Form POS AM

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NgAq9P4lW0ir/nDHR52jGbly2fwTYFB75RDmBk12y/OyVl+e9Gn26jmx6mqtyYCJ 2SZttYTALtJLL+xe+ebkbg== 0000922907-08-000725.txt : 20081212 0000922907-08-000725.hdr.sgml : 20081212 20081212145228 ACCESSION NUMBER: 0000922907-08-000725 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 8 REFERENCES 429: 333-154414 FILED AS OF DATE: 20081212 DATE AS OF CHANGE: 20081212 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BLUE VALLEY BAN CORP CENTRAL INDEX KEY: 0000901842 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 481070996 STATE OF INCORPORATION: KS FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: 1933 Act SEC FILE NUMBER: 333-154414 FILM NUMBER: 081246364 BUSINESS ADDRESS: STREET 1: 11935 RILEY CITY: OVERLAND PARK STATE: KS ZIP: 66225 BUSINESS PHONE: 9133381000 MAIL ADDRESS: STREET 1: 11935 RILEY CITY: OVERLAND PARK STATE: KS ZIP: 66225 POS AM 1 forms1a2_120808.htm Form POS AM


    As filed with the Securities and Exchange Commission on December 12, 2008
                                                     Registration No. 333-154414
================================================================================

                                  UNITED STATES
                       SECURITIES AND EXCHANGE COMMISSION
                             Washington, D.C. 20549

                                 POST-EFFECTIVE
                               AMENDMENT NO. 1 TO

                                    FORM S-1
                             REGISTRATION STATEMENT
                                      UNDER
                           THE SECURITIES ACT OF 1933

                              BLUE VALLEY BAN CORP.
             (Exact name of registrant as specified in its charter)


Kansas                                 6022                      48-1070996
(State or other jurisdiction of  (Primary Standard Industrial   (I.R.S. Employer
incorporation or organization)    Classification Code Number)   Identification No.)


                                   11935 Riley
                        Overland Park, Kansas 66225-6128
                                 (913) 338-1000
                                 --------------

             Agent for Service:                 Copies of Communications to:
             Robert D. Regnier                     Steven F. Carman, Esq.
   President and Chief Executive Officer        Husch Blackwell Sanders LLP
           Blue Valley Ban Corp.                4801 Main Street, Suite 1000
                11935 Riley                     Kansas City, Missouri 64112
      Overland Park, Kansas 66225-6128                 (816) 983-8000
               (913) 338-1000

                                 --------------

     Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.

     If any of the securities being registered on this Form are to be offered on
a delayed or continuous  basis  pursuant to Rule 415 under the Securities Act of
1933, check the following box. |_|

     If this Form is filed to  register  additional  securities  for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list  the  Securities  Act  registration  statement  number  of the  earlier
effective registration statement for the same offering. |_|

     If this Form is a  post-effective  amendment  filed pursuant to Rule 462(c)
under the  Securities  Act,  check the following box and list the Securities Act
registration  statement number of the earlier effective  registration  statement
for the same offering. |_|

     If this Form is a  post-effective  amendment  filed pursuant to Rule 462(d)
under the  Securities  Act,  check the following box and list the Securities Act
registration  statement number of the earlier effective  registration  statement
for the same offering. |X|


     Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated  filer, a non-accelerated  filer, or a smaller reporting company.
See the  definitions  of "large  accelerated  filer,"  "accelerated  filer"  and
"smaller reporting company" in Rule 12b2 of the Exchange Act.

Large accelerated filer    |_|               Accelerated filer         |_|

Non-accelerated filer      |_|               Smaller reporting company |X|

                         CALCULATION OF REGISTRATION FEE
=====================================================================================================================================
  Title of Each Class                           Amount to be     Proposed     Proposed Aggregate               Amount of
                                    Offering
   of Securities to                                             Price Per
     be Registered                                Registered      Share         Offering Price             Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------------
Nontransferable common                           2,470,242        --                  --                        -- (1)
stock subscription rights

Common Stock, par value $1.00 per share    334,000                  $18.00 (2)  $6,012,000 (2)                    $335.47
=====================================================================================================================================

(1)  The   nontransferable   subscription   rights  are  being  issued   without
     consideration. Pursuant to Rule 457(g) under the Securities Act of 1933, as
     amended,  no separate  registration  fee is required because the rights are
     being registered in the same registration statement as the securities to be
     offered pursuant thereto.
(2)  Estimated  solely  for the  purpose of  calculating  the  registration  fee
     pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

========================================================================================================================================




                                Explanatory Note

         This Amendment No. 2 to the Registration Statement on Form S-1 is being
filed solely for the purposes of amending Item 16 of Part II of the Registration
Statement  and to file the exhibits  indicated in such Item.  Accordingly,  this
Amendment No. 2 consists only of the facing page, this explanatory note and Part
II to the  Registration  Statement.  No changes  are being made to Part I of the
Registration Statement by this filing and therefore it has been omitted.

================================================================================

                                     PART II

                     INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13.  Other Expenses of Issuance and Distribution

     The  following  table sets forth all costs and  expenses,  payable by us in
connection with the common stock  subscription  rights offering being registered
hereunder.  All of the amounts shown are estimates except for the Securities and
Exchange Commission registration fee.

 SEC registration fee....................................   $     335.47
                                                            ------------
 Printing and mailing expenses*..........................   $      3,750
                                                            ------------
 Legal fees and expenses*................................   $     45,000
                                                            ------------
 Accounting fees and expenses*...........................   $     15,000
                                                            ------------
 Subscription Agent fees and expenses*...................   $     10,250
                                                            ------------
          Total..........................................   $  74,335.47
                                                            ============

* Estimated pursuant to instruction to Rule 511 of Regulation S-K.

Item 14.  Indemnification of Directors and Officers

     Section  17-6305 of the Kansas  General  Corporation  Code (the "KGCC") and
Article VIII of Blue Valley's  Bylaws  provide  generally and in pertinent  part
that Blue Valley may  indemnify  its  directors,  officers,  employees or agents
against expenses (including attorneys' fees), judgments,  fines and amounts paid
in settlement  actually and reasonably  incurred by them in connection  with any
action,  suit  or  proceeding,   whether  civil,  criminal,   administrative  or
investigative,  except  actions  by or in the right of the  corporation,  if, in
connection  with the matters in issue,  they acted in good faith and in a manner
they reasonably  believed to be in, or not opposed to, the best interests of the
corporation,  and in  connection  with any criminal  suit or  proceeding,  if in
connection  with the matters in issue,  they had no reasonable  cause to believe
their conduct was unlawful.  Article VIII of Blue Valley's  Bylaws provides that
Blue Valley shall not be required to indemnify or advance expenses to any person
in connection with an action, suit or proceeding initiated by such person (other
than an action, suit or proceeding initiated by such person to enforce his right
to indemnification  and advancement of expenses pursuant to Section 7 of Article
VIII of the Bylaws) unless the initiation of such action, suit or proceeding was
authorized  in advance by the Board of  Directors.  Section  17-6305 and Article
VIII of our  Bylaws  further  provide  that in  connection  with the  defense or
settlement  of any  action by or in the right of the  corporation  to  procure a
judgment  in its favor,  Blue  Valley may  indemnify  its  directors,  officers,
employees or agents against expenses actually and reasonably incurred by them in
connection with the defense or settlement of the action or suit if they acted in
good faith and in a manner they reasonably believed to be in, or not opposed to,
the  best   interests   of  the   corporation;   provided,   however,   that  no
indemnification  shall be made in any action as to which they have been adjudged
to be liable to the  corporation  unless,  and only to the extent  that, a court
deciding such action determines that,  despite the adjudication of liability but
in view of all of the  circumstances of the case, they are fairly and reasonably
entitled to indemnification for such expenses as the court deems proper.

     Section 9 of Article VIII of our Bylaws and Section  17-6305(g) of the KGCC
provides that upon resolution passed by the Board of Directors,  Blue Valley may
purchase  and  maintain  insurance  on  behalf  of  any  person  who is


or was a  director,  officer,  employee or agent of the Blue Valley or is or was
serving at the request of Blue Valley,  against any liability  asserted  against
him and incurred by him in such capacity,  or arising out of his status as such,
whether or not Blue Valley  would have the power to  indemnify  him against such
liability  under the  provisions  of the Bylaws or Section  17-6305 of the KGCC.
Blue Valley's directors and officers are insured against losses arising from any
claim against them as such for wrongful  acts or  omissions,  subject to certain
limitations.

     Article IX of Blue Valley's Amended and Restated  Articles of Incorporation
(the  "Articles")  provides  that Blue  Valley  shall  indemnify  its  officers,
directors and advisory directors to the fullest extent permitted by law. Article
X provides that Blue  Valley's  directors  and advisory  directors  shall not be
liable for monetary damages for breach of a fiduciary duty, except to the extent
such exemption  from  liability is not permitted  under the KGCC. As provided in
Section  17-6002(b)(8) of the KGCC,  Articles IX and X do not limit or eliminate
liability (i) for any breach of the director's duty of loyalty to Blue Valley or
its shareholders,  (ii) for acts or omissions not in good faith or which involve
intentional  misconduct  or a  knowing  violation  of law,  (iii)  for  paying a
dividend or  approving a stock  repurchase  in violation of the KGCC or (iv) for
any transaction from which the director derived an improper personal benefit.

     Federal  banking  law,  which is  applicable  to us as a financial  holding
company and to the Bank as an insured depository institution, limits our and the
Bank's ability to indemnify their  directors and officers.  Neither the Bank nor
we   may   make,   or   agree   to   make,   indemnification   payments   to  an
institution-affiliated  party such as an officer or director in connection  with
any  administrative or civil action instituted by a federal banking agency if as
a result of the banking  agency action the  indemnitee is assessed a civil money
penalty,  is removed from office or prohibited from participating in the conduct
of our or the Bank's affairs,  or is subject to a cease and desist order.  Prior
to the resolution of any action instituted by the applicable banking agency, the
Bank, or we, as  applicable,  may indemnify  officers and directors  only if the
respective  board of  directors,  as the case may be, (i)  determines in writing
that the indemnified  person acted in good faith and in a manner he/she believed
to  be  in  the  best  interest  of  the  institution,   (ii)  determines  after
investigation that making  indemnification  payments would not affect our safety
and soundness or the safety and soundness of the Bank, as the case may be, (iii)
if the  indemnified  party agrees in writing to reimburse us or the Bank, as the
case may be, for any indemnity payments which turn out to be impermissible,  and
(iv)  determines  that the  indemnification  payments  would  not  otherwise  be
prohibited by federal banking law.

Item 15.  Recent Sales of Unregistered Securities

Not applicable.

Item 16. Exhibits and Financial Statement Schedules

(a)      Exhibits

Exhibit No.          Description

1                    Omitted - Inapplicable.

2.1                  Agreement and Plan of Merger between Unison  Bancorp,  Inc.,  BVBC  Acquisition I, Inc. and Blue
                     Valley Ban Corp., dated as of November 2, 2006*****

2.2                  Acquisition  Agreement and Plan of Merger among  Northland  National Bank, Blue Valley Ban Corp.
                     and Western National Bank, dated as of March 2, 2007 *****

2.3                  Purchase and Assumption  Agreement among  Northland  National Bank, Bank of Blue Valley and Blue
                     Valley Ban Corp., dated as of March 2, 2007*****

3.1                  Amended and Restated Articles of Incorporation of Blue Valley Ban Corp. *

3.2                  Bylaws, as amended, of Blue Valley Ban Corp. *

                                   Part II-2

3.3 Certificate of Designations dated December 3, 2008.

4.1 1998 Equity Incentive Plan. *

4.2 1994 Stock Option Plan. *

4.3 Form of Agreement as to Expenses and Liabilities. *

4.4 Form of Indenture dated April 10, 2003, between Blue Valley Ban Corp. and Wilmington Trust
Company **

4.5 Amended and Restated Declaration of Trust dated April 10, 2003 **

4.6 Guarantee Agreement dated April 10, 2003 **

4.7 Fee Agreement dated April 10, 2003 **

4.8 Specimen of Floating Rate Junior Subordinated Debt Security **

4.9 Form of Indenture dated as of July 29, 2005 between Blue Valley Ban Corp. and Wilmington Trust
Company***

4.10 Amended and Restated Declaration of Trust dated July 29, 2005***

4.11 Guarantee Agreement dated July 29, 2005***

4.12 Warrant to Purchase Common Stock dated December 5, 2008.

5 Opinion of Husch Blackwell Sanders LLP as to legality of the common stock being registered and
sold. ###
8
Omitted - Inapplicable.
9
Omitted - Inapplicable.

10.1 Promissory Note of Blue Valley Building dated July 15, 1994. *

10.2 Mortgage, Assignment of Leases and Rents and Security Agreement between Blue Valley Building
and Businessmen's Assurance Company of America, dated July 15, 1994. *

10.3 Assignment of Leases and Rents between Blue Valley Building and Businessmen's Assurance Company
of America dated July 15, 1994. *

10.4 Line of Credit Note with JP Morgan Chase dated June 15, 2005 ****

10.5 Term Note with JP Morgan Chase dated June 15, 2005 ****

10.6 Agreement and Plan of Merger between Unison Bancorp, Inc., BVBC Acquisition I, Inc. and Blue
Valley Ban Corp., dated as of November 2, 2006 (included in Exhibit 2)*****

10.7 Acquisition Agreement and Plan of Merger among Northland National Bank, Blue Valley Ban Corp.
and Western National Bank, dated as of March 2, 2007 (included in Exhibit 2)*****

10.8 Purchase and Assumption Agreement among Northland National Bank, Bank of Blue Valley and

Part II-3

Blue Valley Ban Corp., dated as of March 2, 2007 (included in Exhibit 2)*****

10.9 Waiver Letter and Proposed Term Sheet with JP Morgan Chase dated October 15, 2008. ##

10.10 Letter Agreement dated December 5, 2008, including Securities Purchase Agreement - Standard
Terms incorporated by reference therein, between Blue Valley Ban Corp. and the United States
Department of the Treasury.

10.11 Amendment and Waiver by and among Bank of Blue Valley, Blue Valley Ban Corp. and its
Senior Executive Officers.

11 Statement regarding computation of per share earnings. +

12 Omitted - Inapplicable.

15 BKD, LLP letter regarding unaudited interim financial information. ###

16 Omitted - Inapplicable.

21 Subsidiaries of Blue Valley Ban Corp. +

23.1 Consent of BKD, LLP (included in Exhibit 15).

23.2 Consent of Husch Blackwell Sanders LLP (included in Exhibit 5).

24.1 Power of Attorney. #

25 Omitted - Inapplicable.

26 Omitted - Inapplicable.

99.1 Form of Letter of Transmittal to Stockholders. ###

99.2 Form of Letter of Transmittal to Nominees. ###

99.3 Form of Instructions as to use of Blue Valley Subscription Rights Certificates. ###

99.4 Form of Notice of Guaranteed Delivery. ###

99.5 Form of Beneficial Owner Election Form. ###

99.6 Form of Subscription Rights Certificate. ###

99.7 Form of Subscription Agent Agreement. ###

99.8 Form of Revised Subscription Rights Certificate.

99.9 Form of Revised Beneficial Owner Election Form.

- -----------------------

* Filed with the Commission on April 11, 2000 as an Exhibit to Blue Valley's
Registration Statement on Form S-1, Amendment No. 1, Fine No. 333-3428.
Exhibit incorporated herein by reference.

** Filed with the Commission on March 19, 2004 as an Exhibit to Blue Valley's
Annual Report on Form 10-K incorporated herein by reference.

*** Filed with the Commission on July 29, 2005 as an Exhibit to Blue Valley's
Current Report on From 8-K. Exhibit incorporated herein by reference.

Part II-4



**** Filed with the  Commission on March 24, 2005 as an Exhibit to Blue Valley's
     Annual Report on Form 10-K. Exhibit incorporated herein by reference.

***** Filed with the Commission on March 28, 2007 as an Exhibit to Blue Valley's
      Annual Report on Form 10-K. Exhibit incorporated herein by reference.

+    Filed with the  Commission on March 27, 2008 as an Exhibit to Blue Valley's
     Annual Report on Form 10-K. Exhibit incorporated herein by reference.

#    Set forth on the signature page to Blue Valley's Registration  Statement on
     Form S-1 filed with the Commission on October 17, 2008.

##   Filed  with the  Commission  on  October  17,  2008 as an  Exhibit  to Blue
     Valley's Registration Statement on Form S-1.

###  Filed  with the  Commission  on  November  10,  2008 as an  Exhibit to Blue
     Valley's Registration Statement on Form S-1.

(b)      Financial Statement Schedules

     All financial statement schedules have been omitted because they are either
not applicable or the required information has been included in the consolidated
financial  statements  or notes  thereto  incorporated  by  reference  into this
Prospectus.

Item 17.  Undertakings.

     The undersigned registrant hereby undertakes:

     (1) To file,  during any period in which  offers or sales are being made, a
post-effective amendment to this registration statement:

          (i) to include  any  prospectus  required  by Section  10(a)(3) of the
     Securities Act of 1933;

          (ii) to reflect in the  prospectus  any facts or events  arising after
     the  effective  date of the  registration  statement  (or the  most  recent
     post-effective amendment thereof) which,  individually or in the aggregate,
     represent  a  fundamental  change  in  the  information  set  forth  in the
     registration  statement.  Notwithstanding  the  foregoing,  any increase or
     decrease  in volume of  securities  offered (if the total  dollar  value of
     securities  offered  would not exceed  that which was  registered)  and any
     deviation from the low or high end of the estimated  maximum offering range
     may be  reflected  in the form of  prospectus  filed  with  the  Commission
     pursuant  to Rule  424(b) if, in the  aggregate,  the changes in volume and
     price represent no more than 20% change in the maximum  aggregate  offering
     price set  forth in the  "Calculation  of  Registration  Fee"  table in the
     effective registration statement;

          (iii) to include any material  information with respect to the plan of
     distribution not previously disclosed in this registration statement or any
     material change to such information in the registration statement.

     (2) That, for the purpose of determining any liability under the Securities
Act of 1933,  each  such  post-effective  amendment  shall be deemed to be a new
registration  statement  relating to the  securities  offered  therein,  and the
offering of such  securities at that time shall be deemed to be the initial bona
fide offering thereof.

     (3) To remove from registration by means of a post-effective  amendment any
of the securities being registered which remain unsold at the termination of the
offering.

     (4) That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser,  each prospectus  filed pursuant to Rule 424(b) as
part  of  the  registration  statement  relating  to  an  offering,  other  than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance  on Rule  430A,  shall  be  deemed  to be part of and  included  in the
registration  statement  as of the date it is first  used  after  effectiveness.
Provided,  however,  that no  statement  made in the  registration  statement or
prospectus  that is part of the  registration

                                   Part II-5


statement or made in a document incorporated or deemed incorporated by reference
into the  registration  statement or prospectus that is part of the registration
statement  will, as to a purchaser with a time of contract of sale prior to such
first use,  supersede or modify any statement that was made in the  registration
statement or prospectus that was part of the  registration  statement or made in
any such document immediately prior to such date of first use.

     (5) That, for the purpose of determining  liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial  distribution  of the
securities,  the undersigned registrant undertakes that in a primary offering of
securities  of  the  undersigned   registrant   pursuant  to  this  registration
statement,  regardless of the underwriting method used to sell the securities to
the purchaser,  if the securities are offered or sold to such purchaser by means
of any of the following  communications,  the  undersigned  registrant will be a
seller to the purchaser and will be considered to offer or sell such  securities
to such purchaser:

                  (i)  Any   preliminary   prospectus   or   prospectus  of  the
         undersigned  registrant  relating to the offering  required to be filed
         pursuant to Rule 424;

                  (ii) Any free  writing  prospectus  relating  to the  offering
         prepared  by or on  behalf  of the  undersigned  registrant  or used or
         referred to by the undersigned registrant;

                  (iii)  The  portion  of  any  other  free  writing  prospectus
         relating to the  offering  containing  material  information  about the
         undersigned  registrant or its  securities  provided by or on behalf of
         the undersigned registrant; and

                  (iv) Any other  communication that is an offer in the offering
         made by the undersigned registrant to the purchaser.

     The undersigned  registrant hereby undertakes to supplement the prospectus,
after the expiration of the subscription period, to set forth the results of the
subscription offer, the amount of unsubscribed securities,  and the terms of any
subsequent  reoffering  thereof.  If any public  offering is to be made on terms
differing  from  those  set  forth  on  the  cover  page  of the  prospectus,  a
post-effective amendment will be filed to set forth the terms of such offering.

     Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors,  officers and controlling  persons of the
registrant pursuant to the foregoing  provisions,  or otherwise,  the registrant
has been advised that in the opinion of the Securities  and Exchange  Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore,  unenforceable. In the event that a claim for indemnification
against such  liabilities  (other than the payment by the registrant of expenses
incurred or paid by a director,  officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director,  officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been  settled by  controlling  precedent,  submit to a court of  appropriate
jurisdiction the question whether such  indemnification  by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.


                                   Part II-6

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Overland
Park, State of Kansas, on the 8th day of December, 2008.

BLUE VALLEY BAN CORP.

By: /s/ Robert D. Regnier
-------------------------------------------------
Robert D. Regnier, President, Chief Executive
Officer and Director (Principal Executive Officer)

Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.

Signature Title Date
--------- ----- ----

/s/ Robert D. Regnier President, Chief Executive Officer and December 8, 2008
- -----------------------------------
Robert D. Regnier Director (Principal Executive Officer)

/s/ Mark A. Fortino Chief Financial Officer (Principal
- -----------------------------------
Mark A. Fortino Financial and Accounting Officer) December 8, 2008

*
- ------------------------------------
Donald H. Alexander Director

*
- ------------------------------------
Michael J. Brown Director

*
- ------------------------------------
Thomas A. McDonnell Director

*
- ------------------------------------
Anne D. St. Peter Director

*
- ------------------------------------
Robert D. Taylor Director

*By: /s/ Robert D. Regnier
-----------------------------------
Robert D. Regnier, Attorney in Fact

EXHIBIT INDEX

Exhibit No. Description
- ----------- -----------

1 Omitted - Inapplicable.

2.1 Agreement and Plan of Merger between Unison Bancorp, Inc., BVBC Acquisition I, Inc.
and Blue Valley Ban Corp., dated as of November 2, 2006*****

2.2 Acquisition Agreement and Plan of Merger among Northland National Bank, Blue Valley
Ban Corp. and Western National Bank, dated as of March 2, 2007 *****

2.3 Purchase and Assumption Agreement among Northland National Bank, Bank of Blue Valley
and Blue Valley Ban Corp., dated as of March 2, 2007*****

3.1 Amended and Restated Articles of Incorporation of Blue Valley Ban Corp. *

3.2 Bylaws, as amended, of Blue Valley Ban Corp. *

3.3 Certificate of Designations dated December 3, 2008.

4.1 1998 Equity Incentive Plan. *

4.2 1994 Stock Option Plan. *

4.3 Form of Agreement as to Expenses and Liabilities. *

4.4 Form of Indenture dated April 10, 2003, between Blue Valley Ban Corp. and Wilmington
Trust Company **

4.5 Amended and Restated Declaration of Trust dated April 10, 2003 **

4.6 Guarantee Agreement dated April 10, 2003 **

4.7 Fee Agreement dated April 10, 2003 **

4.8 Specimen of Floating Rate Junior Subordinated Debt Security **

4.9 Form of Indenture dated as of July 29, 2005 between Blue Valley Ban Corp. and
Wilmington Trust Company***

4.10 Amended and Restated Declaration of Trust dated July 29, 2005***

4.11 Guarantee Agreement dated July 29, 2005***

4.12 Warrant to Purchase Common Stock dated December 5, 2008

5 Opinion of Husch Blackwell Sanders LLP as to legality of the common stock being
registered and sold. ###
8
Omitted - Inapplicable.
9
Omitted - Inapplicable.

10.1 Promissory Note of Blue Valley Building dated July 15, 1994. *

10.2 Mortgage, Assignment of Leases and Rents and Security Agreement between Blue Valley
Building and Businessmen's Assurance Company of America, dated July 15, 1994. *

10.3 Assignment of Leases and Rents between Blue Valley Building and Businessmen's
Assurance Company of America dated July 15, 1994. *

10.4 Line of Credit Note with JP Morgan Chase dated June 15, 2005 ****

10.5 Term Note with JP Morgan Chase dated June 15, 2005 ****

10.6 Agreement and Plan of Merger between Unison Bancorp, Inc., BVBC Acquisition I, Inc.
and Blue Valley Ban Corp., dated as of November 2, 2006 (included in Exhibit 2)*****

10.7 Acquisition Agreement and Plan of Merger among Northland National Bank, Blue Valley
Ban Corp. and Western National Bank, dated as of March 2, 2007 (included in Exhibit
2)*****

10.8 Purchase and Assumption Agreement among Northland National Bank, Bank of Blue Valley
and Blue Valley Ban Corp., dated as of March 2, 2007 (included in Exhibit 2)*****

10.9 Waiver Letter and Proposed Term Sheet with JP Morgan Chase dated October 15, 2008. ##

10.10 Letter Agreement dated December 5, 2008, including Securities Purchase Agreement -
Standard Terms incorporated by reference therein, between Blue Valley Ban Corp. and
the United States Department of the Treasury.

10.11 Amendment and Waiver by and among Bank of Blue Valley, Blue Valley Ban Corp.
and its Senior Executive Officers.

11 Statement regarding computation of per share earnings. +

12 Omitted - Inapplicable.

15 BKD, LLP letter regarding unaudited interim financial
information. ###
16 Omitted - Inapplicable.

21 Subsidiaries of Blue Valley Ban Corp. +

23.1 Consent of BKD, LLP (included in Exhibit 15).

23.2 Consent of Husch Blackwell Sanders LLP (included in Exhibit 5).

24.1 Power of Attorney. #

25 Omitted - Inapplicable.

26 Omitted - Inapplicable.


99.1                 Form of Letter of Transmittal to Stockholders. ###

99.2                 Form of Letter of Transmittal to Nominees. ###

99.3                 Form of Instructions as to use of Blue Valley Subscription Rights Certificates.  ###

99.4                 Form of Notice of Guaranteed Delivery. ###

99.5                 Form of Beneficial Owner Election Form. ###

99.6                 Form of Subscription Rights Certificate. ###

99.7                 Form of Subscription Agent Agreement. ###

99.8                 Form of Revised Subscription Rights Certificate.

99.9                 Form of Revised Beneficial Owner Election Form.

- -----------------------

*    Filed with the  Commission on April 11, 2000 as an Exhibit to Blue Valley's
     Registration  Statement on Form S-1,  Amendment  No. 1, Fine No.  333-3428.
     Exhibit incorporated herein by reference.

**   Filed with the  Commission on March 19, 2004 as an Exhibit to Blue Valley's
     Annual Report on Form 10-K incorporated herein by reference.

***  Filed with the  Commission  on July 29, 2005 as an Exhibit to Blue Valley's
     Current Report on From 8-K. Exhibit incorporated herein by reference.

**** Filed with the  Commission on March 24, 2005 as an Exhibit to Blue Valley's
     Annual Report on Form 10-K. Exhibit incorporated herein by reference.

***** Filed with the Commission on March 28, 2007 as an Exhibit to Blue Valley's
      Annual Report on Form 10-K. Exhibit incorporated herein by reference.

+    Filed with the  Commission on March 27, 2008 as an Exhibit to Blue Valley's
     Annual Report on Form 10-K. Exhibit incorporated herein by reference.

#    Set forth on the signature page to Blue Valley's Registration  Statement on
     Form S-1 filed with the Commission on October 17, 2008.

##   Filed  with the  Commission  on  October  17,  2008 as an  Exhibit  to Blue
     Valley's Registration Statement on Form S-1.

###  Filed  with the  Commission  on  November  10,  2008 as an  Exhibit to Blue
     Valley's Registration Statement on Form S-1.

EX-3 2 forms1a2_120808exh33.htm EXH 3.3 Exhibit 3.3

                                                                     Exhibit 3.3

                                                            UST Sequence No. 118

                           CERTIFICATE OF DESIGNATIONS

                                       OF

            FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A

                                       OF

                              BLUE VALLEY BAN CORP.

     Blue Valley Ban Corp., a corporation organized and existing under the laws
of the State of Kansas (the "Corporation"), in accordance with the provisions of
Section 17-6401 of the Kansas Statutes Annotated thereof, does hereby certify:

     The board of directors of the Corporation (the "Board of Directors") or an
applicable committee of the Board of Directors, in accordance with the amended
and restated articles of incorporation and the bylaws of the Corporation and
applicable law, adopted the following resolution on December 2, 2008 creating a
series of A shares of Preferred Stock of the Corporation designated as "Fixed
Rate Cumulative Perpetual Preferred Stock, Series A".

     RESOLVED, that pursuant to the provisions of the amended and restated
articles of incorporation and the bylaws of the Corporation and applicable law,
a series of Preferred Stock, par value $1.00 per share, of the Corporation be
and hereby is created, and that the designation and number of shares of such
series, and the voting and other powers, preferences and relative,
participating, optional or other rights, and the qualifications, limitations and
restrictions thereof, of the shares of such series, are as follows:

     Part 1. Designation and Number of Shares. There is hereby created out of
the authorized and unissued shares of preferred stock of the Corporation a
series of preferred stock designated as the "Fixed Rate Cumulative Perpetual
Preferred Stock, Series A" (the "Designated Preferred Stock"). The authorized
number of shares of Designated Preferred Stock shall be 21,750.

     Part 2. Standard Provisions. The Standard Provisions contained in Annex A
attached hereto are incorporated herein by reference in their entirety and shall
be deemed to be a part of this Certificate of Designations to the same extent as
if such provisions had been set forth in full herein.

     Part 3. Definitions. The following terms are used in this Certificate of
Designations (including the Standard Provisions in Annex A hereto) as defined
below:

     (a) "Common Stock" means the common stock, par value $1.00 per share, of
the Corporation.

     (b) "Dividend Payment Date" means February 15, May 15, August 15 and
November 15 of each year.


                                       1



     (c) "Junior Stock" means the Common Stock and any other class or series of
stock of the Corporation the terms of which expressly provide that it ranks
junior to Designated Preferred Stock as to dividend rights and/or as to rights
on liquidation, dissolution or winding up of the Corporation.

     (d) "Liquidation Amount" means $1,000 per share of Designated Preferred
Stock.

     (e) "Minimum Amount" means $5,437,500.

     (f) "Parity Stock" means any class or series of stock of the Corporation
(other than Designated Preferred Stock) the terms of which do not expressly
provide that such class or series will rank senior or junior to Designated
Preferred Stock as to dividend rights and/or as to rights on liquidation,
dissolution or winding up of the Corporation (in each case without regard to
whether dividends accrue cumulatively or non-cumulatively).

     (g) "Signing Date" means December 5, 2008.

     Part 4. Certain Voting Matters. Holders of shares of Designated Preferred
Stock will be entitled to one vote for each such share on any matter on which
holders of Designated Preferred Stock are entitled to vote, including any action
by written consent.



                  [Remainder of Page Intentionally Left Blank]


                                       2



     IN WITNESS WHEREOF, Blue Valley Ban Corp. has caused this Certificate of
Designations to be signed by Robert D. Regnier, its President, Chief Executive
Officer and Chairman of the Board of Directors, this 3 day of December, 2008.

                              Blue Valley Ban Corp.


                              By:  /s/ Robert D. Regnier
                                 -----------------------------------------------
                              Name: Robert D. Regnier
                              Title:  President, Chief Executive Officer and
                                      Chairman of the Board of Directors


                                       3


                                                               ANNEX A

                               STANDARD PROVISIONS

     Section 1. General Matters. Each share of Designated Preferred Stock shall
be identical in all respects to every other share of Designated Preferred Stock.
The Designated Preferred Stock shall be perpetual, subject to the provisions of
Section 5 of these Standard Provisions that form a part of the Certificate of
Designations. The Designated Preferred Stock shall rank equally with Parity
Stock and shall rank senior to Junior Stock with respect to the payment of
dividends and the distribution of assets in the event of any dissolution,
liquidation or winding up of the Corporation.

     Section 2. Standard Definitions. As used herein with respect to Designated
Preferred Stock:

     (a) "Applicable Dividend Rate" means (i) during the period from the
Original Issue Date to, but excluding, the first day of the first Dividend
Period commencing on or after the fifth anniversary of the Original Issue Date,
5% per annum and (ii) from and after the first day of the first Dividend Period
commencing on or after the fifth anniversary of the Original Issue Date, 9% per
annum.

     (b) "Appropriate Federal Banking Agency" means the "appropriate Federal
banking agency" with respect to the Corporation as defined in Section 3(q) of
the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)), or any successor
provision.

     (c) "Business Combination" means a merger, consolidation, statutory share
exchange or similar transaction that requires the approval of the Corporation's
stockholders.

     (d) "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.

     (e) "Bylaws" means the bylaws of the Corporation, as they may be amended
from time to time.

     (f) "Certificate of Designations" means the Certificate of Designations or
comparable instrument relating to the Designated Preferred Stock, of which these
Standard Provisions form a part, as it may be amended from time to time.

     (g) "Charter" means the Corporation's certificate or articles of
incorporation, articles of association, or similar organizational document.

     (h) "Dividend Period" has the meaning set forth in Section 3(a).

     (i) "Dividend Record Date" has the meaning set forth in Section 3(a).

     (j) "Liquidation Preference" has the meaning set forth in Section 4(a).


                                      A-1


     (k) "Original Issue Date" means the date on which shares of Designated
Preferred Stock are first issued.

     (l) "Preferred Director" has the meaning set forth in Section 7(b).

     (m) "Preferred Stock" means any and all series of preferred stock of the
Corporation, including the Designated Preferred Stock.

     (n) "Qualified Equity Offering" means the sale and issuance for cash by the
Corporation to persons other than the Corporation or any of its subsidiaries
after the Original Issue Date of shares of perpetual Preferred Stock, Common
Stock or any combination of such stock, that, in each case, qualify as and may
be included in Tier 1 capital of the Corporation at the time of issuance under
the applicable risk-based capital guidelines of the Corporation's Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant to
agreements or arrangements entered into, or pursuant to financing plans which
were publicly announced, on or prior to October 13, 2008).

     (o) "Share Dilution Amount" has the meaning set forth in Section 3(b).

     (p) "Standard Provisions" mean these Standard Provisions that form a part
of the Certificate of Designations relating to the Designated Preferred Stock.

     (q) "Successor Preferred Stock" has the meaning set forth in Section 5(a).

     (r) "Voting Parity Stock" means, with regard to any matter as to which the
holders of Designated Preferred Stock are entitled to vote as specified in
Sections 7(a) and 7(b) of these Standard Provisions that form a part of the
Certificate of Designations, any and all series of Parity Stock upon which like
voting rights have been conferred and are exercisable with respect to such
matter.

     Section 3. Dividends.

     (a) Rate. Holders of Designated Preferred Stock shall be entitled to
receive, on each share of Designated Preferred Stock if, as and when declared by
the Board of Directors or any duly authorized committee of the Board of
Directors, but only out of assets legally available therefor, cumulative cash
dividends with respect to each Dividend Period (as defined below) at a rate per
annum equal to the Applicable Dividend Rate on (i) the Liquidation Amount per
share of Designated Preferred Stock and (ii) the amount of accrued and unpaid
dividends for any prior Dividend Period on such share of Designated Preferred
Stock, if any. Such dividends shall begin to accrue and be cumulative from the
Original Issue Date, shall compound on each subsequent Dividend Payment Date
(i.e., no dividends shall accrue on other dividends unless and until the first
Dividend Payment Date for such other dividends has passed without such other
dividends having been paid on such date) and shall be payable quarterly in
arrears on each Dividend Payment Date, commencing with the first such Dividend
Payment Date to occur at least 20 calendar days after the Original Issue Date.
In the event that any Dividend Payment Date would otherwise fall on a day that
is not a Business Day, the dividend payment due on that date will be postponed
to the next day that is a Business Day and no additional dividends will accrue
as a result of that postponement. The period from and including any Dividend
Payment Date to, but


                                      A-2



excluding, the next Dividend Payment Date is a "Dividend Period", provided that
the initial Dividend Period shall be the period from and including the Original
Issue Date to, but excluding, the next Dividend Payment Date.

     Dividends that are payable on Designated Preferred Stock in respect of any
Dividend Period shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The amount of dividends payable on Designated Preferred
Stock on any date prior to the end of a Dividend Period, and for the initial
Dividend Period, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months, and actual days elapsed over a 30-day month.

     Dividends that are payable on Designated Preferred Stock on any Dividend
Payment Date will be payable to holders of record of Designated Preferred Stock
as they appear on the stock register of the Corporation on the applicable record
date, which shall be the 15th calendar day immediately preceding such Dividend
Payment Date or such other record date fixed by the Board of Directors or any
duly authorized committee of the Board of Directors that is not more than 60 nor
less than 10 days prior to such Dividend Payment Date (each, a "Dividend Record
Date"). Any such day that is a Dividend Record Date shall be a Dividend Record
Date whether or not such day is a Business Day.

     Holders of Designated Preferred Stock shall not be entitled to any
dividends, whether payable in cash, securities or other property, other than
dividends (if any) declared and payable on Designated Preferred Stock as
specified in this Section 3 (subject to the other provisions of the Certificate
of Designations).

     (b) Priority of Dividends. So long as any share of Designated Preferred
Stock remains outstanding, no dividend or distribution shall be declared or paid
on the Common Stock or any other shares of Junior Stock (other than dividends
payable solely in shares of Common Stock) or Parity Stock, subject to the
immediately following paragraph in the case of Parity Stock, and no Common
Stock, Junior Stock or Parity Stock shall be, directly or indirectly, purchased,
redeemed or otherwise acquired for consideration by the Corporation or any of
its subsidiaries in either case, all accrued and unpaid dividends for all past
Dividend Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such amount), on all
outstanding shares of Designated Preferred Stock have been or are
contemporaneously declared and paid in full (or have been declared and a sum
sufficient for the payment thereof has been set aside for the benefit of the
holders of shares of Designated Preferred Stock on the applicable record date).
The foregoing limitation shall not apply to (i) redemptions, purchases or other
acquisitions of shares of Common Stock or other Junior Stock in connection with
the administration of any employee benefit plan in the ordinary course of
business (including purchases to offset the Share Dilution Amount (as defined
below) pursuant to a publicly announced repurchase plan) and consistent with
past practice, provided that any purchases to offset the Share Dilution Amount
shall in no event exceed the Share Dilution Amount; (ii) purchases or other
acquisitions by a broker-dealer subsidiary of the Corporation solely for the
purpose of market-making, stabilization or customer facilitation transactions in
Junior Stock or Parity Stock in the ordinary course of its business; (iii)
purchases by a broker-dealer subsidiary of the Corporation of capital stock of
the Corporation for resale pursuant to an offering by the Corporation of such
capital stock underwritten by such broker-dealer subsidiary; (iv) any dividends
or distributions of rights or Junior Stock in connection with


                                      A-3



a stockholders' rights plan or any redemption or repurchase of rights pursuant
to any stockholders' rights plan; (v) the acquisition by the Corporation or any
of its subsidiaries of record ownership in Junior Stock or Parity Stock for the
beneficial ownership of any other persons (other than the Corporation or any of
its subsidiaries), including as trustees or custodians; and (vi) the exchange or
conversion of Junior Stock for or into other Junior Stock or of Parity Stock for
or into other Parity Stock (with the same or lesser aggregate liquidation
amount) or Junior Stock, in each case, solely to the extent required pursuant to
binding contractual agreements entered into prior to the Signing Date or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for Common Stock. "Share Dilution Amount" means the increase in the
number of diluted shares outstanding (determined in accordance with generally
accepted accounting principles in the United States, and as measured from the
date of the Corporation's consolidated financial statements most recently filed
with the Securities and Exchange Commission prior to the Original Issue Date)
resulting from the grant, vesting or exercise of equity-based compensation to
employees and equitably adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.

     When dividends are not paid (or declared and a sum sufficient for payment
thereof set aside for the benefit of the holders thereof on the applicable
record date) on any Dividend Payment Date (or, in the case of Parity Stock
having dividend payment dates different from the Dividend Payment Dates, on a
dividend payment date falling within a Dividend Period related to such Dividend
Payment Date) in full upon Designated Preferred Stock and any shares of Parity
Stock, all dividends declared on Designated Preferred Stock and all such Parity
Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock
having dividend payment dates different from the Dividend Payment Dates, on a
dividend payment date falling within the Dividend Period related to such
Dividend Payment Date) shall be declared pro rata so that the respective amounts
of such dividends declared shall bear the same ratio to each other as all
accrued and unpaid dividends per share on the shares of Designated Preferred
Stock (including, if applicable as provided in Section 3(a) above, dividends on
such amount) and all Parity Stock payable on such Dividend Payment Date (or, in
the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within the Dividend
Period related to such Dividend Payment Date) (subject to their having been
declared by the Board of Directors or a duly authorized committee of the Board
of Directors out of legally available funds and including, in the case of Parity
Stock that bears cumulative dividends, all accrued but unpaid dividends) bear to
each other. If the Board of Directors or a duly authorized committee of the
Board of Directors determines not to pay any dividend or a full dividend on a
Dividend Payment Date, the Corporation will provide written notice to the
holders of Designated Preferred Stock prior to such Dividend Payment Date.

     Subject to the foregoing, and not otherwise, such dividends (payable in
cash, securities or other property) as may be determined by the Board of
Directors or any duly authorized committee of the Board of Directors may be
declared and paid on any securities, including Common Stock and other Junior
Stock, from time to time out of any funds legally available for such payment,
and holders of Designated Preferred Stock shall not be entitled to participate
in any such dividends.


                                      A-4


     Section 4. Liquidation Rights.

     (a) Voluntary or Involuntary Liquidation. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, holders of Designated Preferred Stock shall be entitled to
receive for each share of Designated Preferred Stock, out of the assets of the
Corporation or proceeds thereof (whether capital or surplus) available for
distribution to stockholders of the Corporation, subject to the rights of any
creditors of the Corporation, before any distribution of such assets or proceeds
is made to or set aside for the holders of Common Stock and any other stock of
the Corporation ranking junior to Designated Preferred Stock as to such
distribution, payment in full in an amount equal to the sum of (i) the
Liquidation Amount per share and (ii) the amount of any accrued and unpaid
dividends (including, if applicable as provided in Section 3(a) above, dividends
on such amount), whether or not declared, to the date of payment (such amounts
collectively, the "Liquidation Preference").

     (b) Partial Payment. If in any distribution described in Section 4(a) above
the assets of the Corporation or proceeds thereof are not sufficient to pay in
full the amounts payable with respect to all outstanding shares of Designated
Preferred Stock and the corresponding amounts payable with respect of any other
stock of the Corporation ranking equally with Designated Preferred Stock as to
such distribution, holders of Designated Preferred Stock and the holders of such
other stock shall share ratably in any such distribution in proportion to the
full respective distributions to which they are entitled.

     (c) Residual Distributions. If the Liquidation Preference has been paid in
full to all holders of Designated Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally with
Designated Preferred Stock as to such distribution has been paid in full, the
holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their
respective rights and preferences.

     (d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes
of this Section 4, the merger or consolidation of the Corporation with any other
corporation or other entity, including a merger or consolidation in which the
holders of Designated Preferred Stock receive cash, securities or other property
for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall
not constitute a liquidation, dissolution or winding up of the Corporation.

     Section 5. Redemption.

     (a) Optional Redemption. Except as provided below, the Designated Preferred
Stock may not be redeemed prior to the first Dividend Payment Date falling on or
after the third anniversary of the Original Issue Date. On or after the first
Dividend Payment Date falling on or after the third anniversary of the Original
Issue Date, the Corporation, at its option, subject to the approval of the
Appropriate Federal Banking Agency, may redeem, in whole or in part, at any time
and from time to time, out of funds legally available therefor, the shares of
Designated Preferred Stock at the time outstanding, upon notice given as
provided in Section 5(c) below, at a redemption price equal to the sum of (i)
the Liquidation Amount per share and (ii) except as


                                      A-5



otherwise provided below, any accrued and unpaid dividends (including, if
applicable as provided in Section 3(a) above, dividends on such amount)
(regardless of whether any dividends are actually declared) to, but excluding,
the date fixed for redemption.

     Notwithstanding the foregoing, prior to the first Dividend Payment Date
falling on or after the third anniversary of the Original Issue Date, the
Corporation, at its option, subject to the approval of the Appropriate Federal
Banking Agency, may redeem, in whole or in part, at any time and from time to
time, the shares of Designated Preferred Stock at the time outstanding, upon
notice given as provided in Section 5(c) below, at a redemption price equal to
the sum of (i) the Liquidation Amount per share and (ii) except as otherwise
provided below, any accrued and unpaid dividends (including, if applicable as
provided in Section 3(a) above, dividends on such amount) (regardless of whether
any dividends are actually declared) to, but excluding, the date fixed for
redemption; provided that (x) the Corporation (or any successor by Business
Combination) has received aggregate gross proceeds of not less than the Minimum
Amount (plus the "Minimum Amount" as defined in the relevant certificate of
designations for each other outstanding series of preferred stock of such
successor that was originally issued to the United States Department of the
Treasury (the "Successor Preferred Stock") in connection with the Troubled Asset
Relief Program Capital Purchase Program) from one or more Qualified Equity
Offerings (including Qualified Equity Offerings of such successor), and (y) the
aggregate redemption price of the Designated Preferred Stock (and any Successor
Preferred Stock) redeemed pursuant to this paragraph may not exceed the
aggregate net cash proceeds received by the Corporation (or any successor by
Business Combination) from such Qualified Equity Offerings (including Qualified
Equity Offerings of such successor).

     The redemption price for any shares of Designated Preferred Stock shall be
payable on the redemption date to the holder of such shares against surrender of
the certificate(s) evidencing such shares to the Corporation or its agent. Any
declared but unpaid dividends payable on a redemption date that occurs
subsequent to the Dividend Record Date for a Dividend Period shall not be paid
to the holder entitled to receive the redemption price on the redemption date,
but rather shall be paid to the holder of record of the redeemed shares on such
Dividend Record Date relating to the Dividend Payment Date as provided in
Section 3 above.

     (b) No Sinking Fund. The Designated Preferred Stock will not be subject to
any mandatory redemption, sinking fund or other similar provisions. Holders of
Designated Preferred Stock will have no right to require redemption or
repurchase of any shares of Designated Preferred Stock.

     (c) Notice of Redemption. Notice of every redemption of shares of
Designated Preferred Stock shall be given by first class mail, postage prepaid,
addressed to the holders of record of the shares to be redeemed at their
respective last addresses appearing on the books of the Corporation. Such
mailing shall be at least 30 days and not more than 60 days before the date
fixed for redemption. Any notice mailed as provided in this Subsection shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice, but failure duly to give such notice by mail, or any
defect in such notice or in the mailing thereof, to any holder of shares of
Designated Preferred Stock designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of Designated
Preferred Stock. Notwithstanding the foregoing, if shares of Designated
Preferred Stock are issued in


                                      A-6



book-entry form through The Depository Trust Corporation or any other similar
facility, notice of redemption may be given to the holders of Designated
Preferred Stock at such time and in any manner permitted by such facility. Each
notice of redemption given to a holder shall state: (1) the redemption date; (2)
the number of shares of Designated Preferred Stock to be redeemed and, if less
than all the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (3) the redemption price; and (4) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price.

     (d) Partial Redemption. In case of any redemption of part of the shares of
Designated Preferred Stock at the time outstanding, the shares to be redeemed
shall be selected either pro rata or in such other manner as the Board of
Directors or a duly authorized committee thereof may determine to be fair and
equitable. Subject to the provisions hereof, the Board of Directors or a duly
authorized committee thereof shall have full power and authority to prescribe
the terms and conditions upon which shares of Designated Preferred Stock shall
be redeemed from time to time. If fewer than all the shares represented by any
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.

     (e) Effectiveness of Redemption. If notice of redemption has been duly
given and if on or before the redemption date specified in the notice all funds
necessary for the redemption have been deposited by the Corporation, in trust
for the pro rata benefit of the holders of the shares called for redemption,
with a bank or trust company doing business in the Borough of Manhattan, The
City of New York, and having a capital and surplus of at least $500 million and
selected by the Board of Directors, so as to be and continue to be available
solely therefor, then, notwithstanding that any certificate for any share so
called for redemption has not been surrendered for cancellation, on and after
the redemption date dividends shall cease to accrue on all shares so called for
redemption, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable on such redemption from such bank or trust
company, without interest. Any funds unclaimed at the end of three years from
the redemption date shall, to the extent permitted by law, be released to the
Corporation, after which time the holders of the shares so called for redemption
shall look only to the Corporation for payment of the redemption price of such
shares.

     (f) Status of Redeemed Shares. Shares of Designated Preferred Stock that
are redeemed, repurchased or otherwise acquired by the Corporation shall revert
to authorized but unissued shares of Preferred Stock (provided that any such
cancelled shares of Designated Preferred Stock may be reissued only as shares of
any series of Preferred Stock other than Designated Preferred Stock).

     Section 6. Conversion. Holders of Designated Preferred Stock shares shall
have no right to exchange or convert such shares into any other securities.

     Section 7. Voting Rights.

     (a) General. The holders of Designated Preferred Stock shall not have any
voting rights except as set forth below or as otherwise from time to time
required by law.


                                      A-7


     (b) Preferred Stock Directors. Whenever, at any time or times, dividends
payable on the shares of Designated Preferred Stock have not been paid for an
aggregate of six quarterly Dividend Periods or more, whether or not consecutive,
the authorized number of directors of the Corporation shall automatically be
increased by two and the holders of the Designated Preferred Stock shall have
the right, with holders of shares of any one or more other classes or series of
Voting Parity Stock outstanding at the time, voting together as a class, to
elect two directors (hereinafter the "Preferred Directors" and each a "Preferred
Director") to fill such newly created directorships at the Corporation's next
annual meeting of stockholders (or at a special meeting called for that purpose
prior to such next annual meeting) and at each subsequent annual meeting of
stockholders until all accrued and unpaid dividends for all past Dividend
Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such amount), on all
outstanding shares of Designated Preferred Stock have been declared and paid in
full at which time such right shall terminate with respect to the Designated
Preferred Stock, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character
above mentioned; provided that it shall be a qualification for election for any
Preferred Director that the election of such Preferred Director shall not cause
the Corporation to violate any corporate governance requirements of any
securities exchange or other trading facility on which securities of the
Corporation may then be listed or traded that listed or traded companies must
have a majority of independent directors. Upon any termination of the right of
the holders of shares of Designated Preferred Stock and Voting Parity Stock as a
class to vote for directors as provided above, the Preferred Directors shall
cease to be qualified as directors, the term of office of all Preferred
Directors then in office shall terminate immediately and the authorized number
of directors shall be reduced by the number of Preferred Directors elected
pursuant hereto. Any Preferred Director may be removed at any time, with or
without cause, and any vacancy created thereby may be filled, only by the
affirmative vote of the holders a majority of the shares of Designated Preferred
Stock at the time outstanding voting separately as a class together with the
holders of shares of Voting Parity Stock, to the extent the voting rights of
such holders described above are then exercisable. If the office of any
Preferred Director becomes vacant for any reason other than removal from office
as aforesaid, the remaining Preferred Director may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy occurred.

     (c) Class Voting Rights as to Particular Matters. So long as any shares of
Designated Preferred Stock are outstanding, in addition to any other vote or
consent of stockholders required by law or by the Charter, the vote or consent
of the holders of at least 66 2/3% of the shares of Designated Preferred Stock
at the time outstanding, voting as a separate class, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
the purpose, shall be necessary for effecting or validating:

          (i) Authorization of Senior Stock. Any amendment or alteration of the
     Certificate of Designations for the Designated Preferred Stock or the
     Charter to authorize or create or increase the authorized amount of, or any
     issuance of, any shares of, or any securities convertible into or
     exchangeable or exercisable for shares of, any class or series of capital
     stock of the Corporation ranking senior to Designated Preferred Stock with
     respect to either or both the payment of dividends and/or the distribution
     of assets on any liquidation, dissolution or winding up of the Corporation;


                                      A-8



          (ii) Amendment of Designated Preferred Stock. Any amendment,
     alteration or repeal of any provision of the Certificate of Designations
     for the Designated Preferred Stock or the Charter (including, unless no
     vote on such merger or consolidation is required by Section 7(c)(iii)
     below, any amendment, alteration or repeal by means of a merger,
     consolidation or otherwise) so as to adversely affect the rights,
     preferences, privileges or voting powers of the Designated Preferred Stock;
     or

          (iii) Share Exchanges, Reclassifications, Mergers and Consolidations.
     Any consummation of a binding share exchange or reclassification involving
     the Designated Preferred Stock, or of a merger or consolidation of the
     Corporation with another corporation or other entity, unless in each case
     (x) the shares of Designated Preferred Stock remain outstanding or, in the
     case of any such merger or consolidation with respect to which the
     Corporation is not the surviving or resulting entity, are converted into or
     exchanged for preference securities of the surviving or resulting entity or
     its ultimate parent, and (y) such shares remaining outstanding or such
     preference securities, as the case may be, have such rights, preferences,
     privileges and voting powers, and limitations and restrictions thereof,
     taken as a whole, as are not materially less favorable to the holders
     thereof than the rights, preferences, privileges and voting powers, and
     limitations and restrictions thereof, of Designated Preferred Stock
     immediately prior to such consummation, taken as a whole;

provided, however, that for all purposes of this Section 7(c), any increase in
the amount of the authorized Preferred Stock, including any increase in the
authorized amount of Designated Preferred Stock necessary to satisfy preemptive
or similar rights granted by the Corporation to other persons prior to the
Signing Date, or the creation and issuance, or an increase in the authorized or
issued amount, whether pursuant to preemptive or similar rights or otherwise, of
any other series of Preferred Stock, or any securities convertible into or
exchangeable or exercisable for any other series of Preferred Stock, ranking
equally with and/or junior to Designated Preferred Stock with respect to the
payment of dividends (whether such dividends are cumulative or non-cumulative)
and the distribution of assets upon liquidation, dissolution or winding up of
the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and shall not require the affirmative vote or
consent of, the holders of outstanding shares of the Designated Preferred Stock.

     (d) Changes after Provision for Redemption. No vote or consent of the
holders of Designated Preferred Stock shall be required pursuant to Section 7(c)
above if, at or prior to the time when any such vote or consent would otherwise
be required pursuant to such Section, all outstanding shares of the Designated
Preferred Stock shall have been redeemed, or shall have been called for
redemption upon proper notice and sufficient funds shall have been deposited in
trust for such redemption, in each case pursuant to Section 5 above.

     (e) Procedures for Voting and Consents. The rules and procedures for
calling and conducting any meeting of the holders of Designated Preferred Stock
(including, without limitation, the fixing of a record date in connection
therewith), the solicitation and use of proxies at such a meeting, the obtaining
of written consents and any other aspect or matter with regard to such a meeting
or such consents shall be governed by any rules of the Board of Directors or any
duly authorized committee of the Board of Directors, in its discretion, may
adopt from time to


                                      A-9



time, which rules and procedures shall conform to the requirements of the
Charter, the Bylaws, and applicable law and the rules of any national securities
exchange or other trading facility on which Designated Preferred Stock is listed
or traded at the time.

     Section 8. Record Holders. To the fullest extent permitted by applicable
law, the Corporation and the transfer agent for Designated Preferred Stock may
deem and treat the record holder of any share of Designated Preferred Stock as
the true and lawful owner thereof for all purposes, and neither the Corporation
nor such transfer agent shall be affected by any notice to the contrary.

     Section 9. Notices. All notices or communications in respect of Designated
Preferred Stock shall be sufficiently given if given in writing and delivered in
person or by first class mail, postage prepaid, or if given in such other manner
as may be permitted in this Certificate of Designations, in the Charter or
Bylaws or by applicable law. Notwithstanding the foregoing, if shares of
Designated Preferred Stock are issued in book-entry form through The Depository
Trust Corporation or any similar facility, such notices may be given to the
holders of Designated Preferred Stock in any manner permitted by such facility.

     Section 10. No Preemptive Rights. No share of Designated Preferred Stock
shall have any rights of preemption whatsoever as to any securities of the
Corporation, or any warrants, rights or options issued or granted with respect
thereto, regardless of how such securities, or such warrants, rights or options,
may be designated, issued or granted.

     Section 11. Replacement Certificates. The Corporation shall replace any
mutilated certificate at the holder's expense upon surrender of that certificate
to the Corporation. The Corporation shall replace certificates that become
destroyed, stolen or lost at the holder's expense upon delivery to the
Corporation of reasonably satisfactory evidence that the certificate has been
destroyed, stolen or lost, together with any indemnity that may be reasonably
required by the Corporation.

     Section 12. Other Rights. The shares of Designated Preferred Stock shall
not have any rights, preferences, privileges or voting powers or relative,
participating, optional or other special rights, or qualifications, limitations
or restrictions thereof, other than as set forth herein or in the Charter or as
provided by applicable law.

EX-4 3 forms1aexh412_120808.htm EXH 4.12 Exhibit 4.12


                                                                    Exhibit 4.12

                                                            UST Sequence No. 118

                    FORM OF WARRANT TO PURCHASE COMMON 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.

                                     WARRANT
                                   to purchase
                                     111,083
                             Shares of Common Stock
                            of Blue Valley Ban Corp.



                          Issue Date: December 5, 2008

     1. Definitions. Unless the context otherwise requires, when used herein the
following terms shall have the meanings indicated.

     "Affiliate" has the meaning ascribed to it in the Purchase Agreement.

     "Appraisal Procedure" means a procedure whereby two independent appraisers,
one chosen by the Company and one by the Original Warrantholder, shall mutually
agree upon the determinations then the subject of appraisal. Each party shall
deliver a notice to the other appointing its appraiser within 15 days after the
Appraisal Procedure is invoked. If within 30 days after appointment of the two
appraisers they are unable to agree upon the amount in question, a third
independent appraiser shall be chosen within 10 days thereafter by the mutual
consent of such first two appraisers. The decision of the third appraiser so
appointed and chosen shall be given within 30 days after the selection of such
third appraiser. If three appraisers shall be appointed and the determination of
one appraiser is disparate from the middle determination by more than twice the
amount by which the other determination is disparate from the middle
determination, then the determination of such appraiser shall be excluded, the
remaining two determinations shall be averaged and such average shall be binding
and conclusive upon the Company and the Original Warrantholder; otherwise, the
average of all three determinations


shall be binding upon the Company and the Original Warrantholder. The costs of
conducting any Appraisal Procedure shall be borne by the Company.

     "Board of Directors" means the board of directors of the Company, including
any duly authorized committee thereof.

     "Business Combination" means a merger, consolidation, statutory share
exchange or similar transaction that requires the approval of the Company's
stockholders.

     "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.

     "Capital Stock" means (A) with respect to any Person that is a corporation
or company, any and all shares, interests, participations or other equivalents
(however designated) of capital or capital stock of such Person and (B) with
respect to any Person that is not a corporation or company, any and all
partnership or other equity interests of such Person.

     "Charter" means, with respect to any Person, its certificate or articles of
incorporation, articles of association, or similar organizational document.

     "Common Stock" has the meaning ascribed to it in the Purchase Agreement.

     "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.

     "conversion" has the meaning set forth in Section 13(B).

     "convertible securities" has the meaning set forth in Section 13(B).

     "CPP" has the meaning ascribed to it in the Purchase Agreement.

     "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.

     "Fair Market Value" means, with respect to any security or other property,
the fair market value of such security or other property as determined by the
Board of Directors, acting in good faith or, with respect to Section 14, as
determined by the Original Warrantholder acting in good faith. For so long as
the Original Warrantholder holds this Warrant or any portion thereof, it may
object in writing to the Board of Director's calculation of fair market value
within 10 days of receipt of written notice thereof. If the Original
Warrantholder and the Company are unable to agree on fair market value during
the 10-day period following the delivery of the Original Warrantholder's
objection, the Appraisal Procedure may be invoked by either party to

                                       2


determine Fair Market Value by delivering written notification thereof not later
than the 30th day after delivery of the Original Warrantholder's objection.

     "Governmental Entities" has the meaning ascribed to it in the Purchase
Agreement. "Initial Number" has the meaning set forth in Section 13(B).

     "Issue Date" means the date set forth in Item 3 of Schedule A hereto.

     "Market Price" means, with respect to a particular security, on any given
day, the last reported sale price regular way or, in case no such reported sale
takes place on such day, the average of the last closing bid and ask prices
regular way, in either case on the principal national securities exchange on
which the applicable securities are listed or admitted to trading, or if not
listed or admitted to trading on any national securities exchange, the average
of the closing bid and ask prices as furnished by two members of the Financial
Industry Regulatory Authority, Inc. selected from time to time by the Company
for that purpose. "Market Price" shall be determined without reference to after
hours or extended hours trading. If such security is not listed and traded in a
manner that the quotations referred to above are available for the period
required hereunder, the Market Price per share of Common Stock shall be deemed
to be (i) in the event that any portion of the Warrant is held by the Original
Warrantholder, the fair market value per share of such security as determined in
good faith by the Original Warrantholder or (ii) in all other circumstances, the
fair market value per share of such security as determined in good faith by the
Board of Directors in reliance on an opinion of a nationally recognized
independent investment banking corporation retained by the Company for this
purpose and certified in a resolution to the Warrantholder. For the purposes of
determining the Market Price of the Common Stock on the "trading day" preceding,
on or following the occurrence of an event, (i) that trading day shall be deemed
to commence immediately after the regular scheduled closing time of trading on
the New York Stock Exchange or, if trading is closed at an earlier time, such
earlier time and (ii) that trading day shall end at the next regular scheduled
closing time, or if trading is closed at an earlier time, such earlier time (for
the avoidance of doubt, and as an example, if the Market Price is to be
determined as of the last trading day preceding a specified event and the
closing time of trading on a particular day is 4:00 p.m. and the specified event
occurs at 5:00 p.m. on that day, the Market Price would be determined by
reference to such 4:00 p.m. closing price).

     "Ordinary Cash Dividends" means a regular quarterly cash dividend on shares
of Common Stock out of surplus or net profits legally available therefor
(determined in accordance with generally accepted accounting principles in
effect from time to time), provided that Ordinary Cash Dividends shall not
include any cash dividends paid subsequent to the Issue Date to the extent the
aggregate per share dividends paid on the outstanding Common Stock in any
quarter exceed the amount set forth in Item 4 of Schedule A hereto, as adjusted
for any stock split, stock dividend, reverse stock split, reclassification or
similar transaction.

     "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.

     "Permitted Transactions" has the meaning set forth in Section 13(B).

                                       3


     "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.

     "Per Share Fair Market Value" has the meaning set forth in Section 13(C).

     "Preferred Shares" means the perpetual preferred stock issued to the
Original Warrantholder on the Issue Date pursuant to the Purchase Agreement.

     "Pro Rata Repurchases" means any purchase of shares of Common Stock by the
Company or any Affiliate thereof pursuant to (A) any tender offer or exchange
offer subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E
promulgated thereunder or (B) any other offer available to substantially all
holders of Common Stock, in the case of both (A) or (B), whether for cash,
shares of Capital Stock of the Company, other securities of the Company,
evidences of indebtedness of the Company or any other Person or any other
property (including, without limitation, shares of Capital Stock, other
securities or evidences of indebtedness of a subsidiary), or any combination
thereof, effected while this Warrant is outstanding. The "Effective Date" of a
Pro Rata Repurchase shall mean the date of acceptance of shares for purchase or
exchange by the Company under any tender or exchange offer which is a Pro Rata
Repurchase or the date of purchase with respect to any Pro Rata Repurchase that
is not a tender or exchange offer.

     "Purchase Agreement" means the Securities Purchase Agreement - Standard
Terms incorporated into the Letter Agreement, dated as of the date set forth in
Item 5 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.

     "Qualified Equity Offering" has the meaning ascribed to it in the Purchase
Agreement.

     "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 Common Stock and to own such Common 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.

     "trading day" means (A) if the shares of Common Stock are not traded on any
national or regional securities exchange or association or over-the-counter
market, a business day or (B) if the shares of Common Stock are traded on any
national or regional securities exchange or association or over-the-counter
market, a business day on which such relevant exchange or quotation system is
scheduled to be open for business and on which the shares of Common Stock

                                       4


(i) are not suspended from trading on any national or regional securities
exchange or association or over-the-counter market for any period or periods
aggregating one half hour or longer; and (ii) have traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the shares of Common Stock.

     "U.S. GAAP" means United States generally accepted accounting principles.
"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 Common Stock set forth
in Item 6 of Schedule A hereto, at a purchase price per share of Common Stock
equal to the Exercise Price. The number of shares of Common Stock (the "Shares")
and the Exercise Price are subject to adjustment as provided herein, and all
references to "Common Stock," "Shares" and "Exercise Price" herein shall be
deemed to include any such adjustment or series of adjustments.

     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 7 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:

          (i) by having the Company withhold, from the shares of Common Stock
that would otherwise be delivered to the Warrantholder upon such exercise,
shares of Common stock issuable upon exercise of the Warrant equal in value to
the aggregate Exercise Price as to which this Warrant is so exercised based on
the Market Price of the Common Stock on the trading day on which this Warrant is
exercised and the Notice of Exercise is delivered to the Company pursuant to
this Section 3, or

          (ii) with the consent of both the Company and the Warrantholder, by
tendering in cash, by certified or cashier's check payable to the order of the
Company, or by wire transfer of immediately available funds to an account
designated by the Company.

          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

                                       5


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; Listing. 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 Price
are delivered to the Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may then be closed
or certificates representing such Shares may not be actually delivered on such
date. The Company will at all times reserve and keep available, out of its
authorized but unissued Common Stock, solely for the purpose of providing for
the exercise of this Warrant, the aggregate number of shares of Common Stock
then issuable upon exercise of this Warrant at any time. The Company will (A)
procure, at its sole expense, the listing of the Shares issuable upon exercise
of this Warrant at any time, subject to issuance or notice of issuance, on all
principal stock exchanges on which the Common Stock is then listed or traded and
(B) maintain such listings of such Shares at all times after issuance. The
Company will use reasonable best efforts to ensure that the Shares may be issued
without violation of any applicable law or regulation or of any requirement of
any securities exchange on which the Shares are listed or traded.

     5. No Fractional Shares or Scrip. No fractional Shares or scrip
representing fractional Shares shall be issued upon any exercise of this
Warrant. In lieu of any fractional Share to which the Warrantholder would
otherwise be entitled, the Warrantholder shall be entitled to receive a cash
payment equal to the Market Price of the Common Stock on the last trading day
preceding the date of exercise less the pro-rated Exercise Price for such
fractional share.

     6. No Rights as Stockholders; Transfer Books. This Warrant does not entitle
the Warrantholder to any voting rights or other rights as a stockholder of the
Company prior to the date of exercise hereof. The Company will at no time close
its transfer books against transfer of this Warrant in any manner which
interferes with the timely exercise of this Warrant.

     7. Charges, Taxes and Expenses. Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made without charge to
the

                                       6


Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company.

     8. Transfer/Assignment.

     (A) Subject to compliance with clause (B) of this Section 8, this Warrant
and all rights hereunder are transferable, in whole or in part, upon the books
of the Company by the registered holder hereof in person or by duly authorized
attorney, and a new warrant shall be made and delivered by the Company, of the
same tenor and date as this Warrant but registered in the name of one or more
transferees, upon surrender of this Warrant, duly endorsed, to the office or
agency of the Company described in Section 3. All expenses (other than stock
transfer taxes) and other charges payable in connection with the preparation,
execution and delivery of the new warrants pursuant to this Section 8 shall be
paid by the Company.

     (B) The transfer of the Warrant and the Shares issued upon exercise of the
Warrant are subject to the restrictions set forth in Section 4.4 of the Purchase
Agreement. If and for so long as required by the Purchase Agreement, this
Warrant shall contain the legends as set forth in Sections 4.2(a) and 4.2(b) of
the Purchase Agreement.

     9. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the
surrender hereof by the Warrantholder to the Company, for a new warrant or
warrants of like tenor and representing the right to purchase the same aggregate
number of Shares. The Company shall maintain a registry showing the name and
address of the Warrantholder as the registered holder of this Warrant. This
Warrant may be surrendered for exchange or exercise in accordance with its
terms, at the office of the Company, and the Company shall be entitled to rely
in all respects, prior to written notice to the contrary, upon such registry.

     10. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of a bond, indemnity or security reasonably
satisfactory to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company shall make and deliver,
in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and representing the right to purchase the same aggregate number of
Shares as provided for in such lost, stolen, destroyed or mutilated Warrant.

     11. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall not be a business day, then such action may be taken or such right may be
exercised on the next succeeding day that is a business day.

     12. Rule 144 Information. The Company covenants that it will use its
reasonable best efforts to timely file all reports and other documents required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations promulgated by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Warrantholder,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will use reasonable best efforts
to take such further

                                       7


action as any Warrantholder may reasonably request, in each case to the extent
required from time to time to enable such holder to, if permitted by the terms
of this Warrant and the Purchase Agreement, sell this Warrant without
registration under the Securities Act within the limitation of the exemptions
provided by (A) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (B) any successor rule or regulation hereafter adopted by
the SEC. Upon the written request of any Warrantholder, the Company will deliver
to such Warrantholder a written statement that it has complied with such
requirements.

     13. Adjustments and Other Rights. The Exercise Price and the number of
Shares issuable upon exercise of this Warrant shall be subject to adjustment
from time to time as follows; provided, that if more than one subsection of this
Section 13 is applicable to a single event, the subsection shall be applied that
produces the largest adjustment and no single event shall cause an adjustment
under more than one subsection of this Section 13 so as to result in
duplication:

     (A) Stock Splits, Subdivisions, Reclassifications or Combinations. If the
Company shall (i) declare and pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, (ii) subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify the outstanding shares of Common Stock into a smaller
number of shares, the number of Shares issuable upon exercise of this Warrant at
the time of the record date for such dividend or distribution or the effective
date of such subdivision, combination or reclassification shall be
proportionately adjusted so that the Warrantholder after such date shall be
entitled to purchase the number of shares of Common Stock which such holder
would have owned or been entitled to receive in respect of the shares of Common
Stock subject to this Warrant after such date had this Warrant been exercised
immediately prior to such date. In such event, the Exercise Price in effect at
the time of the record date for such dividend or distribution or the effective
date of such subdivision, combination or reclassification shall be adjusted to
the number obtained by dividing (x) the product of (1) the number of Shares
issuable upon the exercise of this Warrant before such adjustment and (2) the
Exercise Price in effect immediately prior to the record or effective date, as
the case may be, for the dividend, distribution, subdivision, combination or
reclassification giving rise to this adjustment by (y) the new number of Shares
issuable upon exercise of the Warrant determined pursuant to the immediately
preceding sentence.

     (B) Certain Issuances of Common Shares or Convertible Securities. Until the
earlier of (i) the date on which the Original Warrantholder no longer holds this
Warrant or any portion thereof and (ii) the third anniversary of the Issue Date,
if the Company shall issue shares of Common Stock (or rights or warrants or
other securities exercisable or convertible into or exchangeable (collectively,
a "conversion") for shares of Common Stock) (collectively, "convertible
securities") (other than in Permitted Transactions (as defined below) or a
transaction to which subsection (A) of this Section 13 is applicable) without
consideration or at a consideration per share (or having a conversion price per
share) that is less than 90% of the Market Price on the last trading day
preceding the date of the agreement on pricing such shares (or such convertible
securities) then, in such event:

          (A) the number of Shares issuable upon the exercise of this Warrant
          immediately prior to the date of the agreement on pricing of such
          shares (or of

                                       8


          such convertible securities) (the "Initial Number") shall be increased
          to the number obtained by multiplying the Initial Number by a fraction
          (A) the numerator of which shall be the sum of (x) the number of
          shares of Common Stock of the Company outstanding on such date and (y)
          the number of additional shares of Common Stock issued (or into which
          convertible securities may be exercised or convert) and (B) the
          denominator of which shall be the sum of (I) the number of shares of
          Common Stock outstanding on such date and (II) the number of shares of
          Common Stock which the aggregate consideration receivable by the
          Company for the total number of shares of Common Stock so issued (or
          into which convertible securities may be exercised or convert) would
          purchase at the Market Price on the last trading day preceding the
          date of the agreement on pricing such shares (or such convertible
          securities); and

          (B) the Exercise Price payable upon exercise of the Warrant shall be
          adjusted by multiplying such Exercise Price in effect immediately
          prior to the date of the agreement on pricing of such shares (or of
          such convertible securities) by a fraction, the numerator of which
          shall be the number of shares of Common Stock issuable upon exercise
          of this Warrant prior to such date and the denominator of which shall
          be the number of shares of Common Stock issuable upon exercise of this
          Warrant immediately after the adjustment described in clause (A)
          above.

     For purposes of the foregoing, the aggregate consideration receivable by
the Company in connection with the issuance of such shares of Common Stock or
convertible securities shall be deemed to be equal to the sum of the net
offering price (including the Fair Market Value of any non-cash consideration
and after deduction of any related expenses payable to third parties) of all
such securities plus the minimum aggregate amount, if any, payable upon exercise
or conversion of any such convertible securities into shares of Common Stock;
and "Permitted Transactions" shall mean issuances (i) as consideration for or to
fund the acquisition of businesses and/or related assets, (ii) in connection
with employee benefit plans and compensation related arrangements in the
ordinary course and consistent with past practice approved by the Board of
Directors, (iii) in connection with a public or broadly marketed offering and
sale of Common Stock or convertible securities for cash conducted by the Company
or its affiliates pursuant to registration under the Securities Act or Rule 144A
thereunder on a basis consistent with capital raising transactions by comparable
financial institutions and (iv) in connection with the exercise of preemptive
rights on terms existing as of the Issue Date. Any adjustment made pursuant to
this Section 13(B) shall become effective immediately upon the date of such
issuance.

     (C) Other Distributions. In case the Company shall fix a record date for
the making of a distribution to all holders of shares of its Common Stock of
securities, evidences of indebtedness, assets, cash, rights or warrants
(excluding Ordinary Cash Dividends, dividends of its Common Stock and other
dividends or distributions referred to in Section 13(A)), in each such case, the
Exercise Price in effect prior to such record date shall be reduced immediately
thereafter to the price determined by multiplying the Exercise Price in effect
immediately prior to the reduction by the quotient of (x) the Market Price of
the Common Stock on the last trading day preceding the first date on which the
Common Stock trades regular way on the principal national securities exchange on
which the Common Stock is listed or admitted to trading without the right to
receive such distribution, minus the amount of cash and/or the Fair Market Value
of

                                       9


the securities, evidences of indebtedness, assets, rights or warrants to be so
distributed in respect of one share of Common Stock (such amount and/or Fair
Market Value, the "Per Share Fair Market Value") divided by (y) such Market
Price on such date specified in clause (x); such adjustment shall be made
successively whenever such a record date is fixed. In such event, the number of
Shares issuable upon the exercise of this Warrant shall be increased to the
number obtained by dividing (x) the product of (1) the number of Shares issuable
upon the exercise of this Warrant before such adjustment, and (2) the Exercise
Price in effect immediately prior to the distribution giving rise to this
adjustment by (y) the new Exercise Price determined in accordance with the
immediately preceding sentence. In the case of adjustment for a cash dividend
that is, or is coincident with, a regular quarterly cash dividend, the Per Share
Fair Market Value would be reduced by the per share amount of the portion of the
cash dividend that would constitute an Ordinary Cash Dividend. In the event that
such distribution is not so made, the Exercise Price and the number of Shares
issuable upon exercise of this Warrant then in effect shall be readjusted,
effective as of the date when the Board of Directors determines not to
distribute such shares, evidences of indebtedness, assets, rights, cash or
warrants, as the case may be, to the Exercise Price that would then be in effect
and the number of Shares that would then be issuable upon exercise of this
Warrant if such record date had not been fixed.

     (D) Certain Repurchases of Common Stock. In case the Company effects a Pro
Rata Repurchase of Common Stock, then the Exercise Price shall be reduced to the
price determined by multiplying the Exercise Price in effect immediately prior
to the Effective Date of such Pro Rata Repurchase by a fraction of which the
numerator shall be (i) the product of (x) the number of shares of Common Stock
outstanding immediately before such Pro Rata Repurchase and (y) the Market Price
of a share of Common Stock on the trading day immediately preceding the first
public announcement by the Company or any of its Affiliates of the intent to
effect such Pro Rata Repurchase, minus (ii) the aggregate purchase price of the
Pro Rata Repurchase, and of which the denominator shall be the product of (i)
the number of shares of Common Stock outstanding immediately prior to such Pro
Rata Repurchase minus the number of shares of Common Stock so repurchased and
(ii) the Market Price per share of Common Stock on the trading day immediately
preceding the first public announcement by the Company or any of its Affiliates
of the intent to effect such Pro Rata Repurchase. In such event, the number of
shares of Common Stock issuable upon the exercise of this Warrant shall be
increased to the number obtained by dividing (x) the product of (1) the number
of Shares issuable upon the exercise of this Warrant before such adjustment, and
(2) the Exercise Price in effect immediately prior to the Pro Rata Repurchase
giving rise to this adjustment by (y) the new Exercise Price determined in
accordance with the immediately preceding sentence. For the avoidance of doubt,
no increase to the Exercise Price or decrease in the number of Shares issuable
upon exercise of this Warrant shall be made pursuant to this Section 13(D).

     (E) Business Combinations. In case of any Business Combination or
reclassification of Common Stock (other than a reclassification of Common Stock
referred to in Section 13(A)), the Warrantholder's right to receive Shares upon
exercise of this Warrant shall be converted into the right to exercise this
Warrant to acquire the number of shares of stock or other securities or property
(including cash) which the Common Stock issuable (at the time of such Business
Combination or reclassification) upon exercise of this Warrant immediately prior
to such Business Combination or reclassification would have been entitled to
receive upon consummation of such Business Combination or reclassification; and
in any such case, if

                                       10


necessary, the provisions set forth herein with respect to the rights and
interests thereafter of the Warrantholder shall be appropriately adjusted so as
to be applicable, as nearly as may reasonably be, to the Warrantholder's right
to exercise this Warrant in exchange for any shares of stock or other securities
or property pursuant to this paragraph. In determining the kind and amount of
stock, securities or the property receivable upon exercise of this Warrant
following the consummation of such Business Combination, if the holders of
Common Stock have the right to elect the kind or amount of consideration
receivable upon consummation of such Business Combination, then the
consideration that the Warrantholder shall be entitled to receive upon exercise
shall be deemed to be the types and amounts of consideration received by the
majority of all holders of the shares of common stock that affirmatively make an
election (or of all such holders if none make an election).

     (F) Rounding of Calculations; Minimum Adjustments. All calculations under
this Section 13 shall be made to the nearest one-tenth (1/10th) of a cent or to
the nearest one-hundredth (1/100th) of a share, as the case may be. Any
provision of this Section 13 to the contrary notwithstanding, no adjustment in
the Exercise Price or the number of Shares into which this Warrant is
exercisable shall be made if the amount of such adjustment would be less than
$0.01 or one-tenth (1/10th) of a share of Common Stock, but any such amount
shall be carried forward and an adjustment with respect thereto shall be made at
the time of and together with any subsequent adjustment which, together with
such amount and any other amount or amounts so carried forward, shall aggregate
$0.01 or 1/10th of a share of Common Stock, or more.

     (G) Timing of Issuance of Additional Common Stock Upon Certain Adjustments.
In any case in which the provisions of this Section 13 shall require that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Warrantholder of this Warrant exercised after such record date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such exercise by reason of the adjustment required by such event over and above
the shares of Common Stock issuable upon such exercise before giving effect to
such adjustment and (ii) paying to such Warrantholder any amount of cash in lieu
of a fractional share of Common Stock; provided, however, that the Company upon
request shall deliver to such Warrantholder a due bill or other appropriate
instrument evidencing such Warrantholder's right to receive such additional
shares, and such cash, upon the occurrence of the event requiring such
adjustment.

     (H) Completion of Qualified Equity Offering. In the event the Company (or
any successor by Business Combination) completes one or more Qualified Equity
Offerings on or prior to December 31, 2009 that result in the Company (or any
such successor ) receiving aggregate gross proceeds of not less than 100% of the
aggregate liquidation preference of the Preferred Shares (and any preferred
stock issued by any such successor to the Original Warrantholder under the CPP),
the number of shares of Common Stock underlying the portion of this Warrant then
held by the Original Warrantholder shall be thereafter reduced by a number of
shares of Common Stock equal to the product of (i) 0.5 and (ii) the number of
shares underlying the Warrant on the Issue Date (adjusted to take into account
all other theretofore made adjustments pursuant to this Section 13).

                                       11


     (I) Other Events. For so long as the Original Warrantholder holds this
Warrant or any portion thereof, if any event occurs as to which the provisions
of this Section 13 are not strictly applicable or, if strictly applicable, would
not, in the good faith judgment of the Board of Directors of the Company, fairly
and adequately protect the purchase rights of the Warrants in accordance with
the essential intent and principles of such provisions, then the Board of
Directors shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of the Board of Directors, to protect such
purchase rights as aforesaid. The Exercise Price or the number of Shares into
which this Warrant is exercisable shall not be adjusted in the event of a change
in the par value of the Common Stock or a change in the jurisdiction of
incorporation of the Company.

     (J) Statement Regarding Adjustments. Whenever the Exercise Price or the
number of Shares into which this Warrant is exercisable shall be adjusted as
provided in Section 13, the Company shall forthwith file at the principal office
of the Company a statement showing in reasonable detail the facts requiring such
adjustment and the Exercise Price that shall be in effect and the number of
Shares into which this Warrant shall be exercisable after such adjustment, and
the Company shall also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each Warrantholder at the address appearing in the
Company's records.

     (K) Notice of Adjustment Event. In the event that the Company shall propose
to take any action of the type described in this Section 13 (but only if the
action of the type described in this Section 13 would result in an adjustment in
the Exercise Price or the number of Shares into which this Warrant is
exercisable or a change in the type of securities or property to be delivered
upon exercise of this Warrant), the Company shall give notice to the
Warrantholder, in the manner set forth in Section 13(J), which notice shall
specify the record date, if any, with respect to any such action and the
approximate date on which such action is to take place. Such notice shall also
set forth the facts with respect thereto as shall be reasonably necessary to
indicate the effect on the Exercise Price and the number, kind or class of
shares or other securities or property which shall be deliverable upon exercise
of this Warrant. In the case of any action which would require the fixing of a
record date, such notice shall be given at least 10 days prior to the date so
fixed, and in case of all other action, such notice shall be given at least 15
days prior to the taking of such proposed action. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of any such
action.

     (L) Proceedings Prior to Any Action Requiring Adjustment. As a condition
precedent to the taking of any action which would require an adjustment pursuant
to this Section 13, the Company shall take any action which may be necessary,
including obtaining regulatory, New York Stock Exchange, NASDAQ Stock Market or
other applicable national securities exchange or stockholder approvals or
exemptions, in order that the Company may thereafter validly and legally issue
as fully paid and nonassessable all shares of Common Stock that the
Warrantholder is entitled to receive upon exercise of this Warrant pursuant to
this Section 13.

     (M) Adjustment Rules. Any adjustments pursuant to this Section 13 shall be
made successively whenever an event referred to herein shall occur. If an
adjustment in Exercise Price made hereunder would reduce the Exercise Price to
an amount below par value of the Common

                                       12


Stock, then such adjustment in Exercise Price made hereunder shall reduce the
Exercise Price to the par value of the Common Stock.

     14. Exchange. At any time following the date on which the shares of Common
Stock of the Company are no longer listed or admitted to trading on a national
securities exchange (other than in connection with any Business Combination),
the Original Warrantholder may cause the Company to exchange all or a portion of
this Warrant for an economic interest (to be determined by the Original
Warrantholder after consultation with the Company) of the Company classified as
permanent equity under U.S. GAAP having a value equal to the Fair Market Value
of the portion of the Warrant so exchanged. The Original Warrantholder shall
calculate any Fair Market Value required to be calculated pursuant to this
Section 14, which shall not be subject to the Appraisal Procedure.

     15. No Impairment. The Company will not, by amendment of its Charter or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in taking
of all such action as may be necessary or appropriate in order to protect the
rights of the Warrantholder.

     16. Governing Law. This Warrant will be governed by and construed in
accordance with the federal law of the United States if and to the extent such
law is applicable, and otherwise in accordance with the laws of the State of New
York applicable to contracts made and to be performed entirely within such
State. Each of the Company and the Warrantholder agrees (a) to submit to the
exclusive jurisdiction and venue of the United States District Court for the
District of Columbia for any civil action, suit or proceeding arising out of or
relating to this Warrant or the transactions contemplated hereby, and (b) that
notice may be served upon the Company at the address in Section 20 below and
upon the Warrantholder at the address for the Warrantholder set forth in the
registry maintained by the Company pursuant to Section 9 hereof. To the extent
permitted by applicable law, each of the Company and the Warrantholder hereby
unconditionally waives trial by jury in any civil legal action or proceeding
relating to the Warrant or the transactions contemplated hereby or thereby.

     17. Binding Effect. This Warrant shall be binding upon any successors or
assigns of the Company.

     18. Amendments. This Warrant may be amended and the observance of any term
of this Warrant may be waived only with the written consent of the Company and
the Warrantholder.

     19. Prohibited Actions. The Company agrees that it will not take any action
which would entitle the Warrantholder to an adjustment of the Exercise Price if
the total number of shares of Common Stock issuable after such action upon
exercise of this Warrant, together with all shares of Common Stock then
outstanding and all shares of Common Stock then issuable upon the exercise of
all outstanding options, warrants, conversion and other rights, would exceed the
total number of shares of Common Stock then authorized by its Charter.

                                       13


     20. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other will be in writing and will be deemed to
have been duly given (a) on the date of delivery if delivered personally, or by
facsimile, upon confirmation of receipt, or (b) on the second business day
following the date of dispatch if delivered by a recognized next day courier
service. All notices hereunder shall be delivered as set forth in Item 8 of
Schedule A hereto, or pursuant to such other instructions as may be designated
in writing by the party to receive such notice.

     21. Entire Agreement. This Warrant, the forms attached hereto and Schedule
A hereto (the terms of which are incorporated by reference herein), and the
Letter Agreement (including all documents incorporated therein), contain the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or undertakings with
respect thereto.

                  [Remainder of page intentionally left blank]

                                       14


                          [Form of Notice of Exercise]
                                 Date: _________

TO:  [Company]

RE:  Election to Purchase Common Stock

     The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby agrees to subscribe for and purchase the number of shares of the
Common Stock set forth below covered by such Warrant. The undersigned, in
accordance with Section 3 of the Warrant, hereby agrees to pay the aggregate
Exercise Price for such shares of Common Stock in the manner set forth below. A
new warrant evidencing the remaining shares of Common Stock covered by such
Warrant, but not yet subscribed for and purchased, if any, should be issued in
the name set forth below.

Number of Shares of Common Stock    ___________________

Method of Payment of Exercise Price (note if cashless exercise pursuant to
Section 3(i) of the Warrant or cash exercise pursuant to Section 3(ii) of the
Warrant, with consent of the Company and the Warrantholder)
                                    ___________________

Aggregate Exercise Price:           ___________________



                                    Holder:
                                           -------------------------------------
                                    By:
                                       -----------------------------------------
                                    Name:
                                         ---------------------------------------
                                    Title:
                                          --------------------------------------

                                       15


     IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by a duly authorized officer.

Dated:  12/05/08

                                    COMPANY:

                                    Blue Valley Ban Corp.


                                    By:  /s/ Robert D. Regnier
                                       -----------------------------------------
                                       Name: Robert D. Regnier
                                       Title: President & CEO




                                    Attest:


                                    By:  /s/ Mark A. Fortino
                                       -----------------------------------------
                                       Name:  Mark A. Fortino
                                       Title:  CFO

                           [Signature Page to Warrant]

                                       16


                                                                      SCHEDULE A



Item 1
Name:  Blue Valley Ban Corp.
Corporate or other organizational form:  Corporation
Jurisdiction of organization:  Kansas

Item 2
Exercise Price: $29.37(1)

Item 3
Issue Date:  December 5, 2008

Item 4
Amount of last dividend declared prior to the Issue Date:  $.36 per share

Item 5
Date of Letter Agreement between the Company and the United States Department of
the Treasury: December 5, 2008

Item 6
Number of shares of Common Stock:  111,083

Item 7
Company's address:  11935 Riley, Overland Park, Kansas 66225-6128

Item 8
Notice information:

If to the Company:  Blue Valley Ban Corp., 11935 Riley, Overland Park, Kansas,
                    66225-6128, Attn: Robert D. Regnier, Fax: (913) 234-7145

With a copy to:     Husch Blackwell Sanders LLP, 4801 Main Street, Suite 1000,
                    Kansas City, Missouri, Attn: Steven F. Carman, Esq., Fax:
                    (816) 983-8080

If to the  Warrantholder:  The Bank of New York  Mellon,  2 Hanson  Place,
                           10th  floor - Income  Servicing,  Attn: Purisima
                           Teylan, Brooklyn, NY, 11217

With a copy to:     The Bank of New York Mellon, 101 Barclay Street, 4 West,
                    Capital Purchase Program, New York, NY 10286, Attn: Courtney
                    Bartholomew

- --------
(1) Initial exercise price to be calculated based on the average of closing
prices of the Common Stock on the 20 trading days ending on the last trading day
prior to the date the Company's application for participation in the Capital
Purchase Program was approved by the United States Department of the Treasury.

EX-10 4 forms1a2_120808exh1010.htm EXH 10.10 Exhibit 10.10


                                                                   Exhibit 10.10

                                                            UST Sequence No. 118

                    UNITED STATES DEPARTMENT OF THE TREASURY
                          1500 PENNSYLVANIA AVENUE, NW
                             WASHINGTON, D.C. 20220


Dear Ladies and Gentlemen:

     The company set forth on the signature page hereto (the "Company")  intends
to  issue in a  private  placement  the  number  of  shares  of a 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" and,  together with the Preferred  Shares,  the
"Purchased  Securities")  and the United States  Department of the Treasury (the
"Investor") intends to purchase from the Company the Purchased Securities.

     The purpose of this letter agreement is to confirm the terms and conditions
of the  purchase by the  Investor  of the  Purchased  Securities.  Except to the
extent  supplemented  or  superseded  by the terms  set  forth  herein or in the
Schedules hereto, the provisions  contained in the Securities Purchase Agreement
- -  Standard  Terms  attached  hereto  as  Exhibit  A (the  "Securities  Purchase
Agreement") are incorporated by reference herein.  Terms that are defined in the
Securities  Purchase  Agreement are used in this letter agreement as so defined.
In the  event  of any  inconsistency  between  this  letter  agreement  and  the
Securities Purchase Agreement, the terms of this letter agreement shall govern.

     Each of the Company and the Investor hereby confirms its agreement with the
other  party  with  respect to the  issuance  by the  Company  of the  Purchased
Securities and the purchase by the Investor of the Purchased Securities pursuant
to this letter  agreement  and the  Securities  Purchase  Agreement on the terms
specified on Schedule A hereto.

     This letter agreement  (including the Schedules  hereto) and the Securities
Purchase  Agreement  (including the Annexes thereto) and the Warrant  constitute
the entire agreement, and supersede all other prior agreements,  understandings,
representations and warranties, both written and oral, between the parties, with
respect to the subject  matter hereof.  This letter  agreement  constitutes  the
"Letter Agreement" referred to in the Securities Purchase Agreement.

     This  letter   agreement   may  be  executed  in  any  number  of  separate
counterparts,  each such counterpart being deemed to be an original  instrument,
and all such counterparts will together constitute the same agreement.  Executed
signature pages to this letter  agreement may be delivered by facsimile and such
facsimiles  will be deemed as sufficient as if actual  signature  pages had been
delivered.

                                       ***



     In witness  whereof,  this  letter  agreement  has been duly  executed  and
delivered by the duly authorized representatives of the parties hereto as of the
date written below.

                                    UNITED STATES DEPARTMENT OF THE TREASURY

                                    By: /s/ Neel Kashkari
                                        -----------------------------------------
                                         Name:   Neel Kashkari
                                         Title:  Interim Assistant Secretary for
                                                 Financial  Stability



                                    COMPANY:

                                    BLUE VALLEY BAN CORP.

                                    By:  /s/ Robert D. Regnier
                                        -----------------------------------------
                                         Name:  Robert D. Regnier
                                         Title: President & CEO




Date: December 5, 2008



                                                                       EXHIBIT A


                          SECURITIES PURCHASE AGREEMENT



                                                                       EXHIBIT A

================================================================================


                          SECURITIES PURCHASE AGREEMENT

                                 STANDARD TERMS

================================================================================


                                TABLE OF CONTENTS

                                                                            Page

                                    Article I

                                Purchase; Closing

   1.1     Purchase............................................................1

   1.2     Closing.............................................................2

   1.3     Interpretation......................................................4


                                   Article II

                         Representations and Warranties

   2.1     Disclosure..........................................................4

   2.2     Representations and Warranties of the Company.......................5


                                   Article III

                                    Covenants

   3.1     Commercially Reasonable Efforts....................................13

   3.2     Expenses...........................................................14

   3.3     Sufficiency of Authorized Common Stock; Exchange Listing...........14

   3.4     Certain Notifications Until Closing................................14

   3.5     Access, Information and Confidentiality............................15


                                   Article IV

                              Additional Agreements

   4.1     Purchase for Investment............................................15

   4.2     Legends............................................................16

   4.3     Certain Transactions...............................................17

   4.4     Transfer of Purchased Securities and Warrant Shares; Restrictions
           on Exercise of the Warrant.........................................18

   4.5     Registration Rights................................................18

   4.6     Voting of Warrant Shares...........................................29

   4.7     Depositary Shares..................................................29

                                       i


   4.8     Restriction on Dividends and Repurchases...........................30

   4.9     Repurchase of Investor Securities..................................31

   4.10    Executive Compensation.............................................32


                                    Article V
                                  Miscellaneous
   5.1     Termination........................................................32

   5.2     Survival of Representations and Warranties.........................33

   5.3     Amendment..........................................................33

   5.4     Waiver of Conditions...............................................33

   5.5     Governing Law: Submission to Jurisdiction, Etc.....................33

   5.6     Notices............................................................34

   5.7     Definitions........................................................34

   5.8     Assignment.........................................................34

   5.9     Severability.......................................................35

   5.10    No Third Party Beneficiaries.......................................35


                                       ii




                                 LIST OF ANNEXES

ANNEX A: FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK

ANNEX B: FORM OF WAIVER

ANNEX C: FORM OF OPINION

ANNEX D: FORM OF WARRANT



                                      iii


                             INDEX OF DEFINED TERMS

Term                                                                                           Location of Definition
- ------------------------------------------------------------------------------------------     ----------------------
Affiliate                                                                                      5.7(b)
Agreement                                                                                      Recitals
Appraisal Procedure                                                                            4.9(c)(i)
Appropriate Federal Banking Agency                                                             2.2(s)
Bankruptcy Exceptions                                                                          2.2(d)
Benefit Plans                                                                                  1.2(d)(iv)
Board of Directors                                                                             2.2(f)
Business Combination                                                                           4.4
business day                                                                                   1.3
Capitalization Date                                                                            2.2(b)
Certificate of Designations                                                                    1.2(d)(iii)
Charter                                                                                        1.2(d)(iii)
Closing                                                                                        1.2(a)
Closing Date                                                                                   1.2(a)
Code                                                                                           2.2(n)
Common Stock                                                                                   Recitals
Company                                                                                        Recitals
Company Financial Statements                                                                   2.2(h)
Company Material Adverse Effect                                                                2.1(a)
Company Reports                                                                                2.2(i)(i)
Company Subsidiary; Company Subsidiaries                                                       2.2(i)(i)
control; controlled by; under common control with                                              5.7(b)
Controlled Group                                                                               2.2(n)
CPP                                                                                            Recitals
EESA                                                                                           1.2(d)(iv)
ERISA                                                                                          2.2(n)
Exchange Act                                                                                   2.1(b)
Fair Market Value                                                                              4.9(c)(ii)
GAAP                                                                                           2.1(a)
Governmental Entities                                                                          1.2(c)
Holder                                                                                         4.5(k)(i)
Holders' Counsel                                                                               4.5(k)(ii)
Indemnitee                                                                                     4.5(g)(i)
Information                                                                                    3.5(b)
Initial Warrant Shares                                                                         Recitals
Investor                                                                                       Recitals
Junior Stock                                                                                   4.8(c)
knowledge of the Company; Company's knowledge                                                  5.7(c)
Last Fiscal Year                                                                               2.1(b)
Letter Agreement                                                                               Recitals
officers                                                                                       5.7(c)
Parity Stock                                                                                   4.8(c)
Pending Underwritten Offering                                                                  4.5(l)

                                       iv


Term                                                                                           Location of Definition
- ------------------------------------------------------------------------------------------     ----------------------

Permitted Repurchases                                                                          4.8(a)(ii)
Piggyback Registration                                                                         4.5(a)(iv)
Plan                                                                                           2.2(n)
Preferred Shares                                                                               Recitals
Preferred Stock                                                                                Recitals
Previously Disclosed                                                                           2.1(b)
Proprietary Rights                                                                             2.2(u)
Purchase                                                                                       Recitals
Purchase Price                                                                                 1.1
Purchased Securities                                                                           Recitals
Qualified Equity Offering                                                                      4.4
register; registered; registration                                                             4.5(k)(iii)
Registrable Securities                                                                         4.5(k)(iv)
Registration Expenses                                                                          4.5(k)(v)
Regulatory Agreement                                                                           2.2(s)
Rule 144; Rule 144A; Rule 159A; Rule 405; Rule 415                                             4.5(k)(vi)
Schedules                                                                                      Recitals
SEC                                                                                            2.1(b)
Securities Act                                                                                 2.2(a)
Selling Expenses                                                                               4.5(k)(vii)
Senior Executive Officers                                                                      4.10
Share Dilution Amount                                                                          4.8(a)(ii)
Shelf Registration Statement                                                                   4.5(a)(ii)
Signing Date                                                                                   2.1(a)
Special Registration                                                                           4.5(i)
Stockholder Proposals                                                                          3.1(b)
subsidiary                                                                                     5.8(a)
Tax; Taxes                                                                                     2.2(o)
Transfer                                                                                       4.4
Warrant                                                                                        Recitals
Warrant Shares                                                                                 2.2(d)


                                       v

                 SECURITIES PURCHASE AGREEMENT - STANDARD TERMS

                                    Recitals:

     WHEREAS,  the United States Department of the Treasury (the "Investor") may
from time to time agree to purchase  shares of preferred stock and warrants from
eligible financial institutions which elect to participate in the Troubled Asset
Relief Program Capital Purchase Program ("CPP");

     WHEREAS, an eligible financial  institution  electing to participate in the
CPP and issue  securities to the Investor  (referred to herein as the "Company")
shall enter into a letter  agreement (the "Letter  Agreement") with the Investor
which incorporates this Securities Purchase Agreement - Standard Terms;

     WHEREAS,  the Company agrees to expand the flow of credit to U.S. consumers
and businesses on competitive terms to promote the sustained growth and vitality
of the U.S. economy;

     WHEREAS, the Company agrees to work diligently, under existing programs, to
modify the terms of  residential  mortgages as  appropriate  to  strengthen  the
health of the U.S. housing market;

     WHEREAS,  the Company intends to issue in a private placement the number of
shares of the series of its  Preferred  Stock  ("Preferred  Stock") set forth on
Schedule A to the Letter  Agreement  (the  "Preferred  Shares") and a warrant to
purchase the number of shares of its Common Stock ("Common  Stock") set forth on
Schedule A to the Letter Agreement (the "Initial Warrant Shares") (the "Warrant"
and,  together with the Preferred  Shares,  the "Purchased  Securities") and the
Investor  intends to purchase  (the  "Purchase")  from the Company the Purchased
Securities; and

     WHEREAS,  the  Purchase  will  be  governed  by  this  Securities  Purchase
Agreement  -Standard  Terms and the Letter  Agreement,  including  the schedules
thereto (the  "Schedules"),  specifying  additional terms of the Purchase.  This
Securities  Purchase  Agreement - Standard Terms  (including the Annexes hereto)
and the Letter Agreement (including the Schedules thereto) are together referred
to as this "Agreement".  All references in this Securities  Purchase Agreement -
Standard  Terms to  "Schedules"  are to the  Schedules  attached  to the  Letter
Agreement.

     NOW,   THEREFORE,   in   consideration   of  the   premises,   and  of  the
representations,  warranties,  covenants and  agreements  set forth herein,  the
parties agree as follows:

                                   Article I
                                Purchase; Closing

     1.1 Purchase.  On the terms and subject to the conditions set forth in this
Agreement,  the Company agrees to sell to the Investor,  and the Investor agrees
to purchase  from the  Company,  at the Closing (as  hereinafter  defined),  the
Purchased  Securities  for the  price  set forth on  Schedule  A (the  "Purchase
Price").


     1.2 Closing.

     (a) On the terms and subject to the conditions set forth in this Agreement,
the closing of the  Purchase  (the  "Closing")  will take place at the  location
specified  in Schedule A, at the time and on the date set forth in Schedule A or
as soon as  practicable  thereafter,  or at such other  place,  time and date as
shall be agreed between the Company and the Investor. The time and date on which
the Closing occurs is referred to in this Agreement as the "Closing Date".

     (b) Subject to the  fulfillment  or waiver of the conditions to the Closing
in this Section1.2, at the Closing the Company will deliver the Preferred Shares
and the Warrant, in each case as evidenced by one or more certificates dated the
Closing Date and bearing  appropriate  legends as  hereinafter  provided for, in
exchange  for  payment  in full  of the  Purchase  Price  by  wire  transfer  of
immediately  available  United States funds to a bank account  designated by the
Company on Schedule A.

     (c) The  respective  obligations of each of the Investor and the Company to
consummate  the  Purchase  are  subject  to the  fulfillment  (or  waiver by the
Investor and the Company,  as applicable) prior to the Closing of the conditions
that  (i) any  approvals  or  authorizations  of all  United  States  and  other
governmental,  regulatory or judicial authorities  (collectively,  "Governmental
Entities")  required  for the  consummation  of the  Purchase  shall  have  been
obtained or made in form and substance reasonably satisfactory to each party and
shall be in full force and effect and all  waiting  periods  required  by United
States  and  other  applicable  law,  if any,  shall  have  expired  and (ii) no
provision  of any  applicable  United  States  or  other  law  and no  judgment,
injunction,  order or decree  of any  Governmental  Entity  shall  prohibit  the
purchase and sale of the Purchased Securities as contemplated by this Agreement.

     (d) The  obligation  of the  Investor to  consummate  the  Purchase is also
subject  to the  fulfillment  (or  waiver  by the  Investor)  at or prior to the
Closing of each of the following conditions:

          (i) (A) the representations and warranties of the Company set forth in
     (x)  Section  2.2(g) of this  Agreement  shall be true and  correct  in all
     respects as though made on and as of the Closing Date, (y) Sections  2.2(a)
     through  (f) shall be true and correct in all  material  respects as though
     made  on  and  as of the  Closing  Date  (other  than  representations  and
     warranties   that  by  their  terms  speak  as  of  another   date,   which
     representations  and  warranties  shall be true and correct in all material
     respects  as of such  other  date)  and (z)  Sections  2.2(h)  through  (v)
     (disregarding   all   qualifications  or  limitations  set  forth  in  such
     representations  and  warranties  as to  "materiality",  "Company  Material
     Adverse  Effect" and words of similar  import) shall be true and correct as
     though made on and as of the Closing Date (other than  representations  and
     warranties   that  by  their  terms  speak  as  of  another   date,   which
     representations  and warranties  shall be true and correct as of such other
     date),  except to the extent that the failure of such  representations  and
     warranties  referred to in this Section  1.2(d)(i)(A)(z)  to be so true and
     correct,  individually  or in the  aggregate,  does not have and  would not
     reasonably be expected to have a Company  Material  Adverse  Effect and (B)
     the Company shall have performed in all material  respects all  obligations
     required  to be  performed  by it under this  Agreement  at or prior to the
     Closing;

                                       2


          (ii) the Investor  shall have received a certificate  signed on behalf
     of the Company by a senior executive officer  certifying to the effect that
     the conditions set forth Section 1.2(d)(i) have been satisfied;

          (iii) the Company shall have duly adopted and filed with the Secretary
     of  State  of  its   jurisdiction  of  organization  or  other   applicable
     Governmental  Entity  the  amendment  to its  certificate  or  articles  of
     incorporation,  articles of association, or similar organizational document
     ("Charter")  in  substantially  the form  attached  hereto  as Annex A (the
     "Certificate of Designations") and such filing shall have been accepted;

          (iv)  (A)  the  Company  shall  have  effected  such  changes  to  its
     compensation,  bonus,  incentive and other benefit plans,  arrangements and
     agreements   (including   golden   parachute,   severance  and   employment
     agreements)  (collectively,  "Benefit  Plans")  with  respect to its Senior
     Executive  Officers  (and to the extent  necessary  for such  changes to be
     legally enforceable,  each of its Senior Executive Officers shall have duly
     consented  in writing to such  changes),  as may be  necessary,  during the
     period that the Investor owns any debt or equity  securities of the Company
     acquired pursuant to this Agreement or the Warrant, in order to comply with
     Section 111(b) of the Emergency Economic Stabilization Act of 2008 ("EESA")
     as  implemented by guidance or regulation  thereunder  that has been issued
     and is in effect as of the Closing  Date,  and (B) the Investor  shall have
     received  a  certificate  signed  on  behalf  of the  Company  by a  senior
     executive officer  certifying to the effect that the condition set forth in
     Section 1.2(d)(iv)(A) has been satisfied;

          (v)  each  of the  Company's  Senior  Executive  Officers  shall  have
     delivered to the Investor a written  waiver in the form attached  hereto as
     Annex B releasing the Investor  from any claims that such Senior  Executive
     Officers may otherwise have as a result of the issuance, on or prior to the
     Closing Date, of any regulations which require the modification of, and the
     agreement  of the  Company  hereunder  to modify,  the terms of any Benefit
     Plans with  respect to its  Senior  Executive  Officers  to  eliminate  any
     provisions of such Benefit  Plans that would not be in compliance  with the
     requirements  of Section  111(b) of the EESA as  implemented by guidance or
     regulation  thereunder  that has been  issued  and is in  effect  as of the
     Closing Date;

          (vi) the  Company  shall  have  delivered  to the  Investor  a written
     opinion  from  counsel  to the  Company  (which may be  internal  counsel),
     addressed  to  the  Investor  and  dated  as  of  the  Closing   Date,   in
     substantially the form attached hereto as Annex C;

          (vii) the Company shall have delivered certificates in proper form or,
     with the prior  consent of the  Investor,  evidence of shares in book-entry
     form, evidencing the Preferred Shares to Investor or its designee(s); and

          (viii)  the  Company   shall  have  duly   executed   the  Warrant  in
     substantially  the  form  attached  hereto  as Annex D and  delivered  such
     executed Warrant to the Investor or its designee(s).

                                       3


     1.3  Interpretation.  When  a  reference  is  made  in  this  Agreement  to
"Recitals,  "Articles,"  "Sections," or "Annexes"  such reference  shall be to a
Recital,  Article or Section of, or Annex to, this Securities Purchase Agreement
- - Standard Terms,  and a reference to "Schedules"  shall be to a Schedule to the
Letter Agreement, in each case, unless otherwise indicated. The terms defined in
the singular have a comparable  meaning when used in the plural, and vice versa.
References  to  "herein",  "hereof",  "hereunder"  and the  like  refer  to this
Agreement as a whole and not to any particular section or provision,  unless the
context requires otherwise. The table of contents and headings contained in this
Agreement  are for reference  purposes only and are not part of this  Agreement.
Whenever  the  words  "include,"  "includes"  or  "including"  are  used in this
Agreement,  they shall be deemed followed by the words "without  limitation." No
rule of  construction  against the  draftsperson  shall be applied in connection
with the  interpretation or enforcement of this Agreement,  as this Agreement is
the product of negotiation between sophisticated parties advised by counsel. All
references to "$" or "dollars" mean the lawful  currency of the United States of
America.  Except as expressly  stated in this  Agreement,  all references to any
statute,  rule or regulation are to the statute,  rule or regulation as amended,
modified,  supplemented  or  replaced  from  time to time  (and,  in the case of
statutes,  include any rules and regulations  promulgated under the statute) and
to any section of any statute,  rule or regulation  include any successor to the
section.  References  to a  "business  day" shall mean 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.

                                   Article II
                         Representations and Warranties

     2.1 Disclosure.

     (a) "Company  Material  Adverse Effect" means a material  adverse effect on
(i) the business, results of operation or financial condition of the Company and
its consolidated subsidiaries taken as a whole; provided,  however, that Company
Material  Adverse  Effect  shall not be deemed to  include  the  effects  of (A)
changes after the date of the Letter  Agreement (the "Signing  Date") in general
business,   economic  or  market  conditions  (including  changes  generally  in
prevailing interest rates, credit availability and liquidity,  currency exchange
rates and price  levels or  trading  volumes  in the  United  States or  foreign
securities or credit  markets),  or any outbreak or  escalation of  hostilities,
declared  or  undeclared  acts  of war or  terrorism,  in  each  case  generally
affecting the industries in which the Company and its subsidiaries  operate, (B)
changes  or  proposed  changes  after the  Signing  Date in  generally  accepted
accounting  principles  in the United States  ("GAAP") or regulatory  accounting
requirements,  or authoritative interpretations thereof, (C) changes or proposed
changes after the Signing Date in securities,  banking and other laws of general
applicability or related policies or  interpretations  of Governmental  Entities
(in the case of each of these  clauses (A),  (B) and (C),  other than changes or
occurrences  to the  extent  that  such  changes  or  occurrences  have or would
reasonably be expected to have a materially  disproportionate  adverse effect on
the  Company  and its  consolidated  subsidiaries  taken as a whole  relative to
comparable U.S. banking or financial services organizations),  or (D) changes in
the market  price or trading  volume of the  Common  Stock or any other  equity,
equity-related   or  debt   securities  of  the  Company  or  its   consolidated
subsidiaries  (it being  understood  and agreed that the  exception set forth in
this  clause  (D) does

                                       4


not apply to the underlying  reason giving rise to or  contributing  to any such
change);  or (ii) the ability of the Company to consummate  the Purchase and the
other  transactions  contemplated  by this Agreement and the Warrant and perform
its obligations hereunder or thereunder on a timely basis.

     (b) "Previously  Disclosed" means  information set forth or incorporated in
the Company's Annual Report on Form 10-K for the most recently  completed fiscal
year of the Company  filed with the  Securities  and  Exchange  Commission  (the
"SEC")  prior to the  Signing  Date  (the  "Last  Fiscal  Year") or in its other
reports and forms filed with or furnished to the SEC under Sections 13(a), 14(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") on or after
the last day of the Last Fiscal Year and prior to the Signing Date.

     2.2  Representations  and  Warranties of the Company.  Except as Previously
Disclosed,  the Company  represents  and warrants to the Investor that as of the
Signing Date and as of the Closing Date (or such other date specified herein):

     (a) Organization,  Authority and Significant Subsidiaries.  The Company has
been duly  incorporated  and is validly  existing and in good standing under the
laws of its jurisdiction of organization, with the necessary power and authority
to own its  properties  and conduct its  business  in all  material  respects as
currently  conducted,  and except as has not,  individually or in the aggregate,
had and would not  reasonably  be  expected to have a Company  Material  Adverse
Effect, has been duly qualified as a foreign  corporation for the transaction of
business and is in good standing  under the laws of each other  jurisdiction  in
which it owns or leases  properties  or conducts  any  business so as to require
such  qualification;  each  subsidiary  of the  Company  that is a  "significant
subsidiary"  within the  meaning of Rule  1-02(w)  of  Regulation  S-X under the
Securities  Act of 1933 (the  "Securities  Act") has been duly  organized and is
validly  existing  in  good  standing  under  the  laws of its  jurisdiction  of
organization.  The Charter and bylaws of the Company,  copies of which have been
provided to the  Investor  prior to the Signing  Date,  are true,  complete  and
correct  copies of such  documents as in full force and effect as of the Signing
Date.

     (b)  Capitalization.  The authorized capital stock of the Company,  and the
outstanding capital stock of the Company (including securities convertible into,
or exercisable or exchangeable for, capital stock of the Company) as of the most
recent fiscal month-end preceding the Signing Date (the  "Capitalization  Date")
is set forth on  Schedule  B. The  outstanding  shares of  capital  stock of the
Company have been duly authorized and are validly issued and outstanding,  fully
paid and nonassessable, and subject to no preemptive rights (and were not issued
in violation of any preemptive rights). Except as provided in the Warrant, as of
the Signing Date, the Company does not have  outstanding any securities or other
obligations  providing the holder the right to acquire  Common Stock that is not
reserved  for  issuance as specified on Schedule B, and the Company has not made
any other  commitment  to authorize,  issue or sell any Common Stock.  Since the
Capitalization  Date,  the  Company  has not issued any shares of Common  Stock,
other than (i) shares  issued upon the  exercise of stock  options or  delivered
under other  equity-based  awards or other  convertible  securities  or warrants
which were issued and  outstanding on the  Capitalization  Date and disclosed on
Schedule B and (ii) shares disclosed on Schedule B.

                                       5


     (c)  Preferred  Shares.  The  Preferred  Shares  have been duly and validly
authorized,  and, when issued and  delivered  pursuant to this  Agreement,  such
Preferred   Shares  will  be  duly  and  validly   issued  and  fully  paid  and
non-assessable,  will not be issued in violation of any preemptive  rights,  and
will rank pari passu with or senior to all other  series or classes of Preferred
Stock,  whether or not issued or  outstanding,  with  respect to the  payment of
dividends  and the  distribution  of  assets  in the  event of any  dissolution,
liquidation or winding up of the Company.

     (d) The Warrant and Warrant  Shares.  The Warrant has been duly  authorized
and, when executed and delivered as contemplated hereby, will constitute a valid
and legally binding obligation of the Company enforceable against the Company in
accordance  with its  terms,  except as the same may be  limited  by  applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors'  rights  generally and general  equitable  principles,
regardless of whether such  enforceability  is considered in a proceeding at law
or in equity ("Bankruptcy Exceptions"). The shares of Common Stock issuable upon
exercise of the Warrant (the  "Warrant  Shares") have been duly  authorized  and
reserved  for  issuance  upon  exercise  of the  Warrant  and when so  issued in
accordance with the terms of the Warrant will be validly issued,  fully paid and
non-assessable, subject, if applicable, to the approvals of its stockholders set
forth on Schedule C.

     (e) Authorization, Enforceability.

          (i) The Company has the  corporate  power and authority to execute and
     deliver this Agreement and the Warrant and, subject, if applicable,  to the
     approvals  of its  stockholders  set forth on  Schedule C, to carry out its
     obligations  hereunder and thereunder  (which  includes the issuance of the
     Preferred Shares, Warrant and Warrant Shares). The execution,  delivery and
     performance  by the  Company  of this  Agreement  and the  Warrant  and the
     consummation of the transactions  contemplated hereby and thereby have been
     duly  authorized  by all  necessary  corporate  action  on the  part of the
     Company and its  stockholders,  and no further approval or authorization is
     required on the part of the Company,  subject, in each case, if applicable,
     to the  approvals  of its  stockholders  set  forth  on  Schedule  C.  This
     Agreement  is a valid and binding  obligation  of the  Company  enforceable
     against the Company in accordance with its terms, subject to the Bankruptcy
     Exceptions.

          (ii) The  execution,  delivery and  performance by the Company of this
     Agreement  and  the  Warrant  and  the  consummation  of  the  transactions
     contemplated  hereby and thereby  and  compliance  by the Company  with the
     provisions  hereof and thereof,  will not (A) violate,  conflict  with,  or
     result in a breach of any  provision  of, or  constitute  a default  (or an
     event  which,  with  notice or lapse of time or both,  would  constitute  a
     default)  under,  or  result  in the  termination  of,  or  accelerate  the
     performance   required  by,  or  result  in  a  right  of   termination  or
     acceleration of, or result in the creation of, any lien, security interest,
     charge or  encumbrance  upon any of the properties or assets of the Company
     or any Company Subsidiary under any of the terms,  conditions or provisions
     of  (i)  subject,  if  applicable,   to  the  approvals  of  the  Company's
     stockholders set forth on Schedule C, its organizational  documents or (ii)
     any  note,  bond,  mortgage,  indenture,  deed of  trust,  license,  lease,
     agreement or other  instrument  or  obligation  to

                                       6


     which the  Company or any Company  Subsidiary  is a party or by which it or
     any Company Subsidiary may be bound, or to which the Company or any Company
     Subsidiary or any of the properties or assets of the Company or any Company
     Subsidiary may be subject,  or (B) subject to compliance  with the statutes
     and  regulations  referred to in the next  paragraph,  violate any statute,
     rule or regulation  or any judgment,  ruling,  order,  writ,  injunction or
     decree applicable to the Company or any Company  Subsidiary or any of their
     respective  properties or assets except, in the case of clauses (A)(ii) and
     (B), for those occurrences that, individually or in the aggregate, have not
     had and would not reasonably be expected to have a Company Material Adverse
     Effect.

          (iii) Other than the filing of the  Certificate of  Designations  with
     the  Secretary  of  State  of its  jurisdiction  of  organization  or other
     applicable  Governmental Entity, any current report on Form 8-K required to
     be filed with the SEC,  such  filings and  approvals  as are required to be
     made or obtained  under any state "blue sky" laws,  the filing of any proxy
     statement  contemplated  by  Section  3.1 and  such as  have  been  made or
     obtained,   no  notice  to,  filing  with,   exemption  or  review  by,  or
     authorization,  consent or approval of, any Governmental Entity is required
     to be made or obtained by the Company in connection  with the  consummation
     by the  Company  of the  Purchase  except  for any such  notices,  filings,
     exemptions, reviews, authorizations,  consents and approvals the failure of
     which  to make or  obtain  would  not,  individually  or in the  aggregate,
     reasonably be expected to have a Company Material Adverse Effect.

     (f) Anti-takeover Provisions and Rights Plan. The Board of Directors of the
Company (the "Board of Directors") has taken all necessary action to ensure that
the  transactions  contemplated  by  this  Agreement  and  the  Warrant  and the
consummation of the transactions contemplated hereby and thereby,  including the
exercise of the Warrant in  accordance  with its terms,  will be exempt from any
anti-takeover or similar provisions of the Company's Charter and bylaws, and any
other provisions of any applicable "moratorium",  "control share", "fair price",
"interested  stockholder"  or other  anti-takeover  laws and  regulations of any
jurisdiction.  The  Company  has  taken all  actions  necessary  to  render  any
stockholders'  rights plan of the Company inapplicable to this Agreement and the
Warrant  and  the  consummation  of the  transactions  contemplated  hereby  and
thereby,  including  the exercise of the Warrant by the  Investor in  accordance
with its terms.

     (g) No  Company  Material  Adverse  Effect.  Since the last day of the last
completed  fiscal  period for which the Company has filed a Quarterly  Report on
Form  10-Q or an Annual  Report  on Form 10-K with the SEC prior to the  Signing
Date, no fact, circumstance, event, change, occurrence, condition or development
has occurred that, individually or in the aggregate, has had or would reasonably
be expected to have a Company Material Adverse Effect.

     (h)  Company  Financial  Statements.  Each  of the  consolidated  financial
statements of the Company and its consolidated  subsidiaries  (collectively  the
"Company  Financial  Statements")  included or  incorporated by reference in the
Company  Reports filed with the SEC since  December 31, 2006,  present fairly in
all material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated therein (or if amended prior
to the Signing  Date,  as of the date of such  amendment)  and the  consolidated
results of their  operations for the periods  specified  therein;  and except as
stated therein,  such

                                       7


financial  statements  (A) were  prepared in  conformity  with GAAP applied on a
consistent basis (except as may be noted therein),  (B) have been prepared from,
and are in accordance with, the books and records of the Company and the Company
Subsidiaries and (C) complied as to form, as of their respective dates of filing
with  the  SEC,  in  all  material  respects  with  the  applicable   accounting
requirements  and with  the  published  rules  and  regulations  of the SEC with
respect thereto.

     (i) Reports.

          (i) Since  December 31, 2006,  the Company and each  subsidiary of the
     Company  (each a  "Company  Subsidiary"  and,  collectively,  the  "Company
     Subsidiaries")  has timely  filed all  reports,  registrations,  documents,
     filings, statements and submissions,  together with any amendments thereto,
     that it was required to file with any  Governmental  Entity (the foregoing,
     collectively,  the "Company Reports") and has paid all fees and assessments
     due and payable in  connection  therewith,  except,  in each case, as would
     not,  individually  or in the  aggregate,  reasonably be expected to have a
     Company  Material  Adverse Effect.  As of their respective dates of filing,
     the Company Reports complied in all material respects with all statutes and
     applicable rules and regulations of the applicable  Governmental  Entities.
     In the case of each such Company Report filed with or furnished to the SEC,
     such Company  Report (A) did not, as of its date or if amended prior to the
     Signing Date, as of the date of such amendment, contain an untrue statement
     of a material fact or omit to state a material  fact  necessary in order to
     make the statements made therein, in light of the circumstances under which
     they were made, not misleading, and (B) complied as to form in all material
     respects with the  applicable  requirements  of the  Securities Act and the
     Exchange  Act.  With  respect to all other  Company  Reports,  the  Company
     Reports were  complete  and  accurate in all material  respects as of their
     respective  dates.  No  executive  officer of the  Company  or any  Company
     Subsidiary has failed in any respect to make the certifications required of
     him or her under Section 302 or 906 of the Sarbanes-Oxley Act of 2002.

          (ii) The  records,  systems,  controls,  data and  information  of the
     Company and the Company Subsidiaries are recorded,  stored,  maintained and
     operated under means (including any electronic,  mechanical or photographic
     process,  whether  computerized  or  not)  that  are  under  the  exclusive
     ownership and direct control of the Company or the Company  Subsidiaries or
     their  accountants  (including all means of access thereto and  therefrom),
     except for any  non-exclusive  ownership and non-direct  control that would
     not reasonably be expected to have a material  adverse effect on the system
     of internal accounting controls described below in this Section 2.2(i)(ii).
     The Company (A) has  implemented  and  maintains  disclosure  controls  and
     procedures  (as defined in Rule  13a-15(e) of the  Exchange  Act) to ensure
     that  material   information   relating  to  the  Company,   including  the
     consolidated  Company  Subsidiaries,  is made known to the chief  executive
     officer and the chief  financial  officer of the  Company by others  within
     those entities, and (B) has disclosed,  based on its most recent evaluation
     prior to the Signing Date, to the Company's  outside auditors and the audit
     committee of the Board of Directors (x) any  significant  deficiencies  and
     material  weaknesses  in the design or operation of internal  controls over
     financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that
     are reasonably  likely to adversely affect the Company's ability to record,
     process,

                                       8


     summarize and report  financial  information and (y) any fraud,  whether or
     not  material,  that  involves  management  or other  employees  who have a
     significant  role  in  the  Company's   internal  controls  over  financial
     reporting.

     (j) No Undisclosed Liabilities.  Neither the Company nor any of the Company
Subsidiaries  has  any  liabilities  or  obligations  of any  nature  (absolute,
accrued,  contingent or otherwise) which are not properly  reflected or reserved
against in the  Company  Financial  Statements  to the extent  required to be so
reflected  or  reserved  against  in  accordance  with  GAAP,   except  for  (A)
liabilities  that have arisen since the last fiscal year end in the ordinary and
usual course of business and consistent  with past practice and (B)  liabilities
that, individually or in the aggregate, have not had and would not reasonably be
expected to have a Company Material Adverse Effect.

     (k) Offering of  Securities.  Neither the Company nor any person  acting on
its behalf has taken any action (including any offering of any securities of the
Company under circumstances which would require the integration of such offering
with the offering of any of the Purchased  Securities  under the Securities Act,
and the rules and  regulations of the SEC promulgated  thereunder),  which might
subject the  offering,  issuance or sale of any of the  Purchased  Securities to
Investor  pursuant to this  Agreement to the  registration  requirements  of the
Securities Act.

     (l) Litigation and Other Proceedings. Except (i) as set forth on Schedule D
or (ii) as would not,  individually or in the aggregate,  reasonably be expected
to have a Company  Material  Adverse Effect,  there is no (A) pending or, to the
knowledge of the Company,  threatened,  claim,  action,  suit,  investigation or
proceeding,  against the Company or any  Company  Subsidiary  or to which any of
their assets are subject nor is the Company or any Company Subsidiary subject to
any  order,  judgment  or  decree  or (B)  unresolved  violation,  criticism  or
exception by any  Governmental  Entity with respect to any report or relating to
any examinations or inspections of the Company or any Company Subsidiaries.

     (m)  Compliance  with  Laws.  Except as would not,  individually  or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect, the
Company and the Company  Subsidiaries  have all permits,  licenses,  franchises,
authorizations, orders and approvals of, and have made all filings, applications
and  registrations  with,  Governmental  Entities  that are required in order to
permit  them to own or lease their  properties  and assets and to carry on their
business as  presently  conducted  and that are  material to the business of the
Company  or such  Company  Subsidiary.  Except as set forth on  Schedule  E, the
Company and the Company  Subsidiaries  have complied in all respects and are not
in  default  or  violation  of,  and none of them is,  to the  knowledge  of the
Company,  under  investigation  with  respect  to or,  to the  knowledge  of the
Company,  have  been  threatened  to be  charged  with or  given  notice  of any
violation of, any applicable domestic (federal,  state or local) or foreign law,
statute,  ordinance,  license,  rule,  regulation,  policy or guideline,  order,
demand, writ,  injunction,  decree or judgment of any Governmental Entity, other
than such noncompliance,  defaults or violations that would not, individually or
in the  aggregate,  reasonably  be expected to have a Company  Material  Adverse
Effect.  Except for statutory or regulatory  restrictions of general application
or as set forth on Schedule E, no Governmental Entity has placed any restriction
on the  business or  properties  of

                                       9


the  Company  or any  Company  Subsidiary  that  would,  individually  or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect.

     (n) Employee Benefit Matters. Except as would not reasonably be expected to
have,  either  individually  or in the  aggregate,  a Company  Material  Adverse
Effect:  (A) each "employee benefit plan" (within the meaning of Section 3(3) of
the  Employee  Retirement  Income  Security Act of 1974,  as amended  ("ERISA"))
providing benefits to any current or former employee, officer or director of the
Company or any member of its  "Controlled  Group"  (defined as any  organization
which is a member of a controlled  group of  corporations  within the meaning of
Section 414 of the Internal  Revenue Code of 1986, as amended (the "Code")) that
is sponsored,  maintained or  contributed to by the Company or any member of its
Controlled Group and for which the Company or any member of its Controlled Group
would have any liability, whether actual or contingent (each, a "Plan") has been
maintained  in  compliance  with its  terms  and with  the  requirements  of all
applicable  statutes,  rules and regulations,  including ERISA and the Code; (B)
with respect to each Plan subject to Title IV of ERISA (including,  for purposes
of this  clause (B),  any plan  subject to Title IV of ERISA that the Company or
any member of its Controlled  Group  previously  maintained or contributed to in
the six years prior to the Signing Date), (1) no "reportable  event" (within the
meaning of Section  4043(c) of ERISA),  other than a reportable  event for which
the notice period referred to in Section  4043(c) of ERISA has been waived,  has
occurred in the three years prior to the Signing Date or is reasonably  expected
to occur, (2) no "accumulated funding deficiency" (within the meaning of Section
302 of ERISA or Section 412 of the Code), whether or not waived, has occurred in
the three years prior to the Signing  Date or is  reasonably  expected to occur,
(3) the fair  market  value of the assets  under each Plan  exceeds  the present
value  of  all  benefits  accrued  under  such  Plan  (determined  based  on the
assumptions  used to fund such Plan) and (4)  neither the Company nor any member
of its Controlled Group has incurred in the six years prior to the Signing Date,
or reasonably  expects to incur,  any  liability  under Title IV of ERISA (other
than  contributions  to the Plan or premiums to the PBGC in the ordinary  course
and  without  default)  in  respect  of a Plan  (including  any  Plan  that is a
"multiemployer  plan",  within the meaning of Section  4001(c)(3) of ERISA); and
(C) each Plan that is intended to be qualified  under Section 401(a) of the Code
has received a favorable  determination letter from the Internal Revenue Service
with  respect  to its  qualified  status  that has not been  revoked,  or such a
determination letter has been timely applied for but not received by the Signing
Date,  and nothing has occurred,  whether by action or by failure to act,  which
could  reasonably  be expected to cause the loss,  revocation  or denial of such
qualified status or favorable determination letter.

     (o)  Taxes.  Except  as  would  not,  individually  or  in  the  aggregate,
reasonably  be  expected  to have a Company  Material  Adverse  Effect,  (i) the
Company and the Company  Subsidiaries have filed all federal,  state,  local and
foreign  income and  franchise  Tax  returns  required  to be filed  through the
Signing  Date,  subject  to  permitted  extensions,  and have paid all Taxes due
thereon, and (ii) no Tax deficiency has been determined adversely to the Company
or any of the Company  Subsidiaries,  nor does the Company have any knowledge of
any Tax  deficiencies.  "Tax" or  "Taxes"  means any  federal,  state,  local or
foreign  income,  gross  receipts,   property,   sales,  use,  license,  excise,
franchise,  employment, payroll, withholding,  alternative or add on minimum, ad
valorem,  transfer or excise tax, or any other tax, custom,  duty,  governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest or penalty, imposed by any Governmental Entity.

                                       10


     (p)  Properties  and Leases.  Except as would not,  individually  or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect, the
Company and the Company  Subsidiaries have good and marketable title to all real
properties and all other  properties and assets owned by them, in each case free
from liens, encumbrances, claims and defects that would affect the value thereof
or interfere  with the use made or to be made  thereof by them.  Except as would
not, individually or in the aggregate,  reasonably be expected to have a Company
Material  Adverse  Effect,  the Company and the  Company  Subsidiaries  hold all
leased real or personal  property  under  valid and  enforceable  leases with no
exceptions that would interfere with the use made or to be made thereof by them.

     (q) Environmental  Liability.  Except as would not,  individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect:

          (i) there is no legal,  administrative,  or other proceeding, claim or
     action of any  nature  seeking  to  impose,  or that  would  reasonably  be
     expected  to result in the  imposition  of, on the  Company or any  Company
     Subsidiary,  any liability relating to the release of hazardous  substances
     as  defined  under  any  local,  state or  federal  environmental  statute,
     regulation  or  ordinance,   including  the   Comprehensive   Environmental
     Response,  Compensation  and  Liability  Act of 1980,  pending  or,  to the
     Company's  knowledge,   threatened  against  the  Company  or  any  Company
     Subsidiary;

          (ii) to the Company's knowledge,  there is no reasonable basis for any
     such proceeding, claim or action; and

          (iii) neither the Company nor any Company Subsidiary is subject to any
     agreement,  order,  judgment  or decree by or with any court,  Governmental
     Entity or third party imposing any such environmental liability.

     (r) Risk Management  Instruments.  Except as would not,  individually or in
the aggregate, reasonably be expected to have a Company Material Adverse Effect,
all  derivative   instruments,   including,   swaps,  caps,  floors  and  option
agreements,  whether  entered into for the  Company's  own  account,  or for the
account of one or more of the Company  Subsidiaries  or its or their  customers,
were  entered  into  (i)  only  in the  ordinary  course  of  business,  (ii) in
accordance  with  prudent  practices  and  in all  material  respects  with  all
applicable  laws,  rules,  regulations  and  regulatory  policies and (iii) with
counterparties  believed to be financially  responsible at the time; and each of
such  instruments  constitutes the valid and legally  binding  obligation of the
Company or one of the Company  Subsidiaries,  enforceable in accordance with its
terms,  except as may be  limited  by the  Bankruptcy  Exceptions.  Neither  the
Company or the Company  Subsidiaries,  nor, to the knowledge of the Company, any
other  party  thereto,  is in  breach of any of its  obligations  under any such
agreement or arrangement  other than such breaches that would not,  individually
or in the aggregate,  reasonably be expected to have a Company  Material Adverse
Effect.

     (s) Agreements with Regulatory Agencies. Except as set forth on Schedule F,
neither  the  Company  nor any  Company  Subsidiary  is subject to any  material
cease-and-desist or other similar order or enforcement action issued by, or is a
party to any material  written  agreement,  consent  agreement or  memorandum of
understanding  with,  or  is  a  party  to  any  commitment  letter  or  similar
undertaking to, or is subject to any capital directive by, or since December 31,
2006,

                                       11


has adopted any board  resolutions  at the request of, any  Governmental  Entity
(other than the Appropriate  Federal Banking Agencies with jurisdiction over the
Company and the Company  Subsidiaries) that currently  restricts in any material
respect the conduct of its  business or that in any material  manner  relates to
its capital  adequacy,  its liquidity and funding  policies and  practices,  its
ability to pay dividends,  its credit, risk management or compliance policies or
procedures,  its internal controls, its management or its operations or business
(each item in this sentence, a "Regulatory  Agreement"),  nor has the Company or
any  Company  Subsidiary  been  advised  since  December  31,  2006 by any  such
Governmental Entity that it is considering  issuing,  initiating,  ordering,  or
requesting  any  such  Regulatory  Agreement.   The  Company  and  each  Company
Subsidiary  are in  compliance  in all material  respects  with each  Regulatory
Agreement  to which it is party or  subject,  and  neither  the  Company nor any
Company  Subsidiary  has  received  any  notice  from  any  Governmental  Entity
indicating  that  either  the  Company  or  any  Company  Subsidiary  is  not in
compliance  in  all  material  respects  with  any  such  Regulatory  Agreement.
"Appropriate  Federal  Banking  Agency" means the  "appropriate  Federal banking
agency" with respect to the Company or such Company Subsidiaries, as applicable,
as defined in  Section  3(q) of the  Federal  Deposit  Insurance  Act (12 U.S.C.
Section 1813(q)).

     (t) Insurance.  The Company and the Company  Subsidiaries  are insured with
reputable  insurers  against such risks and in such amounts as the management of
the Company reasonably has determined to be prudent and consistent with industry
practice.  The Company and the Company  Subsidiaries are in material  compliance
with their  insurance  policies and are not in default under any of the material
terms thereof, each such policy is outstanding and in full force and effect, all
premiums and other  payments due under any material  policy have been paid,  and
all claims thereunder have been filed in due and timely fashion, except, in each
case, as would not, individually or in the aggregate,  reasonably be expected to
have a Company Material Adverse Effect.

     (u)  Intellectual  Property.  Except as would not,  individually  or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect, (i)
the Company and each Company  Subsidiary owns or otherwise has the right to use,
all intellectual property rights,  including all trademarks,  trade dress, trade
names,  service  marks,  domain  names,  patents,   inventions,  trade  secrets,
know-how,  works of  authorship  and  copyrights  therein,  that are used in the
conduct  of their  existing  businesses  and all rights  relating  to the plans,
design and specifications of any of its branch facilities ("Proprietary Rights")
free and clear of all liens and any  claims of  ownership  by  current or former
employees, contractors, designers or others and (ii) neither the Company nor any
of the Company Subsidiaries is materially infringing, diluting, misappropriating
or violating,  nor has the Company or any or the Company  Subsidiaries  received
any written (or, to the knowledge of the Company, oral) communications  alleging
that any of them has materially infringed, diluted, misappropriated or violated,
any of the  Proprietary  Rights owned by any other person.  Except as would not,
individually  or in the  aggregate,  reasonably  be  expected  to have a Company
Material  Adverse  Effect,  to the  Company's  knowledge,  no  other  person  is
infringing, diluting,  misappropriating or violating, nor has the Company or any
or the Company  Subsidiaries  sent any written  communications  since January 1,
2006  alleging  that any  person  has  infringed,  diluted,  misappropriated  or
violated,  any of the  Proprietary  Rights  owned by the Company and the Company
Subsidiaries.

                                       12


     (v) Brokers and Finders. No broker, finder or investment banker is entitled
to any  financial  advisory,  brokerage,  finder's or other fee or commission in
connection with this Agreement or the Warrant or the  transactions  contemplated
hereby or thereby based upon arrangements made by or on behalf of the Company or
any Company Subsidiary for which the Investor could have any liability.

                                  Article III
                                   Covenants

     3.1 Commercially Reasonable Efforts.

     (a)  Subject to the terms and  conditions  of this  Agreement,  each of the
parties will use its commercially  reasonable  efforts in good faith to take, or
cause to be  taken,  all  actions,  and to do, or cause to be done,  all  things
necessary,  proper or desirable,  or advisable under  applicable  laws, so as to
permit  consummation of the Purchase as promptly as practicable and otherwise to
enable  consummation  of the  transactions  contemplated  hereby  and  shall use
commercially reasonable efforts to cooperate with the other party to that end.

     (b) If the  Company is  required to obtain any  stockholder  approvals  set
forth on Schedule C, then the Company shall comply with this Section  3.1(b) and
Section 3.1(c). The Company shall call a special meeting of its stockholders, as
promptly  as   practicable   following   the  Closing,   to  vote  on  proposals
(collectively,  the "Stockholder  Proposals") to (i) approve the exercise of the
Warrant  for Common  Stock for  purposes of the rules of the  national  security
exchange on which the Common  Stock is listed  and/or  (ii) amend the  Company's
Charter to increase the number of authorized  shares of Common Stock to at least
such number as shall be  sufficient  to permit the full  exercise of the Warrant
for Common Stock and comply with the other provisions of this Section 3.1(b) and
Section  3.1(c).  The  Board  of  Directors  shall  recommend  to the  Company's
stockholders that such stockholders vote in favor of the Stockholder  Proposals.
In  connection  with such  meeting,  the Company shall prepare (and the Investor
will reasonably  cooperate with the Company to prepare) and file with the SEC as
promptly as  practicable  (but in no event more than ten business days after the
Closing) a preliminary proxy statement, shall use its reasonable best efforts to
respond  to  any  comments  of the  SEC or its  staff  thereon  and to  cause  a
definitive proxy statement related to such stockholders' meeting to be mailed to
the Company's  stockholders  not more than five  business  days after  clearance
thereof by the SEC, and shall use its reasonable best efforts to solicit proxies
for such stockholder  approval of the Stockholder  Proposals.  The Company shall
notify the Investor  promptly of the receipt of any comments from the SEC or its
staff with respect to the proxy  statement  and of any request by the SEC or its
staff for amendments or  supplements  to such proxy  statement or for additional
information  and will  supply the  Investor  with  copies of all  correspondence
between the Company or any of its representatives,  on the one hand, and the SEC
or its staff, on the other hand, with respect to such proxy statement. If at any
time prior to such  stockholders'  meeting  there  shall occur any event that is
required to be set forth in an amendment or supplement  to the proxy  statement,
the  Company  shall  as  promptly  as  practicable   prepare

                                       13


and  mail to its  stockholders  such an  amendment  or  supplement.  Each of the
Investor and the Company agrees promptly to correct any information  provided by
it or on its behalf  for use in the proxy  statement  if and to the extent  that
such information  shall have become false or misleading in any material respect,
and the  Company  shall  as  promptly  as  practicable  prepare  and mail to its
stockholders  an amendment or  supplement  to correct  such  information  to the
extent  required by applicable laws and  regulations.  The Company shall consult
with the  Investor  prior to filing any proxy  statement,  or any  amendment  or
supplement  thereto,  and provide the Investor with a reasonable  opportunity to
comment  thereon.  In the  event  that the  approval  of any of the  Stockholder
Proposals  is not  obtained at such special  stockholders  meeting,  the Company
shall include a proposal to approve (and the Board of Directors  shall recommend
approval of) each such  proposal at a meeting of its  stockholders  no less than
once in each subsequent six month period  beginning on January 1, 2009 until all
such approvals are obtained or made.

     (c) None of the  information  supplied by the Company or any of the Company
Subsidiaries  for inclusion in any proxy  statement in connection  with any such
stockholders  meeting of the Company will, at the date it is filed with the SEC,
when  first  mailed  to  the  Company's  stockholders  and at  the  time  of any
stockholders  meeting,  and at the time of any amendment or supplement  thereof,
contain any untrue  statement  of a material  fact or omit to state any material
fact  necessary  in  order  to make  the  statements  therein,  in  light of the
circumstances under which they are made, not misleading.

     3.2 Expenses.  Unless otherwise  provided in this Agreement or the Warrant,
each of the parties hereto will bear and pay all costs and expenses  incurred by
it or on its behalf in connection with the transactions  contemplated under this
Agreement and the Warrant,  including  fees and expenses of its own financial or
other consultants, investment bankers, accountants and counsel.

     3.3 Sufficiency of Authorized Common Stock; Exchange Listing.

     (a) During the period  from the Closing  Date (or,  if the  approval of the
Stockholder Proposals is required,  the date of such approval) until the date on
which the Warrant has been fully exercised,  the Company shall at all times have
reserved for issuance, free of preemptive or similar rights, a sufficient number
of authorized and unissued  Warrant Shares to effectuate such exercise.  Nothing
in this Section 3.3 shall preclude the Company from  satisfying its  obligations
in respect of the  exercise of the Warrant by delivery of shares of Common Stock
which are held in the treasury of the Company. As soon as reasonably practicable
following  the Closing,  the Company  shall,  at its expense,  cause the Warrant
Shares to be listed on the same national securities exchange on which the Common
Stock is listed, subject to official notice of issuance, and shall maintain such
listing for so long as any Common Stock is listed on such exchange.

     (b) If  requested  by the  Investor,  the Company  shall  promptly  use its
reasonable best efforts to cause the Preferred Shares to be approved for listing
on a national  securities  exchange as promptly as  practicable  following  such
request.

     3.4 Certain  Notifications  Until Closing.  From the Signing Date until the
Closing,  the Company shall promptly notify the Investor of (i) any fact,  event
or circumstance  of which it is aware and which would  reasonably be expected to
cause any  representation or warranty of the Company contained in this Agreement
to be untrue or inaccurate  in any material  respect or to cause any covenant or
agreement of the Company  contained in this Agreement not to be complied with or
satisfied in any material respect and (ii) except as Previously  Disclosed,  any
fact, circumstance, event, change, occurrence, condition or development of which
the Company

                                       14


is  aware  and  which,  individually  or in the  aggregate,  has  had  or  would
reasonably  be expected to have a Company  Material  Adverse  Effect;  provided,
however,  that  delivery of any notice  pursuant  to this  Section 3.4 shall not
limit or affect any rights of or remedies  available to the Investor;  provided,
further,  that a failure to comply with this Section 3.4 shall not  constitute a
breach of this  Agreement or the failure of any  condition  set forth in Section
1.2 to be satisfied  unless the underlying  Company  Material  Adverse Effect or
material  breach would  independently  result in the failure of a condition  set
forth in Section 1.2 to be satisfied.

     3.5 Access, Information and Confidentiality.

     (a) From the Signing Date until the date when the Investor  holds an amount
of Preferred  Shares having an aggregate  liquidation  value of less than 10% of
the  Purchase  Price,  the  Company  will  permit the  Investor  and its agents,
consultants, contractors and advisors (x) acting through the Appropriate Federal
Banking  Agency,  to examine the corporate  books and make copies thereof and to
discuss  the  affairs,  finances  and  accounts  of the  Company and the Company
Subsidiaries  with the principal  officers of the Company,  all upon  reasonable
notice and at such reasonable  times and as often as the Investor may reasonably
request and (y) to review any information material to the Investor's  investment
in the  Company  provided  by the  Company to its  Appropriate  Federal  Banking
Agency. Any investigation pursuant to this Section 3.5 shall be conducted during
normal business hours and in such manner as not to interfere  unreasonably  with
the conduct of the business of the Company, and nothing herein shall require the
Company or any Company Subsidiary to disclose any information to the Investor to
the extent (i)  prohibited by applicable  law or  regulation,  or (ii) that such
disclosure would reasonably be expected to cause a violation of any agreement to
which the Company or any Company  Subsidiary is a party or would cause a risk of
a loss of privilege to the Company or any Company Subsidiary  (provided that the
Company shall use commercially reasonable efforts to make appropriate substitute
disclosure  arrangements  under  circumstances  where the  restrictions  in this
clause (ii) apply).

     (b) The Investor  will use  reasonable  best efforts to hold,  and will use
reasonable  best  efforts  to cause its  agents,  consultants,  contractors  and
advisors  to hold,  in  confidence  all  nonpublic  records,  books,  contracts,
instruments,  computer  data  and  other  data  and  information  (collectively,
"Information")  concerning the Company  furnished or made available to it by the
Company or its representatives  pursuant to this Agreement (except to the extent
that such  information  can be shown to have been (i)  previously  known by such
party on a non-confidential basis, (ii) in the public domain through no fault of
such party or (iii) later  lawfully  acquired from other sources by the party to
which it was  furnished  (and  without  violation  of any other  confidentiality
obligation));  provided  that  nothing  herein shall  prevent the Investor  from
disclosing  any  Information  to the  extent  required  by  applicable  laws  or
regulations or by any subpoena or similar legal process.

                                   Article IV
                              Additional Agreements

     4.1 Purchase for Investment.  The Investor  acknowledges that the Purchased
Securities and the Warrant Shares have not been registered  under the Securities
Act or under any state  securities  laws.  The  Investor  (a) is  acquiring  the
Purchased  Securities  pursuant  to an

                                       16


exemption from registration  under the Securities Act solely for investment with
no  present  intention  to  distribute  them to any person in  violation  of the
Securities Act or any applicable U.S. state  securities  laws, (b) will not sell
or otherwise  dispose of any of the Purchased  Securities or the Warrant Shares,
except in compliance with the registration  requirements or exemption provisions
of the Securities Act and any applicable U.S. state securities laws, and (c) has
such  knowledge  and  experience  in  financial  and  business  matters  and  in
investments  of this type that it is capable of evaluating  the merits and risks
of the Purchase and of making an informed investment decision.

     4.2 Legends.

     (a)  The  Investor  agrees  that  all  certificates  or  other  instruments
representing the Warrant and the Warrant Shares will bear a legend substantially
to the following effect:

     "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."

     (b)  The  Investor  agrees  that  all  certificates  or  other  instruments
representing the Warrant will also bear a legend  substantially to the following
effect:

     "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."

     (c) In  addition,  the  Investor  agrees  that  all  certificates  or other
instruments  representing the Preferred Shares will bear a legend  substantially
to the following effect:

     "THE SECURITIES  REPRESENTED BY THIS  INSTRUMENT ARE NOT SAVINGS  ACCOUNTS,
     DEPOSITS OR OTHER  OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL
     DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.

     THE SECURITIES  REPRESENTED  BY THIS  INSTRUMENT  HAVE NOT BEEN  REGISTERED
     UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
     SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED,  SOLD OR OTHERWISE

                                       16


     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. EACH PURCHASER
     OF THE  SECURITIES  REPRESENTED  BY THIS  INSTRUMENT  IS NOTIFIED  THAT THE
     SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT
     PROVIDED  BY  RULE  144A  THEREUNDER.  ANY  TRANSFEREE  OF  THE  SECURITIES
     REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
     IT IS A "QUALIFIED  INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
     SECURITIES  ACT),  (2)  AGREES  THAT IT WILL NOT OFFER,  SELL OR  OTHERWISE
     TRANSFER THE SECURITIES  REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT
     TO A REGISTRATION  STATEMENT  WHICH IS THEN EFFECTIVE  UNDER THE SECURITIES
     ACT, (B) FOR SO LONG AS THE SECURITIES  REPRESENTED BY THIS  INSTRUMENT ARE
     ELIGIBLE  FOR  RESALE  PURSUANT  TO RULE  144A,  TO A PERSON IT  REASONABLY
     BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
     THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
     A QUALIFIED  INSTITUTIONAL  BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
     IS BEING MADE IN RELIANCE ON RULE 144A,  (C) TO THE ISSUER OR (D)  PURSUANT
     TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION  REQUIREMENTS OF THE
     SECURITIES  ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
     SECURITIES   REPRESENTED  BY  THIS  INSTRUMENT  ARE  TRANSFERRED  A  NOTICE
     SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."

     (d) In the event that any Purchased Securities or Warrant Shares (i) become
registered  under the  Securities  Act or (ii) are  eligible  to be  transferred
without  restriction  in  accordance  with Rule 144 or  another  exemption  from
registration  under the Securities Act (other than Rule 144A), the Company shall
issue  new  certificates  or  other  instruments   representing  such  Purchased
Securities or Warrant Shares,  which shall not contain the applicable legends in
Sections  4.2(a) and (c) above;  provided  that the Investor  surrenders  to the
Company the previously issued  certificates or other instruments.  Upon Transfer
of all or a portion of the Warrant in  compliance  with Section 4.4, the Company
shall issue new  certificates  or other  instruments  representing  the Warrant,
which shall not contain the applicable legend in Section 4.2(b) above;  provided
that the Investor  surrenders to the Company the previously issued  certificates
or other instruments.

     4.3 Certain  Transactions.  The Company will not merge or consolidate with,
or sell,  transfer or lease all or  substantially  all of its property or assets
to, any other party  unless the  successor,  transferee  or lessee party (or its
ultimate  parent  entity),  as the case may be (if not the  Company),  expressly
assumes  the due and  punctual  performance  and  observance  of each and  every
covenant, agreement and condition of this Agreement to be performed and observed
by the Company.

                                       17


     4.4 Transfer of Purchased  Securities and Warrant  Shares;  Restrictions on
Exercise of the Warrant.  Subject to compliance with applicable securities laws,
the Investor shall be permitted to transfer,  sell,  assign or otherwise dispose
of ("Transfer")  all or a portion of the Purchased  Securities or Warrant Shares
at any time, and the Company shall take all steps as may be reasonably requested
by the Investor to facilitate  the Transfer of the Purchased  Securities and the
Warrant  Shares;  provided  that the  Investor  shall not  Transfer a portion or
portions of the Warrant with respect to,  and/or  exercise the Warrant for, more
than one-half of the Initial Warrant Shares (as such number may be adjusted from
time to time pursuant to Section 13 thereof) in the aggregate  until the earlier
of (a) the date on which the Company (or any successor by Business  Combination)
has received  aggregate  gross proceeds of not less than the Purchase Price (and
the purchase  price paid by the Investor to any such successor for securities of
such  successor  purchased  under  the CPP)  from one or more  Qualified  Equity
Offerings  (including  Qualified  Equity  Offerings of such  successor)  and (b)
December 31, 2009.  "Qualified  Equity Offering" means the sale and issuance for
cash by the  Company to persons  other  than the  Company or any of the  Company
Subsidiaries  after the Closing  Date of shares of  perpetual  Preferred  Stock,
Common Stock or any  combination of such stock,  that, in each case,  qualify as
and may be  included  in Tier 1 capital of the  Company at the time of  issuance
under the applicable  risk-based capital guidelines of the Company's Appropriate
Federal Banking Agency (other than any such sales and issuances made pursuant to
agreements or  arrangements  entered into, or pursuant to financing  plans which
were  publicly  announced,   on  or  prior  to  October  13,  2008).   "Business
Combination" means a merger, consolidation,  statutory share exchange or similar
transaction that requires the approval of the Company's stockholders.

     4.5 Registration Rights.

     (a) Registration.

          (i) Subject to the terms and conditions of this Agreement, the Company
     covenants and agrees that as promptly as practicable after the Closing Date
     (and in any  event no later  than 30 days  after  the  Closing  Date),  the
     Company shall prepare and file with the SEC a Shelf Registration  Statement
     covering all  Registrable  Securities  (or otherwise  designate an existing
     Shelf  Registration  Statement  filed with the SEC to cover the Registrable
     Securities),  and, to the extent the Shelf  Registration  Statement has not
     theretofore been declared effective or is not automatically  effective upon
     such filing,  the Company shall use  reasonable  best efforts to cause such
     Shelf Registration Statement to be declared or become effective and to keep
     such Shelf Registration  Statement continuously effective and in compliance
     with  the  Securities  Act  and  usable  for  resale  of  such  Registrable
     Securities  for a period from the date of its initial  effectiveness  until
     such time as there are no Registrable  Securities  remaining  (including by
     refiling such Shelf  Registration  Statement  (or a new Shelf  Registration
     Statement) if the initial Shelf Registration Statement expires). So long as
     the Company is a well-known  seasoned  issuer (as defined in Rule 405 under
     the  Securities  Act)  at the  time of  filing  of the  Shelf  Registration
     Statement  with  the  SEC,  such  Shelf  Registration  Statement  shall  be
     designated  by the Company as an automatic  Shelf  Registration  Statement.
     Notwithstanding  the  foregoing,  if on the Signing Date the Company is not
     eligible to file a  registration  statement  on Form S-3,  then the Company
     shall not be obligated to file a

                                       18


     Shelf Registration Statement unless and until requested to do so in writing
     by the Investor.

          (ii) Any registration  pursuant to Section 4.5(a)(i) shall be effected
     by means of a shelf  registration  on an  appropriate  form  under Rule 415
     under  the  Securities  Act  (a  "Shelf  Registration  Statement").  If the
     Investor  or  any  other  Holder  intends  to  distribute  any  Registrable
     Securities by means of an underwritten offering it shall promptly so advise
     the Company and the Company shall take all  reasonable  steps to facilitate
     such  distribution,  including  the  actions  required  pursuant to Section
     4.5(c);  provided  that the Company  shall not be required to facilitate an
     underwritten  offering of Registrable  Securities unless the expected gross
     proceeds  from  such  offering  exceed  (i)  2% of  the  initial  aggregate
     liquidation  preference of the Preferred  Shares if such initial  aggregate
     liquidation preference is less than $2 billion and (ii) $200 million if the
     initial aggregate  liquidation  preference of the Preferred Shares is equal
     to  or  greater  than  $2  billion.  The  lead  underwriters  in  any  such
     distribution  shall  be  selected  by  the  Holders  of a  majority  of the
     Registrable  Securities  to be  distributed;  provided  that to the  extent
     appropriate and permitted under applicable law, such Holders shall consider
     the  qualifications  of  any  broker-dealer  Affiliate  of the  Company  in
     selecting the lead underwriters in any such distribution.

          (iii) The  Company  shall  not be  required  to effect a  registration
     (including  a resale of  Registrable  Securities  from an  effective  Shelf
     Registration  Statement) or an  underwritten  offering  pursuant to Section
     4.5(a): (A) with respect to securities that are not Registrable Securities;
     or (B) if the Company has notified the Investor and all other  Holders that
     in the  good  faith  judgment  of the  Board  of  Directors,  it  would  be
     materially  detrimental  to the  Company  or its  securityholders  for such
     registration or underwritten offering to be effected at such time, in which
     event the  Company  shall have the right to defer such  registration  for a
     period  of not  more  than 45 days  after  receipt  of the  request  of the
     Investor  or any  other  Holder;  provided  that  such  right  to  delay  a
     registration or underwritten offering shall be exercised by the Company (1)
     only if the Company has generally exercised (or is concurrently exercising)
     similar  black-out  rights against holders of similar  securities that have
     registration  rights  and (2) not more  than  three  times in any  12-month
     period and not more than 90 days in the aggregate in any 12-month period.

          (iv) If  during  any  period  when  an  effective  Shelf  Registration
     Statement  is not  available,  the Company  proposes to register any of its
     equity securities,  other than a registration pursuant to Section 4.5(a)(i)
     or a Special  Registration,  and the  registration  form to be filed may be
     used for the registration or qualification  for distribution of Registrable
     Securities, the Company will give prompt written notice to the Investor and
     all other Holders of its intention to effect such a registration (but in no
     event less than ten days  prior to the  anticipated  filing  date) and will
     include in such  registration  all  Registrable  Securities with respect to
     which the Company has  received  written  requests  for  inclusion  therein
     within  ten  business  days  after  the  date of the  Company's  notice  (a
     "Piggyback  Registration").  Any such  person  that has made such a written
     request  may  withdraw  its  Registrable  Securities  from  such  Piggyback
     Registration  by giving  written  notice to the  Company  and the  managing
     underwriter,  if any,  on or  before  the fifth  business  day prior to the
     planned  effective  date of such  Piggyback  Registration.  The

                                       19


     Company may  terminate  or withdraw  any  registration  under this  Section
     4.5(a)(iv) prior to the effectiveness of such registration,  whether or not
     Investor  or  any  other  Holders  have  elected  to  include   Registrable
     Securities in such registration.

          (v) If the registration  referred to in Section 4.5(a)(iv) is proposed
     to be  underwritten,  the  Company  will so advise  Investor  and all other
     Holders  as a  part  of  the  written  notice  given  pursuant  to  Section
     4.5(a)(iv).  In such event,  the right of Investor and all other Holders to
     registration  pursuant  to Section  4.5(a)  will be  conditioned  upon such
     persons'  participation  in such  underwriting  and the  inclusion  of such
     person's Registrable  Securities in the underwriting if such securities are
     of the same  class of  securities  as the  securities  to be offered in the
     underwritten offering, and each such person will (together with the Company
     and  the  other  persons   distributing   their  securities   through  such
     underwriting)  enter into an underwriting  agreement in customary form with
     the  underwriter  or  underwriters  selected for such  underwriting  by the
     Company; provided that the Investor (as opposed to other Holders) shall not
     be required to indemnify any person in connection with any registration. If
     any participating person disapproves of the terms of the underwriting, such
     person may elect to withdraw  therefrom  by written  notice to the Company,
     the   managing   underwriters   and  the   Investor  (if  the  Investor  is
     participating in the underwriting).

          (vi) If either (x) the Company grants "piggyback"  registration rights
     to one or more third parties to include their securities in an underwritten
     offering  under  the  Shelf  Registration  Statement  pursuant  to  Section
     4.5(a)(ii) or (y) a Piggyback Registration under Section 4.5(a)(iv) relates
     to an  underwritten  offering on behalf of the Company,  and in either case
     the  managing  underwriters  advise the  Company  that in their  reasonable
     opinion the number of securities  requested to be included in such offering
     exceeds  the  number  which can be sold  without  adversely  affecting  the
     marketability  of such  offering  (including  an adverse  effect on the per
     share offering price),  the Company will include in such offering only such
     number  of  securities  that in the  reasonable  opinion  of such  managing
     underwriters can be sold without  adversely  affecting the marketability of
     the offering (including an adverse effect on the per share offering price),
     which  securities  will be so included in the following  order of priority:
     (A)  first,  in  the  case  of  a  Piggyback   Registration  under  Section
     4.5(a)(iv),  the  securities  the Company  proposes  to sell,  (B) then the
     Registrable  Securities  of the  Investor  and all other  Holders  who have
     requested   inclusion  of  Registrable   Securities   pursuant  to  Section
     4.5(a)(ii) or Section 4.5(a)(iv),  as applicable,  pro rata on the basis of
     the aggregate number of such securities or shares owned by each such person
     and (C)  lastly,  any  other  securities  of the  Company  that  have  been
     requested  to be so  included,  subject  to the  terms  of this  Agreement;
     provided,  however,  that if the Company  has,  prior to the Signing  Date,
     entered  into  an  agreement  with  respect  to  its  securities   that  is
     inconsistent with the order of priority  contemplated  hereby then it shall
     apply the order of priority  in such  conflicting  agreement  to the extent
     that it would otherwise result in a breach under such agreement.

     (b)  Expenses  of  Registration.  All  Registration  Expenses  incurred  in
connection with any registration, qualification or compliance hereunder shall be
borne by the  Company.  All Selling  Expenses  incurred in  connection  with any
registrations  hereunder  shall be borne by

                                       20


the  holders  of the  securities  so  registered  pro  rata on the  basis of the
aggregate offering or sale price of the securities so registered.

     (c)  Obligations of the Company.  The Company shall use its reasonable best
efforts, for so long as there are Registrable  Securities  outstanding,  to take
such  actions as are under its  control to not become an  ineligible  issuer (as
defined  in Rule  405  under  the  Securities  Act) and to  remain a  well-known
seasoned issuer (as defined in Rule 405 under the Securities Act) if it has such
status on the Signing Date or becomes eligible for such status in the future. In
addition,  whenever  required  to effect  the  registration  of any  Registrable
Securities or facilitate the distribution of Registrable  Securities pursuant to
an effective Shelf Registration  Statement,  the Company shall, as expeditiously
as reasonably practicable:

          (i) Prepare and file with the SEC a prospectus supplement with respect
     to a proposed offering of Registrable  Securities  pursuant to an effective
     registration  statement,  subject to Section 4.5(d), keep such registration
     statement  effective and keep such prospectus  supplement current until the
     securities described therein are no longer Registrable Securities.

          (ii) Prepare and file with the SEC such  amendments and supplements to
     the  applicable  registration  statement  and the  prospectus or prospectus
     supplement  used in connection with such  registration  statement as may be
     necessary to comply with the  provisions of the Securities Act with respect
     to  the  disposition  of  all  securities   covered  by  such  registration
     statement.

          (iii)  Furnish to the  Holders  and any  underwriters  such  number of
     copies of the applicable registration statement and each such amendment and
     supplement  thereto  (including  in  each  case  all  exhibits)  and  of  a
     prospectus,  including a preliminary  prospectus,  in  conformity  with the
     requirements  of the Securities  Act, and such other  documents as they may
     reasonably  request in order to facilitate  the  disposition of Registrable
     Securities owned or to be distributed by them.

          (iv) Use its  reasonable  best  efforts to  register  and  qualify the
     securities  covered  by  such  registration   statement  under  such  other
     securities  or Blue Sky laws of such  jurisdictions  as shall be reasonably
     requested  by the  Holders  or any  managing  underwriter(s),  to keep such
     registration or  qualification  in effect for so long as such  registration
     statement  remains in  effect,  and to take any other  action  which may be
     reasonably necessary to enable such seller to consummate the disposition in
     such  jurisdictions of the securities  owned by such Holder;  provided that
     the Company shall not be required in connection therewith or as a condition
     thereto to qualify to do business  or to file a general  consent to service
     of process in any such states or jurisdictions.

          (v) Notify each Holder of  Registrable  Securities  at any time when a
     prospectus   relating  thereto  is  required  to  be  delivered  under  the
     Securities  Act of the  happening  of any  event as a result  of which  the
     applicable prospectus, as then in effect, includes an untrue statement of a
     material  fact or omits to state a  material  fact  required  to be  stated
     therein or necessary to make the statements therein not misleading in light
     of the circumstances then existing.

                                       21


          (vi) Give written notice to the Holders:

               (A) when any  registration  statement  filed  pursuant to Section
          4.5(a) or any  amendment  thereto  has been filed with the SEC (except
          for any  amendment  effected by the filing of a document  with the SEC
          pursuant to the Exchange Act) and when such registration  statement or
          any post-effective amendment thereto has become effective;

               (B) of any request by the SEC for  amendments or  supplements  to
          any registration  statement or the prospectus  included therein or for
          additional information;

               (C) of the issuance by the SEC of any stop order  suspending  the
          effectiveness of any  registration  statement or the initiation of any
          proceedings for that purpose;

               (D) of the  receipt by the  Company  or its legal  counsel of any
          notification  with respect to the suspension of the  qualification  of
          the Common Stock for sale in any  jurisdiction  or the  initiation  or
          threatening of any proceeding for such purpose;

               (E) of the  happening  of any event that  requires the Company to
          make changes in any effective registration statement or the prospectus
          related to the registration  statement in order to make the statements
          therein  not  misleading  (which  notice  shall be  accompanied  by an
          instruction to suspend the use of the  prospectus  until the requisite
          changes have been made); and

               (F) if at any  time the  representations  and  warranties  of the
          Company  contained  in  any  underwriting  agreement  contemplated  by
          Section 4.5(c)(x) cease to be true and correct.

          (vii) Use its  reasonable  best  efforts to prevent  the  issuance  or
     obtain the  withdrawal of any order  suspending  the  effectiveness  of any
     registration statement referred to in Section 4.5(c)(vi)(C) at the earliest
     practicable time.

          (viii)  Upon the  occurrence  of any  event  contemplated  by  Section
     4.5(c)(v) or 4.5(c)(vi)(E),  promptly prepare a post-effective amendment to
     such  registration  statement or a supplement to the related  prospectus or
     file any other  required  document so that, as thereafter  delivered to the
     Holders and any  underwriters,  the  prospectus  will not contain an untrue
     statement of a material fact or omit to state any material  fact  necessary
     to make the statements  therein,  in light of the circumstances under which
     they were made,  not  misleading.  If the Company  notifies  the Holders in
     accordance with Section  4.5(c)(vi)(E) to suspend the use of the prospectus
     until the  requisite  changes to the  prospectus  have been made,  then the
     Holders and any  underwriters  shall suspend use of such prospectus and use
     their  reasonable  best efforts to return to the Company all copies of such
     prospectus (at the Company's expense) other than permanent file copies then
     in such Holders' or underwriters' possession. The total number of days that
     any such  suspension  may be in effect  in any  12-month  period  shall not
     exceed 90 days.

                                       22


          (ix) Use  reasonable  best efforts to procure the  cooperation  of the
     Company's  transfer  agent in settling any offering or sale of  Registrable
     Securities,  including  with  respect to the  transfer  of  physical  stock
     certificates  into  book-entry  form  in  accordance  with  any  procedures
     reasonably requested by the Holders or any managing underwriter(s).

          (x) If an  underwritten  offering  is  requested  pursuant  to Section
     4.5(a)(ii),  enter into an underwriting  agreement in customary form, scope
     and substance and take all such other actions  reasonably  requested by the
     Holders  of  a  majority  of  the  Registrable  Securities  being  sold  in
     connection therewith or by the managing underwriter(s), if any, to expedite
     or facilitate the underwritten  disposition of such Registrable Securities,
     and in connection therewith in any underwritten  offering (including making
     members  of  management  and   executives  of  the  Company   available  to
     participate  in "road  shows",  similar  sales  events and other  marketing
     activities),  (A) make such  representations  and warranties to the Holders
     that are selling stockholders and the managing underwriter(s), if any, with
     respect to the business of the Company and its subsidiaries,  and the Shelf
     Registration  Statement,  prospectus and documents, if any, incorporated or
     deemed to be incorporated by reference therein,  in each case, in customary
     form,  substance  and scope,  and,  if true,  confirm  the same if and when
     requested,  (B) use its reasonable best efforts to furnish the underwriters
     with  opinions  of  counsel  to the  Company,  addressed  to  the  managing
     underwriter(s),  if any, covering the matters  customarily  covered in such
     opinions requested in underwritten  offerings,  (C) use its reasonable best
     efforts to obtain "cold  comfort"  letters from the  independent  certified
     public accountants of the Company (and, if necessary, any other independent
     certified  public  accountants of any business  acquired by the Company for
     which  financial  statements  and financial  data are included in the Shelf
     Registration   Statement)  who  have  certified  the  financial  statements
     included in such Shelf  Registration  Statement,  addressed  to each of the
     managing  underwriter(s),  if any, such letters to be in customary form and
     covering matters of the type customarily covered in "cold comfort" letters,
     (D) if an  underwriting  agreement is entered into,  the same shall contain
     indemnification   provisions  and  procedures   customary  in  underwritten
     offerings (provided that the Investor shall not be obligated to provide any
     indemnity),  and (E) deliver  such  documents  and  certificates  as may be
     reasonably  requested  by the  Holders  of a  majority  of the  Registrable
     Securities  being  sold in  connection  therewith,  their  counsel  and the
     managing underwriter(s),  if any, to evidence the continued validity of the
     representations  and  warranties  made  pursuant to clause (i) above and to
     evidence  compliance  with  any  customary   conditions  contained  in  the
     underwriting agreement or other agreement entered into by the Company.

          (xi) Make available for inspection by a representative of Holders that
     are selling  stockholders,  the  managing  underwriter(s),  if any, and any
     attorneys   or   accountants   retained   by  such   Holders  or   managing
     underwriter(s),  at the offices  where  normally  kept,  during  reasonable
     business hours, financial and other records,  pertinent corporate documents
     and  properties  of the  Company,  and cause the  officers,  directors  and
     employees of the Company to supply all  information in each case reasonably
     requested  (and of the type  customarily  provided in  connection  with due
     diligence  conducted in  connection  with a registered  public  offering of
     securities) by any such representative,

                                       23


     managing  underwriter(s),  attorney or accountant  in connection  with such
     Shelf Registration Statement.

          (xii)  Use  reasonable  best  efforts  to cause  all such  Registrable
     Securities  to be  listed on each  national  securities  exchange  on which
     similar  securities issued by the Company are then listed or, if no similar
     securities issued by the Company are then listed on any national securities
     exchange,  use its  reasonable  best efforts to cause all such  Registrable
     Securities  to be listed on such  securities  exchange as the  Investor may
     designate.

          (xiii) If  requested  by  Holders  of a  majority  of the  Registrable
     Securities being  registered  and/or sold in connection  therewith,  or the
     managing   underwriter(s),   if  any,  promptly  include  in  a  prospectus
     supplement or amendment  such  information  as the Holders of a majority of
     the  Registrable  Securities  being  registered  and/or sold in  connection
     therewith or managing  underwriter(s),  if any, may  reasonably  request in
     order to permit the intended  method of distribution of such securities and
     make all required  filings of such prospectus  supplement or such amendment
     as soon as practicable after the Company has received such request.

          (xiv)  Timely  provide  to its  security  holders  earning  statements
     satisfying  the  provisions of Section 11(a) of the Securities Act and Rule
     158 thereunder.

     (d)  Suspension of Sales.  Upon receipt of written  notice from the Company
that a registration  statement,  prospectus or prospectus supplement contains or
may contain an untrue statement of a material fact or omits or may omit to state
a  material  fact  required  to be  stated  therein  or  necessary  to make  the
statements  therein  not  misleading  or  that  circumstances  exist  that  make
inadvisable  use  of  such  registration  statement,  prospectus  or  prospectus
supplement,  the  Investor  and each  Holder  of  Registrable  Securities  shall
forthwith discontinue  disposition of Registrable  Securities until the Investor
and/or Holder has received  copies of a  supplemented  or amended  prospectus or
prospectus  supplement,  or until the Investor  and/or such Holder is advised in
writing  by the  Company  that the use of the  prospectus  and,  if  applicable,
prospectus  supplement may be resumed,  and, if so directed by the Company,  the
Investor  and/or such  Holder  shall  deliver to the  Company (at the  Company's
expense)  all copies,  other than  permanent  file  copies then in the  Investor
and/or  such  Holder's  possession,   of  the  prospectus  and,  if  applicable,
prospectus  supplement covering such Registrable  Securities current at the time
of receipt of such notice. The total number of days that any such suspension may
be in effect in any 12-month period shall not exceed 90 days.

     (e) Termination of Registration  Rights. A Holder's  registration rights as
to any securities held by such Holder (and its Affiliates, partners, members and
former  members) shall not be available  unless such  securities are Registrable
Securities.

     (f) Furnishing Information.

          (i) Neither the  Investor  nor any Holder  shall use any free  writing
     prospectus  (as  defined  in  Rule  405) in  connection  with  the  sale of
     Registrable Securities without the prior written consent of the Company.

                                       24


          (ii) It shall  be a  condition  precedent  to the  obligations  of the
     Company to take any action  pursuant to Section 4.5(c) that Investor and/or
     the selling  Holders and the  underwriters,  if any,  shall  furnish to the
     Company such information regarding themselves,  the Registrable  Securities
     held by them and the intended  method of disposition of such  securities as
     shall be required to effect the  registered  offering of their  Registrable
     Securities.

     (g) Indemnification.

          (i) The Company  agrees to indemnify each Holder and, if a Holder is a
     person  other  than  an  individual,  such  Holder's  officers,  directors,
     employees, agents, representatives and Affiliates, and each Person, if any,
     that controls a Holder within the meaning of the Securities  Act (each,  an
     "Indemnitee"),  against  any  and all  losses,  claims,  damages,  actions,
     liabilities,  costs and expenses  (including  reasonable fees, expenses and
     disbursements of attorneys and other  professionals  incurred in connection
     with investigating,  defending,  settling,  compromising or paying any such
     losses, claims, damages, actions,  liabilities,  costs and expenses), joint
     or several,  arising out of or based upon any untrue  statement  or alleged
     untrue statement of material fact contained in any registration  statement,
     including any preliminary  prospectus or final prospectus contained therein
     or any  amendments or  supplements  thereto or any  documents  incorporated
     therein by reference or contained in any free writing  prospectus  (as such
     term is defined in Rule 405) prepared by the Company or authorized by it in
     writing for use by such Holder (or any amendment or supplement thereto); or
     any omission to state therein a material fact required to be stated therein
     or necessary to make the statements  therein, in light of the circumstances
     under  which they were made,  not  misleading;  provided,  that the Company
     shall not be liable to such  Indemnitee in any such case to the extent that
     any such loss, claim, damage, liability (or action or proceeding in respect
     thereof) or expense arises out of or is based upon (A) an untrue  statement
     or  omission  made in  such  registration  statement,  including  any  such
     preliminary  prospectus or final prospectus  contained  therein or any such
     amendments  or  supplements  thereto  or  contained  in  any  free  writing
     prospectus (as such term is defined in Rule 405) prepared by the Company or
     authorized  by it in writing  for use by such Holder (or any  amendment  or
     supplement  thereto),  in reliance upon and in conformity with  information
     regarding  such  Indemnitee  or  its  plan  of  distribution  or  ownership
     interests  which was furnished in writing to the Company by such Indemnitee
     for use in connection with such registration statement,  including any such
     preliminary  prospectus or final prospectus  contained  therein or any such
     amendments or supplements thereto, or (B) offers or sales effected by or on
     behalf of such  Indemnitee  "by means of" (as defined in Rule 159A) a "free
     writing  prospectus"  (as defined in Rule 405) that was not  authorized  in
     writing by the Company.

          (ii) If the  indemnification  provided  for in  Section  4.5(g)(i)  is
     unavailable to an Indemnitee with respect to any losses,  claims,  damages,
     actions,  liabilities,   costs  or  expenses  referred  to  therein  or  is
     insufficient to hold the Indemnitee harmless as contemplated  therein, then
     the Company,  in lieu of indemnifying such Indemnitee,  shall contribute to
     the amount paid or payable by such  Indemnitee  as a result of such losses,
     claims, damages, actions, liabilities, costs or expenses in such proportion
     as is appropriate to reflect the relative fault of the  Indemnitee,  on the
     one hand,  and the  Company,  on the

                                       25


     other hand, in connection  with the statements or omissions  which resulted
     in such losses, claims, damages, actions, liabilities, costs or expenses as
     well as any other relevant equitable considerations.  The relative fault of
     the Company,  on the one hand,  and of the  Indemnitee,  on the other hand,
     shall be  determined  by  reference  to, among other  factors,  whether the
     untrue  statement of a material  fact or omission to state a material  fact
     relates to information supplied by the Company or by the Indemnitee and the
     parties' relative intent, knowledge,  access to information and opportunity
     to correct or prevent  such  statement  or  omission;  the Company and each
     Holder  agree  that it would  not be just  and  equitable  if  contribution
     pursuant to this Section  4.5(g)(ii) were determined by pro rata allocation
     or by any other  method of  allocation  that does not take  account  of the
     equitable  considerations  referred to in Section 4.5(g)(i).  No Indemnitee
     guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
     of the Securities Act) shall be entitled to  contribution  from the Company
     if the Company was not guilty of such fraudulent misrepresentation.

     (h)  Assignment  of  Registration  Rights.  The rights of the  Investor  to
registration  of  Registrable  Securities  pursuant  to  Section  4.5(a)  may be
assigned by the Investor to a transferee or assignee of  Registrable  Securities
with a liquidation  preference or, in the case of Registrable  Securities  other
than Preferred Shares, a market value, no less than an amount equal to (i) 2% of
the initial  aggregate  liquidation  preference of the Preferred  Shares if such
initial aggregate  liquidation  preference is less than $2 billion and (ii) $200
million if the initial aggregate liquidation  preference of the Preferred Shares
is equal to or greater than $2 billion; provided, however, the transferor shall,
within ten days after such  transfer,  furnish to the Company  written notice of
the name and address of such  transferee  or assignee and the number and type of
Registrable  Securities  that are being  assigned.  For purposes of this Section
4.5(h), "market value" per share of Common Stock shall be the last reported sale
price of the  Common  Stock on the  national  securities  exchange  on which the
Common  Stock is listed or admitted to trading on the last  trading day prior to
the proposed  transfer,  and the "market  value" for the Warrant (or any portion
thereof)  shall be the  market  value per share of Common  Stock  into which the
Warrant (or such portion) is exercisable less the exercise price per share.

     (i) Clear Market. With respect to any underwritten  offering of Registrable
Securities  by the Investor or other  Holders  pursuant to this Section 4.5, the
Company  agrees not to effect  (other  than  pursuant  to such  registration  or
pursuant to a Special Registration) any public sale or distribution,  or to file
any Shelf  Registration  Statement  (other than such  registration  or a Special
Registration)  covering, in the case of an underwritten offering of Common Stock
or Warrants,  any of its equity  securities  or, in the case of an  underwritten
offering of Preferred  Shares,  any Preferred Stock of the Company,  or, in each
case, any securities  convertible  into or  exchangeable or exercisable for such
securities, during the period not to exceed ten days prior and 60 days following
the  effective  date of such offering or such longer period up to 90 days as may
be requested by the managing  underwriter for such  underwritten  offering.  The
Company also agrees to cause such of its directors and senior executive officers
to execute and deliver  customary  lock-up  agreements in such form and for such
time  period  up to 90 days as may be  requested  by the  managing  underwriter.
"Special  Registration"  means the registration of (A) equity  securities and/or
options or other rights in respect thereof solely registered on Form S-4 or Form
S-8 (or successor  form) or (B) shares of equity  securities  and/or  options or
other  rights  in  respect  thereof  to be  offered  to  directors,  members  of
management, employees, consultants,

                                       26


customers,  lenders  or vendors of the  Company  or Company  Subsidiaries  or in
connection with dividend reinvestment plans.

     (j) Rule 144;  Rule 144A.  With a view to making  available to the Investor
and Holders the benefits of certain rules and  regulations  of the SEC which may
permit  the  sale  of  the   Registrable   Securities  to  the  public   without
registration, the Company agrees to use its reasonable best efforts to:

          (i) make and keep  public  information  available,  as those terms are
     understood  and defined in Rule  144(c)(1) or any similar or analogous rule
     promulgated under the Securities Act, at all times after the Signing Date;

          (ii) (A) file with the SEC, in a timely manner,  all reports and other
     documents required of the Company under the Exchange Act, and (B) if at any
     time the Company is not required to file such reports, make available, upon
     the request of any  Holder,  such  information  necessary  to permit  sales
     pursuant  to  Rule  144A  (including  the  information   required  by  Rule
     144A(d)(4) under the Securities Act);

          (iii)  so  long as the  Investor  or a  Holder  owns  any  Registrable
     Securities,  furnish to the Investor or such Holder forthwith upon request:
     a written  statement by the Company as to its compliance with the reporting
     requirements of Rule 144 under the Securities Act, and of the Exchange Act;
     a copy of the most recent  annual or quarterly  report of the Company;  and
     such other reports and  documents as the Investor or Holder may  reasonably
     request in availing itself of any rule or regulation of the SEC allowing it
     to sell any such securities to the public without registration; and

          (iv) take such further  action as any Holder may  reasonably  request,
     all to the extent  required from time to time to enable such Holder to sell
     Registrable Securities without registration under the Securities Act.

     (k) As used in this  Section  4.5,  the  following  terms  shall  have  the
following respective meanings:

          (i) "Holder"  means the  Investor and any other holder of  Registrable
     Securities to whom the registration rights conferred by this Agreement have
     been transferred in compliance with Section 4.5(h) hereof.

          (ii)  "Holders'  Counsel"  means one counsel  for the selling  Holders
     chosen by Holders holding a majority interest in the Registrable Securities
     being registered.

          (iii) "Register,"  "registered," and  "registration"  shall refer to a
     registration effected by preparing and (A) filing a registration  statement
     in compliance with the Securities Act and applicable  rules and regulations
     thereunder,  and the  declaration  or  ordering  of  effectiveness  of such
     registration  statement  or  (B)  filing  a  prospectus  and/or  prospectus
     supplement in respect of an appropriate effective registration statement on
     Form S-3.

                                       27


          (iv) "Registrable  Securities" means (A) all Preferred Shares, (B) the
     Warrant (subject to Section 4.5(p)) and (C) any equity securities issued or
     issuable directly or indirectly with respect to the securities  referred to
     in the  foregoing  clauses  (A) or (B) by way of  conversion,  exercise  or
     exchange thereof,  including the Warrant Shares, or share dividend or share
     split or in  connection  with a  combination  of shares,  recapitalization,
     reclassification, merger, amalgamation, arrangement, consolidation or other
     reorganization,  provided that,  once issued,  such  securities will not be
     Registrable  Securities  when (1) they are sold  pursuant  to an  effective
     registration  statement  under the  Securities  Act, (2) except as provided
     below in Section  4.5(o),  they may be sold  pursuant  to Rule 144  without
     limitation  thereunder  on volume or manner of sale,  (3) they  shall  have
     ceased  to  be  outstanding  or  (4)  they  have  been  sold  in a  private
     transaction in which the  transferor's  rights under this Agreement are not
     assigned to the transferee of the securities. No Registrable Securities may
     be registered under more than one registration statement at any one time.

          (v) "Registration  Expenses" mean all expenses incurred by the Company
     in effecting any  registration  pursuant to this Agreement  (whether or not
     any  registration  or prospectus  becomes  effective or final) or otherwise
     complying  with its  obligations  under this  Section  4.5,  including  all
     registration,   filing  and  listing  fees,  printing  expenses,  fees  and
     disbursements  of  counsel  for the  Company,  blue sky fees and  expenses,
     expenses  incurred in connection with any "road show",  the reasonable fees
     and  disbursements  of Holders'  Counsel,  and  expenses  of the  Company's
     independent  accountants in connection  with any regular or special reviews
     or audits incident to or required by any such  registration,  but shall not
     include Selling Expenses.

          (vi) "Rule 144", "Rule 144A",  "Rule 159A",  "Rule 405" and "Rule 415"
     mean, in each case, such rule promulgated  under the Securities Act (or any
     successor provision), as the same shall be amended from time to time.

          (vii) "Selling Expenses" mean all discounts,  selling  commissions and
     stock transfer taxes  applicable to the sale of Registrable  Securities and
     fees and  disbursements  of counsel for any Holder (other than the fees and
     disbursements of Holders' Counsel included in Registration Expenses).

     (l) At any time, any holder of Securities  (including any Holder) may elect
to  forfeit  its rights set forth in this  Section  4.5 from that date  forward;
provided,  that a Holder forfeiting such rights shall nonetheless be entitled to
participate under Section 4.5(a)(iv) - (vi) in any Pending Underwritten Offering
to the same extent that such  Holder  would have been  entitled to if the holder
had  not  withdrawn;  and  provided,  further,  that no  such  forfeiture  shall
terminate a Holder's rights or obligations  under Section 4.5(f) with respect to
any prior registration or Pending Underwritten  Offering.  "Pending Underwritten
Offering"  means,  with respect to any Holder  forfeiting its rights pursuant to
this Section  4.5(l),  any  underwritten  offering of Registrable  Securities in
which such  Holder  has  advised  the  Company  of its  intent to  register  its
Registrable Securities either pursuant to Section 4.5(a)(ii) or 4.5(a)(iv) prior
to the date of such Holder's forfeiture.

                                       28


     (m) Specific  Performance.  The parties hereto acknowledge that there would
be no  adequate  remedy  at law if  the  Company  fails  to  perform  any of its
obligations  under this  Section 4.5 and that the  Investor and the Holders from
time to time may be  irreparably  harmed by any such  failure,  and  accordingly
agree that the  Investor  and such  Holders,  in addition to any other remedy to
which they may be entitled at law or in equity,  to the fullest extent permitted
and  enforceable  under  applicable  law shall be  entitled  to compel  specific
performance  of the  obligations  of  the  Company  under  this  Section  4.5 in
accordance with the terms and conditions of this Section 4.5.

     (n) No  Inconsistent  Agreements.  The  Company  shall not, on or after the
Signing Date,  enter into any agreement with respect to its securities  that may
impair the rights granted to the Investor and the Holders under this Section 4.5
or that otherwise  conflicts  with the provisions  hereof in any manner that may
impair the rights  granted to the  Investor  and the Holders  under this Section
4.5. In the event the Company has,  prior to the Signing Date,  entered into any
agreement with respect to its securities  that is  inconsistent  with the rights
granted to the  Investor  and the  Holders  under this  Section  4.5  (including
agreements  that are  inconsistent  with the order of priority  contemplated  by
Section  4.5(a)(vi)) or that may otherwise  conflict with the provisions hereof,
the Company shall use its  reasonable  best efforts to amend such  agreements to
ensure they are consistent with the provisions of this Section 4.5.

     (o) Certain  Offerings by the Investor.  In the case of any securities held
by the  Investor  that cease to be  Registrable  Securities  solely by reason of
clause (2) in the  definition of  "Registrable  Securities,"  the  provisions of
Sections 4.5(a)(ii), clauses (iv), (ix) and (x)-(xii) of Section 4.5(c), Section
4.5(g)  and  Section  4.5(i)  shall  continue  to apply  until  such  securities
otherwise   cease  to  be   Registrable   Securities.   In  any  such  case,  an
"underwritten"  offering or other  disposition shall include any distribution of
such  securities  on behalf of the  Investor by one or more  broker-dealers,  an
"underwriting  agreement" shall include any purchase  agreement  entered into by
such  broker-dealers,  and any  "registration  statement" or "prospectus"  shall
include any  offering  document  approved by the Company and used in  connection
with such distribution.

     (p) Registered Sales of the Warrant.  The Holders agree to sell the Warrant
or any portion thereof under the Shelf Registration  Statement only beginning 30
days after  notifying  the Company of any such sale,  during which 30-day period
the Investor and all Holders of the Warrant shall take reasonable steps to agree
to  revisions  to the Warrant to permit a public  distribution  of the  Warrant,
including entering into a warrant agreement and appointing a warrant agent.

     4.6 Voting of Warrant Shares. Notwithstanding anything in this Agreement to
the contrary,  the Investor shall not exercise any voting rights with respect to
the Warrant Shares.

     4.7 Depositary  Shares.  Upon request by the Investor at any time following
the  Closing  Date,   the  Company  shall   promptly  enter  into  a  depositary
arrangement,  pursuant to customary  agreements  reasonably  satisfactory to the
Investor and with a depositary reasonably  acceptable to the Investor,  pursuant
to which the  Preferred  Shares may be deposited  and  depositary  shares,  each
representing a fraction of a Preferred  Share as specified by the Investor,  may
be issued. From and after the execution of any such depositary arrangement,  and
the

                                       29


deposit of any Preferred Shares pursuant  thereto,  the depositary shares issued
pursuant  thereto  shall  be  deemed  "Preferred  Shares"  and,  as  applicable,
"Registrable Securities" for purposes of this Agreement.

     4.8 Restriction on Dividends and Repurchases.

     (a) Prior to the earlier of (x) the third  anniversary  of the Closing Date
and (y) the date on which the  Preferred  Shares have been  redeemed in whole or
the Investor has transferred all of the Preferred  Shares to third parties which
are not  Affiliates  of the  Investor,  neither  the  Company  nor  any  Company
Subsidiary shall, without the consent of the Investor:

          (i) declare or pay any dividend or make any distribution on the Common
     Stock (other than (A) regular quarterly cash dividends of not more than the
     amount of the last quarterly cash dividend per share declared or, if lower,
     publicly  announced an  intention to declare,  on the Common Stock prior to
     October 14, 2008, as adjusted for any stock split, stock dividend,  reverse
     stock split, reclassification or similar transaction, (B) dividends payable
     solely in shares of Common  Stock and (C)  dividends  or  distributions  of
     rights or Junior Stock in connection with a stockholders' rights plan); or

          (ii)  redeem,  purchase or acquire any shares of Common Stock or other
     capital stock or other equity securities of any kind of the Company, or any
     trust  preferred  securities  issued by the Company or any Affiliate of the
     Company, other than (A) redemptions, purchases or other acquisitions of the
     Preferred  Shares,  (B)  redemptions,  purchases or other  acquisitions  of
     shares of Common Stock or other Junior  Stock,  in each case in this clause
     (B) in connection with the  administration  of any employee benefit plan in
     the ordinary  course of business  (including  purchases to offset the Share
     Dilution  Amount  (as  defined  below)  pursuant  to a  publicly  announced
     repurchase  plan) and  consistent  with past  practice;  provided  that any
     purchases to offset the Share Dilution  Amount shall in no event exceed the
     Share  Dilution   Amount,   (C)  purchases  or  other   acquisitions  by  a
     broker-dealer   subsidiary  of  the  Company  solely  for  the  purpose  of
     market-making,  stabilization  or  customer  facilitation  transactions  in
     Junior Stock or Parity Stock in the ordinary  course of its  business,  (D)
     purchases by a broker-dealer  subsidiary of the Company of capital stock of
     the  Company  for resale  pursuant  to an  offering  by the Company of such
     capital  stock  underwritten  by  such  broker-dealer  subsidiary,  (E) any
     redemption  or repurchase of rights  pursuant to any  stockholders'  rights
     plan, (F) the acquisition by the Company or any of the Company Subsidiaries
     of record  ownership  in Junior  Stock or Parity  Stock for the  beneficial
     ownership of any other persons (other than the Company or any other Company
     Subsidiary),  including as trustees or custodians,  and (G) the exchange or
     conversion  of Junior  Stock for or into  other  Junior  Stock or of Parity
     Stock or trust  preferred  securities  for or into other Parity Stock (with
     the same or lesser aggregate  liquidation  amount) or Junior Stock, in each
     case set forth in this clause (G), solely to the extent  required  pursuant
     to binding contractual agreements entered into prior to the Signing Date or
     any  subsequent  agreement  for the  accelerated  exercise,  settlement  or
     exchange thereof for Common Stock (clauses (C) and (F),  collectively,  the
     "Permitted Repurchases"). "Share Dilution Amount" means the increase in the
     number of diluted shares  outstanding  (determined in accordance with GAAP,
     and as measured from the date of the Company's  most recently

                                       30


     filed Company  Financial  Statements  prior to the Closing Date)  resulting
     from the  grant,  vesting  or  exercise  of  equity-based  compensation  to
     employees  and  equitably  adjusted  for any stock split,  stock  dividend,
     reverse stock split, reclassification or similar transaction.

     (b) Until such time as the Investor ceases to own any Preferred Shares, the
Company  shall not  repurchase  any  Preferred  Shares from any holder  thereof,
whether by means of open market purchase,  negotiated transaction, or otherwise,
other  than  Permitted  Repurchases,  unless it offers to  repurchase  a ratable
portion of the Preferred  Shares then held by the Investor on the same terms and
conditions.

     (c)  "Junior  Stock"  means  Common  Stock and any other class or series of
stock of the Company the terms of which  expressly  provide that it ranks junior
to  the  Preferred  Shares  as  to  dividend  rights  and/or  as  to  rights  on
liquidation,  dissolution or winding up of the Company. "Parity Stock" means any
class or series  of stock of the  Company  the  terms of which do not  expressly
provide  that such class or series will rank  senior or junior to the  Preferred
Shares as to dividend rights and/or as to rights on liquidation,  dissolution or
winding up of the  Company  (in each case  without  regard to whether  dividends
accrue cumulatively or non-cumulatively).

     4.9 Repurchase of Investor Securities.

     (a) Following the  redemption in whole of the Preferred  Shares held by the
Investor or the Transfer by the Investor of all of the  Preferred  Shares to one
or more  third  parties  not  affiliated  with the  Investor,  the  Company  may
repurchase,  in whole or in part, at any time any other equity securities of the
Company  purchased by the Investor pursuant to this Agreement or the Warrant and
then held by the Investor, upon notice given as provided in clause (b) below, at
the Fair Market Value of the equity security.

     (b) Notice of every repurchase of equity  securities of the Company held by
the Investor  shall be given at the address and in the manner set forth for such
party in Section 5.6.  Each notice of  repurchase  given to the  Investor  shall
state:  (i) the number and type of securities to be repurchased,  (ii) the Board
of Director's  determination  of Fair Market Value of such  securities and (iii)
the place or places where  certificates  representing  such securities are to be
surrendered  for  payment  of  the  repurchase  price.  The  repurchase  of  the
securities specified in the notice shall occur as soon as practicable  following
the determination of the Fair Market Value of the securities.

     (c) As used in this  Section  4.9,  the  following  terms  shall  have  the
following respective meanings:

          (i) "Appraisal  Procedure"  means a procedure  whereby two independent
     appraisers,  one  chosen  by the  Company  and one by the  Investor,  shall
     mutually  agree upon the Fair  Market  Value.  Each party  shall  deliver a
     notice to the  other  appointing  its  appraiser  within 10 days  after the
     Appraisal  Procedure is invoked. If within 30 days after appointment of the
     two appraisers they are unable to agree upon the Fair Market Value, a third
     independent  appraiser  shall be chosen  within 10 days  thereafter  by the
     mutual  consent of such first two  appraisers.  The  decision  of the third
     appraiser so  appointed  and

                                       31


     chosen  shall be given  within 30 days  after the  selection  of such third
     appraiser.  If three appraisers shall be appointed and the determination of
     one appraiser is disparate from the middle determination by more than twice
     the amount by which the other  determination  is disparate  from the middle
     determination,  then the determination of such appraiser shall be excluded,
     the remaining two  determinations  shall be averaged and such average shall
     be binding and conclusive upon the Company and the Investor; otherwise, the
     average of all three  determinations  shall be binding upon the Company and
     the Investor.  The costs of conducting  any  Appraisal  Procedure  shall be
     borne by the Company.

          (ii) "Fair Market Value" means, with respect to any security, the fair
     market  value of such  security as  determined  by the Board of  Directors,
     acting in good faith in reliance on an opinion of a  nationally  recognized
     independent  investment  banking  firm  retained  by the  Company  for this
     purpose and certified in a resolution to the Investor. If the Investor does
     not agree  with the Board of  Director's  determination,  it may  object in
     writing within 10 days of receipt of the Board of Director's determination.
     In the event of such an  objection,  an  authorized  representative  of the
     Investor and the chief executive officer of the Company shall promptly meet
     to resolve the objection  and to agree upon the Fair Market  Value.  If the
     chief  executive  officer and the authorized  representative  are unable to
     agree on the Fair  Market  Value  during the 10-day  period  following  the
     delivery  of the  Investor's  objection,  the  Appraisal  Procedure  may be
     invoked by either party to determine the Fair Market Value by delivery of a
     written  notification thereof not later than the 30th day after delivery of
     the Investor's objection.

     4.10 Executive Compensation.  Until such time as the Investor ceases to own
any debt or equity securities of the Company acquired pursuant to this Agreement
or the Warrant,  the Company shall take all necessary  action to ensure that its
Benefit  Plans  with  respect  to its Senior  Executive  Officers  comply in all
respects  with  Section  111(b) of the EESA as  implemented  by any  guidance or
regulation  thereunder  that has been  issued and is in effect as of the Closing
Date,  and shall  not adopt any new  Benefit  Plan with  respect  to its  Senior
Executive Officers that does not comply therewith.  "Senior Executive  Officers"
means the  Company's  "senior  executive  officers"  as  defined  in  subsection
111(b)(3) of the EESA and regulations issued thereunder, including the rules set
forth in 31 C.F.R. Part 30.

                                   Article V
                                 Miscellaneous

     5.1 Termination.  This Agreement may be terminated at any time prior to the
Closing:

     (a) by either the  Investor or the  Company if the  Closing  shall not have
occurred by the 30th calendar day following the Signing Date; provided, however,
that in the event the Closing has not  occurred by such 30th  calendar  day, the
parties will  consult in good faith to  determine  whether to extend the term of
this  Agreement,  it being  understood  that the  parties  shall be  required to
consult  only until the fifth day after such 30th  calendar day and not be under
any  obligation  to  extend  the term of this  Agreement  thereafter;  provided,
further,  that the right to terminate this  Agreement  under this Section 5.1(a)
shall not be  available  to any party  whose  breach  of any  representation  or
warranty or failure to perform any obligation  under this

                                       32


Agreement  shall have  caused or resulted in the failure of the Closing to occur
on or prior to such date; or

     (b)  by  either  the  Investor  or  the  Company  in  the  event  that  any
Governmental  Entity  shall have issued an order,  decree or ruling or taken any
other action  restraining,  enjoining or otherwise  prohibiting the transactions
contemplated  by this Agreement and such order,  decree,  ruling or other action
shall have become final and nonappealable; or

     (c) by the mutual written consent of the Investor and the Company.

In the event of  termination  of this Agreement as provided in this Section 5.1,
this Agreement  shall  forthwith  become void and there shall be no liability on
the part of either party hereto except that nothing  herein shall relieve either
party from liability for any breach of this Agreement.

     5.2  Survival  of  Representations   and  Warranties.   All  covenants  and
agreements,  other than  those  which by their  terms  apply in whole or in part
after the Closing,  shall terminate as of the Closing.  The  representations and
warranties  of the  Company  made  herein or in any  certificates  delivered  in
connection with the Closing shall survive the Closing without limitation.

     5.3  Amendment.  No amendment of any  provision of this  Agreement  will be
effective  unless made in writing and signed by an officer or a duly  authorized
representative of each party;  provided that the Investor may unilaterally amend
any  provision  of this  Agreement  to the extent  required  to comply  with any
changes after the Signing Date in  applicable  federal  statutes.  No failure or
delay by any party in exercising any right,  power or privilege  hereunder shall
operate as a waiver  thereof  nor shall any single or partial  exercise  thereof
preclude any other or further  exercise of any other right,  power or privilege.
The rights and remedies  herein  provided  shall be  cumulative of any rights or
remedies provided by law.

     5.4 Waiver of  Conditions.  The  conditions  to each party's  obligation to
consummate the Purchase are for the sole benefit of such party and may be waived
by such party in whole or in part to the extent  permitted by applicable law. No
waiver will be effective  unless it is in a writing signed by a duly  authorized
officer of the waiving  party that makes  express  reference to the provision or
provisions subject to such waiver.

     5.5 Governing Law: Submission to Jurisdiction,  Etc. This Agreement will be
governed  by and  construed  in  accordance  with the  federal law of the United
States if and to the extent such law is applicable,  and otherwise in accordance
with the laws of the State of New York  applicable  to contracts  made and to be
performed  entirely within such State.  Each of the parties hereto agrees (a) to
submit to the exclusive  jurisdiction  and venue of the United  States  District
Court for the District of Columbia and the United States Court of Federal Claims
for any and all civil actions,  suits or proceedings  arising out of or relating
to this  Agreement  or the Warrant or the  transactions  contemplated  hereby or
thereby,  and (b) that  notice may be served upon (i) the Company at the address
and in the manner set forth for  notices to the  Company in Section 5.6 and (ii)
the  Investor  in  accordance  with  federal  law.  To the extent  permitted  by
applicable law, each of the parties hereto hereby  unconditionally  waives trial
by jury in any civil

                                       33


legal  action or  proceeding  relating to this  Agreement  or the Warrant or the
transactions contemplated hereby or thereby.

     5.6 Notices. Any notice, request, instruction or other document to be given
hereunder  by any party to the other  will be in  writing  and will be deemed to
have been duly given (a) on the date of delivery if delivered personally,  or by
facsimile,  upon  confirmation  of receipt,  or (b) on the second  business  day
following  the date of dispatch if delivered  by a  recognized  next day courier
service.  All notices to the Company shall be delivered as set forth in Schedule
A, or pursuant to such other  instruction as may be designated in writing by the
Company to the Investor.  All notices to the Investor  shall be delivered as set
forth below,  or pursuant to such other  instructions  as may be  designated  in
writing by the Investor to the Company.

                    If to the Investor:
                    United States Department of the Treasury
                    1500 Pennsylvania Avenue, NW, Room 2312
                    Washington, D.C. 20220
                    Attention: Assistant General Counsel (Banking and Finance)
                    Facsimile: (202) 622-1974

     5.7 Definitions

     (a) When a reference is made in this Agreement to a subsidiary of a person,
the term "subsidiary" means any corporation, partnership, joint venture, limited
liability  company or other entity (x) of which such person or a  subsidiary  of
such  person is a  general  partner  or (y) of which a  majority  of the  voting
securities or other voting  interests,  or a majority of the securities or other
interests  of which  having  by their  terms  ordinary  voting  power to elect a
majority of the board of directors or persons  performing similar functions with
respect to such entity,  is directly or  indirectly  owned by such person and/or
one or more subsidiaries thereof.

     (b) The term  "Affiliate"  means,  with  respect to any person,  any person
directly or indirectly controlling,  controlled by or under common control with,
such other person. For purposes of this definition,  "control" (including,  with
correlative meanings, the terms "controlled by" and "under common control with")
when  used  with  respect  to any  person,  means the  possession,  directly  or
indirectly, of the power to cause the direction of management and/or policies of
such person,  whether through the ownership of voting  securities by contract or
otherwise.

     (c) The terms "knowledge of the Company" or "Company's  knowledge" mean the
actual  knowledge  after  reasonable  and due inquiry of the "officers" (as such
term is defined in Rule 3b-2 under the  Exchange  Act,  but  excluding  any Vice
President or Secretary) of the Company.

     5.8 Assignment.  Neither this Agreement nor any right,  remedy,  obligation
nor liability  arising  hereunder or by reason hereof shall be assignable by any
party  hereto  without the prior  written  consent of the other  party,  and any
attempt to assign any right,  remedy,  obligation or liability hereunder without
such consent shall be void, except (a) an assignment,  in the case of

                                       34


a Business  Combination  where such party is not the surviving entity, or a sale
of substantially  all of its assets, to the entity which is the survivor of such
Business  Combination  or the  purchaser  in such  sale and (b) as  provided  in
Section 4.5.

     5.9 Severability. If any provision of this Agreement or the Warrant, or the
application  thereof to any person or circumstance,  is determined by a court of
competent  jurisdiction  to be invalid,  void or  unenforceable,  the  remaining
provisions   hereof,  or  the  application  of  such  provision  to  persons  or
circumstances  other  than  those  as to  which  it has  been  held  invalid  or
unenforceable,  will  remain  in full  force and  effect  and shall in no way be
affected,  impaired or  invalidated  thereby,  so long as the  economic or legal
substance of the transactions  contemplated hereby is not affected in any manner
materially  adverse to any party.  Upon such  determination,  the parties  shall
negotiate  in good  faith in an effort to agree upon a  suitable  and  equitable
substitute provision to effect the original intent of the parties.

     5.10 No Third Party  Beneficiaries.  Nothing  contained in this  Agreement,
expressed or implied, is intended to confer upon any person or entity other than
the Company and the  Investor any  benefit,  right or remedies,  except that the
provisions of Section 4.5 shall inure to the benefit of the persons  referred to
in that Section.

                                       ***

                                       35


                                                                         ANNEX A

                       FORM OF CERTIFICATE OF DESIGNATIONS


                                 [SEE ATTACHED]


                                                                         ANNEX B

                                 FORM OF WAIVER


In  consideration  for the benefits I will receive as a result of my  employer's
participation  in the United States  Department of the  Treasury's  TARP Capital
Purchase Program, I hereby voluntarily waive any claim against the United States
or my employer for any changes to my  compensation or benefits that are required
to comply  with the  regulation  issued by the  Department  of the  Treasury  as
published in the Federal Register on October 20, 2008.

I acknowledge that this regulation may require modification of the compensation,
bonus, incentive and other benefit plans, arrangements,  policies and agreements
(including so-called "golden parachute" agreements) that I have with my employer
or in which I  participate  as they relate to the period the United States holds
any equity or debt securities of my employer  acquired  through the TARP Capital
Purchase Program.

This waiver  includes all claims I may have under the laws of the United  States
or  any  state  related  to  the  requirements  imposed  by  the  aforementioned
regulation,  including without  limitation a claim for any compensation or other
payments I would otherwise  receive,  any challenge to the process by which this
regulation was adopted and any tort or constitutional  claim about the effect of
these regulations on my employment relationship.


                                                                         ANNEX C

                                 FORM OF OPINION

     (a) The Company  has been duly  incorporated  and is validly  existing as a
corporation in good standing under the laws of the state of its incorporation.

     (b) The Preferred Shares have been duly and validly  authorized,  and, when
issued and delivered  pursuant to the  Agreement,  the Preferred  Shares will be
duly and validly issued and fully paid and non-assessable, will not be issued in
violation of any preemptive  rights,  and will rank pari passu with or senior to
all other series or classes of  Preferred  Stock issued on the Closing Date with
respect to the payment of dividends and the  distribution of assets in the event
of any dissolution, liquidation or winding up of the Company.

     (c) The Warrant has been duly  authorized  and, when executed and delivered
as  contemplated  by the Agreement,  will constitute a valid and legally binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as the same may be limited by applicable  bankruptcy,  insolvency,
reorganization,   moratorium  or  similar  laws  affecting  the  enforcement  of
creditors'  rights  generally and general  equitable  principles,  regardless of
whether such enforceability is considered in a proceeding at law or in equity.

     (d) The shares of Common Stock  issuable  upon exercise of the Warrant have
been duly  authorized and reserved for issuance upon exercise of the Warrant and
when so  issued in  accordance  with the terms of the  Warrant  will be  validly
issued, fully paid and non-assessable  [insert, if applicable:  , subject to the
approvals of the Company's stockholders set forth on Schedule C].

     (e) The  Company  has the  corporate  power and  authority  to execute  and
deliver the Agreement and the Warrant and [insert,  if applicable:  , subject to
the approvals of the Company's  stockholders  set forth on Schedule C,] to carry
out its  obligations  thereunder  (which  includes the issuance of the Preferred
Shares, Warrant and Warrant Shares).

     (f) The execution, delivery and performance by the Company of the Agreement
and the Warrant and the  consummation of the transactions  contemplated  thereby
have been duly authorized by all necessary  corporate  action on the part of the
Company  and its  stockholders,  and no further  approval  or  authorization  is
required on the part of the Company [insert,  if applicable:  , subject, in each
case, to the approvals of the Company's stockholders set forth on Schedule C].

     (g)  The  Agreement  is a  valid  and  binding  obligation  of the  Company
enforceable against the Company in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization,  moratorium
or similar laws  affecting the  enforcement of creditors'  rights  generally and
general  equitable  principles,  regardless  of whether such  enforceability  is
considered in a proceeding at law or in equity; provided,  however, such counsel
need  express no opinion  with  respect  to Section  4.5(g) or the  severability
provisions of the Agreement insofar as Section 4.5(g) is concerned.


                                                                         ANNEX D

                                 FORM OF WARRANT


                                 [SEE ATTACHED]


                                                                      SCHEDULE A

                         ADDITIONAL TERMS AND CONDITIONS


Company Information:

         Name of the Company:  Blue Valley Ban Corp.

         Corporate or other organizational form:  Corporation

         Jurisdiction of Organization:  Kansas

         Appropriate Federal Banking Agency: Federal Reserve Bank of Kansas City
                                             and the Office of the State
                                             Banking Commissioner of Kansas

         Notice Information: Blue Valley Ban Corp., 11935 Riley, Overland Park,
                             Kansas   66225-6128, Attn: Robert
                             D. Regnier, Fax: (913) 234-7145

                             With a copy to:

                             Husch Blackwell Sanders LLP
                             4801 Main Street, Suite 1000
                             Kansas City, MO 64112
                             Attn: Steven F. Carman, Esq.
                             Fax:  (816) 983-8080
Terms of the Purchase:

         Series of Preferred Stock Purchased:  A

         Per Share Liquidation Preference of Preferred Stock:  $1,000.00

         Number of Shares of Preferred Stock Purchased:  21,750

         Dividend Payment Dates on the Preferred Stock:  February 15, May 15,
         August 15 and November 15

         Number of Initial Warrant Shares:  111,083

         Exercise Price of the Warrant:  $29.37

         Purchase Price:  $21,750,000

Closing:

         Location of Closing:  Squire, Sanders & Dempsey L.L.P., One Tampa City
         Center, 201 N. Franklin Street, Suite 2100, Tampa, Florida 33602


         Time of Closing:  9:00 a.m., Eastern Standard Time

         Date of Closing:  December 5, 2008

         Wire Information for Closing:       ABA Number:  101005027
                                             Bank: Bank of Blue Valley
                                             Account Name: Blue Valley Ban Corp
                                             Account Number: 0001317
                                             Beneficiary: Blue Valley Ban Corp.


                                                                      SCHEDULE B

                                 CAPITALIZATION


Capitalization Date:  November 30, 2008


Common Stock

         Par value:  $1.00

         Total Authorized:  15,000,000

         Outstanding:  2,470,742

         Subject to warrants, options, convertible securities, etc.:  221,709

         Reserved for benefit plans and other issuances:  400,800

         Remaining authorized but unissued: 11,906,749

         Shares issued after Capitalization Date (other than pursuant to
         warrants, options, convertible securities, etc. as set forth above):
         None

Preferred Stock

         Par value:  $1.00

         Total Authorized:  15,000,000

         Outstanding (by series):  None

         Reserved for issuance:  None

         Remaining authorized but unissued:  15,000,000


                                                                      SCHEDULE C
                         REQUIRED STOCKHOLDER APPROVALS


                                            Required(1)         % Vote Required

Warrants - Common Stock Issuance


Charter Amendment


Stock Exchange Rules











If no  stockholder  approvals are  required,  please so indicate by checking the
box: |X|


- ------------

(1)  If stockholder  approval is required,  indicate applicable  class/series of
     capital stock that are required to vote.


                                                                      SCHEDULE D


                                   LITIGATION

List any exceptions to the  representation and warranty in Section 2.2(l) of the
Securities Purchase Agreement - Standard Terms.














If none, please so indicate by checking the box: |X|


                                                                      SCHEDULE E

                              COMPLIANCE WITH LAWS

List any exceptions to the representation and warranty in the second sentence of
Section 2.2(m) of the Securities Purchase Agreement - Standard Terms.













If none, please so indicate by checking the box: |X|




List any exceptions to the  representation  and warranty in the last sentence of
Section 2.2(m) of the Securities Purchase Agreement - Standard Terms.








If none, please so indicate by checking the box: |X|


                                                                      SCHEDULE F

                              REGULATORY AGREEMENTS

List any exceptions to the  representation and warranty in Section 2.2(s) of the
Securities Purchase Agreement - Standard Terms.


1.       As a result  of an  agreement  with the  Federal  Reserve  Bank and the
         Office of the  State  Banking  Commissioner  of  Kansas  (OSBC),  prior
         regulatory  approval is currently  required prior to the payment of any
         dividends by Blue Valley Ban Corp.  The agreement  also places a number
         of other obligations on the Company. Copies are available upon request.











If none, please so indicate by checking the box: [ ]

EX-10 5 forms1aexh1011_120808.htm EXH 10.11 Exhibit 10.11


                                                                   Exhibit 10.11

                              AMENDMENT AND WAIVER

Notwithstanding the terms of any severance, bonus, employment or other
compensation related plan, arrangement, agreement, policy, practice or procedure
(together, all such items shall be referred to as "Compensation Arrangements"),
Blue Valley Ban Corp. and Bank of Blue Valley hereby adopt the following
actions, changes and amendments related to all Compensation Arrangements:

(A) Incentives for "senior executive officers" (as that term is defined for
purposes of Section 111(b) of the Emergency Economic Stabilization Action of
2008 ("Section 111(b)") of Blue Valley Ban Corp. and Bank of Blue Valley (the
"SEOs") shall not include, and to the extent necessary shall be amended to
exclude, anything that the Compensation Committee of the Board of Directors of
Blue Valley Ban Corp now, or at any time in the future, concludes would provide
the SEOs with an incentive to take unnecessary and excessive risks that threaten
the value of Blue Valley Ban Corp. or Bank of Blue Valley during the period that
the United States holds an equity or debt position in Blue Valley Ban Corp.
acquired through the TARP Capital Purchase Program (the "Restriction Period");

(B) Blue Valley Ban Corp. and Bank of Blue Valley will recover any bonus or
incentive compensation paid to an SEO during the Restriction Period that was
based on financial statements or other performance criteria that are later
determined to have been materially inaccurate;

(C) Blue Valley Ban Corp. and Bank of Blue Valley will not make any "golden
parachute" payments (as that term is defined for purposes of Section 111(b)) to
its SEOs during the Restriction Period; and

(D) Any and all other actions required by Section 111(b).

In consideration for One Hundred Dollars ($100) and the benefits I may
indirectly receive as a result of Blue Valley Ban Corp.'s participation in the
United States Department of the Treasury's TARP Capital Purchase Program, I
hereby voluntarily waive any claim against Blue Valley Ban Corp. or Bank of Blue
Valley for any changes that have heretofore been made or will in the future be
made to any of my Compensation Arrangements that are required to comply with
Section 111(b) or the regulation issued by the Department of the Treasury as
published in the Federal Register on October 20, 2008.

This waiver includes all claims I may have under the laws of the United States
or any state related to the requirements imposed by the regulation issued by the
Department of the Treasury as published in the Federal Register on October 20,
2008, including without limitation a claim for any compensation or other
payments I would otherwise receive, any challenge to the process by which this
regulation was adopted and any tort or constitutional claim about the effect of
these regulations on my employment relationship.


BLUE VALLEY BAN CORP.                       SENIOR EXECUTIVE OFFICERS


/s/ Robert D. Regnier                       /s/ Robert D. Regnier
- ------------------------------              ------------------------------
Name:  Robert D. Regnier                    Name:  Robert D. Regnier
Title:  President & CEO                     Title:  President & CEO

                                            /s/ Ralph J. Schramp
BANK OF BLUE VALLEY                         ------------------------------
                                            Name:  Ralph J. Schramp
                                            Title:  Senior Vice President

/s/ Robert D. Regnier                       /s/ Mark A. Fortino
- ------------------------------              ------------------------------
Name:  Robert D. Regnier                    Name:  Mark A. Fortino
Title:  President & CEO                     Title:  Executive Vice President/CFO

                                            /s/ Sheila C. Stokes
                                            ------------------------------
                                            Name:  Sheila C. Stokes
                                            Title:  Senior Vice President

                                            /s/ Bruce A. Easterly
                                            ------------------------------
                                            Name:  Bruce A. Easterly
                                            Title:  Executive Vice President

EX-99 6 forms1a2_120808exh998.htm EXH 99.8 EXHIBIT 99.8

                                                           Exhibit 99.8

                                                        Computershare
                                                        161 Bay State Drive
                                                        Braintree Massachusetts 02184
                                                        Telephone 800 279 7134
                                                        www.computershare.com
MR A SAMPLE
DESIGNATION (IF ANY)
ADD 1
ADD 2
ADD 3
ADD 4
ADD 5
ADD 6

                                                        ------------------------
                                                        C 1234567890
                                                        ------------------------




                                                        Primary Subscription
                                                        Rights 12345678901234
- --------------------------------------------------------------------------------
BLUE VALLEY - REVISED SUBSCRIPTION RIGHTS CERTIFICATE AND REVISED ELECTION FORM
- --------------------------------------------------------------------------------

DISCLAIMER PLEASE READ - The original  Subscription  Rights Certificate has been
revised  because  of  the  information  described  in  the  enclosed  Prospectus
Supplement  No. 2. Please read the enclosed  Prospectus  Supplement No. 2, along
with the  Prospectus,  before  completing and mailing this Revised  Subscription
Rights Certificate.


UNLESS THE EXERCISE  PERIOD IS EXTENDED,  THIS RIGHTS  OFFERING IS BEING FURTHER
EXTENDED TO EXPIRE AT (I) 5:00 P.M.,  EASTERN TIME, ON DECEMBER 22, 2008 FOR ALL
RECORD HOLDERS  ("RECORD HOLDER  EXPIRATION  DATE") AND (II) 5:00 P.M.,  EASTERN
TIME,  ON DECEMBER  17,  2008 FOR ALL  STOCKHOLDERS  WHO HOLD STOCK  THROUGH THE
RESTRICTED  STOCK AWARD  PROGRAM  AND/OR  THROUGH THE ESPP  PROGRAM  (THE "EARLY
EXPIRATION  DATE"  AND  TOGETHER  WITH  THE  "RECORD  HOLDER   EXPIRATION  DATE"
COLLECTIVELY REFERRED TO AS THE "EXPIRATION DATE").

Blue Valley Ban Corp.  has  distributed to each holder of its common stock owned
as of record (each an "Eligible  Holder") at 5:00 p.m., Eastern Standard Time on
November 10, 2008 (the "Record Date"), at no charge, one non transferable right,
for each share of common stock held as of the Record Date, to purchase 0.1352 of
a share of common  stock of Blue Valley Ban Corp.  at $18.00 per full share (the
"Subscription  Rights"). Each Subscription Right entitles an Eligible Holder who
fully  exercises its basic  subscription  privilege to  subscribe,  prior to the
Expiration Date, for additional  shares of common stock of Blue Valley Ban Corp.
at an exercise  price of $18.00 per full share to the extent that any shares are
not purchased by other Eligible Holders under their basic subscription privilege
as of the Expiration  Date or to the extent the Company  decides to increase the
size  of  the  offering  (the  "Oversubscription   Privilege").  The  terms  and
conditions of the Subscription  Rights offering are set forth in Blue Valley Ban
Corp.'s   Prospectus   dated  November  10,  2008  (as  it  may  be  amended  or
supplemented,  the  "Prospectus"),   which  is  incorporated  into  this  Rights
Certificate by reference. Capitalized terms used but not defined herein have the
meanings set forth in the Prospectus.  The owner of this certificate is entitled
to the number of basic  Subscription  Rights,  and is entitled  to exercise  the
basic  Subscription  Rights  for the  number  of  shares,  shown on this  Rights
Certificate.


                  THE SUBSCRIPTION RIGHTS ARE NON TRANSFERABLE

The Subscription  Rights are non transferable.  The Subscription Rights will not
be listed on any  securities  exchange  or  quoted  on any  automated  quotation
system.  Blue Valley Ban Corp. cannot assure you that the shares of common stock
of Blue Valley Ban Corp. issued in respect of exercised Subscription Rights will
ever be listed on the New York Stock  Exchange,  the Nasdaq Global Select Market
or any other securities exchange or quotation system.


                                 EXERCISE PRICE

The  exercise  price  for  the  Subscription  Rights  and  the  Oversubscription
Privilege is $18.00 per full share. A fractional  Subscription Right will not be
exercisable unless it is aggregated with other fractional Subscription Rights so
that when  exercised,  in the aggregate,  such  fractional  Subscription  Rights
result in the purchase of a whole share of common stock of Blue Valley Ban Corp.
In  other  words,   fractional  Subscription  Rights  cannot  be  exercised  for
fractional shares of common stock of the Company.


Holder ID       COY             Class           Rights Qty Issued       Rights Cert. #

1234576789      XXXX        Discount Rights     XXX.XXXXXX              123456789

Signature of Owner and U.S. Person for Tax Certification    Signature of Co-Owner (if more than one registered holder listed)   Date (mm/dd/yyyy)
- -------------------------------------------------------------------------------------------------------------------------------------------------


- -------------------------------------------------------------------------------------------------------------------------------------------------

METHOD OF EXERCISE OF RIGHTS

IN ORDER TO EXERCISE YOUR SUBSCRIPTION RIGHTS, YOU MUST PROPERLY COMPLETE AND
SIGN THIS RIGHTS CERTIFICATE AND RETURN IT IN THE ENVELOPE PROVIDED TO
COMPUTERSHARE TRUST COMPANY, N.A., TOGETHER WITH PAYMENT IN FULL FOR AN AMOUNT
EQUAL TO THE APPLICABLE EXERCISE PRICE MULTIPLIED BY THE TOTAL NUMBER OF SHARES
OF COMMON STOCK THAT YOU ARE REQUESTING TO PURCHASE TO THE RIGHTS AGENT,
COMPUTERSHARE TRUST COMPANY, N.A., BY THE RECORD HOLDER EXPIRATION DATE AND/OR
THE EARLY EXPIRATION DATE, AS APPLICABLE.

Full payment of the exercise price for each share of common stock you wish to
purchase be must made in U.S. dollars by (1) certified check drawn upon a U.S.
bank payable to Computershare Trust Company, N.A. or (2) cashier's check drawn
upon a U.S. bank or express money order payable to Computershare Trust Company,
N.A., in each case in accordance with the "Instructions for Completion Blue
Valley Ban Corp. Subscription Rights Certificates" that accompanied the mailing
of the Prospectus. Notwithstanding the foregoing, Eligible Holders who hold
shares as a depository or nominee must make all payments by wire transfer of
immediately available funds to the account maintained by Computershare Trust
Company, N.A.

Payments of the exercise price for the common stock will be held in an escrow
account until five business days following the Expiration Date, unless Blue
Valley Ban Corp. withdraws or terminates the Subscription Rights offering. No
interest will be paid to you on the funds you deposit with the Rights Agent. You
will not receive any interest on the payments held by the Rights Agent before
your shares have been issued to you or your payment is returned to you, without
interest, because your exercise has not been satisfied for any reason.

SECTION 1: OFFERING INSTRUCTIONS (check the appropriate box or boxes)
IF YOU HAVE PREVIOUSLY RETURNED YOUR RIGHTS CERTIFICATE AND DO NOT WISH TO MAKE
ANY CHANGES:
After reviewing the Prospectus and Prospectus Supplement No. 2, I have decided
to confirm my earlier rights election for the same number of shares I designated
in my original Subscription Certificate.

- OR -
IF YOU HAVE PREVIOUSLY RETURNED YOUR RIGHTS CERTIFICATE AND WISH TO MAKE ANY CHANGES:
After reviewing the Prospectus and Prospectus Supplement No 2, I elect to
cancel my earlier rights election, receive a refund of my earlier payment and
not participate in the Rights Offering. I understand that by checking this box,
I am electing not to participate in the Rights Offering, and that my choice is
irrevocable.

After reviewing the Prospectus and Prospectus Supplement No. 2, I have decided
to replace my earlier rights election with the following:

I apply for ALL of my entitlement of new shares pursuant to the basic
subscription

__________________ x .1352 = ________________________ x $18.00 per share = $ ______________________
(no. of subscription rights) (no. of new shares) (dollar amount of
payment)

Example: If you own 1,000 shares of common stock, your basic
subscription right permits the purchase of 135 shares. (1,000 purchase
rights/7.396 = 135.21, with fractional shares rounded down to the
nearest whole number).

In addition, I apply for additional shares pursuant to the Oversubscription
Privilege*

__________________ x .1352 = ________________________ x $18.00 per share = $ ______________________
(no. of subscription rights) (no. of new shares) (dollar amount of
payment)
I elect not to apply for my full entitlement of new shares, and instead I
apply for:

__________________ x .1352 = ________________________ x $18.00 per share = $ ______________________
(no. of subscription rights) (no. of new shares) (dollar amount of
payment)

IF YOU HAVE NOT PREVIOUSLY RETURNED YOUR RIGHTS CERTIFICATE BUT WISH TO PARTICIPATE:
After reviewing the Prospectus and Prospectus Supplement No. 2, I elect the following:

I apply for ALL of my entitlement of new shares pursuant to the basic
subscription

__________________ x .1352 = ________________________ x $18.00 per share = $ ______________________
(no. of subscription rights) (no. of new shares) (dollar amount of
payment)

In addition, I apply for additional shares pursuant to the Oversubscription
Privilege*

__________________ x .1352 = ________________________ x $18.00 per share = $ ______________________
(no. of subscription rights) (no. of new shares) (dollar amount of
payment)

I elect not to apply for my full entitlement of new shares, and instead I
apply for:

__________________ x .1352 = ________________________ x $18.00 per share = $ ______________________
(no. of subscription rights) (no. of new shares) (dollar amount of
payment)
IF YOU HAVE NOT PREVIOUSLY RETURNED YOUR RIGHTS CERTIFICATE BECAUSE YOU DO NOT
WISH TO PARTICIPATE, AND CONTINUE TO WISH NOT TO PARTICIPATE, PLEASE DISREGARD
THIS MAILING.

*You can only participate in the oversubscription privilege if you have
subscribed for your full entitlement of new shares pursuant to the basic
subscription.

SECTION 2: SUBSCRIPTION AUTHORIZATION

I acknowledge that I have received the Prospectus and Prospectus Supplement No.
2 for this offering of Subscription Rights, and I hereby subscribe for the
number of shares indicated above on the terms and conditions specified in the
Prospectus relating to the basic subscription and the Oversubscription Privilege
in the Rights Offering.

Signature of Subscriber(s) Address, if different from that listed on this
Subscription Certificate:

- ------------------------ --------------------------------------------------

- ------------------------ --------------------------------------------------
Telephone number (including area code):

Please complete all applicable information and return to: COMPUTERSHARE TRUST COMPANY, N.A.
By First Class Mail: By Hand, Express Mail or Overnight Delivery:
Computershare Trust Company, N.A. Computershare Trust Company, N.A.
Corporate Actions Voluntary Offer, Corporate Actions Voluntary Offer
P.O. Box 43011, Providence, RI 02940-3011 250 Royall Street, Suite V, Canton, MA 02021

GRAPHIC 7 bluevalleyban.jpg GRAPHIC begin 644 bluevalleyban.jpg M_]C_X``02D9)1@`!`0$`2`!(``#_VP!#``,"`@,"`@,#`P,$`P,$!0@%!00$ M!0H'!P8(#`H,#`L*"PL-#A(0#0X1#@L+$!80$1,4%145#`\7&!84&!(4%13_ MVP!#`0,$!`4$!0D%!0D4#0L-%!04%!04%!04%!04%!04%!04%!04%!04%!04 M%!04%!04%!04%!04%!04%!04%!04%!3_P``1"`"?`6L#`2(``A$!`Q$!_\0` M'P```04!`0$!`0$```````````$"`P0%!@<("0H+_\0`M1```@$#`P($`P4% M!`0```%]`0(#``01!1(A,4$&$U%A!R)Q%#*!D:$((T*QP152T?`D,V)R@@D* M%A<8&1HE)B7J#A(6&AXB)BI*3E)66EYB9FJ*CI*6FIZBIJK*SM+6VM[BYNL+#Q,7& MQ\C)RM+3U-76U]C9VN'BX^3EYN?HZ>KQ\O/T]?;W^/GZ_\0`'P$``P$!`0$! M`0$!`0````````$"`P0%!@<("0H+_\0`M1$``@$"!`0#!`<%!`0``0)W``$" M`Q$$!2$Q!A)!40=A<1,B,H$(%$*1H;'!"2,S4O`58G+1"A8D-.$E\1<8&1HF M)R@I*C4V-S@Y.D-$149'2$E*4U155E=865IC9&5F9VAI:G-T=79W>'EZ@H.$ MA8:'B(F*DI.4E9:7F)F:HJ.DI::GJ*FJLK.TM;:WN+FZPL/$Q<;'R,G*TM/4 MU=;7V-G:XN/DY>;GZ.GJ\O/T]?;W^/GZ_]H`#`,!``(1`Q$`/P#]4Z***`"B MBB@`HHHH`****`"BBB@`HHHH`****`"BBB@`KA_%WQQ^'O@#7/['\3>-=#\/ MZGY2S_9=3OX[=]C$A6^?0@$4`-/[4?P=&,_%+P@,_]1NW_`/BZV_#GQM^'GC"Y2WT/QUXY? M`6"RU6"61OHJN37YJ?\`!(VPM;_XO^-11GH:^K?\` M@H/^S]X3\9?L]>)_$L6AV-GXF\.6_P#:=GJ5K;K'-M0@R1LR@%E9-W!Z$`]J M!GUD2%!).`/6N+\7?&CP)X$N["TU[Q9I.FWM_:61@J*L:Y8Y) M`SC`SR17Q!_P3!^/NN?$N#Q1\*?&-U)XCTZTT[[782:DWG.+8L(I;9RV2Z?. MA`.<`L.F`/&OVX/`WA[X=_MJ^"K'POHMCX?LW32+AK?3H%AC,AO&!?:H`R0J M\^U`6/UYHHHH$%%%%`!7/^-?'OA[X`><` M_E7044`>1#]KGX+$.3\4/#"E/O*^I1JP]L$YS5[P_P#M.?"KQ5K5GI.C>.M' MU/4;R58;>"UGWF5VZ!<#!S7P)_P5H^#$&A^,O#7Q$TZT2"WUN)],U)HDV@W, M8W1.W^TT99<_],A7VY^QA\38?BU^S;X*UL>7]N@LETV^5!C;/;_NFS]0H;Z. M*`/5/%WC+1/`6A3ZUXAU.WTC2H"JR75RVU%+$!1^)(%>?Q_M:?!J0@#XE^&Q M(6VB%K]!)GTV$[L_A7K)`/7FOF;X&>&M/^)7[2_Q9^+4UE#-%IUU'X/T.X** M<+:J/MDJG'5IF*;O2,CI0!]#>&_$NE^,-$M=8T:\CU#3+I2T-S%G:X!()&?< M&M)W6-2S,%4\.:9JVI:=XH_^DTE>B5YW^T9_P`F_?$K_L6]1_\`2:2@#\Z_^"07_)8/''_8OQ?^E"U] M4?\`!0GXY:)X/^".N^!K&\34_&_BJ'^S++1;$^=="-R!)*T:Y8*$R!QRQ`&> M%OBK\2_&&F^*]'AUFR@T2.:*&9G4(_GJ,@J0>E?;WQ(_9(_X0 M+PIJFN?`?5K[X>>+K2)[F*TM9/M%GJ+*"QBECF#X+=`P(P2,@B@?4\Z_X)I_ MLH^(_@Y9:WX[\9V4FD:UK=LEE9:5,,36]J&#L\H_A9V"84\@+SR<#PK_`(*) M_P#)\G@;_KVT?_TMDKZ+_84_;MN_V@=2G\$>-[6WLO&EO;M%O$EOX=AN([5=:M(;:>"21Q\N%6?S`"_.E7$D\4,5[$L4[M$Y0_+N(&2IQD_7%>"?\%2_^33[[_L,V'_HRM+_@ MF5_R:+X<_P"OZ_\`_2EZ!%WXO_M\>$O@-K%GI7CKP=XOT2_O+_\%A8$7XB M?#^8*/,;1KM2WL)E('ZG\Z]E_P""D_Q@U#P#^S?X4\+:5Z>&OVI;3XIZ[JUA\+?"]_X\L=)E^SWNOK<166 MF"7&?+BFD.Z9O78A7!!W/2H>VTS6#&T M-^I!*M;7$;%),X.!\K<$8R"!Y9^Q=I'Q+\"?LV^"+'0/!?A633KRT_M'[7>: M_/!-.9V,GF21K:.%.UE&`QX4_:8\8>%/$MI)X/\`!VK:#"T4 M=S#JUU<.Y\Q9(V!^RIMV,"1U^\>E`CW3]M;X3_\`"X_V;?&&C00^=J=I;_VI MIXQD_:(/W@`]V4.G_`Z^/?\`@D5\61;ZQXQ^'5U-B.\C36]/1C_&NV.=0/4J M86_X":_2G2HKM-(LX]2>*:_$"+PCN7\8ZPJ_,IMK,@6JMV* MO=21GW\DUX7\4?@%\>++]NFW^)'@.>,>&=4>P@O+YKJ)4AL8_+%Q;2Q.=S*= MC,-@.2P.0?L_G2[SXB_#/6M)\/:A-]G36=*O;>_BBDQG9(H* MLIP"1P$]+\2^';^/4]$U.`7%K=Q9Q(A]CR""""#R"" M#R*^<_\`@IE:0W/[(GB9Y0"\%[82Q9[-]IC7C\&:F?\`!,B>2;]D3PZ'>#7QI_P`$B]4@T/X>_%O4;IMMM9SVEQ*WHB02LQ_(&O-OV,/%?C?X MZ_M=^+?BA;:5IWB/78;*:YCAUC4)+2&SCF<11+&RQ2GY(P4"X'!)SZ@'WEX\ M_:5UGX0:#'XC\>_#/6-&\+!T2[U/3;ZWU%K#>0%:>)&#!HK1\7_ M`+4/A_PSX%B\=:?H>M>+O`C6/]H/XB\/+;SP11[BK!D:9)GSV#.WB&ZD\KS$*A\?8AG:2&QD=.M<1^QA M^RGXN^`_PW\9^"?'VKZ3K^@ZW)N@L]-DE=(A)$T=P&\Q%P'&S@=P30(ZSX)_ MMD:!^T-+='P-X/\`%&I65EW"6EO':[QD,P:XWD8!/RJ3QZ\5Z)\6?B MNGPBT&ZUV_\`#FL:MH5C:2WM_?:8;8K:1QC)+)),C,<9("!NE?G%^PCJ]W^S M;^VAXI^%.KS&.TU.2?2`9#A7G@)EM9/^!Q[@/^N@K[P_:9QXHLO!?PZ3]XWC M#7K>"[C]=/MO]+NL^Q6%8S_UU%`'?^`O&]SXYTW[?)X8UGPY:R1QRV_]LB!) M)E==W"1RN5P,9#[3STZUU5(!@4M`!1110`4444`%%%%`!1129Q0`M(2`,D\5 M@:UXMM]-+10XN+@<$`_*OU-<=J.MWNID^=,=G_/-.%'X5\=F?%&#P#=.'[R: MZ+9>K_RN>A1P52JN9Z([^Z\1:=9G$ETA;^ZGS']*SI/'.GIPJ3/[A0/YFN"[ M>@I:^&K<99A-_NXQBO1M_B_T/4CEU)?$VSNE\=6)/,,X'K@?XU;@\7:9<<>> M8C_TT4BO.A036=/C#,H.\N67JO\`)H;R^B]KH];AGBN4#Q2+*A_B4@BI*\EM M[J:T<202M$_JAQ73Z3XW=2L=^NY?^>R#!'U'^%?7Y?Q?A<0U3Q4?9OOO'[^G MY>9Y]7+YP5X._P"9V=%107$=S$LD3K)&PR&7D&I:^]C)22E%W3/*VT85YW^T M9_R;_P#$K_L6]1_])I*]$KR+]H&Q^(/BWP7XF\)>$?#.DW\&LZ3-8C5-2UDV MPA>5&1LQ"!RP4'/WAGIQ5`?`G_!(+_DL'CC_`+%^+_TH6OU0OKV#3;*XN[F5 M8;:WC:661SA411DDGT`!K\^_V0?V2?C=^RIXWUC73HGA3Q+#J=@MB]N-?EMF MCQ('#AOLS`]",8[]:]F^-?@#]H;X_P#AN[\)QS^$?ACX9U!3#J$]K?W&IW]Q M"?O1J?)B558<$#DCC."<@S\^_P!@RWNO$O[;/AJ^T>-EMDN]1OY2F<1VQBEZ M^@/F(OU(KTW_`(*)_P#)\G@;_KVT?_TMDK[?_9K_`&1_"_[*?AC4W\/1R^(_ M%EY`1=:K>E8I+G:,K"G40QEL<<\\L3@8^.1 MBJKE2P*E<9QD^E>&_LH^!OVB/V7_``[?>!+KX=Z+XP\/F]DNK+4K?Q)':B%G MQOR&C9RA(W?<#`ENO8`\5_X+"W$;?$;X?P!LRIHUT[+Z*9E`/_CI_*NM_P"" MJ_A*\OOA5\)/$T,326-@TEC<..1&9X8FC)^IA89]<>M:?[4?["OQ9_:1^*NC M:]=ZSHEL)M-,5].9G^R:=MD/EVUO'M\R7Y6+-(P4,S'A1A1]1V'P*UWQ=\+[ MGP'\5=>T?QCH-QIR6+1Z=H[V,RNFW9,)#/)\Z[000J_-@^U`$/[$OBNU\8_L MK?#>[M9$.VM8(VEEFE8*D: M*,LS$\```DFOA+X5_`7]H/\`8Q\0:II_P^MM)^*WP[U"?[1_9E[?K874#\#> M-_RHY4`,5W*V`=JFO;;C0OBM^T):1Z)XZ\,:?\,_`TCJVJZ=;ZN-1U'5HP<_ M9B\:+'#"Y`#D%G9OSC_`."N_P`*0T?@OXBVT&1E]"U!U'8YE@)_'SA^(K](8HH[>)(HD6.) M%"JB#"J!P`!V%>4_M4_"!_CI\!/%WA"VCC?5+FU\_3C(0`+N(B2'D],LH4GT M8T`>)?\`!.-];^(/@G4OB=XG`DU*\MK/PQI\ASG[#81[-PSWDF>5F]UIO[3? M[3_BFZ^/?AKX`_#.^BT+Q#J\D2:MXEEB$SZ?'(ADVPHWREQ$"Y8Y^\H'))'T M-^S]\-E^$'P5\&>#]@2?2M-BBN0I!!N"-TQR.N9&X2&2WN(4$>X>80LD;HH!7<#RPQ@\`S6_;D^`'A3X=_L MG>*-7!U#Q%XH26Q1O$7B&^DOKYRUU$&*M(2(\@D;8PHP<8KO/^"8?_)HV@?] MA'4/_2EZY[XE_!'X[_M7?"+5M*^(A\/>!)X81/I>@:/JP*R7DV6"Q@ M!@L:9PSAF)V@57_97^'7[0OP0^#-QX%;PEX?L7M+V6\MM5GUE9I)(Y'#/%'" MJ%=Y._#NZJ,C*G&"`?/_`,:_^4LN@_\`8=T3_P!)H:_1G]H#_D@_Q(_[%K4O M_262OC7QU^RA\9/&/[7UG\:XO#V@VMG::A87HT:77"9I%MXTC*^8(=H+;"?; M-?4'Q4F^)/CCX4ZWX?L/`=I;ZIKVE7NGRF;7H_+LVD1HD8L(CO!#;N`,8Q0! M\<_\$J=%D\2?"+XV:1"P2:_6"U1FZ!GMIE'ZFN,_X)1:N/!_[0GBWPIJH-GJ M5YI#VZV\HVM]HMIAYD>#SD`N#VJ]^TM^POK6O?%"W^+WP:UJW\,?$""X%Y/:7/ MR6]W,!@RJP!"NPR'5@5<$YP220#[1JC#K>GW.L76DQ7MO)J=K%'//9I(#+%' M(6",R]0&*/@GKM/I7SMX7^*7[3-Y81Z;JWP3\/VNL8V-K+^*8TL`W3S#"BR2 MX[[02?>O5_A!\,)_A[I^J7VLZG_;_C'7KD7VMZQY?EK-*%"I%$F3LAB0!$3) MP`222S$@C\__`/@IWX)O_A3\=/`OQC\/J8)[MHA)*G07UHP>(G_?CPOTB-?6 MGP:\;6/[0WQJF^(&F-YWA[P_X:M;"PYR%O;X+=70_P!Y(TM8SZ$L*N_MU_"N M'XL?LR>,;,^6M]I-N=;LI9"`$EMP7;D]-T8D3_@5)^PC\+/^%3_LP^#[":$P MZCJD!UF]4]?-N,.`?=8_+7_@-`SZ`HHHH$%%%%`!1110`4444`(>*XOQ+XJ: M5GM+)]J#AYE/+>P]O>KGC'73:Q_8H&Q+(,R,#RJ^GU-<3T]J_+>*,_E"3P&$ ME;^9K_TE?K]W<]S!81-*K47I_F)T[4[-)GI01Q7Y8>X)2YI*,$T`&.:",FCV MI M4`&MCPYK9TB\&\YMI"!(/3_:_"OM^'<^GE]18:N[TG_Y*^_IW7S[W\S&8558 M\\%[WYGI%>'_`+3/@G5!X#\8>-=$\=^*O#&KZ3H=Q&-Y`6A=& M!)(P3P<=Q7MR,'`(((/((KSW]HS_`)-_^)7_`&+>H_\`I-)7[P_V9B?%S]G M7XHT#,%,B.L2.-I8$C/W&/`R1-XB\1:7H0E!,?]HWD) MM'\0",9?^S+Z*X*?4(QQ^-='0(**I'6;!=7&E&^MQJ9@-T++S5\XQ!@IDV9S MMW$#=C&3BN6?XW?#M-;_`+&;QWX:75M_E_8CJT'G;\XV[=^<^W6@#MJ*0'-+ M0!Y]\['!]@`2<`5\K?`;Q M)\8OVX[R_P#%VL^)[_X8?"JWN&M['2O"[B&\U!U.G!?:O1F7`+9"@8)KY MC_X*8_%F_P#B;^T:W@VSG9]+\+K'I]M;J3M:]F"M*Y'][YDC_P"`'UK]6?A- MX`LOA7\,_#'A'3XUCMM'L(K0;!]YU4;W/NS;F/NQH& ME7RCY=0MO%^H/,#ZD22NC?1E(]J^/TA%O?1PFXC2>*:)5\IIU5L;U"C#AL$\#[SKQ7]ISX0WGQ5M?AWH>&_&&F:N=SJA6V27;<$$D=$;=CJ=@QDT"/:J**X[Q!\8_`?A/4VT[6O&F@ M:3J"_>M;W4X8I5^JLP(^IH`[&BJ6D:UI_B#3XK_2[ZVU*QF&8[FTF66)QZAE M)!_"KM`!17/ZE\0?"^C:1-JNH>)-(L=,AG-M)>W%]%'"DH.#&7+8#`_PYS6G MI&LV'B#3H-0TN^MM2L)UW175I,LL4@]59201]#0!=K)\5>*]'\#^';_7M?U* MWTC1K"/S;F]NW"1Q)TR2?<@>Y(%.F\3Z/;ZXFC2ZK91ZN\#72V#W""NT,(U#4`J"WB)!9(HUX3<53W26 M5K+N8\=79BL(K=3@S/D_0?_`%\5Y>9XOZA@ZF)ZQ6GKLOQL;4:? MM:D8=SC+JZDO;F2>4Y>1BQJ+K1UHP!7\X2E*G^%<]^T9_P`F_P#Q*_[%O4?_`$FDIGA.\-IK4(S\LN8S^/3]<4_]HS_D MW[XE?]BWJ/\`Z325^[\+XYXW+XJ;]Z#Y7\MOPT^1\MC:7LZSML]3\P?^"8FE M^,-5^)GC"+P7K^E^'K]=$C::?5=+>_21//7"JJS1;3GG.3]*^BOVG_A=\0+; M2H?%7QDM9_C+X&T1S=3Z3X3OSHT=HHZSR6FQFF"@G+>?E03PHS7C_P#P2"_Y M+!XX_P"Q?B_]*%K]4+ZR@U*RN+.ZB6>VN(VBEB<95T888$>A!-?7'"SPW]G+ MX[_#3XB_!^ZD^$UE%9V^@VC?\4NMN+>>U<(S*C1KG(<@X=2P8YY)S7SC_P`$ MTOCE!\6?&?CJR\3Z&]_\1+C?K%]XHN6$K-"9%C6S"EBZ;I,KG3[^>_TF>-"=LMN$E9,COAHD;\*_0*?]HNRU;XP:W\/ M?@=X,TKQ'XL@8R>(?$$Q%GI=BP;:?.EC0R7$@;(VJ.N1NX;`!\C_`/!0:PC^ M`?[7?@CQOX*4>'M3O[2&_N6L%\I9IH[@I(6"X!WIM5@?O=^M?I9X[\`0?$*Q MM[>?6M>T5(]QWZ%JG_%+X=MXOUK3M9U M&;39'4:5I[6EO;K]H7**&DD9^?XF(Z=!7ZV0_P"J3_=%`'Y$?L"^%KKXI_M/ M>,M)\0Z[JM]8G2[H:GYMY(TVIPQW42K!+,3O\LL59@"-P7:?E)!^I?\`@H!^ MS+\.+7]F7Q#XAT7P=HWA_6/#JPW5K=:58Q6S%3,B/&^Q1O4JQX.<$`BOGO\` MX)@?\G;^/O\`L$ZA_P"E\-?;/[?/_)H'Q,_Z$__`$HBH`XW_@F7\1=6^('[ M,UO!K-[+?W6@ZE/I44\[;Y#`JQR1*6/)VB3:,]E`[5]95\/?\$D/^3?_`!-_ MV,DW_I/!7W#0#/PP^*6ZZ_;E\0"\YW?$#;('_N_;E`_#&*_<^OQI_P""B?PX MO_A%^U3=^)[>%ET_Q`\.NV,P'RF>,J)DS_>#H&QZ2+7Z]>!_%=EX[\&Z'XCT MZ19;'5K*&]A9#D;9$#`?AG'X4`S\DL/%&OP^?=W]NV)K:V M9O+1(R.5>1@PW=553CD@CZ-_9W_9]\/?`CX9:9H-GI]O+JTD"R:QJ>_N MF&97D<\L-Q(`)X&!7YH_MH3W5S^W'X9NM;7`FC\/2R?*53:3'OV@]%W^9^M? ML-0,_.K]JGQ1J/["O[1_AGQUX(B-IX*\71NVN^&;?Y+.XFB91-)'&/E24I(C M!E`^93G(8BNP_P""@?A3P_<_LS7GQ+$W^IZ?>ZA<65X+NQU2YCBO(+AE!#Q M"3805<'[O!'UKEO^"PK1?\(C\,E/^N.HWI7_`'?*3=^I6HOC(MVG_!)KPB+W M>)_L.D_?Z[/M"[/_`!W;0!S'[&'P"N_BO^Q_XSOUL],U[7]^H:=X4L]>B$MG M82,BF:958%5ED=L>81D>6G(&<^U_L0_LC^*/AW\'M:\-_%$W5G#=ZL+ZQTC2 M]:GB:U`BV.S2VTB_?/)0,1\H)Y/&U_P2[4+^R5I)`P3JNH$GU/GD?T%?6M`' MX_?LZ_#RP\0?\%"_$/A*[N+ZYT"#4-7M[B"XNGE>\M8'8I;SR,2TD998]P8G M<%P<@FOTU^,/[//@GXS_``[OO"6LZ%8);20%+.XAMD62QE`_=RPD#*E3C@<$ M<'@XK\\/V76V_P#!4/Q6,XSJGB`?7YI/\/TK]6Z`/SP_X)R_M&>)K+QYK?P) M\=WTVHWFEFX32;JY+Y..6-+K)?J_P!#TLO5ZWR,#%+CUH/-)7X@ M?3`.,4=#2T4``-'>CI]:,4`)0:7KWHS0`=J!124`!-`I??I01B@"2VF,-S#( M#@HZM^1K)_:M^+/A#PK\(/'F@:IX@LK77;[P]>):Z89,W,QEA=(PL8^8[FX' M%:7TKUN-08TR`3M'45^I\#R?^T1Z>Z__`$H\/,U\#]?T/R*_X)D?$#0/A%\4 M_%=YXSOQXXOH9$CDD$RL5W;<`XYY]*^R_CQ^VKI2^#]0T3X16.J M_$3QOJ$+VUH-#TVXFM[-F&/.DE";3MSD*"22!G`YKZLV+_='Y4H``P!@5^I' MAGYZ_L-?L)^+?A@VI_$/QB%TOQ>^FW%KH6EF4-+9R2QE3<3,,@.<[0H)P&8G MDX'BW[!O[16A?LD>.O'GA;XK6][X>N=2>%9KJ:U>26WN8#(&21%!B:MJ$5]?:-I]Y?18\NYN+5))$QTPQ&1^%`S\G?^"C?BO5_ MBAXG\#_$:'PYJ6E^`9+:2QTB^U"W>&6[*2"1Y7C89B5]P\L/AG5"V`,5^C'A MG]JGX<>*(+*ZT[7HI-$EMQ)+KD^(+""0A=MNTTA56F(+'RTW$!&+;>,^L7MA M;:C;M;W=O%=0-]Z*9`ZGZ@\4L=E;Q0)`D$:0H,)&J`*OT':@1^2O_!.3QAHG M@W]J#QGJFOZI;:'IMWI=\D%YJ,@@BD9KR)U`9\#)4$@>@-?:?[??CWPVG[,7 MC[0#KVG'7+W3H6MM-6Y0W$X:>,J4C!W,"`3D#H":^F3:PL,&&,CT*BAK>)FW M-$C,!C)49H`^#/\`@E#XOT32/A)K?AZ_U:SLM>N_$,LEOIES,L=Q,AMX?F2- ML,P^1N0/X37WQ48MXE8,(T##H0HR*DH`\F_:5_9T\/?M+_#F?PUK1-G>1-]H MTW58T#2V5P!@.!W4CAESAAZ$`CYA_9S^)7C+]B>%_AA\;-(O8?!,$[G0O&UA M#)=:?"C,28I74$QH22R[@"N2"-N"/O>FNBRHR,H96&"K#((H`\]'[1?PJ;23 MJ@^)'A0V&W=YXUFWQC&?[^<^W6OC+]N/Q]XT_:8^$^LQ_#;P[J$WPO\`#H&J MZMXAO(7MAJYC/"6<;@/+%&,R,^`IV#!X&[[O3X<^$X[\7R>&-&2]!S]I73XA M)GUW;/-C8EE!^\&8=<5[?\`L^_M0>&/BIX!L9=9U6U\.>,K&!8-=T'5 MY1:75IX*H4``8`X`%8VM>"O#WB6:.;5]"TS598 M_N27MG',R_0L#B@#X"_:*\%ZI^WW^TCH'A[PBSR?#'PE&T.I^+(QFS>:1E:X M2WDZ2OM1(QM)`.XDX'/I'_!1;6/"NA_LI:EX&TG4M/CU&RFTVVMM#@N%:YCB MCD0J/*!W8$:YSCI7V5;6T-E;QP6\2001C:D4:A54>@`X%!MHFZ?::]K?VXV<+326]NS2J M\Y1>(X_%6D:[16<:S,?4N%S^M`S\]?V7/@/X_\`@OX`^)/[0WB+P])=_$2YTR\N MM$T"XC8S*9"999Y4'S`L>B<-M#="W'J'_!.S]J/XE?M#S^,;;QQ#!?V.F"&2 MVUBVLA;*)'+!KCK'EDBDF'FR#T6,99OP%>%G665LVP;::^3_RN=&'Q$,-/VE1VCU.; M'/%7;?1KZ[`,5I*X/?;@?F:\*\6_M^^#/#ID@\&^%KO6IER!=WI%K$3ZC(9R M/J%KQWQ+^WO\4M:D8:?)I6@1'@+:6?FN!_O2EOY"O+R_PJQ]=*6*JMEV3X[-IJ&$IN7GT^_P#179S5\51PT>:K*Q`%+L`H+,>P&36G:>%]2NP" M+.J1@J_FQ`KFM0\??"O0B5U#X@:, MCCJHU&$G\E)-?EIJNKWVMSM/J=_&=7L(A_'=Z?+&OYE<5[>&X.RG"7CA)]N76WI8YI\18Z=G5IW7S/V:1UE4,I#*1D,#D$4ZOR,^%G[07CCX1W<4F@:W M-)IZME]+O',UI(.XV$_+]5(-?HY\`/VAM"^/7AU[BS']GZW:!1?Z5(^7A)Z. MI_CC/9OP(!KRJZ'LX'-J.-?)\,NS_`$9ZO1117SY[8444 MR25(HV=V"(HRS,<`#U-`#Z*\-^)O[8WPW^&XFMQJW_"1:JF1]AT;$V#Z-)G8 MOYY]J^4_B+^WQX^\5-+!X=AM?"-@V0K0J+BZ(]Y'&T'_`'5'UKW,)DN-Q>L8 M/B\2^,->\8W+7.OZWJ&LS'DO?W+RX^@8X'X5 MBAXP<*RCV!KZ:EPK&W[VJ_DO\_\`(^?J<1RO^[I_>_Z_,_6>']J/X3SR!%\> MZ,"?[\VT?F0!77Z!\2/"GBO:-&\2Z3JK-T2TO8Y&/X`YK\:FD51RP`]S1'M# MATQN'(9>H_&M9\+46OJ3_P`C.'$=5/WZ:?S:_P`S]N:*_)/P%^TE\2/A MO)$-)\4WDUI'Q]AU%C=0$>FU\E?^`D5]9_"3_@H)H'B"2&P\=:?_`,(W>,0O M]HVNZ6S8^K#[\?\`X\/4BOG\7P_B\,N:'OKRW^[_`"N>WAL[PM=\L_=?GM]_ M^=CZYHJIINIV>LV$%]87<-[9SJ'BN+>0/'(O8JPX(JW7S+5M&?0)WU04454U M/5;+1;*6\U"\@L;2(9>XN95CC4>[$X%"3;L@;MJRW6%XOUK5]#TV.?1O#TWB M6Z:0(UK!=16Y5<$[]TK`$9`&!SS7BWCW]N7X9>#3+#87MSXIO4R/+TF+=%GW ME;"_BI->">*_^"BWBR_>1/#OAG2](A/W9+Z1[J7'KQL7]#7M8?)<=B%>-.R\ M]/\`@_@>36S;!T-)3N_+7_@&-\(?V9/C5\./VM=5^+UWX&L[O3;^\U*X_LR# M7K?SXUN2Q4;CA25W#/3-?H-X:U+4-6T>"ZU32)="O7W;[&:>.9H\$@9>,E3D M8/![U^86O?MA_%W7BP?Q=)8(?X-/MHH,?0A2WZUPVJ_%WQUKI;^T/&>O7>[J M)-2EP?P#8KV:?"^(?QU(KTN_\CRI\14%\$&_N7^9^Q#2*@RQ"CW.*KOJEG$V MU[N!&]&E4'^=?BW<:K?WA+7%_=W!]99W?^9JMDD\DGZFNI<*]ZW_`)+_`,$Y MGQ)VI?C_`,`_:Z/4;6;/EW4+XZ[9`%=!U>31],U#3C=73VGR3R'S&3;YG55P.BXSGK7PUAI). M-TDLC=LLS,?U)->YE>01Q5..(KR]U[)?J_Z]3Q\QSMX>HZ%&/O+J_P!$?1OQ M2_;H\?>.6FM=!9/!VE-D`63>9=LO^U,1\O\`P`#ZU\[WEY<:G>O3M MEYIW,DLC'U)R2:^B?A+^Q/XG\862ZWXQND\#>&U7S7>\`%TZ=<[&P(Q_M.<_ M[)KT(_&CX$?LY!K7P!X=_P"$S\0Q#:VKR$,-P[_:'!_*)=M?2T\3A<*W0R^E MSR6_+M\Y/_@G@3H8G$I5L=4Y8^>_RBO^`?/?@W]F;XG^.XTFTOPA?):N,K!RDD;@Y#*PY!![UZ$N7,\$^1V4X_=?\`R9Q)2R_% M^\K\C^__`(='ZXZSX;U"75KAXKW34,/!\W]>;/I_P"+W[>,[1S:-\,+$:59MZ[J/B35)=1U?4+G4]0G/SW5W*9)'/U)S^%?2/PY_83\1:I9?VQX^U6V\# MZ)&OF21R.CW.W_:).R/ZL21Z5V7_``MC]G[]G8F+P3H!\<>(X1C^TY")`&]? MM#C`_P"V2XK],PD\!ET/JV5T>=K3W5I\Y;+Y:'R^(IXO&/VV/J^)7Q+6*;3?#DUCI\F"+_`%4_982/4;OF8?[JFO<[#]B'P7X`M$O_ M`(H_$>WLD`W&UM)$M5/L'DRS?\!4&O,/B'^VQ\3?';20V>I1^%M/;@0:.NV3 M'O,V7_[YVUX7?W]QJ=X]U?7,UY=RG+3W,ADD8^[,237?[',<3_$J*FNT5=_> M_P!#D]K@,/\`PX.H^\M%]R_4^RE^*/[+WPJ.W0/"C^+;V(8%PUFUP&/KON2! M^*BJ^H?\%$FT^+R/#/P]LK"W7A1-]- MDN,<))8R*A/^\')'Y5\U_%'X5>(O@[XH?0?$EJMO=;/-AGB;?#<1DX#QM@9& M00<@$'@BG0PV2XUNG1BF_FG^A-:OF^$2G5;2^31]>>./AG\//VM_AU?^,/AS M;1Z3XRL5+3V21+"\K@9\F>->"S`'9(.I[D9`^./A]X^UOX7>+K'Q%H5PUIJ5 MF^"C@[)%Z/%(O=3T(_'@@5W_`.RA\6(OA'\8=.O;ZX-OHFI*=/U!B<*B,1LD M;V1P"3V!:NR_:\_9NU/P%XMU'Q=H-C)>^$-4D-T[VJ[_`+#*YRZN!TC))96Z M'/".N^,;E;?0M%U#69SP$L;9Y?S*@@?C M7-/AK!*3FY-1[77YM'1#/\6XJ"BF_1_E<^P/'W_!1F5Q);^"_"VS.0M]K._BD[_\)'XDN[NU)S]AA;R;8?\`;-,`_5LGWKU3P%^P M=\1O%7ESZW]B\)6)^8F\D$T^/:-#@'_>85Z"?!G[.'[.S;]?U-OB'XE@Y^QK MMN0KC_IDA$2?21B:JE/*\%+DPD/:3_NKF?W[+[Q5(9CBX\V)GR0\WRK[MV?, M?PX^"WC3XK7"Q>%_#]S?P9VM>,OE6L?UE;"_@,GVKZ/T7]A;0/!M@FI_%/X@ M6>D08W-:V4J0K[CSI>6/^ZE@. M-D?T5N,/V4/AF1'8:(_BZZC_Y;&UDO-Q_WIBJ? MEQ4O_#='PYT4B/1?A48XEX7$=K;_`**K5\@:)X,\0^)2/[(T'5-5']ZRLI91 M^:J172I\`OB9)&9%\`>(B@[_`-G2?X5A/+,%?_:*KD_[T_\`AC:.8XNW[BFH MK^['_ASZ=3]OWP9=D1WWPQD,/?;);RG\B@_G5A?C?^S)\2R(?$/@Z+0II.#/ M/I0BP?\`KK;$G\3BODC4_A+XYT:(R7_@S7[6->KR:;,%'X[:Y216BE:.13'( MOWD888?4&JCD^"EK0DXOO&3_`."3+-<7'2M%/R-43(W"![A;VW![*2#YD?X[OI7RW\4_@IXP^#>HK:^)]*>VAE8K!?PGS+6? M_=D'?_9.&]JY7P_XAU3PGJD6I:+J-UI.H1'*7-G*8G'XCJ/8\5];_"[]N#3] M=T4^&/C!I$6LZ?,OEMJD=JLJNO\`TW@QR?\`:0?\![TG',,![T9>VAV>DEZ/ MJ-2P.-TDO93[KX?GV/FCX?\`Q?\`&7PLG,GA?Q#>:4A.Y[9&#V[GU:)@5)]\ M9KW#2/\`@H5\1["!8[W3-`U1EZRR6\L3'Z[7Q^E>E7G[(GP=^,2-J/PX\9KI MK2_-]EM)UNXD]C$Y$B?0M^%<7J'_``3D\8PRD6/BO0[F//!GCFB;'T`;^=(7^T.T?[TDE^?Z'QI86%U MJU['9V-K->WGW_[87P[^$MG+IGPA\!6X;&TZE>1^0C^YZRR?\"*UX9X[_:D^ M)WQ",B7_`(INK&T?(^QZ3_HD6/0[/F;_`($QKK]MF.)_@TU3CWEJ_N6WS.;V M6!P_\6;J/M'1?>]_D>]6_P"P/X6\-1++XR^)T5E@99(DAM5'_`I7;^5/_P"% M2_LJ>%6"ZEXW;59%^\/[5:4'\(%%?%MS(UU*9;B1II"1>#/$4ZYC\/:M(/5;"8_^RU#<>%] M;M`3/HNI0@=3)92J!^:UG_9=-O\`WFI?_'_P#3^T9K_F'A;_``_\$^R#X!_9 M(U]@+7Q*FG%NF-3N(7&_.U6_"J_LRO'^'BI_.S(_M&C+X\-'Y:'WMX(_8+'@WQ M_P"&_$^E^-TU*UTO4(;QH)K$*TBHP8J'60C)^E?8E?D9^SYJM]9?&KP)#;WU MS;PRZW:))%%.R*ZF5000#@@^AK]%M+\-:>9@NC?Z1>S92VME,[\N^/R498]A64 M9/A+^QA%L55^('Q05.6XV6;_`*B`?]]2'V!KJ?VYOC_XJ^'5YIGA'PW<#2DU M.Q:ZN=2A)^TA=Y3RXS_!TR6'//&*^"%26ZN`J"2>XF?`507>1V/;N22?J:^C MRS"UL9@Z<:\N6DELMY:_:?;R7S/"Q^)I87%3E1C>HWN]EZ+OYL]`^+/Q[\9_ M&B]9_$6J-_9X;=#I-IF.TB]/DS\Q']YB34GPB_9^\:?&J[`\/Z;LTU7VRZM> M$QVL9[C=C+G_`&5!/TKZ)_9V_85>^6V\0_$J)X8#B2#PZ&P[#J#<,.1_US'/ M]X]17V[IVF6FCV$%E86L-G9VZ".*W@C"1QJ.@51P!6.-SRA@H_5\!%.W7HO3 MN_ZU-,)D];%R]OC9-7Z=7_E_6Q\C:%_P3B\/1:0RZSXLU2YU1T_UEC%'%#&V M.RL&+#ZD9]J^*?'_`(-N_A[XVUOPS?L)+K2[I[9I%&!(!]UQZ!E(/XU^S-?G M]^W]\(;_`$GQO%X^LK5Y='U*"."^EC7(M[A!M4OCH&0*`?52.XKGR3-Z]?%. MEB9W4EIMO_PQT9OEE&CAU4P\+8O7KD'.=>3]G']FO7P;W3OB(MC;O\WDQZ]!A1])5+#\ M37Q!G/O36"]3CZFOHI92HS?1X_#=FW6?691&P'_7)=S_`)@5S5<#@Z/O8ZLY>4I:?LSP9X!\1_$75 M!IWAK1KO6;O@,MK'E8_=W.%0>[$5]V?#C_@GSX.\/-%=>+-1NO%-TN";9,VU MJ#Z%5)=OQ8?2OIGP[X8TCPEI<6FZ)IEKI5A&,);V<*QH/?`'7WKS\1Q%AL-# MV>"A>WR7W;_D=U#(L17E[3%SM^+^_;\SXG^&7_!.V_O!#=^.]>6PC."=,TC# MR?1IF&T'_=4_6OJ7X?\`[/'P]^&2QMH7ABSCNT`_TZZ7[1<$^OF/DC\,"O1Z M*^/Q6:8O&?Q)NW9:+^O4^IPV787"_P`.&O=ZO^O03I2T45Y)Z05\Q?M]?#P> M*/A!%XA@@WWWAZY$[.!S]FD^24?0'8W_``$U].U3U72[76]-N]/OX$NK*ZB: M">"0961&&&4^Q!(KLP>(>$Q$*Z^R_P`.OX'+BJ"Q-&5%]5_PQ^*A'6OH_P"! MO[:WB+X6Z3!H&O6/_"5^'H5$<"O+LNK=.FQ7((=!V5NG3..*Z[XF?\$]/$%C MJ=S<^!M5L]1TMV+16.I2&&XA'9-^"K@>IVG^=>6S_L9?&&WF\K_A$O,[;X[^ MW*_GOK]1J8O*\QI#=-T*`#"/>2&8K[A$"*/S- M<;HG[!GQ7U651=VFE:/&>KW=^'(_",-7J_A'_@G!`K1R>*/&4DPSEK?2+41@ M^WF2$_\`H->1..1T-9SY[>;E^6GWGJ0EG%;2$>7Y)?GJ?+_C[X_?$#XE"1/$ M'BJ]FLWZV5N_V>W^AC3`/_`LUF^!?A%XR^)$RQ>&/#5_J<9(!N(XMENOUE;" M#\Z_2KP/^R;\+O`+1RV?A>WU"\3D76K$W3Y])(HHUBB085 M$&`H]`!TKFJ<1T:$>3!4;+ST7W+_`#-Z>0U:TN?%U;ORU?WO_(^$_AW_`,$Z M]6O1%<>-?$4.FQG!:PTA?-E^AE8!0?HK?6OI?P%^RS\,OAXL3Z?X7M;V\3_E M]U0?:IB?7+Y"G_=`KUFBOF<3FV,Q>DZC2[+1?A^I]!A\MPN&^"&O=ZO^O0CB MB2"-8XT6.-1@*@P`/85)117D'J!7)^-?A3X/^(EJ\'B/PYIVK!ACS9X!YJ_[ ML@PR_@17645<)RIOF@[/R)E&,URR5T?#?QI_X)^O9V]QJOPXO)+C8"[:%J$@ M+$>D,IZGT5_^^J^-=4TN\T749]/U&TGL+ZW8I+:W,9CDC;T*GD5^UN,UR/CS MX2^#OB=`(O$_AZQU(G:"598F:*5>DB$JP_$IS@#\-U??.I_\`!/WX77TS/;/KFFJ3GRK>^#*/IYBL?UJ*V_X)[?#&$YEN MO$%Q[/?(O_H,8KWY<0Y=->\F_5'BQR/'0?NM+Y_\`^!-4^(OBS7(RFH^*=:O MD(QLN-1F="RK:)X1T?3Y%Y$T=FAD'_`R"WZUS2XEPE)6HTV_N2_7\C>/# M^)J.]6HOQ?\`D?ESX&^`_P`0?B.Z?V#X5U"YMW/_`!]SQ^1;C_MI)@'\,U]) M_#__`()SW+K:4K07E MJ_O?^1[.'R'"TM:EY/ST7W+_`#/'_!O[)?PK\%+&UMX3M=1N4_Y>=6)NW)]< M/E1^`%>IZ=HVGZ/"(K"QMK&(=$MH5C4?@HJ[17S=7$5J[O5FY>KN>]3HTJ*M M3BEZ(3%!&:6BL#8S]0T#3-60I?:=:7B$8(N(%D!_,&N&\0?LW_##Q/N-_P"! M]&+GJ]O;"W;_`+ZCVFO2:*VIUJM+6G)KT;1E.E3J:3BGZH\`T[]B7X<:#XQT M?Q'HR:II5WI=[%>Q01WADA9D8,%8.&...Q%>_P!%%76Q-;$V=:;E;N32H4J% MU2BE?L?!?[>OAG5?&7QQ\%Z-HEA-J>J7>D%(;:!V!U]Y_L#3O[=.M&SA.J_9 MQ:?;"@,@A#%M@/9=Q)QW_`5H5Z=7-:LL)#!T_=BEKW?_``#SJ>6THXF>*GK) MO3R_X(M%%%>&>P%07=I!?VTMO?P+IBR, EX-99 8 forms1a2_120808exh999.htm EXH 99.9 Exhibit 99.9




                                                                    Exhibit 99.9
                     REVISED BENEFICIAL OWNER ELECTION FORM
                                   relating to
                              BLUE VALLEY BAN CORP.
                         RIGHTS TO PURCHASE COMMON STOCK
- -------------------------------------------------------------------------------------------------------------------
 NOTE FROM YOUR NOMINEE: YOU SHOULD RETURN THIS FORM ON A TIMELY BASIS TO ENSURE THAT WE ARE ABLE TO ACT PURSUANT
  TO YOUR INSTRUCTIONS. ACCORDINGLY, IF YOU ELECT TO EXERCISE YOUR RIGHTS, PLEASE ENSURE THAT ALL REQUIRED FORMS
 AND PAYMENTS ARE ACTUALLY RECEIVED BY US PRIOR TO 5:00 P.M., EASTERN TIME ON DECEMBER 21, 2008, THE LAST BUSINESS
    DAY PRIOR TO THE SCHEDULED EXPIRATION DATE OF THE RIGHTS OFFERING TO ENSURE THAT WE HAVE SUFFICIENT TIME TO
   DELIVER SUCH FORMS AND PAYMENTS TO THE RELEVANT SUBSCRIPTION AGENT BY 5:00 P.M., EASTERN TIME ON DECEMBER 22,
                      2008, THE SCHEDULED EXPIRATION DATE.
- -------------------------------------------------------------------------------------------------------------------

         The undersigned  acknowledge(s) receipt of your letter and the enclosed
materials  relating  to the  rights  offering  by Blue  Valley  Ban  Corp.  (the
"Company"),  of  nontransferable  rights to purchase shares of common stock, par
value $1.00 per share, of the Company ("Common Stock"), including the prospectus
and  the  prospectus   supplement   previously  provided  and  the  accompanying
prospectus  supplement No. 2 (collectively,  the "Prospectus").  The undersigned
also acknowledge(s) that the exercise of rights is not revocable.
         I (we) hereby instruct you as follows:
         (CHECK THE APPLICABLE BOX OR BOXES AND PROVIDE ALL REQUIRED INFORMATION)
- -----------------------------------------------------------------------------------------------------------------------
IF YOU HAVE PREVIOUSLY PROVIDED INSTRUCTION TO YOUR NOMINEE REGARDING THIS OFFERING AND DO NOT WISH TO MAKE CHANGES:
Box 1. |_|  Please  EXERCISE  RIGHTS  to  purchase  shares  of  Common  Stock in
ACCORDANCE WITH THE EARLIER INSTRUCTION.

                                      -OR-

IF YOU HAVE PREVIOUSLY PROVIDED INSTRUCTION TO YOUR NOMINEE REGARDING THIS OFFERING AND WISH TO MAKE CHANGES:
Box 2.     |_|  Please CANCEL the earlier instruction, and DO NOT EXERCISE RIGHTS to purchase shares of Common
Stock
Box 3.     |_|  Please REPLACE the earlier instruction, and EXERCISE RIGHTS to purchase shares of Common Stock as
set forth below

         REPLACE EXERCISE OF RIGHTS INSTRUCTION (Complete if Box 3 is checked):

         Basic Subscription Right:  ________________  Rights  x  .1352  = _________________________
                                    (no. of rights)                         (no. of shares to be
                                                                                  purchased)

         Over Subscription Right:   In addition to my Basic Subscription Right, I apply for
_________________________ additional shares=
(no. of shares to be purchased)

         Therefore, I apply for ___________________        x   $18.00     =      $_______________
                             (total no. of new shares)   (subscription price)  (payment required)
- -------------------------------------------------------------------------------------------------------------------
IF YOU HAVE NOT PREVIOUSLY PROVIDED INSTRUCTION TO YOUR NOMINEE REGARDING THIS OFFERING:

Box 1.     |_|  Please DO NOT EXERCISE RIGHTS to purchase shares of Common Stock
Box 2.     |_|  Please EXERCISE RIGHTS to purchase shares of Common Stock as set forth below

         EXERCISE OF RIGHTS INSTRUCTION (Complete if Box 2 is checked):

         Basic Subscription Right:  ________________  Rights  x  .1352  = ________________________
                                    (no of rights)                         (no. of shares to be
                                                                                purchased)

         Over Subscription Right:   In addition to my Basic Subscription Right, I apply for
________________________additional shares
(no. of shares to be purchased)
         Therefore, I apply for         ________________        x   $18.00     =      $_______________
                                  (total no. of new shares)     (subscription price)  (payment required)
- -------------------------------------------------------------------------------------------------------------------
PAYMENT
          |_| Payment of $_____________ is enclosed.
          |_| Please deduct payment of $____________  from the following account
         maintained by you as follows:
         Type   of   Account:    ______________________    Account   No.: ______________________

SIGNATURE(S) I (we) on my (our) own behalf, or on behalf
of any  person(s)  on whose  behalf,  or under whose  directions,  I am (we are)
signing this form:

     o    Irrevocably elect to purchase the number of shares of Common Stock
          indicated above upon the terms and conditions specified in the
          Prospectus; and
     o    Agree that if I (we) fail to pay for the shares of Common Stock that I
          (we) have elected to purchase, you may exercise any remedies available
          to you under law.

Name of beneficial owner(s):
                            ----------------------------------------------------
Signature of beneficial owner(s):

If you are  signing  in your  capacity  as a trustee,  executor,  administrator,
guardian, attorney-in-fact, agent, officer of a corporation or another acting in
a  fiduciary  or   representative   capacity,   please   provide  the  following
information:
Name:
      --------------------------------------------------------------------------
Capacity:
          ----------------------------------------------------------------------
Address (including Zip Code):
                              --------------------------------------------------
Telephone Number:
                  --------------------------------------------------------------

-----END PRIVACY-ENHANCED MESSAGE-----