NO BROKER OR FINDER HAS ACTED DIRECTLY OR INDIRECTLY FOR THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(Y)
NO CHANGE OF CONTROL.
THE ISSUANCE OF CONVERTIBLE PREFERRED STOCK
AND CONVERSION SECURITIES TO THE INVESTORS AS CONTEMPLATED BY THIS AGREEMENT
WILL NOT TRIGGER ANY RIGHTS UNDER ANY "CHANGE OF CONTROL" PROVISION IN ANY OF
THE AGREEMENTS TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY,
INCLUDING ANY EMPLOYMENT, "CHANGE IN CONTROL," SEVERANCE OR OTHER COMPENSATORY
AGREEMENTS AND ANY BENEFIT PLAN, WHICH RESULTS IN PAYMENTS TO THE COUNTERPARTY
OR THE ACCELERATION OF VESTING OF BENEFITS.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF INVESTORS.
EACH
INVESTOR, SEVERALLY AND NOT JOINTLY, REPRESENTS AND WARRANTS TO THE COMPANY, AS
OF THE DATE HEREOF, AS FOLLOWS:
(A)
ORGANIZATION.
SUCH INVESTOR IS DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF ITS STATE OF ORGANIZATION, AND EXCEPT AS
HAS NOT HAD OR WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT ON SUCH INVESTOR'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT
OR TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY ON A TIMELY BASIS, SUCH
INVESTOR IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN ALL
JURISDICTIONS WHERE ITS OWNERSHIP OR LEASING OF PROPERTY OR THE CONDUCT OF ITS
BUSINESS REQUIRES IT TO BE SO QUALIFIED.
(B)
AUTHORIZATION.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY
AUTHORIZED, EXECUTED AND DELIVERED BY SUCH INVESTOR AND, ASSUMING THE DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY THE COMPANY, CONSTITUTES A VALID AND
BINDING OBLIGATION OF SUCH INVESTOR ENFORCEABLE
16
AGAINST IT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION, MORATORIUM AND SIMILAR LAWS
AFFECTING CREDITORS' RIGHTS AND REMEDIES GENERALLY, AND SUBJECT, AS TO
ENFORCEABILITY, TO GENERAL PRINCIPLES OF EQUITY, INCLUDING PRINCIPLES OF GOOD
FAITH AND FAIR DEALING (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN A
PROCEEDING AT LAW OR IN EQUITY).
(C)
NO AFFILIATES.
SUCH INVESTOR IS NOT AN AFFILIATE OF ANY OTHER
STOCKHOLDER OF THE COMPANY OR, TO THE KNOWLEDGE OF SUCH INVESTOR, ANY OTHER
INVESTOR, IS NOT ACTING IN CONCERT WITH ANY OTHER PERSON AND IS NOT A MEMBER OF
A "GROUP" (WITHIN THE MEANING OF SECTION 13(D)(3) OF THE EXCHANGE ACT) WITH
RESPECT TO THE COMPANY'S SECURITIES, AND HAS NO CURRENT INTENTION TO ACT IN THE
FUTURE IN A MANNER THAT WOULD MAKE IT A MEMBER OF SUCH A GROUP; PROVIDED THAT
PATRIOT FINANCIAL PARTNERS, L.P. AND PATRIOT FINANCIAL PARTNERS PARALLEL, L.P.
ARE AFFILIATES AND RELATIONAL INVESTORS MID-CAP FUND I, L.P. AND RELATIONAL
INVESTORS MID-CAP FUND II, L.P. ARE AFFILIATES.
(D)
PURCHASE FOR INVESTMENT.
SUCH INVESTOR ACKNOWLEDGES THAT NEITHER
THE CONVERTIBLE PREFERRED STOCK NOR THE CONVERSION SECURITIES HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OR UNDER ANY STATE SECURITIES LAWS.
SUCH
INVESTOR (I) IS ACQUIRING THE CONVERTIBLE PREFERRED STOCK, AND WILL ACQUIRE THE
CONVERSION SECURITIES, IF ANY, PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT SOLELY FOR INVESTMENT WITH