Exhibit 10.1
UNITED STATES DEPARTMENT OF THE
TREASURY
1500 Pennsylvania Avenue,
NW
Washington, D.C. 20220
May 20, 2009
Ladies and Gentlemen:
Reference is made to that certain
Letter Agreement incorporating the Securities Purchase Agreement
— Standard Terms (the “ Securities Purchase
Agreement ”), dated as of the date set forth on Schedule
A hereto, between the United States Department of the Treasury (the
“ Investor ”) and the company set forth on
Schedule A hereto (the “ Company ”).
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Securities Purchase
Agreement. Pursuant to the Securities Purchase Agreement, at
the Closing, the Company issued to the Investor the number of
shares of the 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 ”).
In connection with the consummation
of the repurchase (the “ Repurchase ”) by the
Company from the Investor, on the date hereof, of the number of
Preferred Shares listed on Schedule A hereto (the “
Repurchased Preferred Shares ”), as permitted by the
Emergency Economic Stabilization Act of 2008, as amended by the
American Recovery and Reinvestment Act of 2009:
(a) The Company hereby
acknowledges receipt from the Investor of the share certificate set
forth on Schedule A hereto representing the Preferred Shares;
and
(b) The Investor hereby
acknowledges receipt from the Company of a wire transfer to the
account of the Investor set forth on Schedule A hereto in
immediately available funds of the aggregate purchase price set
forth on Schedule A hereto, representing payment in full for the
Repurchased Preferred Shares at a price per share equal to the
Liquidation Amount per share, together with any accrued and unpaid
dividends to, but excluding, the date hereof;
The Investor and the Company
hereby agree that, notwithstanding Section 4.4 of the
Securities Purchase Agreement, immediately following consummation
of the Repurchase, but subject to compliance with applicable
securities laws, the Investor shall be permitted to Transfer all or
a portion of the Warrant or Substitute Warrant (as defined below)
with respect to, and/or exercise the Warrant or Substitute Warrant
for, all or a portion of the number of shares of Common Stock
issuable thereunder, at any time and without limitation, and
Section 4.4 of the Securities Purchase Agreement shall be
deemed to be amended in order to permit the foregoing. The
Company shall take all steps as may be reasonably requested by the
Investor to facilitate any such Transfer.
