OFFERINGS (INCLUDING QUALIFIED EQUITY OFFERINGS OF SUCH SUCCESSOR) AND
(B) DECEMBER 31, 2009.
"QUALIFIED EQUITY OFFERING" MEANS THE SALE AND ISSUANCE
FOR CASH BY THE COMPANY TO PERSONS OTHER THAN THE COMPANY OR ANY OF THE COMPANY
SUBSIDIARIES AFTER THE CLOSING DATE OF SHARES OF PERPETUAL PREFERRED STOCK,
COMMON STOCK OR ANY COMBINATION OF SUCH STOCK, THAT, IN EACH CASE, QUALIFY AS
AND MAY BE INCLUDED IN TIER 1 CAPITAL OF THE COMPANY AT THE TIME OF ISSUANCE
UNDER THE APPLICABLE RISK-BASED CAPITAL GUIDELINES OF THE COMPANY'S APPROPRIATE
FEDERAL BANKING AGENCY (OTHER THAN ANY SUCH SALES AND ISSUANCES MADE PURSUANT TO
AGREEMENTS OR ARRANGEMENTS ENTERED INTO, OR PURSUANT TO FINANCING PLANS WHICH
WERE PUBLICLY ANNOUNCED, ON OR PRIOR TO OCTOBER 13, 2008).
"BUSINESS
COMBINATION" MEANS A MERGER, CONSOLIDATION, STATUTORY SHARE EXCHANGE OR SIMILAR
TRANSACTION THAT REQUIRES THE APPROVAL OF THE COMPANY'S STOCKHOLDERS.
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
20
SEC TO COVER THE REGISTRABLE SECURITIES), AND, TO THE EXTENT THE SHELF
REGISTRATION STATEMENT HAS NOT THERETOFORE BEEN DECLARED EFFECTIVE OR IS NOT
AUTOMATICALLY EFFECTIVE UPON SUCH FILING, THE COMPANY SHALL USE REASONABLE BEST
EFFORTS TO CAUSE SUCH SHELF REGISTRATION STATEMENT TO BE DECLARED OR BECOME
EFFECTIVE AND TO KEEP SUCH SHELF REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE
AND IN COMPLIANCE WITH THE SECURITIES ACT AND USABLE FOR RESALE OF SUCH
REGISTRABLE SECURITIES FOR A PERIOD FROM THE DATE OF ITS INITIAL EFFECTIVENESS
UNTIL SUCH TIME AS THERE ARE NO REGISTRABLE SECURITIES REMAINING (INCLUDING BY
REFILING SUCH SHELF REGISTRATION STATEMENT (OR A NEW SHELF REGISTRATION
STATEMENT) IF THE INITIAL SHELF REGISTRATION STATEMENT EXPIRES).
SO LONG AS THE
COMPANY IS A WELL-KNOWN SEASONED ISSUER (AS DEFINED IN RULE 405 UNDER THE
SECURITIES ACT) AT THE TIME OF FILING OF THE SHELF REGISTRATION STATEMENT WITH
THE SEC, SUCH SHELF REGISTRATION STATEMENT SHALL BE DESIGNATED BY THE COMPANY AS
AN AUTOMATIC SHELF REGISTRATION STATEMENT.
NOTWITHSTANDING THE FOREGOING, IF ON
THE SIGNING DATE THE COMPANY IS NOT ELIGIBLE TO FILE A REGISTRATION STATEMENT ON
FORM S-3, THEN THE COMPANY SHALL NOT BE OBLIGATED TO FILE A SHELF REGISTRATION
STATEMENT UNLESS AND UNTIL REQUESTED TO DO SO IN WRITING BY THE INVESTOR.
(II)
ANY REGISTRATION PURSUANT TO SECTION 4.5(A)(I) SHALL BE EFFECTED
BY MEANS OF A SHELF REGISTRATION ON AN APPROPRIATE FORM UNDER RULE 415 UNDER THE
SECURITIES ACT (A "SHELF REGISTRATION STATEMENT").
IF THE INVESTOR OR ANY OTHER
HOLDER INTENDS TO DISTRIBUTE ANY REGISTRABLE SECURITIES BY MEANS OF AN
UNDERWRITTEN OFFERING IT SHALL PROMPTLY SO ADVISE THE COMPANY AND THE COMPANY
SHALL TAKE ALL REASONABLE STEPS TO FACILITATE SUCH DISTRIBUTION, INCLUDING THE
ACTIONS REQUIRED PURSUANT TO SECTION 4.5(C); PROVIDED THAT THE COMPANY