Exhibit 10.1
UNITED STATES DEPARTMENT OF THE
TREASURY
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
June 3, 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(s) 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
