purchase rights as aforesaid. The Exercise Price or the number
of Shares into which this Warrant is exercisable shall not be adjusted in the
event of a change in the par value of the Common Stock or a change in the
jurisdiction of incorporation of the Company.


 


(J)                                   Statement Regarding Adjustments. Whenever the Exercise Price or the number
of Shares into which this Warrant is exercisable shall be adjusted as provided
in Section 13, the Company shall forthwith file at the principal office of
the Company a statement showing in reasonable detail the facts requiring such
adjustment and the Exercise Price that shall be in effect and the number of
Shares into which this Warrant shall be exercisable after such adjustment, and
the Company shall also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each Warrantholder at the address appearing in the Company’s
records.


 


(K)                               Notice of Adjustment Event. In the event that the Company shall propose
to take any action of the type described in this Section 13 (but only if
the action of the type described in this Section 13 would result in an
adjustment in the Exercise Price or the number of Shares into which this
Warrant is exercisable or a change in the type of securities or property to be
delivered upon exercise of this Warrant), the Company shall give notice to the
Warrantholder, in the manner set forth in Section 13(J), which notice
shall specify the record date, if any, with respect to any such action and the
approximate date on which such action is to take place. Such notice shall also
set forth the facts with respect thereto as shall be reasonably necessary to
indicate the effect on the Exercise Price and the number, kind or class of
shares or other securities or property which shall be deliverable upon exercise
of this Warrant. In the case of any action which would require the fixing of a
record date, such notice shall be given at least 10 days prior to the date so fixed,
and in case of all other action, such notice shall be given at least 15 days prior to the taking of such proposed
action. Failure to give such notice, or any defect therein, shall not affect
the legality or validity of any such action.


 


(L)                                 Proceedings Prior to Any Action Requiring
Adjustment. As a condition
precedent to the taking of any action
which would require an adjustment pursuant to this Section 13, the Company
shall take any action which may be necessary, including obtaining regulatory,
New York Stock Exchange, NASDAQ Stock Market or other applicable national
securities exchange or stockholder approvals or exemptions, in order that the
Company may thereafter validly and legally issue as fully paid and
nonassessable all shares of Common Stock that the Warrantholder is entitled to
receive upon exercise of this Warrant pursuant to this Section 13.


 


12
















 


(M)        Adjustment Rules. Any adjustments pursuant to this Section 13
shall be made successively whenever an event referred to herein shall occur. If
an adjustment in Exercise Price made hereunder would reduce the Exercise Price
to an amount below par value of the Common Stock, then such adjustment in
Exercise Price made hereunder shall reduce the Exercise Price to the par value
of the Common Stock.


 


14.         Exchange. At any time following the date on which the shares of Common Stock of
the Company are no longer listed or admitted to trading on a national
securities exchange (other than in connection with any Business Combination),
the Original Warrantholder may cause the Company to exchange all or a portion
of this Warrant for an economic interest (to be determined by the Original
Warrantholder after consultation with the Company) of the Company classified as
permanent equity under U.S. GAAP having a value equal to the Fair Market Value
of the portion of the Warrant so exchanged. The Original Warrantholder shall calculate
any Fair Market Value required to be calculated pursuant to this Section 14,
which shall not be subject to the Appraisal Procedure.


 


15.         No Impairment. The Company will not, by amendment of its
Charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Warrant and in
taking of all such action as may be necessary or appropriate in order to
protect the rights of the Warrantholder.


 


16.         Governing Law. This
Warrant will be governed by and construed in accordance with the federal law of
the United States if and to the extent such law is applicable, and otherwise in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State. Each of the Company and the
Warrantholder agrees (a) to submit to the exclusive jurisdiction and venue
of the United States District Court for the District of Columbia for any civil
action, suit or proceeding arising out of or relating to this Warrant or the
transactions contemplated hereby, and (b) that notice may be served upon
the Company at the address in Section 20 below and upon the Warrantholder
at the address for the Warrantholder set  forth in the registry maintained by the Company
pursuant to Section 9 hereof. To the extent permitted by applicable law,
each of the Company and the Warrantholder hereby unconditionally waives trial
by jury in any civil legal action or proceeding relating to the Warrant or the transactions contemplated
hereby or thereby.


 


17.         Binding Effect. This Warrant shall be binding upon any
successors or assigns of the Company.


 


18.         Amendments. This Warrant may be amended and the observance of any term of this
Warrant may be waived only with the written consent of the Company and the Warrantholder.


 


19 .        Prohibited Actions. The Company agrees that it will not take
any action which would entitle the Warrantholder to an adjustment of the
Exercise Price if the total number of shares of Common Stock issuable after
such action upon exercise of this Warrant, together with


 


13

















 


all shares of Common Stock
then outstanding and all shares of Common Stock then issuable upon the exercise
of all outstanding
options, warrants, conversion
and other rights, would exceed the total number of shares of Common Stock then
authorized by its Charter.


 


20.         Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other will be in writing and will be deemed to
have been duly given (a) on the date of delivery if delivered personally,
or by facsimile, upon confirmation of receipt, or (b) on the second
business day following the date of dispatch if delivered by a recognized next
day courier service. All notices hereunder shall be delivered as
set forth in Item 8 of Schedule A hereto, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice.


 


21.         Entire Agreement. This Warrant, the forms attached hereto and Schedule A hereto (the terms of which are incorporated by
reference herein), and the Letter Agreement (including all documents
incorporated therein), contain the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
arrangements or undertakings with respect thereto.


 


[Remainder of page intentionally left blank]


 


14

















 


[Form of
Notice of Exercise] 

Date: ________________


 


TO:       [Company]


 


RE:        Election to Purchase Common Stock


 


The
undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby agrees to subscribe for and purchase the number of shares of the Common
Stock set forth below covered by such Warrant. The undersigned, in accordance
with Section 3 of the Warrant, hereby agrees to pay the aggregate Exercise
Price for such shares of Common Stock in the manner set forth below. A new
warrant evidencing the remaining shares of Common Stock covered by such
Warrant, but not yet subscribed for and purchased, if any, should be issued in
the name set forth below.


 


Number
of Shares of Common Stock ________________________


 


Method of Payment of
Exercise Price (note if cashless exercise pursuant to Section 3(i) of
the Warrant or cash exercise pursuant to Section 3(ii) of the
Warrant, with consent of the Company and the Warrantholder) ________________________


 


Aggregate Exercise Price: ________________________


 


	
   

  	
  Holder:

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


15

















 


IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a
duly authorized officer.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [Signature
  Page to Warrant]

  
							



 


16

















 


SCHEDULE A


 


ADDITIONAL TERMS AND CONDITIONS


 


Company Information:


 


Name of the Company: CoBiz
Financial Inc.


 


Corporate or other
organizational form: Corporation


 


Jurisdiction of
Organization: Colorado


 


Appropriate Federal Banking
Agency: Board of Governors of the Federal Reserve System


 




	
  Notice Information:

  	
   

  	
  CoBiz Financial Inc.

  
	
   

  	
   

  	
  821 17th Street

  
	
   

  	
   

  	
  Denver, Colorado 80202 

  Attention: Steven Bangert

  Facsimile: 303-244-9700

  






 


Terms of the Purchase:


 


Series of Preferred
Stock Purchased: Series B


 


Per Share Liquidation
Preference of Preferred Stock: $1,000


 


Number of Shares of
Preferred Stock Purchased: 64,450


 


Dividend Payment Dates on
the Preferred Stock: February 15, May 15, August 15 and November 15



 


Number of Initial Warrant
Shares: 895,968


 


Exercise Price of the
Warrant: $10.79


 


Purchase Price: $64,450,000


 


Closing:


 


Location of Closing: Hughes
Hubbard, One Battery Park Plaza, New York, NY 10004-1482 


 


Time of Closing: 9:00 a.m.
Eastern Time


 


Date of Closing: December 19,
2008


 




	
  Wire
  Information for Closing:

  	
   

  	
  ABA
  Number: Omitted 

  Bank: Omitted  

  Account
  Name: Omitted 

  Account
  Number: Omitted 

  Beneficiary:
  Omitted