Exhibit 10.1
UST Sequence Number:
5
U NITED S TATES D EPARTMENT OF THE T REASURY
1500 P ENNSYLVANIA A VENUE ,
NW
W ASHINGTON ,
D.C. 20220
Dear Ladies and
Gentlemen:
The company set forth on the
signature page hereto (the “ Company ”) intends
to issue in a private placement the number of shares of a series of
its preferred stock set forth on Schedule A hereto (the “
Preferred Shares ”) and a warrant to purchase the
number of shares of its common stock set forth on Schedule A hereto
(the “ Warrant ” and, together with the
Preferred Shares, the “ Purchased Securities ”)
and the United States Department of the Treasury (the “
Investor ”) intends to purchase from the Company the
Purchased Securities.
The purpose of this letter agreement
is to confirm the terms and conditions of the purchase by the
Investor of the Purchased Securities. Except to the extent
supplemented or superseded by the terms set forth herein or in the
Schedules hereto, the provisions contained in the Securities
Purchase Agreement – Standard Terms attached hereto as
Exhibit A (the “ Securities Purchase Agreement
”) are incorporated by reference herein. Terms that are
defined in the Securities Purchase Agreement are used in this
letter agreement as so defined. In the event of any inconsistency
between this letter agreement and the Securities Purchase
Agreement, the terms of this letter agreement shall
govern.
Each of the Company and the Investor
hereby confirms its agreement with the other party with respect to
the issuance by the Company of the Purchased Securities and the
purchase by the Investor of the Purchased Securities pursuant to
this letter agreement and the Securities Purchase Agreement on the
terms specified on Schedule A hereto.
This letter agreement (including the
Schedules hereto) and the Securities Purchase Agreement (including
the Annexes thereto) 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. This letter agreement constitutes the “Letter
Agreement” referred to in the Securities Purchase
Agreement.
This letter 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 letter agreement may be delivered by
facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.
* * *
In witness whereof, this letter
agreement has bee
