AMENDED AND RESTATED
TENDERING STOCKHOLDERS AGREEMENT
This Amended and
Restated Tendering Stockholder Agreement (the “
Agreement ”) dated as of December 2, 2005, is
entered into by and between Matrix Bancorp, Inc., a Colorado
corporation (the “ Company ”), and T. Allen
McConnell (“ Stockholder,” and together with the
Company, the “ Parties ”).
WHEREAS ,
it is the Company’s intention to conduct a tender offer for
the purchase of its common stock, par value $.0001 per share, to
commence as soon as practical, but not more than 30 days following
completion of the private placement sale of shares of the
Company’s common stock which has commenced as of the date
first set forth above;
WHEREAS ,
on November 4, 2005, the Parties entered into an agreement
(the “Original Agreement”) to provide for the orderly
disposition of the Stockholder’s holdings of the
Company’s common stock;
WHEREAS,
the Parties now desire to amend and restate the Original
Agreement;
NOW,
THEREFORE , intending to be legally bound, and for, and in
consideration of, the terms, conditions and mutual obligations set
forth herein, and understanding the meaning and legal effect of
entering into this Agreement, the Parties hereto stipulate, agree,
warrant and represent as follows:
Section 1. Company Tender Offer and No
Stock Disposition.
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(a)
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The
Company agrees that it shall conduct a tender offer (the
“Tender Offer”) for the purchase of its common stock at
a per share price of not less than $19.00 to be commenced as soon
as practical, but not more than 30 days following completion
of the private placement sale of shares of the Company’s
common stock (“Private Placement”).
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(b)
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The
Stockholder agrees that he/she/it will, and will ensure that
his/her/its affiliates or associates shall, tender any and all
shares of the Company’s common stock that the Stockholder
owns, directly or indirectly, beneficially or otherwise (the
“ Stockholder’s Common Stock ”), into the
Tender Offer.
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(c)
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The
Stockholder agrees that he/she/it will not dispose of such
Stockholder’s Common Stock between the date first written
above and the date upon which Stockholder tenders his/her/its
Stockholder’s Common Stock in the Tender Offer.
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(d)
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The
Stockholder agrees that he/she/it has not and will not purchase any
shares of the Company’s common stock between November 4,
2005 and the date upon which the Stockholder tenders his/her/its
shares of common stock into the Tender Offer.
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Section 2. Representations and
Warranties.
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(a)
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Representations of the
Company . The
Company represents, warrants and covenants to the Stockholder that:
(i) the Company has full legal right, power and authority to
enter into and perform this Agreement; (ii) the execution and
delivery of this Agreement by the Company and the consummation by
it of the t
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