Exhibit
10.1

     

    
      

      

    

    
 

    SECURITIES
PURCHASE AGREEMENT

    


    dated
December 31, 2008

     

    between

     

    CITIGROUP
INC., as Issuer

    


    and

    


    UNITED
STATES DEPARTMENT OF THE TREASURY

     

     

     

    
      

      

    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    
      	 
      	
              TABLE
      OF CONTENTS

            	 
      
	 
      	 
      	
              Page

            
	 	 	 
	 
      	
              Article
      I

            	 
      
	 	 	 
	 
      	
              Purchase;
      Closing

            	 
      
	 	 	 
	
              1.1

            	
              Purchase

            	
              1

            
	
              1.2

            	
              Closing

            	
              1

            
	
              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

            	
              13

            
	
              3.3

            	
              Sufficiency
      of Authorized Common Stock; Exchange Listing

            	
              13

            
	
              3.4

            	
              Certain
      Notifications Until Closing

            	
              13

            
	
              3.5

            	
              Access,
      Information and Confidentiality

            	
              14

            
	
              3.6

            	
              Internal
      Controls

            	
              15

            
	 	 	 
	 
      	
              Article
      IV

            	 
      
	 	 	 
	 
      	
              Additional
      Agreements

            	 
      
	 	 	 
	
              4.1

            	
              Purchase
      for Investment

            	
              15

            
	
              4.2

            	
              Legends

            	
              16

            
	
              4.3

            	
              Certain
      Transactions

            	
              17

            
	
              4.4

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

            
	 
      	
              the
      Warrant

            	
              17

            
	
              4.5

            	
              Registration
      Rights

            	
              17

            
	
              4.6

            	
              Voting
      of Warrant Shares

            	
              28

            
	
              4.7

            	
              Depositary
      Shares

            	
              29

            
	
              4.8

            	
              Restriction
      on Dividends and Repurchases

            	
              29

            
	
              4.9

            	
              Repurchase
      of Investor Securities

            	
              30

            
	
              4.10

            	
              Executive
      Compensation

            	
              31

            


    

    


    
      
        
        

      

      
        - i
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              4.11

            	
              Qualified
      Equity Offering

            	
              35

            
	
              4.12

            	
              Bank
      Holding Company Status

            	
              35

            
	 	 	
               

            
	 
      	
              Article
      V

            	
               
      

            
	 	 	
               

            
	 
      	
              Miscellaneous

            	
               
      

            
	 	 	
               

            
	
              5.1

            	
              Termination

            	
              35

            
	
              5.2

            	
              Survival
      of Representations and Warranties

            	
              36

            
	
              5.3

            	
              Amendment

            	
              36

            
	
              5.4

            	
              Waiver
      of Conditions

            	
              36

            
	
              5.5

            	
              Governing
      Law: Submission to Jurisdiction, Etc.

            	
              36

            
	
              5.6

            	
              Notices

            	
              37

            
	
              5.7

            	
              Definitions

            	
              37

            
	
              5.8

            	
              Assignment

            	
              38

            
	
              5.9

            	
              Entire
      Agreement, Etc.

            	
              38

            
	
              5.10

            	
              Counterparts
      and Facsimile

            	
              38

            
	
              5.11

            	
              Severability

            	
              38

            
	
              5.12

            	
              No
      Third Party Beneficiaries

            	
              38

            


    

    


    
      
        
        

      

      
        - ii
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      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

            
	 	 
	 	 
	 	 
	 LIST
      OF SCHEDULES
	 	 
	 SCHEDULE
      A: 	CAPITALIZATION
	 	 
	 SCHEDULE
      B: 	LITIGATION
	 	 
	 SCHEDULE
      C: 	COMPLIANCE
      WITH LAWS
	 	 
	 SCHEDULE
      D: 	REGULATORY
      AGREEMENTS
	 	 


    

    


    
      
        
        

      

      
        - iii
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              INDEX
      OF DEFINED TERMS

            	 	 
      
	 	 	 
	Term	 	
              Location
      of 

              Definition

            
	
              Affiliate

            	 	
              5.7(b)

            
	
              Agreement

            	 	
              Preamble

            
	
              Appraisal
      Procedure

            	 	
              4.9(c)(i)

            
	
              Appropriate
      Federal Banking Agency

            	 	
              2.2(s)

            
	
              Bank
      Holding Company

            	 	
              4.12

            
	
              Bankruptcy
      Exceptions

            	 	
              2.2(d)

            
	
              Benefit
      Plans

            	 	
              1.2(d)(iv)

            
	
              Board
      of Directors

            	 	
              2.2(f)

            
	
              Bonus
      Pool Cap

            	 	
              4.10(c)(i)

            
	
              Bonus
      Compensation

            	 	
              4.10(c)(i)

            
	
              Business
      Combination

            	 	
              5.8

            
	
              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

            	 	
              Preamble

            
	
              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)

            
	
              EESA

            	 	
              1.2(d)(iv)

            
	
              ERISA

            	 	
              2.2(n)

            
	
              Exchange
      Act

            	 	
              2.1(b)

            
	
              Expense
      Policy

            	 	
              4.10(e)

            
	
              Fair
      Market Value

            	 	
              4.9(c)(ii)

            
	
              Federal
      Reserve

            	 	
              4.12

            
	
              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(c)

            
	
              Investor

            	 	
              Preamble

            
	
              Junior
      Stock

            	 	
              4.8(c)

            
	
              knowledge
      of the Company; Company’s
      knowledge

            	 	
              5.7(c)

            
	
              Last
      Fiscal Year

            	 	
              2.1(b)

            


    

    


    
      
        
        

      

      
        - iv
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      	Term	 	Location
      of Definition
	
              officers

            	 	
              5.7(c)

            
	
              Original
      Purchase Agreement

            	 	
              4.11

            
	
              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)

            
	
              Prior
      Year Bonus Compensation

            	 	
              4.10(c)(i)

            
	
              Proprietary
      Rights

            	 	
              2.2(u)

            
	
              Purchase

            	 	
              Recitals

            
	
              Purchase
      Price

            	 	
              1.1

            
	
              Purchased
      Securities

            	 	
              Recitals

            
	
              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(a)

            
	
              Senior
      Leadership Members

            	 	
              4.10(b)

            
	
              Share
      Dilution Amount

            	 	
              4.8(a)(ii)

            
	
              Shelf
      Registration Statement

            	 	
              4.5(a)(ii)

            
	
              Signing
      Date

            	 	
              2.1(a)

            
	
              Special
      Registration

            	 	
              4.5(i)

            
	
              subsidiary

            	 	
              5.8(a)

            
	
              TARP

            	 	
              Recitals

            
	
              Tax;
      Taxes

            	 	
              2.2(o)

            
	
              Term
      Sheet

            	 	
              Recitals

            
	
              Transfer

            	 	
              4.4

            
	
              U.S.
      Lobbying Policy

            	 	
              4.10(d)

            
	
              Warrant

            	 	
              Recitals

            
	
              Warrant
      Shares

            	 	
              2.2(d)

            


    

    


    
      
        
        

      

      
        - v
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      SECURITIES PURCHASE AGREEMENT,
dated December 31, 2008 (this “Agreement”), between
Citigroup Inc., a Delaware corporation (the “Company”), and the United
States Department of the Treasury (the “Investor”).

       

      Recitals:

       

      WHEREAS,
the Investor may from time to time agree to purchase shares of preferred stock
and warrants from eligible financial institutions under the Troubled Asset
Relief Program (“TARP”);

       

      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, the Investor, the Federal Reserve Bank of New York and the Federal
Deposit Insurance Corporation entered into a term sheet, dated as of November
23, 2008 (the “Term
Sheet”), with respect to (i) the issuance of securities to the Investor
in a private placement and (ii) an Eligible Asset Guarantee and related issuance
of securities to the Investor and the Federal Deposit Insurance Corporation;
and

       

      WHEREAS,
as contemplated by the Term Sheet, the Company intends to issue in a private
placement 20,000 shares of its preferred stock designated as “Fixed Rate
Cumulative Perpetual Preferred Stock Series I” (the “Preferred Shares”) and a
warrant to purchase 188,501,414 shares of its Common Stock (“Common Stock”) (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 under TARP.

       

      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
an aggregate purchase price of $20,000,000,000 (the “Purchase Price”).
For the avoidance of doubt, the parties agree that the full Purchase Price
represents a capital contribution by the Investor solely in exchange for the
Purchased Securities.

    


    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 offices of Simpson Thacher & Bartlett LLP,

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    


    425
Lexington Avenue, New York, New York 10017, at 9:00 a.m., New York time, on
December 31, 2008 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 that has been designated by the Company in
writing to the Investor at least three business days prior to the Closing
Date.

    


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

    


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

    


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

    


    
      
        
        

      

      
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(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 the
State of Delaware the amendment to its certificate of incorporation (“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 Senior Leadership Members (and to the
extent necessary for such changes to be legally enforceable, each of its Senior
Executive Officers and Senior Leadership Members 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 Section 4.10 of this Agreement, 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 and Senior Leadership Members 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 Officer or Senior Leadership
Member 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 and Senior Leadership Members, as
applicable, 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 and Section 4.10 of this Agreement;

       

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

       

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

       

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

       



    
      
        
        

      

      
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    1.3     Interpretation. When
a reference is made in this Agreement to “Recitals,” “Articles,”
“Sections,” “Annexes” or “Schedules” such reference shall be to a Recital,
Article or Section of, or Annex or Schedule to, this Agreement, 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 this Agreement (the “Signing Date”) in general
business, economic or market conditions (including changes generally in
prevailing interest rates, credit availability and liquidity, currency exchange
rates and price levels or trading volumes in the United States or foreign
securities or credit markets), or any outbreak or escalation of hostilities,
declared or undeclared acts of war or terrorism, in each case generally
affecting the industries in which the Company and its subsidiaries operate, (B)
changes or proposed changes after the Signing Date in generally accepted
accounting principles in the United States (“GAAP”) or regulatory
accounting requirements, or authoritative interpretations thereof, (C) changes
or proposed changes after the Signing Date in securities, banking and other laws
of general applicability or related policies or interpretations of Governmental
Entities (in the case of each of these clauses (A), (B) and (C), other than
changes or occurrences to the extent that such changes or occurrences have or
would reasonably be expected to have a materially disproportionate adverse
effect on the Company and its consolidated subsidiaries taken as a whole
relative to comparable U.S. banking or financial services organizations), or (D)
changes in the market price or trading volume of the Common Stock or any other
equity, equity-related or debt securities of the Company or its consolidated
subsidiaries (it being understood and agreed that the exception set forth in
this clause (D) does not apply to the underlying reason giving rise to or
contributing to any such change); or (ii) the

    


    
      
        
        

      

      
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    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
A. The outstanding shares of capital stock of the Company have been duly
authorized and are validly issued and outstanding, fully paid and nonassessable,
and subject to no preemptive rights (and were not issued in violation of any
preemptive rights). Except as provided in the Warrant, as of the Signing Date,
the Company does not have outstanding any securities or other obligations
providing the holder the right to acquire Common Stock that is not reserved for
issuance as specified on Schedule A, 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
A and (ii) shares disclosed on Schedule
A.

    


    (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

    


    
      
        
        

      

      
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    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.

    


    
      (e)      Authorization,
Enforceability.

       

       

       
(i)     The Company has the
corporate power and authority to execute and deliver
this Agreement and the Warrant and 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. This Agreement is a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the Bankruptcy
Exceptions.

    

    


      (ii)    The execution,
delivery and performance by the Company of this Agreement and the Warrant and
the consummation of the transactions contemplated hereby and thereby and
compliance by the Company with the provisions hereof and thereof, will not (A)
violate, conflict with, or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration of,
or result in the creation of, any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Company or any Company Subsidiary
under any of the terms, conditions or provisions of (i) 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

    


    
      
        
        

      

      
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    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 the
State of Delaware, 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 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 September 30, 2008, 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.

    


    
      
        
        

      

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

    


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

    


    (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

    


    
      
        
        

      

      
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    GAAP,
except for (A) liabilities that have arisen since the last fiscal year end in
the ordinary and usual course of business and consistent with past practice and
(B) liabilities that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Company Material Adverse
Effect.

    


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

    


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

    


    (m)     Compliance with Laws.
Except as would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect, the Company and the Company
Subsidiaries have all permits, licenses, franchises, authorizations, orders and
approvals of, and have made all filings, applications and registrations with,
Governmental Entities that are required in order to permit them to own or lease
their properties and assets and to carry on their business as presently
conducted and that are material to the business of the Company or such Company
Subsidiary. Except as set forth on Schedule C, 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 C, 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

    


    
      
        
        

      

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

    


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

    


    (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

    


    
      
        
        

      

      
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    real or
personal property under valid and enforceable leases with no exceptions that
would interfere with the use made or to be made thereof by them.

    


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

    


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

    


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

    


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

    


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

    


    (s)     Agreements with Regulatory
Agencies. Except as set forth on Schedule D, 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

    


    
      
        
        

      

      
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    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.

    

    


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

    


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

    


    
      
        
        

      

      
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    Article
III

    Covenants

    


    3.1     Commercially Reasonable
Efforts. 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.

    


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

    


    3.3     Sufficiency of Authorized
Common Stock; Exchange Listing.

    


    (a)     During the
period from the Closing Date 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

    


    
      
        
        

      

      
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    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.

    


    (b)     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 and will permit and will cause the Company Subsidiaries
to permit (x) the Investor and its agents, consultants, contractors, (y) the
Special Inspector General of the Troubled Asset Relief Program, and (z) the
Comptroller General of the United States access to personnel and any books,
papers, records or other data, in each case, to the extent relevant to
ascertaining compliance with the financing terms and conditions; provided that
prior to disclosing any information pursuant to clause (y) or (z), the Special
Inspector General of the Troubled Asset Relief Program and the Comptroller
General of the United States shall have agreed, with respect to documents
obtained under this agreement in furtherance of its function, to follow
applicable law and regulation (and the applicable customary policies and
procedures) regarding the dissemination of confidential materials, including
redacting confidential information from the public version of its reports and
soliciting the input from the company as to information that should be afforded
confidentiality, as appropriate.

    


    (c)     The Investor
will use reasonable best efforts to hold, and will use reasonable best efforts
to cause its agents, consultants, contractors, advisors, and United States
executive branch officials and employees, 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. The Investor understands that the Information may contain commercially
sensitive confidential information entitled to an exception from a Freedom of
Information Act request.

    


    (d)     The Investor
represents that it has been informed by the Special Inspector General of the
Troubled Asset Relief Program and the Comptroller General of the United States
that they, before making any request for access or information pursuant to their
audit function under this

    


    
      
        
        

      

      
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    Agreement,
will establish a protocol to avoid, to the extent reasonably possible,
duplicative requests pursuant to this Agreement. Nothing in this section shall
be construed to limit the authority that the Special Inspector General of the
Troubled Asset Relief Program or the Comptroller General of the United States
have under law.

    


    3.6     Internal
Controls.

    


    (a)     The Company
agrees to (i) promptly establish appropriate internal controls with respect to
compliance with each of the Company’s covenants and
agreements set forth in Sections 4.8 through 4.12; (ii) report to Investor on a
quarterly basis regarding the implementation of those controls and the
Company’s
compliance (including any instances of non-compliance) with such covenants and
agreements; and (iii) provide a signed certification from a senior officer to
Investor that such report is accurate to the best of his or her knowledge, which
certification shall be made subject to the requirements and penalties set forth
in Title 18, United States Code, Section 1001.

    


    (b)     The Company
agrees to (i) use its reasonable best efforts to account for its use of the
Purchase Price, (ii) set up internal controls with respect to compliance with
applicable requirements regarding the use of the Purchase Price, (iii) report to
Investor on a quarterly basis until all of the Purchase Price has been accounted
for regarding the use of the Purchase Price, the implementation of those
controls and the Company’s compliance
(including any instances of non-compliance) with such requirements applicable to
the Purchase Price; and (iii) provide a signed certification from a senior
officer to Investor that such report is accurate to the best of his or her
knowledge, which certification shall be made subject to the requirements and
penalties set forth in Title 18, United States Code, Section 1001.

    


    Article
IV

    Additional
Agreements

    


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

    


    
      
        
        

      

      
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    4.2     Legends.

    


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

    


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

    


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

    


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

    


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

    


    
      
        
        

      

      
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    GIVE TO
EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.”

    


    (c)     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 (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.

    


    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.

    

    


    
      
        
        

      

      
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    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 2% of
the initial aggregate liquidation preference of the Preferred Shares. The lead
underwriters in any such distribution shall be selected by the Holders of a
majority of the Registrable Securities to be distributed; provided that to the extent
appropriate and permitted under applicable law, such Holders shall consider the
qualifications of any broker-dealer Affiliate of the Company in selecting the
lead underwriters in any such distribution.

    


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

    


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

    


    
      
        
        

      

      
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    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 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

    


    
      
        
        

      

      
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    holders of
the securities so registered pro rata on the basis of the
aggregate offering or sale price of the securities so registered.

    


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

    


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

    


    
      
        
        

      

      
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(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;

    


      (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

    


    
      
        
        

      

      
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    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 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

    


    
      
        
        

      

      
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    employees
of the Company to supply all information in each case reasonably requested (and
of the type customarily provided in connection with due diligence conducted in
connection with a registered public offering of securities) by any such
representative, managing underwriter(s), attorney or accountant in connection
with such Shelf Registration Statement.

    


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

    


     
(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.

    


    
      
        
        

      

      
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      (f)      Furnishing
Information.

       

    

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

    

    


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

    


    
      (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.

    

    


    
      
        
        

      

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

    


    (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 2% of the initial aggregate liquidation
preference of the Preferred Shares; 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

    


    
      
        
        

      

      
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    agrees to
cause such of its directors and senior executive officers to execute and deliver
customary lock-up agreements in such form and for such time period up to 90 days
as may be requested by the managing underwriter. “Special Registration” means the registration
of (A) equity securities and/or options or other rights in respect thereof
solely registered on Form S-4 or Form S-8 (or successor form) or (B) shares of
equity securities and/or options or other rights in respect thereof to be
offered to directors, members of management, employees, consultants, customers,
lenders or vendors of the Company or Company Subsidiaries or in connection with
dividend reinvestment plans.

    


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

    


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

    


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

    


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

    


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

    


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

    


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

    


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

    


    
      
        
        

      

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

    


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

    


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

    


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

    


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

    


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

    


    
      
        
        

      

      
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    Pending
Underwritten Offering. “Pending Underwritten
Offering” means,
with respect to any Holder forfeiting its rights pursuant to this Section
4.5(l), any underwritten offering of Registrable Securities in which such Holder
has advised the Company of its intent to register its Registrable Securities
either pursuant to Section 4.5(a)(ii) or 4.5(a)(iv) prior to the date of such
Holder’s
forfeiture.

    


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

    


    (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.

    


    
      
        
        

      

      
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    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 $0.01 per share, (B) dividends
payable solely in shares of Common Stock and (C) dividends or distributions of
rights or Junior Stock in connection with a stockholders’ rights plan);
or

    


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

    


    
      
        
        

      

      
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    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)     In determining
whether to consent to the actions set forth in Section 4.8(a)(i), the Investor
shall consider, among other factors, the Company’s ability to
complete an offering of its Common Stock of an appropriate size.

    


    (c)     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.

    


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

    

    


    
      
        
        

      

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

    


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

    


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

    


    4.10   
   Executive
Compensation.

    


    (a)     Senior Executive
Officers. 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 the
Senior Executive Officers comply in all respects with Section 111(b) of the
EESA, including the provisions for the Capital Purchase Program, as implemented
by any guidance or regulation thereunder that has been issued and is in effect
as of the Closing Date, including the rules set forth in 31 CFR Part 30 and the
provisions prohibiting severance payments to Senior Executive Officers, and
shall not adopt any new Benefit Plan with respect to its Senior Executive
Officers that does not comply therewith. For purposes of applying section 111(b)
of the EESA with respect to this Section 4.10(a), a “golden parachute payment”
means any payment in the nature of compensation to (or for the benefit of) a
Senior Executive Officer made on account of an applicable severance from
employment. “Senior Executive
Officers” means the Company’s

    


    
      
        
        

      

      
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    “senior
executive officers” as defined in subsection 111(b)(3) of the EESA and
regulations issued thereunder that have been issued and are in effect as of the
Closing Date, including the rules set forth in 31 CFR Part 30.

    


    (b)     Senior Leadership
Members. 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 limit any “golden parachute payments” to the employees
of the Company and the Company Subsidiaries who are members of the Senior
Leadership Committee as of the Closing Date (other than the Senior Executive
Officers) (the “Senior
Leadership Members”) to the amounts permitted by the regulations relating
to participants in the EESA Capital Purchase Program and the guidelines and
rules relating thereto that have been issued and are in effect as of the Closing
Date, including the rules set forth in 31 CFR Part 30, as if such Senior
Leadership Members were Senior Executive Officers for purposes of the EESA
(except that equity denominated awards settled solely in equity shall not be
included in such limit on “golden parachute payments” to Senior Leadership
Members). 

    


    
      (c)      Bonus
Compensation.

       

    

    
       
(i)    Unless the Investor
ceases to own any debt or equity securities of the Company
acquired pursuant to this Agreement or the Warrant, the aggregate amount of
Bonus Compensation that may be paid to the Senior Executive Officers and Senior
Leadership Members with respect to each of fiscal years 2008 and 2009 shall in
no event exceed an amount equal to 60% of the aggregate Prior Year Bonus
Compensation for the Senior Executive Officer and Senior Leadership Member
positions (the “Bonus Pool
Cap”); provided,
that, with respect to fiscal year 2009, the Bonus Pool Cap may be increased by
the Company if, and to the extent that, such increase is approved by the
Investor following the submission by the Company of a written detailed
recommendation (with all applicable supporting documentation) to the Treasury
Assistant Secretary for the Office of Financial Stability describing the basis
for any proposed change to the 2009 bonus pool. The Investor shall have the
authority to reject any change in the 2009 bonus pool if the Company fails to
demonstrate to the reasonable satisfaction of the Investor that the proposed
change is warranted by the Company’s demonstrated
profitability, adequacy of risk-adjusted capital, market factors, compliance
with the repayment terms of any investment and/or loan by the Investor, the
Federal Reserve Bank of New York, the Federal Deposit Insurance Corporation or
any other Governmental Entity, compliance with loan terms and covenants,
compensation plan designs, Company performance in managing the asset pool
supported by the Investor, the Federal Reserve Bank of New York and/or the
Federal Deposit Insurance Corporation under the arrangement contemplated by the
Term Sheet, changes to the size or composition of the Senior Leadership
Committee, and any other factors the Investor deems relevant in its discretion.
“Bonus Compensation”
means all payments (whether in cash or other assets) in excess of the
individual's base salary paid with respect to a fiscal year (including any
bonuses relating to such fiscal year that are paid in the following fiscal
year), including any incentive or retention compensation; provided that “Bonus Compensation” does not
include (i) any perquisites, to the extent that the applicable Senior Executive
Officer or Senior Leadership Member is receiving such perquisites as of the
Closing Date or, if such

    

    


    
      
        
        

      

      
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    Senior
Executive Officer or Senior Leadership Member is hired after the Closing Date,
such perquisites are customarily made available to an employee holding such
Senior Executive Officer or Senior Leadership Member’s position as of
the Closing Date, (ii) employee benefits generally made available to all
employees employed within the same jurisdiction, (iii) supplemental retirement
benefits provided under a plan in which the applicable Senior Executive Officer
or Senior Leadership Member participates on the Closing Date, (iv) benefits
provided under generally available expatriate programs, (v) any long-term
incentive compensation award granted prior to the Closing Date that is subject
to performance-based vesting and payable in 2009 or 2010, (vi) any sign-on award
granted to a Senior Executive Officer or Senior Leadership Member who commences
employment with the Company in fiscal year 2009 that is intended to make such
Senior Executive Officer or Senior Leadership Member whole for unvested or
otherwise forfeitable awards that are actually forfeited by the Senior Executive
Officer or Senior Leadership Member’s prior employer
in connection with such Senior Executive Officer or Senior Leadership
Member’s
departure from such prior employer and acceptance of employment with the
Company; provided that
the portion of any such sign-on award that serves as a “make whole” award for
any such forfeited awards that were forfeited because the applicable vesting
conditions were not achieved prior to the date of termination shall be granted
subject to substantially similar vesting conditions or, if such sign-on award is
paid to the Senior Executive Officer or Senior Leadership Member upon such
individual’s
commencement of employment with the Company, shall be subject to a repayment
obligation that reasonably reflects the vesting conditions applicable to such
forfeited awards or (vii) any retention award committed to prior to the Closing
Date. “Prior Year Bonus
Compensation” means, with respect to each Senior Executive Officer and
Senior Leadership Member position, the Bonus Compensation paid with respect to
fiscal year 2007, or, if no Bonus Compensation was paid for such position with
respect to fiscal year 2007 (as evidenced by such person not receiving a stock
award under the Capital Accumulation Program with respect to 2007), the most
recently preceding fiscal year for which Bonus Compensation was paid for such
position. For the avoidance of doubt, “Prior Year Bonus
Compensation” does not include any retention awards granted during or
with respect to the applicable fiscal year.

    


     
(ii)       At least 60% of any
Bonus Compensation in respect of the 2008 fiscal year for any member of the
Executive Committee (which committee consists of the Senior Executive Officers
and the Senior Leadership Members who are the ten next most senior executive
officers of the Company other than the Senior Executive Officers) shall be
payable, at the Company’s discretion, in a
combination of (x) deferred stock awards (all or a portion of which may be
awarded in the form of stock options) or (y) deferred cash awards. At least 40%
of the Bonus Compensation in respect of the 2008 fiscal year shall be granted
subject to performance-based vesting.

    


    (d)     Restrictions on
Lobbying. Until 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, the Company shall continue to
maintain and implement its comprehensive written policy (the “U.S. Lobbying Policy”) on
lobbying, governmental ethics and political activity and distribute such U.S.
Lobbying Policy to all Company employees and

    


    
      
        
        

      

      
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    lobbying
firms involved in any such activity. Until 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, any
material amendments to the U.S. Lobbying Policy shall require the prior written
consent of the Investor, and any material deviations from the U.S. Lobbying
Policy, whether in contravention thereof or pursuant to waivers provided for
thereunder, shall promptly be reported to the Investor. The U.S. Lobbying Policy
shall, at a minimum: (i) require compliance with all applicable law; (ii) apply
to the Company, the Company Subsidiaries that constitute the Company’s consolidated
subsidiaries and affiliated foundations; (iii) govern (A) the provision of items
of value to any U.S. government officials; (B) lobbying of U.S. government
officials and (C) U.S. political activities and contributions; and (iv) provide
for (x) internal reporting and oversight and (y) mechanisms for addressing
non-compliance with the U.S. Lobbying Policy.

    


    (e)     Restrictions on
Expenses. Until 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, the Company shall continue to
maintain and implement its comprehensive written policy (the “Expense Policy”, it being
understood that the Expense Policy may be comprised of more than one written
policy) on corporate expenses and distribute the Expense Policy to all Company
employees. Until 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, any material amendments to the
Expense Policy shall require the prior written consent of the Investor, and any
material deviations from the Expense Policy, whether in contravention thereof or
pursuant to waivers provided for thereunder, shall promptly be reported to the
Investor. The Expense Policy shall, at a minimum: (i) require compliance with
all applicable law; (ii) apply to the Company and the Company Subsidiaries that
constitute the Company’s consolidated
subsidiaries; (iii) govern (A) the hosting, sponsorship or other payment for
conferences and events, (B) the use of corporate aircraft, (C) travel
accommodations and expenditures, (D) consulting arrangements with outside
service providers, (E) any new lease or acquisition of real estate, (F) expenses
relating to office or facility renovations or relocations and (G) expenses
relating to entertainment or holiday parties; and (iv) provide for (x) internal
reporting and oversight and (y) mechanisms for addressing non-compliance with
the Expense Policy.

    


    (f)     Risk Management
Report. Within 30 days of making the certification required for
compliance with section 111(b)(2)(A) of EESA and the regulations issued
thereunder set forth in 31 CFR Part 30 regarding the compensation committee
review of compensation arrangements with the Company’s senior risk
officers, the Company will provide a report to the Investor detailing (i) the
risks identified during that review, (ii) the steps to be taken to mitigate
those risks and (iii) the Company’s recommendations
for amending compensation arrangements to reduce the risk through implementation
of long term performance metrics or other mechanisms.

    


    (g)     Clawback. In the event that any
Senior Executive Officer or Senior Leadership Member receives a payment in
contravention of the provisions of this Section 4.10, the Company shall promptly
provide such individual with written notice that the amount of such payment must
be repaid to the Company in full within fifteen business days following receipt
of such notice

    


    
      
        
        

      

      
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    and shall
promptly inform the Investor (i) upon discovering that a payment in
contravention of this Section 4.10 has been made and (ii) following the
repayment to the Company of such amount. 

    


    (h)     Compliance. 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 submit a
certification on the last day of each fiscal quarter beginning with the first
fiscal quarter of 2009 certifying that the Company has complied with and is in
compliance with the provisions set forth in Section 4.10(a) through 4.10(g) .
Such certification shall be made to the TARP Compliance Office by a senior
executive officer of the Company, subject to the requirements and penalties set
forth in Title 18, United States Code, Section 1001.

    


    4.11   
   Qualified Equity
Offering. The Company and the Investor hereby agree that this Purchase
shall not be deemed a Qualified Equity Offering (i) under the Securities
Purchase Agreement – Standard Terms
incorporated into the Letter Agreement, dated as of October 26, 2008 (the “Original Purchase
Agreement”), as amended from time to time, between the Company and the
Investor, including all
annexes and schedules thereto or any of the documents related thereto, including
the Certificate of Designations of the Company’s Fixed Rate
Cumulative Perpetual Preferred Stock, Series H or the Warrant (as defined in the
Original Purchase Agreement) or (ii) in respect of any other securities issued
by the Company under the Troubled Asset Relief Program.

    


    4.12   
   Bank Holding Company
Status. The Company
shall maintain its status as a Bank Holding Company for as long as the Investor
owns any Purchased Securities or Warrant Shares. The Company shall redeem all
Purchased Securities and Warrant Shares held by the Investor prior to
terminating its status as a Bank Holding Company. “Bank Holding Company” means a
company registered as such with the Board of Governors of the Federal Reserve
System (the “Federal
Reserve”) pursuant to 12 U.S.C. §1842 and the regulations of the Federal
Reserve promulgated thereunder.

    


    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

    


    
      
        
        

      

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

    


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

    


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

    


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

    


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

    


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

    


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

    


    
      
        
        

      

      
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    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 hereunder shall
be delivered as set forth below or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.

    


    (a)     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

    


    (b)     If to the
Company:

    


    Citigroup
Inc.

    399 Park
Avenue

    New York,
New York 10022

    Attention:
Michael S. Helfer, Esq. General
Counsel

    Telephone:
 (212) 559-5152

    Facsimile:
 (212) 793-5300

     

    Citigroup
Inc.

    399 Park
Avenue

    New York,
New York 10022

    Attention:
Andrew Felner, Esq. Deputy
General Counsel

    Telephone:
 (212)
559-7050

    Facsimile:
 (212)
559-7057

    


    5.7     Definitions

    


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

    


    (b)     The term
“Affiliate” means, with
respect to any person, any person directly or indirectly controlling, controlled
by or under common control with, such other person. For purposes of this
definition, “control”
(including, with correlative meanings, the terms “controlled by” and “under common control with”)
when used with respect to any person, means the

    


    
      
        
        

      

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

    


    5.9     Entire Agreement,
Etc. This Agreement (including the Annexes and Schedules hereto) 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.

    


    5.10  
    Counterparts and
Facsimile. For the convenience of the parties hereto, this 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 Agreement may be
delivered by facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.

    


    5.11   
   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.

    


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

    


    * *
*

    


    
      
        
        

      

      
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    In
Witness Whereof, this Agreement has been duly executed and delivered by
the duly authorized representatives of the parties hereto
as of the date first herein above written.

     

     

     

    
      
        	 	
                CITIGROUP
      INC.

              	 
	 	 	 	 	 
	 	
                By:

              	/s/
      Zion M. Shohet	 
	 	 
      	
                Name:

              	Zion
      M. Shohet	 
	 	 
      	
                Title:

              	Treasurer
      and Head of Corporate Finance	 
	 	 	 
	 	 	 
	 	
                UNITED
      STATES DEPARTMENT OF THE TREASURY

              	 
	 	 	 	 	 
	 	
                By:

              	/s/
      Neel Kashkari	 
	 	 
      	
                Name:

              	Neel
      Kashkari	 
	 	 
      	
                Title:

              	      
                Interim
      Assistant Secretary for Financial Stability