Exhibit 10.1
UST 311
U NITED S TATES D EPARTMENT OF THE T REASURY
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
May 13, 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 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.
UST 311
In addition, the Company agrees that
within 15 calendar days of the date hereof the Company shall either
(a) deliver to the Investor a notice of intent to repurchase
the Warrant in accordance with Section 4.9(b) of the
Securities Purchase Agreement (the “ Warrant Repurchase
Notice ”), or (b) issue and deliver to the Investor
a new warrant, in substantially the form of the Warrant, except
with the deletion of Section 13(H) thereof, to purchase the
number of shares of Common Stock into which the Warrant is then
exercisable (the “ Substitute Warrant ”), which
Substitute Warrant shall be deemed the “ Warrant
” for all purposes under the Securities Purchase
Agreement.
In the event that the Company
delivers a Warrant Repurchase Notice and the Company and
the
