PUBLIC TENDER OR EXCHANGE OFFER WHICH IF CONSUMMATED WOULD RESULT IN
A CHANGE OF CONTROL;
(3)
IN THE EVENT THAT, AS A RESULT OF (I) ANY
SHARE REPURCHASES, RECAPITALIZATIONS, REDEMPTIONS OR SIMILAR ACTIONS BY THE
COMPANY NOT CAUSED BY THE INVESTOR OR (II) ANY CHANGE IN THE AMOUNT OF
SECURITIES HELD BY THE INVESTOR RESULTING FROM THE ADJUSTMENT OR EXCHANGE
PROVISIONS OR OTHER TERMS OF THE SECURITIES, THE INVESTOR REASONABLY DETERMINES,
BASED ON THE ADVICE OF LEGAL COUNSEL AND FOLLOWING CONSULTATION WITH THE COMPANY
AND, IF THE COMPANY REASONABLY SO REQUESTS, THE FEDERAL RESERVE, THAT UNLESS IT
DISPOSES OF ALL OR A PORTION OF ITS SECURITIES, IT OR ANY OF ITS AFFILIATES
COULD REASONABLY BE DEEMED TO "CONTROL" THE COMPANY FOR PURPOSES OF THE BHC ACT,
THE CBC ACT OR ANY RULES OR REGULATIONS PROMULGATED THEREUNDER (OR ANY SUCCESSOR
PROVISION), THEN THE INVESTOR SHALL BE PERMITTED TO TRANSFER THE PORTION OF THE
SECURITIES REASONABLY NECESSARY TO AVOID SUCH CONTROL DETERMINATION.
(20) Included in the Investment Agreements of the two Investors with Board
Representatives.
53
(C)
ANY ATTEMPTED SALE, TRANSFER OR OTHER
DISPOSITION BY AN INVESTOR WHICH IS IN VIOLATION OF THIS SECTION 4.12 SHALL BE
NULL AND VOID.]
4.13
ADDITIONAL REGULATORY MATTERS.
(A)
SO LONG AS THE INVESTOR HAS A QUALIFYING
OWNERSHIP INTEREST:
(1)
EACH OF THE COMPANY AND THE INVESTOR AGREES
TO COOPERATE AND USE ITS REASONABLE BEST EFFORTS TO ENSURE, INCLUDING BY
COMMUNICATING WITH EACH OTHER WITH RESPECT TO THEIR RESPECTIVE PURCHASES OF
COMMON STOCK, THAT NEITHER THE INVESTOR NOR ANY OF ITS AFFILIATES WILL BECOME,
OR CONTROL, A "BANK HOLDING COMPANY" WITHIN THE MEANING OF THE BHC ACT AND THE
CBC ACT; AND
(2)
THE COMPANY SHALL NOT KNOWINGLY TAKE ANY
ACTION WHICH WOULD REASONABLY BE EXPECTED TO POSE A SUBSTANTIAL RISK THAT THE
INVESTOR OR ANY OF ITS AFFILIATES WILL BECOME, OR CONTROL, A "BANK HOLDING
COMPANY" WITHIN THE MEANING OF THE BHC ACT, INCLUDING UNDERTAKING ANY
REDEMPTION, RECAPITALIZATION, OR REPURCHASE OF COMMON STOCK, OF SECURITIES OR
RIGHTS, OPTIONS, OR WARRANTS TO PURCHASE COMMON STOCK, OR SECURITIES OF ANY TYPE
WHATSOEVER THAT ARE, OR MAY BECOME, CONVERTIBLE INTO OR EXCHANGEABLE INTO OR
EXERCISABLE FOR COMMON STOCK IN EACH CASE, WHERE THE INVESTOR IS NOT GIVEN THE
RIGHT TO PARTICIPATE IN SUCH REDEMPTION, RECAPITALIZATION, OR REPURCHASE TO THE
EXTENT OF THE INVESTOR'S PRO RATA PROPORTION; PROVIDED, HOWEVER, THAT THE
COMPANY SHALL NOT BE DEEMED TO HAVE VIOLATED THIS SECTION 4.13(A)(2) IF IT HAS
GIVEN THE INVESTOR THE OPPORTUNITY TO PARTICIPATE IN SUCH REDEMPTION,
RECAPITALIZATION, OR REPURCHASE TO THE EXTENT OF THE INVESTOR'S PRO RATA
PROPORTION AND THE INVESTOR FAILS TO SO PARTICIPATE.
(B)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT,
INCLUDING THE PROVISIONS OF SECTION 4.13(A), IN NO EVENT WILL THE INVESTOR OR
ANY OF ITS AFFILIATES BE OBLIGATED TO:
(1)
WITHOUT LIMITING CLAUSE (B)(2) BELOW,
(A) PROPOSE OR ACCEPT ANY DIVESTITURE OF ANY OF THE INVESTOR'S OR ANY OF ITS
AFFILIATES' ASSETS, OR (B) ACCEPT ANY OPERATIONAL RESTRICTION ON THE INVESTOR'S
OR ANY OF ITS AFFILIATES'