WARRANT TO PURCHASE PREFERRED STOCK
THE SECURITIES
REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. THIS
INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER AND
OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE
ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A
COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES
REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE
VOID.
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Shares of Preferred
Stock
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Issue Date : February 20,
2009
1. Definitions . Unless the
context otherwise requires, when used herein the following terms
shall have the meanings indicated.
“Board of Directors”
means the board of directors of the
Company, including any duly authorized committee
thereof.
“business day”
means any day except Saturday,
Sunday and any day on which banking institutions in the State of
New York generally are authorized or required by law or other
governmental actions to close.
“Charter” means, with respect to any Person, its
certificate or articles of incorporation, articles of association,
or similar organizational document.
“Company” means the Person whose name, corporate or other
organizational form and jurisdiction of organization is set forth
in Item 1 of Schedule A hereto.
“Exchange Act”
means the Securities Exchange Act of
1934, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.
“Exercise Price”
means the amount set forth in Item 2
of Schedule A hereto. “Expiration Time” has the
meaning set forth in Section 3.
“Issue
Date” means the
date set forth in Item 3 of Schedule A hereto.
“Liquidation Amount”
means the amount set forth in Item 4
of Schedule A hereto.
“Original Warrantholder”
means the United States Department
of the Treasury. Any actions specified to be taken by the Original
Warrantholder hereunder may only be taken by such Person and not by
any other Warrantholder.
“Person”
has the meaning given to it in
Section 3(a)(9) of the Exchange Act and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act.
“Preferred Stock”
means the series of perpetual
preferred stock set forth in Item 5 of Schedule A
hereto.
“Purchase Agreement”
means the Securities Purchase
Agreement – Standard Terms incorporated into the Letter
Agreement, dated as of the date set forth in Item 6 of Schedule A
hereto, as amended from time to time, between the Company and the
United States Department of the Treasury (the “Letter
Agreement”), including all annexes and schedules
thereto.
“Regulatory Approvals”
with respect to the Warrantholder,
means, to the extent applicable and required to permit the
Warrantholder to exercise this Warrant for shares of Preferred
Stock and to own such Preferred Stock without the Warrantholder
being in violation of applicable law, rule or regulation, the
receipt of any necessary approvals and authorizations of, filings
and registrations with, notifications to, or expiration or
termination of any applicable waiting period under, the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations thereunder.
“SEC” means the U.S. Securities and Exchange
Commission.
“Securities Act”
means the Securities Act of 1933, as
amended, or any successor statute, and the rules and regulations
promulgated thereunder.
“Shares” has the meaning set forth in Section
2.
“Warrantholder”
has the meaning set forth in Section
2.
“Warrant” means this Warrant, issued pursuant to the
Purchase Agreement.
2. Number of Shares; Exercise Price .
This certifies that, for value received, the United States
Department of the Treasury or its permitted assigns (the
“Warrantholder”) is entitled, upon the terms and
subject to the conditions hereinafter set forth, to acquire from
the
Company, in
whole or in part, after the receipt of all applicable Regulatory
Approvals, if any, up to an aggregate of the number of fully paid
and nonassessable shares of Preferred Stock set forth in Item 7 of
Schedule A hereto (the “Shares”), at a purchase
price per share of Preferred Stock equal to the Exercise
Price.
3. Exercise of
Warrant; Term . Subject to Section 2, to the extent permitted
by applicable laws and regulations, the right to purchase the
Shares represented by this Warrant is exercisable, in whole or in
part by the Warrantholder, at any time or from time to time after
the execution and delivery of this Warrant by the Company on the
date hereof, but in no event later than 5:00 p.m., New York City
time on the tenth anniversary of the Issue Date (the
“Expiration Time”), by (A) the surrender of this
Warrant and Notice of Exercise annexed hereto, duly completed and
executed on behalf of the Warrantholder, at the principal executive
office of the Company located at the address set forth in Item 8 of
Schedule A hereto (or such other office or agency of the Company in
the United States as it may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the
books of the Company), and (B) payment of the Exercise Price for
the Shares thereby purchased, by having the Company withhold, from
the shares of Preferred Stock that would otherwise be delivered to
the Warrantholder upon such exercise, shares of Preferred Stock
issuable upon exercise of the Warrant with an aggregate Liquidation
Amount equal in value to the aggregate Exercise Price as to which
this Warrant is so exercised.
If the Warrantholder does not exercise this
Warrant in its entirety, the Warrantholder will be entitled to
receive from the Company within a reasonable time, and in any event
not exceeding three business days, a new warrant in substantially
identical form for the purchase of that number of Shares equal to
the difference between the number of Shares subject to this Warrant
and the number of Shares as to which this Warrant is so exercised.
Notwithstanding anything in this Warrant to the contrary, the
Warrantholder hereby acknowledges and agrees that its exercise of
this Warrant for Shares is subject to the condition that the
Warrantholder will have first received any applicable Regulatory
Approvals.
4. Issuance of
Shares; Authorization . Certificates for Shares issued upon
exercise of this Warrant will be issued in such name or names as
the Warrantholder may designate and will be delivered to such named
Person or Persons within a reasonable time, not to exceed three
business days after the date on which this Warrant has been duly
exercised in accordance with the terms of this Warrant. The Company
hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued, fully
paid and nonassessable and free from all taxes, liens and charges
(other than liens or charges created by the Warrantholder, income
and franchise taxes incurred in connection with the exercise of the
Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as
of the close of business on the date on which this Warrant and
payment of the Exercise P
