STOCK PURCHASE AGREEMENT

EXHIBIT 10.2

The following represents the effect of the First Amendment to Stock Purchase Agreement (the “Amendment”) dated April 30, 2009 on the Stock Purchase Agreement dated March 31, 2009 (the “Agreement”) and is presented for illustration purposes only to facilitate the evaluation of the impact of the Amendment. Changes from the original Agreement are notated with deletions having been struck through and additions having been underlined.

STOCK PURCHASE AGREEMENT

by and among

THE COLONIAL BANCGROUP, INC.

and

THE PURCHASERS LISTED ON THE SIGNATURE PAGES HERETO

MARCH 31, 2009

TABLE OF CONTENTS

 

 

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INDEX OF DEFINED TERMS

 

 

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STOCK PURCHASE AGREEMENT

This Stock Purchase Agreement (this “ Agreement ”) is made and entered into as of March 31, 2009, by and among The Colonial BancGroup, Inc., a Delaware corporation (the “ Company ”), and each of the Purchasers listed on the signature pages hereto or Schedule 1 hereto (each a “ Purchaser ” and collectively, “ Purchasers ”).

RECITALS

WHEREAS , the Company desires to issue and sell to Purchasers, and Purchasers desire to purchase from the Company, (a) certain shares of the Company’s Series A Voting Convertible Preferred Stock, par value $2.50 per share (the “ Series A Stock ”), and (b) certain shares of the Company’s Series B Nonvoting Convertible Preferred Stock, par value $2.50 per share (the “ Series B Stock ” and, together with the Series A Stock, the “ Preferred Stock ”), on the terms set forth herein.

NOW, THEREFORE , in consideration of the foregoing recitals and the mutual promises, representations, warranties, covenants and agreements set forth herein, the parties hereto agree as follows:

ARTICLE 1

Agreement to Sell and Purchase; Preferred Stock

1.1 Agreement to Sell and Purchase . Subject to the terms and conditions hereof, Purchasers agree to purchase from the Company, on the Closing Date, an aggregate of (a) 466,600 shares of Series A Stock and (b) 133,400 shares of Series B Stock ((a) and (b) collectively, the “ Shares ”), and the Company agrees to issue and sell such Shares to Purchasers, at a price of Five Hundred and no/100 Dollars ($500.00) per Share (the “ Price Per Share ”) for an aggregate purchase price (the “ Purchase Price ”) equal to Three Hundred Million and no/100 Dollars ($300,000,000.00) (such issuance, sale and purchase of the Shares, along with the other commitments by the parties set forth in this Agreement is referred to herein as the “ Transaction ”).

1.2 Preferred Stock . The designations, preferences and rights of the Series A Stock and the Series B Stock shall be substantially as set forth in a Certificate of Designations (the “ Certificate of Designations ”), to be filed with the Delaware Secretary of State, substantially in the form attached hereto as Exhibit A . The Shares may be taken from the Company’s authorized but unissued Preferred Stock, par value $2.50 per share as described in Article 4, Part D of the Certificate of Incorporation or the Company’s authorized but unissued Preference Stock, par value $2.50 per share, as described in Article 4, Part A of the Certificate of Incorporation. A summary of the terms included in the Certificate of Designations is set forth below ( provided, however , that in the event of any inconsistency between the general description below and the terms set forth in the Certificate of Designations, the terms set forth in the Certificate of Designations shall control):

(a) Each share of Series A Stock shall be convertible, at the option of the holder thereof, into 1,000 shares of the Company’s common stock, par value $2.50 per share (the

“ Company Common Stock ”), as adjusted for any stock split, combination, consolidation, stock distributions, stock dividends or the like, no later than the later of (A) the date of the Company’s receipt of Stockholder Approval or the date that is three months after the Closing Date or (B) the date that is three months after the Closing Date provided that Stockholder Approval has been received; provided , however , that in no event will such conversion take place if there are an insufficient number of authorized shares of Company Common Stock to effectuate such conversion. The holders of Series A Stock shall have the right to vote, on an as-converted basis, with the Company Common Stock on all matters as and to the extent permitted by the Delaware General Corporation Law (the “ DGCL ”). In addition, so long as any share of Series A Stock is outstanding, the affirmative vote of the holders of at least two-thirds of the shares of Series A Stock, voting separately as a class, whether or not a vote of the stockholders would otherwise be required by law, shall be required for the Company to (i) amend, alter or repeal (by merger or otherwise) any provision of the Certificate of Incorporation or the Bylaws so as to affect adversely the relative rights, preferences, qualifications, limitations or restrictions of the Series A Stock (other than to create or establish any capital stock to be issued to the United States Treasury as part of the TARP Capital Purchase Program or any similar governmental program), (ii) authorize or issue, or increase the authorized amount of, any additional class or series of stock of the Company, or any security convertible into stock of such class or series, having rights senior to or pari passu with the Series A Stock as to dividends or liquidation (other than any capital stock issued to the United States Treasury as part of the TARP Capital Purchase Program or any similar governmental program) and any right to vote, whether as a separate class or otherwise, on any matter (other than a matter that can have no effect on the rights of the Series A Stock) as to which the Series A Stock is not entitled to vote, (iii) effect any reclassification of the Series A Stock, or (iv) enter into a merger or consolidation with, or sell or transfer all or substantially all of its assets to, another person or entity. Holders of Series A Stock shall have preemptive rights with respect to future debt and equity securities issued by the Company, subject to certain exceptions. Holders of Series A Stock also shall be entitled to receive cash dividends on an as-converted basis with the holders of Company Common Stock, whenever funds are legally available and when and as declared by the Company Board. Holders of Series A Stock shall not be entitled to a liquidation preference, although they shall be entitled to receive liquidation proceeds on an as-converted basis with the holders of Company Common Stock.

(b) The rights and preferences of the Series B Stock shall be identical to that of the Series A Stock, except that holders of Series B Stock shall not have any voting powers, either general or special, except as may be required by the DGCL; provided, however , that (A) if such shares of Series B Stock are held by TBW or any of its Affiliates, TBW’s or such Affiliate’s ability to convert such shares will be restricted as described in the legend of the stock certificate(s) representing such shares and (B) so long as any share of Series B Stock is outstanding, the affirmative vote of the holders of at least two-thirds of the shares of Series B Stock, voting separately as a class, whether or not a vote of the stockholders would otherwise be required by law, shall be required for the Company to (i) amend, alter or repeal (by merger or otherwise) any provision of the Certificate of Incorporation or the Bylaws so as to affect adversely the relative rights, preferences, qualifications, limitations or restrictions of the Series B Stock (other than to create or establish any capital stock to be issued to the United States Treasury as part of the TARP Capital Purchase Program or any similar governmental program),

 

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(ii) authorize or issue, or increase the authorized amount of, any additional class or series of stock of the Company, or any security convertible into stock of such class or series, having rights senior to or pari passu with the Series B Stock as to dividends or liquidation (other than any capital stock issued to the United States Treasury as part of the TARP Capital Purchase Program or any similar governmental program) and any right to vote, whether as a separate class or otherwise, on any matter (other than a matter that can have no effect on the rights of the Series B Stock) as to which the Series B Stock is not entitled to vote, (iii) effect any reclassification of the Series B Stock, or (iv) enter into a merger or consolidation with, or sell or transfer all or substantially all of its assets to, another person or entity.

ARTICLE 2

Closing, Delivery and Payment

2.1 Closing . Subject to the termination provisions set forth in Article 9, the closing (the “ Closing ”) of the purchase and sale of the Shares shall take place at the offices of Locke Lord Bissell & Liddell LLP, 401 9th Street N.W., Suite 400 South, Washington, D.C. 20004, or at such other place as the parties hereto may mutually agree, at 10:00 a.m., Washington, D.C. time, on (i) the fifth Business Day following the last to be waived or fulfilled of the conditions set forth in Article 8 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions) or (ii) such other date and time as the parties hereto may mutually agree in writing. The date on which the Closing occurs is referred to herein as the “ Closing Date .” For purposes of this Agreement, a “ Business Day ” shall mean any day that is not a Saturday, Sunday or other day in which banks in Washington, D.C. are authorized or required by law to be closed.

2.2 Delivery . At the Closing, subject to the terms and conditions hereof, the Company will deliver to Purchasers the Shares in certificate form or via uncertificated book-entry form pursuant to instructions of Purchasers provided to the Company at least five (5) Business Days in advance of the Closing Date, free and clear of any liens or other encumbrances (other than those placed thereon by or on behalf of Purchasers) and subject to any restrictions on resale in accordance with the terms of this Agreement and applicable law, and Purchasers will make payment to the Company of the Purchase Price, by wire transfer of immediately available funds to an account designated by the Company in writing to Purchasers at least five (5) Business Days in advance of the Closing Date. Purchasers and the Company shall execute cross receipts acknowledging receipt of the Shares and the Purchase Price, respectively.

2.3 Anti-Dilution . If, between the date of this Agreement and the Closing Date, the outstanding shares of Company Common Stock shall have been changed into or exchanged for a different number, kind, class or series of shares or securities as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other substantially similar transaction, an appropriate and proportionate adjustment shall be made to the number of Shares and the Price Per Share.

 

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ARTICLE 3

Representations and Warranties of the Company

Except as disclosed (i) in the Company Reports furnished or filed prior to the date of this Agreement (excluding any risk factor disclosures contained in such Company Reports under the heading “Risk Factors” and any disclosures of risks included in any “forward-looking statements” disclaimer or other statements made that are similarly non-specific and are predictive or forward-looking in nature) or (ii) in the disclosure schedule delivered by the Company to Purchaser prior to the execution of this Agreement (the “ Disclosure Schedule ”), which Disclosure Schedule sets forth items the disclosure of which is necessary or appropriate as an exception to one or more representations or warranties contained in this Article 3; provided, however , that (A) the disclosure in any Section of the Disclosure Schedule shall apply only to the indicated Section of this Agreement except to the extent that it is apparent on the face of such disclosure that such disclosure is relevant to another Section of this Agreement, and (B) notwithstanding anything in this Agreement to the contrary, the mere inclusion of an item as an exception to a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has had or would be reasonably likely to have a Material Adverse Effect, the Company hereby represents and warrants to Purchasers as follows:

3.1 Organization and Standing .

(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. As used in this Agreement, a “ Material Adverse Effect ” means any effect, circumstance, occurrence or change that is material and adverse to the business, assets, prospects, results of operations or financial condition of the Company and Company Subsidiaries, taken as a whole; provided , however , that Material Adverse Effect shall not be deemed to include (i) any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, (ii) changes or proposed changes in GAAP or regulatory or accounting principles generally applicable to banks, savings associations and their holding companies (in the case of each of clause (i) and (ii), other than effects, circumstances, occurrences or changes that arise after the date of this Agreement but before the Closing to the extent that such effects, circumstances, occurrences or changes have a materially disproportionate adverse affect on the Company and Company Subsidiaries relative to other companies in the commercial banking industry), (iii) changes in the market price or trading volume of Company Common Stock (it being understood and agreed that the exception set forth in this clause (iii) does not apply to the underlying reason or cause giving rise to or contributing to any such change), (iv) changes in the general economic or business conditions, including changes in interest or currency rates or commodity prices, or (v) events, impacts or conditions caused by the negotiation, execution, announcement, or existence or terms of this Agreement or the performance of this Agreement or the consummation of the Transaction (including any occurrence or condition arising out of the identity of or facts relating to Purchasers).

 

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(b) Each Company Subsidiary is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation. Each Company Subsidiary is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. Other than the Company Subsidiaries and securities held in its investment portfolio, neither the Company nor any Company Subsidiary owns any equity interest in any bank, corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated. As used in this Agreement, “ Company Subsidiary ” means any bank, corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, that is consolidated with the Company for financial reporting purposes under U.S. generally accepted accounting principles (“ GAAP ”).

(c) The Company has delivered or made available to Purchasers true, complete and correct copies of the Company’s Amended and Restated Certificate of Incorporation, as amended (the “ Certificate of Incorporation ”) and Bylaws, as amended (the “ Bylaws ”), and of the charter, bylaws and similar governing documents of each Company Subsidiary, each as in effect as of the date of this Agreement.

3.2 Company Capital Stock .

(a) As of the date hereof, the authorized capital stock of the Company consists solely of 400,000,000 shares of Company Common Stock, of which 212,503,485 shares are issued and 202,536,758 shares are outstanding, 50,000,000 shares of Preferred Stock, none of which are issued and outstanding, and 1,000,000 shares of preference stock, par value $2.50 per share, none of which are issued and outstanding. The outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and nonassessable, and are not subject to preemptive rights (and were not issued in violation of any preemptive rights). The Shares will be, as of the Closing, duly authorized by all necessary corporate action on the part of the Company and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and the issuance thereof will not be subject to any preemptive rights.

(b) Except for Company Stock Options covering 4,149,530 shares of Company Common Stock as of the date hereof, there are no outstanding options, warrants or other rights in or with respect to the unissued shares of capital stock of the Company nor any securities convertible into such stock, and the Company is not obligated to issue any additional shares of capital stock of the Company or any additional options, warrants or other rights in or with respect to the issued or unissued shares of capital stock of the Company or any other securities convertible into such stock. As used in this Agreement, the term “ Company Stock Option ” means any option or right to acquire capital stock of the Company, or stock appreciation right payable in cash issued pursuant to any Company Employee Benefit Plan or otherwise. There are no options, warrants, equity securities, calls, rights, commitments or agreements of any character obligating the Company or any Company Subsidiary to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security,

 

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call, right, commitment or agreement. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. Neither the Company nor any of its Affiliates is a party to or is bound by any, and to the knowledge of the Company, there are no agreements with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of capital stock or other equity interests of the Company. As used in this Agreement, “ Affiliate ” means, with respect to any person, any other person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person, and the term “ control ” (including the terms “ controlled by ” and “ under common control with ”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through ownership of voting securities, by contract or otherwise.

3.3 Corporate Power . The Company and each Company Subsidiary has all requisite power and authority (corporate and other) to carry on its business as it is now being conducted and to own, lease or operate all its properties and assets. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Transaction.

3.4 Corporate Authority . This Agreement and the Transaction have been duly authorized and approved by the board of directors of the Company (the “ Company Board ”). The Company Board has determined that this Agreement and the Transaction are advisable and in the best interests of the Company and its stockholders. The Company’s Audit Committee has unanimously and expressly approved, and the Company Board has unanimously concurred with, the Company’s reliance on the exemption under Paragraph 312.05 of the NYSE Listed Company Manual to issue the Shares without seeking a stockholder vote. Prior to the Closing, the Company will have complied with all NYSE rules applicable to the Transaction. This Agreement and the Transaction have been authorized by all necessary corporate action of the Company, and no vote of the holders of any class or series of the Company’s capital stock is necessary to approve and adopt this Agreement and to consummate the Transaction. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by Purchasers, this Agreement is a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or to general equity principles.

3.5 Regulatory Approvals; No Violations .

(a) No consents, approvals, permits, orders, authorizations of, exemptions, reviews or waivers by, or notices, reports, filings, declarations or registrations with, any federal, state or local court, governmental, legislative, judicial, administrative or regulatory authority, agency, commission, body or other governmental entity or self regulatory organization (each, a “ Governmental Authority ”) or with any other third party are required to be made or obtained by the Company or any Company Subsidiary in connection with the execution, delivery and performance by the Company of this Agreement or the consummation of the purchase of the

 

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Shares or any other aspect of the Transaction except for (i) those already obtained or made, (ii) the filings contemplated by Section 6.3, (iii) required filings with the New York Stock Exchange (the “ NYSE ”) or the SEC in connection with the matters contemplated under Section 6.4 or otherwise, (iv) the filings contemplated by Article 7, and (v) any securities or “blue sky” filings of any state. The Company knows of no reason why all regulatory approvals from any Governmental Authority required for the consummation of the Transaction should not be obtained on a timely basis.

(b) The execution, delivery and performance of this Agreement by the Company does not, and the consummation by the Company of the Transaction will not, (i) constitute or result in a breach or violation of, or a default under, the acceleration of any obligations or penalties or the creation of any charge, mortgage, pledge, security interest, restriction, claim, lien, equity, encumbrance or any other encumbrance or exception to title of any kind on any assets or any indebtedness of the Company or any Company Subsidiaries (with or without notice, lapse of time, or both) pursuant to, agreements binding upon the Company or any Company Subsidiary or to which the Company or any Company Subsidiary or any of their respective properties is subject or bound or any law, regulation, judgment or governmental or non-governmental permit or license to which the Company or any Company Subsidiary or any of their respective properties is subject, (ii) constitute or result in a breach or violation of, or a default under, the Certificate of Incorporation or the Bylaws or the charter, bylaws or similar governing documents of any Company Subsidiary or (iii) require any consent or approval or notice or other filing under any such agreement, law, regulation, judgment, governmental or non-governmental permit or license, except, in the case of clauses (i) or (iii) above, for any breach, violation, default, acceleration, creation, change, consent or approval that, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect.

3.6 Company Reports .

(a) The Company and each Company Subsidiary has filed or furnished, as applicable, on a timely basis all forms, filings, registrations, submissions, statements, certifications, reports and documents required to be filed or furnished by it with the U.S. Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ Securities Act ”) or the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) since December 31, 2005 (the forms, statements, reports and documents filed or furnished since December 31, 2005 and through the date hereof, including any amendments thereto, the “ Company Reports ”). Each of the Company Reports, at the time of its filing or being furnished complied, or if not yet filed or furnished, will comply, in all material respects with the applicable requirements of the Securities Act and the Exchange Act, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed or furnished with the SEC subsequent to the date hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.

 

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(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the NYSE.

(c) The Company and Company Subsidiaries have timely filed all reports and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2005 with the Board of Governors of the Federal Reserve System (the “ FRB ”), the Federal Deposit Insurance Corporation (the “ FDIC ”), the Office of the Comptroller of the Currency (the “ OCC ”), the Alabama State Banking Department (the “ ASBD ”), or any other Governmental Authority having jurisdiction over its business or any of its assets or properties (each a “ Regulatory Authority ”), and all other material reports and statements required to be filed by it since December 31, 2005, including, without limitation, the rules and regulations of the FDIC, the OCC, the ASBD or any other Regulatory Authority, and has paid all fees and assessments due and payable in connection therewith. As of their respective dates, such reports and statements complied in all material respects with all the laws, rules and regulations of the applicable Regulatory Authority with which they were filed.

3.7 Financial Statements; Internal Controls .

(a) The Company’s consolidated financial statements (including, in each case, any notes thereto) contained in the Company Reports, were or will be prepared (i) in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required under the rules of the SEC to be in compliance with GAAP) and (ii) to comply as to form, as of their respective date of filing with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, and in each case such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations, changes in stockholder equity and cash flows of the Company and the consolidated Company Subsidiaries as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments which were not and which are not expected to be, individually or in the aggregate, material to the Company and its consolidated Company Subsidiaries taken as a whole).

(b) Neither the Company nor any of the Company Subsidiaries has any material liability or obligation of any nature whatsoever (whether absolute, accrued, contingent, determined, determinable or otherwise and whether due or to become due), except for (i) those liabilities that are reflected or reserved against on the consolidated balance sheet of the Company included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2008 (including any notes thereto) and (ii) liabilities incurred in the ordinary course of business consistent with past practice since December 31, 2008 or in connection with this Agreement and the Transaction.

(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company is recorded and

 

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reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements.

(d) The Company has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date hereof, to the Company’s auditors and the audit committee of the Company Board (i) any significant deficiencies and material weaknesses in the design or operation of its internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company Board any material weaknesses in internal control over financial reporting and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Since December 31, 2005, no material complaints, allegation, assertion or claim, whether written or oral from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from the Company employees regarding questionable accounting or auditing matters, have been received by the Company. No attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the Company Board or the Company Board pursuant to the rules adopted under Section 307 of the Sarbanes-Oxley Act.

3.8 Absence of Certain Changes .

(a) Since December 31, 2008, (i) the Company and Company Subsidiaries have conducted their respective businesses in all material respects in the ordinary course, consistent with prior practice, and (ii) no event or events have occurred that have had or would be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

(b) Since December 31, 2008, neither the Company nor any of the Company Subsidiaries has (i) except for (A) normal increases for or payments to employees (other than officers subject to the reporting requirements of Section 16(a) of the Exchange Act (the “ Executive Officers ”)) made in the ordinary course of business consistent with past practice or

 

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(B) as required by applicable law or contractual obligations existing as of the date hereof that are disclosed in the Company Reports or the Disclosure Schedule, increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any Executive Officer or other employee or director from the amount thereof in effect as of December 31, 2008, granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any cash bonus in excess of $1 million, (ii) granted any options to purchase shares of Company Common Stock, any restricted shares of Company Common Stock or any right to acquire any shares of its capital stock, or any right to payment based on the value of the Company’s capital stock, to any Executive Officer or other employee or director other than grants to employees (other than Executive Officers) made in the ordinary course of business consistent with past practice or grants relating to shares of Company Common Stock with an aggregate value for all such grants of less than $1 million for any individual, (iii) changed any financial accounting methods, principles or practices of Company or the Company Subsidiaries affecting its assets, liabilities or businesses, including any reserving, renewal or residual method, practice or policy, (iv) suffered any strike, work stoppage, slow-down, or other labor disturbance, or (v) except for publicly disclosed ordinary dividends on the Company Common Stock and except for distributions by wholly-owned Company Subsidiaries to Company or another wholly-owned Company Subsidiary, made or declared any distribution in cash or kind to its stockholder or repurchased any shares of its capital stock or other equity interests.

3.9 Commitments and Contracts .

(a) Neither the Company nor any of the Company Subsidiaries is a party to or otherwise subject to or bound by:

(i) any employment, deferred compensation, bonus or consulting contract that (A) has a remaining term, as of the date of this Agreement, of more than one year in length of obligation on the part of the Company or any of the Company Subsidiaries and is not terminable by the Company or any of the Company Subsidiaries within one year without penalty or (B) requires payment by the Company or any of the Company Subsidiaries of $100,000 or more per annum;

(ii) any advertising, brokerage, distributor, representative or agency relationship or contract requiring payment by the Company or any of the Company Subsidiaries of $500,000 or more per annum;

(iii) any contract or agreement that restricts the Company or any of the Company Subsidiaries (or would restrict the Company, any Affiliate of the Company or any of the Company Subsidiaries upon consummation of the Transaction) from competing in any line of business with any bank, corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, or other person;

(iv) any contract or agreement that obligates the Company or any of the Company Subsidiaries to conduct business on an exclusive or preferential basis with any third party or, upon consummation of the Transaction, will obligate the Company or any of the Company Subsidiaries to conduct business with any third party on an exclusive or preferential basis, in any case of the preceding which is material;

 

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(v) any lease of real or personal tangible property providing for annual lease payments by or to the Company or any of the Company Subsidiaries in excess of $500,000 per annum;

(vi) any material license agreement granting any right to use or practice any right under any material Intellectual Property (whether as licensor or licensee), excluding ordinary course of business customer contracts;

(vii) any agreement in which the Company or any of the Company Subsidiaries covenanted not to assert any right in any Intellectual Property to a third party, excluding customer contracts in ordinary course of business and confidentiality agreements;

(viii) any stock purchase, stock option, stock bonus, stock ownership, profit sharing, group insurance, bonus, deferred compensation, severance pay, pension, retirement, savings or other incentive, welfare or employment plan or material agreement providing benefits to any present or former employees, officers or directors of the Company or any Company Subsidiary;

(ix) any contract or agreement with or to a labor union or guild (including any collective bargaining agreement);

(x) any agreement to acquire equipment or any commitment to make capital expenditures of $500,000 or more;

(xi) other than agreements entered into in the ordinary course of business, any agreement for the sale of any material property or assets in which the Company or any Company Subsidiary has an ownership interest or for the grant of any lien, pledge or other encumbrance on any such property or asset;

(xii) any agreement for the borrowing of any money and any guaranty agreement;

(xiii) any partnership or joint venture agreement;

(xiv) any material agreement which would be terminable other than by the Company or any Company Subsidiary as a result of the consummation of the transactions contemplated by this Agreement;

(xv) other than agreements entered into in the ordinary course of business, any other agreement of any other kind which involves future payments or receipts or performances of services or delivery of items requiring payment of $500,000 or more to or by the Company or any Company Subsidiary; or

 

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(xvi) any other contract or agreement that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Company Reports filed prior to the date hereof.

Each contract, arrangement, commitment or understanding of the type described in this Section 3.9(a) is referred to as a “ Company Contract .”

(b) The Company has publicly disclosed in the Company Reports filed with the SEC, or has provided to Purchasers prior to the date hereof or will promptly provide for review during the due diligence period (by hard copy, electronic data room or otherwise), true, correct and complete copies of, each Company Contract. Each Company Contract is in full force and effect and enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or to general equity principles. No event or condition exists that constitutes or, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of the Company or any of the Company Subsidiaries or, to the Company’s knowledge, any other party thereto under any such Company Contract. There are no disputes pending or, to Company’s knowledge, threatened with respect to any Company Contract.

3.10 Title to and Sufficiency of Assets .

(a) The Company and each Company Subsidiary has good and marketable title to all assets and properties, whether real or personal, tangible or intangible, that it purports to own, subject to no valid liens, mortgages, security interests, encumbrances or charges of any kind except: (i) as noted in the Company Reports; (ii) statutory liens for taxes not yet delinquent or being contested in good faith by appropriate proceedings and for which appropriate reserves have been established and reflected on the Company’s financial statements; (iii) pledges or liens required to be granted in connection with the acceptance of government deposits, granted in connection with repurchase or reverse repurchase agreements, pursuant to borrowings incurred in the ordinary course of business; and (iv) defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purposes for which they are held. The Company and each Company Subsidiary as lessee has the right under valid and existing leases to occupy, use, possess and control any and all of the respective properties leased by it. Except where any failure would not have a Material Adverse Effect, all buildings and structures owned by the Company and each Company Subsidiary lie wholly within the boundaries of the real property owned or validly leased by it, and do not encroach upon the property of, or otherwise conflict with the property rights of, any other person or entity.

(b) The buildings, structures and equipment of the Company and the Company Subsidiaries are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings, structures or equipment is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in the aggregate in nature or in cost. Except where any failure would not have a Material Adverse Effect, the real property, buildings, structures and equipment owned or leased by the Company and the Company Subsidiaries are in compliance with all Legal

 

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Requirements, including building and development codes and other restrictions, subdivision regulations, building and construction regulations, drainage codes, environmental, health, fire and safety laws and regulations, utility tariffs and regulations, conservation laws and zoning laws and ordinances. The assets and properties, whether real or personal, tangible or intangible, that the Company or any Company Subsidiary purports to own are sufficient for the continued conduct of the business of each of the Company and such Company Subsidiary after the Closing in substantially the same manner as conducted prior to the Closing.

3.11 Compliance with Laws . The Company and each Company Subsidiary holds all material licenses, certificates, permits, franchises and rights from all appropriate Regulatory Authorities necessary for the conduct of its respective business. The Company and each Company Subsidiary is, and at all times since January 1, 2006 has been, in compliance with each law that is or was applicable to it or to the conduct or operation of its respective businesses or the ownership or use of any of its respective assets (a “ Legal Requirement ”), except where the failure to comply would not have a Material Adverse Effect. No event has occurred or circumstance exists that (with or without notice or lapse of time): (i) may constitute or result in a violation by the Company or a Company Subsidiary of, or a failure on the part of the Company or a Company Subsidiary to comply with, any Legal Requirement; or (ii) may give rise to any obligation on the part of the Company or a Company Subsidiary to undertake, or to bear all or any portion of the cost of, any remedial action of any nature in connection with a failure to comply with any Legal Requirement; except, in either case, where the failure to comply or the violation would not have a Material Adverse Effect. Neither the Company nor any Company Subsidiary has received, at any time since January 1, 2006, any notice or other communication (whether oral or written) from any Regulatory Authority or any other person or entity, nor does the Company have any knowledge regarding: (A) any actual, alleged, possible or potential violation of, or failure to comply with, any Legal Requirement; or (B) any actual, alleged, possible or potential obligation on the part of the Company or a Company Subsidiary to undertake, or to bear all or any portion of the cost of, any remedial action of any nature in connection with a failure to comply with any Legal Requirement, except where any such violation, failure or obligation would not have a Material Adverse Effect.

3.12 Litigation and Other Proceedings .

(a) (i) No civil, criminal or administrative litigation, claim, action, suit, hearing, arbitration, investigation or other proceeding before any Governmental Authority or arbitrator is pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary, (ii) neither the Company or any Company Subsidiary is subject to any order, judgment or decree, and (iii) there are no facts or circumstances that could result in any claims against, or obligations or liabilities of, the Company or any Company Subsidiary, except with respect to (i), (ii) and (iii) for those that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.

(b) Neither the Company nor any Company Subsidiary: (i) is subject to any cease and desist or other order or enforcement action issued by, or (ii) is a party to any written agreement, consent agreement or memorandum of understanding with, or (iii) is a party to any commitment letter or similar undertaking to, or (iv) is subject to any order or directive by, or

 

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(v) is subject to any supervisory letter from, or (vi) has been ordered to pay any civil money penalty, which has not been paid, by, or (vii) has adopted any policies, procedures or board resolutions at the request of, any Regulatory Authority that currently (A) restricts in any material respect the conduct of its business, or (B) in any material manner relates to its capital adequacy, or (C) restricts its ability to pay dividends, or (D) limits in any material manner its credit or risk management policies, its management or its business; nor has the Company or any Company Subsidiary been advised by any Regulatory Authority that it is considering issuing, initiating, ordering or requesting any of the foregoing or that it has initiated any investigation or proceeding into the business or operations of the Company or a Company Subsidiary.

3.13 Taxes . The Company and each Company Subsidiary have each duly filed all material Tax Returns required to be filed by it, and each such Tax Return is complete and accurate in all material respects. The Company and each Company Subsidiary have each paid, or made adequate provision for the payment of, all Taxes (whether or not reflected in Tax Returns as filed or to be filed) due and payable by the Company or the Company Subsidiary, or claimed to be due and payable by any Regulatory Authority, and is not delinquent in the payment of any Tax, except such Taxes as are being contested in good faith and as for which adequate reserves have been provided or otherwise involving non-material amounts. There is no claim or assessment pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary for any Taxes owed by any of them. No audit, examination or investigation related to Taxes paid or payable by the Company or any Company Subsidiary is presently being conducted or, to the knowledge of the Company, threatened by any Regulatory Authority. The Company has delivered or made available to Purchasers true, correct and complete copies of all Tax Returns filed with respect to the last three fiscal years by the Company and the Company Subsidiaries and any tax examination reports and statements of deficiencies assessed or agreed to for the Company or any Company Subsidiary for any such time period. For purposes of this Section 3.13: “ Tax ” means any tax (including any income tax, capital gains tax, value added tax, sales tax, property tax, gift tax or estate tax), levy, assessment, tariff, duty (including any customs duty), deficiency or other fee, and any related charge or amount (including any fine, penalty, interest or addition to tax), imposed, assessed or collected by or under the authority of any Governmental Authority or payable pursuant to any Legal Requirement, tax sharing agreement or any other contract relating to the sharing or payment of any such tax, levy, assessment, tariff, duty, deficiency or fee; and “ Tax Return ” means any return (including any information return), report, statement, schedule, notice, form or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Authority in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation, or enforcement of or compliance with any Legal Requirement relating to any Tax.

3.14 Compliance with ERISA . All employee benefit plans (as defined in Section   3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)) and all Company Employee Benefit Plans established or maintained by the Company or a Company Subsidiary or to which the Company or a Company Subsidiary contributes, are in material compliance with all applicable requirements of ERISA, and are in material compliance with all applicable requirements (including qualification and non-discrimination requirements in effect as of the Closing) of the Internal Revenue Code of 1986, as amended (the “ Code ”) for obtaining the

 

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tax benefits the Code thereupon permits with respect to such employee benefit plans. No such employee benefit plan has any amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA) for which the Company or any Company Subsidiary would be liable to any person under Title IV of ERISA if any such employee benefit plan were terminated as of the Closing. Such employee benefit plans are funded in accordance with Section   412 of the Code (if applicable). There would be no material obligations of the Company or any Company Subsidiary under Title IV of ERISA relating to any such employee benefit plan that is a multi-employer plan if any such plan were terminated or if the Company or a Company Subsidiary withdrew from any such plan as of the Closing. All contributions and premium payments that are due under any such benefit plans have been made. No Company Employee Benefit Plan has engaged in or been a party to a “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975(c) of the Code) without an exemption thereto under Section 408 of ERISA or Section 4975(d) of the Code. The Transaction will not constitute a change in control under any Company Employee Benefit Plan. For purposes of this Agreement, the term “ Company Employee Benefit Plan ” means each profit sharing, group insurance, hospitalization, stock option, pension, retirement, bonus, severance, change of control, deferred compensation, stock bonus, stock purchase, employee stock ownership or other employee welfare or benefit agreement, plan or arrangement established, maintained, sponsored or undertaken by the Company or any Company Subsidiary for the benefit of the officers, directors or employees of the Company or the Company Subsidiary, including each trust or other agreement with any custodian or any trustee for funds held under any such agreement, plan or arrangement, and all other contracts or arrangements under which pensions, deferred compensation or other retirement benefits are being paid or may become payable by the Company or the Company Subsidiary for the benefit of the directors, officers or employees of the Company or the Company Subsidiary.

3.15 Intellectual Property . The Company has provided to purchaser, prior to the date hereof, a true, correct and complete listing and description of all the material patents, copyrights, trademarks, trade names, service marks, trade dress and logos (and all registrations and applications with respect thereto) (collectively, with the goodwill of the business symbolized thereby, the “ Intellectual Property ”) used in the business of the Company or any Company Subsidiary. The Company and each Company Subsidiary owns or possesses a valid and binding license or otherwise is duly authorized to use all of the Intellectual Property used by it. Neither the Company nor any Company Subsidiary is in material default under any license, contract, agreement, arrangement or commitment related to any of the Intellectual Property. Such Intellectual Property as used by the Company or a Company Subsidiary in its business do not violate or infringe upon the proprietary rights of any third party in any material respect, and there is no claim, action, proceeding or investigation pending or, to the Company’s knowledge, threatened against the Company or any Company Subsidiary with respect to any such Intellectual Property.

3.16 Related Party Transactions . Neither the Company nor any Company Subsidiary has made any loan to any director, officer or other Affiliate of the Company or any Company Subsidiary which remains outstanding nor has the Company or any Company Subsidiary entered into any agreement for the purchase or sale of any property (other than equity securities of the Company) or services from or to any director, officer or other Affiliate of the Company or any Company Subsidiary. All loans to executive officers and directors (and related interests) have been made in compliance with FRB Regulation O (12 C.F.R. Part 215).

 

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3.17 No Fees to Brokers or Other Persons . Neither the Company nor any Company Subsidiary nor any of their respective officers, directors, employees, agents or representatives (i) has employed any broker, investment banker or finder or incurred any liability for any brokerage or investment banking fees, commissions or finders or similar fees in connection with the Transaction or (ii) has incurred any liability for any termination, break-up or similar fees in connection with the Transaction or any Acquisition Proposal.

ARTICLE 4

Representations and Warranties of Purchasers

Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as follows:

4.1 Institutional Accredited Investor; Experience . Purchaser is an “accredited investor” (as defined in Rule 501 under the Securities Act) and is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests.

4.2 Investment . Purchaser is acquiring the Shares for investment for its own account for investment purposes, and not with the view to, or for resale in connection with, any distribution thereof that would require the issuance of the Shares pursuant to this Agreement to be registered under the Securities Act.

4.3 Organization and Standing . Purchaser is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation. Purchaser is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction where the ownership or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing is not reasonably likely to have, individually or in the aggregate, a material adverse effect on the ability of Purchaser to timely consummate the Transaction.

4.4 Purchaser Power . Purchaser has all requisite company power and authority and has taken all company action necessary in order to execute, deliver and perform its obligations under this Agreement and to consummate the Transaction.

4.5 Purchaser Authority . This Agreement and the Transaction have been duly authorized by all necessary company action of Purchaser. Subject to the last sentence of this Section 4.5, this Agreement has been duly executed and delivered by Purchaser, and, assuming the due authorization, execution and delivery of this Agreement by the Company, this Agreement is a valid and legally binding agreement of Purchaser, enforceable against Purchaser in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or to general equity principles. The Purchasers listed on Schedule 1 have not executed this Agreement as of March 31, 2009. Taylor, Bean & Whitaker Mortgage Corp. (“ TBW ”) is signing this Agreement on behalf of the Purchasers listed on Schedule 1 hereto.

 

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4.6 Regulatory Approvals; No Violations .

(a) No consents, approvals, permits, orders or authorizations of, exemptions, reviews or waivers by, or notices, reports, filings or registrations with any Governmental Authority or with any other third party are required to be made or obtained by Purchaser or any of its Affiliates or any of their respective officers, directors or employees in connection with the execution, delivery and performance by Purchaser of this Agreement or the consummation of the Transaction except for (i) those already obtained or made and (ii) the filings contemplated by Section 6.3. Purchaser knows of no reason why all regulatory approvals from any Governmental Authority required for the consummation of the Transaction should not be obtained on a timely basis.

(b) The execution, delivery, and performance of this Agreement by Purchaser does not, and the consummation by Purchaser of the Transaction will not, (i) constitute or result in a breach or violation of, or a default under, or the acceleration or creation of any obligations, penalties or the creation of any charge, mortgage, pledge, security interest, restriction, claim, lien or equity, encumbrance or any other encumbrance or exception to title of any kind on the assets or properties of Purchaser (with or without notice, lapse of time, or both) pursuant to agreements binding upon Purchaser or to which Purchaser or any of its properties is subject or bound or any law, regulation, judgment or governmental or non-governmental permit or license to which Purchaser or any of its properties is subject, (ii) constitute or result in a breach or violation of, or a default under, the organizational documents of Purchaser or (iii) require any consent or approval under any such agreement, law, regulation, judgment, governmental or non-governmental permit or license (other than those contemplated by Section 4.6(a)), except, in the case of clauses (i) or (iii) above, for any breach, violation, default, acceleration, creation, change, consent or approval that, individually or in the aggregate, is not reasonably likely to have a material adverse effect on the ability of Purchaser to timely consummate the Transaction.

4.7 Expert Advice . Purchaser has independently evaluated the Transaction and has consulted its own experts necessary to determine that the investment pursuant to the Transaction is appropriate for such Purchaser.

4.8 Financing . Purchaser has used and will continue to use commercially reasonable best efforts to obtain the funds necessary to complete the Transaction or to obtain approval for financing the Transaction subject to ordinary closing contingencies. Each Purchaser (or shareholder, member or partner of Purchaser, as the case may be) has deposited into an escrow account an amount equal to ten percent (10%) of such Purchaser’s (or shareholder’s, member’s or partner’s, as the case may be) respective portion of the Purchase Price. On or prior to the date of this Agreement, Purchaser has delivered to the Company evidence of the financing commitment and escrowed amount relating to such Purchaser.

4.9 Brokers and Finders . Except as set forth in Section 3.17, neither Purchaser nor its affiliates, any of their respective officers, directors, employees or agents has employed any

 

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broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions, or finder’s fees, and no broker or finder has acted directly or indirectly for Purchaser, in connection with this Agreement or the Transaction, in each case, whose fees the Company would be required to pay.

ARTICLE 5

Covenants Relating to Conduct of Business

5.1 Conduct of Business Prior to the Closing . Except as otherwise expressly contemplated or permitted by this Agreement or with the prior written consent of Purchasers holding the right to acquire (or, if after the Closing, holding) at least a majority of the aggregate Shares to be purchased (or, if after the Closing, purchased) hereunder (the “ Required Purchasers ”) (which consent shall not be unreasonably withheld or delayed), during the period from the date of this Agreement to the Closing Date, the Company shall, and shall cause each Company Subsidiary to, (i) conduct its business only in the usual, regular and ordinary course consistent with past practice and (ii) take no action which would reasonably be expected to adversely affect or delay (A) the receipt of any approvals of any Governmental Authority required to consummate the transactions contemplated hereby or (B) the consummation of the transactions contemplated hereby.

5.2 Company Forbearances . Except as expressly contemplated or permitted by this Agreement, during the period from the date of this Agreement to the Closing, the Company shall not, and shall not permit any Company Subsidiary to, without the prior written consent of the Required Purchasers (which consent shall not be unreasonably withheld or delayed):

(a) (i) Issue, sell or otherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize or propose the creation of, any additional shares of its stock (other than pursuant to the exercise of Company Stock Options outstanding as of the date hereof or other than any capital stock issued to the United States Treasury as part of the TARP Capital Purchase Program or any similar governmental program), or (ii) permit any additional shares of its stock to become subject to new grants, except issuances under dividend reinvestment plans in the ordinary course of business;

(b) Make, declare, pay or set aside for payment any dividend on or in respect of, or declare or make any distribution on any shares of its stock, other than (i) regular quarterly dividends on its common stock at a rate no greater than the rate paid by it during the fiscal quarter immediately preceding the date hereof, and (ii) dividends from the Company Subsidiaries to it or any of its wholly owned Company Subsidiaries, provided that no such dividend shall cause any bank Company Subsidiary to cease to qualify as a “well capitalized” institution under the prompt corrective action provisions of the Federal Deposit Insurance Corporation Improvement Act of 1991, as amended, and the applicable regulations thereunder;

(c) Directly or indirectly adjust, split, combine, redeem, reclassify, purchase or otherwise acquire, any shares of its stock (other than repurchases of common shares in the ordinary course of business to satisfy obligations under dividend reinvestment or Company Employee Benefit Plans);

 

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(d) Amend the terms of, waive any rights under, terminate, knowingly violate the terms of or enter into (i) any Company Contract which is material to the Company or any Company Subsidiary, (ii) any material restriction on the ability of the Company or any Company Subsidiary to conduct its business as it is presently being conducted or (iii) any contract or other binding obligation relating to the Company Common Stock or rights associated therewith or any other outstanding capital stock or any outstanding instrument of indebtedness;

(e) Sell, transfer, mortgage, encumber or otherwise dispose of or discontinue any of its assets, deposits, business or properties, except for sales, transfers, mortgages, encumbrances or other dispositions or discontinuances in the ordinary course of business and in a transaction that, together with other such transactions, is not material to it or any Company Subsidiary;

(f) Acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary course of business) all or any portion of the assets, business, deposits or properties of any other entity except in the ordinary course of business and in a transaction that, together with other such transactions, is not material to it or any Company Subsidiary, and does not present a material risk that the Closing Date will be materially delayed or that the regulatory approvals of Governmental Authorities required for the consummation of the Transaction will be more difficult to obtain;

(g) Except for matters relating to any capital stock issued to the United States Treasury as part of the TARP Capital Purchase Program or any similar governmental program, amend the Certificate of Incorporation or the Bylaws or similar governing documents of any of the Company Subsidiaries;

(h) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;

(i) Except as required under applicable law or, other than with respect to clause (v) below, the terms of any Company Employee Benefit Plan existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors, officers, employees, consultants, independent contractors or other service providers of the Company or the Company Subsidiaries (collectively, “ Employees ”), (ii) pay any amounts to Employees or increase any amounts or rights of any Employees not required by any current plan or agreement, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Employee (or newly hired employees), (iv) accelerate the vesting of or lapsing of restrictions with respect to any stock-based compensation or other long-term incentive compensation under any Company Employee Benefit Plans, (v) cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Employee Benefit Plan, or (vi) materially change any actuarial or other assumptions

 

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used to calculate funding obligations with respect to any Company Employee Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable law;

(j) Notwithstanding anything herein to the contrary, take, or omit to take, any action that is reasonably likely to result in any of the conditions to the Closing set forth in Article 8 not being satisfied, except as may be required by applicable law, regulation or policies imposed by any Governmental Authority;

(k) Incur or guarantee any indebt