CARV Carver Bancorp Inc New

        None of the selling stockholders has any material relationships with us, other than their ownership of shares of our stock, and, in the case of selling stockholders that are financial institutions or affiliates of financials institutions, in the ordinary course of our and their or their affiliates' respective businesses.

Governmental Immunity

        The doctrine of sovereign immunity, as limited by the FTCA, provides that claims may not be brought against the United States of America or any agency or instrumentality thereof unless specifically permitted by act of Congress. The FTCA bars claims for fraud or misrepresentation. The courts have held, in cases involving federal agencies and instrumentalities, that the United States may assert its sovereign immunity to claims brought under the federal securities laws. Thus, any attempt to assert a claim against Treasury alleging a violation of the federal securities laws, including the Securities Act and the Exchange Act, resulting from an alleged material misstatement in or material omission from this prospectus or the registration statement of which this prospectus is a part, or any other act or omission in connection with the offerings to which this prospectus relates, likely would be barred. In addition, Treasury has advised us that Treasury and its members, officers, agents, and employees are exempt from liability for any violation or alleged violation of the anti-fraud provisions of Section 10(b) of the Exchange Act by virtue of Section 3(c) thereof. Accordingly, any attempt to assert such a claim against the members, officers, agents or employees of Treasury for a violation of the Securities Act or the Exchange Act resulting from an alleged material misstatement in or material omission from this prospectus or the registration statement of which this prospectus is a part or resulting from any other act or omission in connection with the offerings of shares of Common Stock by Treasury would likely be barred.

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PLAN OF DISTRIBUTION

Resale of Series D Preferred Stock and Common Stock by Selling Stockholders

        We are registering 45,118 shares of Series D Preferred Stock and 9,047,331 shares of Common Stock, all of which may be sold from time to time by the selling stockholders identified in this prospectus. We will not receive any of the proceeds from the sale of the shares of Series D Preferred Stock or Common Stock.

        The selling stockholders and any of their pledgees, donees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of Series D Preferred Stock or Common Stock being offered under this prospectus on any stock exchange, market or trading facility on which the shares are listed or traded (including transactions that may include special offerings and exchange distributions), or in private transactions. These sales may be at fixed or negotiated prices. The selling stockholders may use any one or more of the following methods when disposing of shares:

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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;



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block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;



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purchases by a broker-dealer as principal and resales by the broker-dealer for its account;



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an exchange distribution in accordance with the rules of the applicable exchange;



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privately negotiated transactions;



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to cover short sales made after the date that the registration statement, of which this prospectus is a part, is declared effective by the Commission;



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broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;



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through the writing or settlement of options relating to the shares;



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a combination of any of these methods of sale; and



•

any other method permitted pursuant to applicable law.

        The shares of Series D Preferred Stock or Common Stock may also be sold under Rule 144 or Regulation S under the Securities Act, if available, rather than under this prospectus. The selling stockholders have the sole and absolute discretion not to accept any purchase offer or make any sale of shares if they deem the purchase price to be unsatisfactory at any particular time.

        The selling stockholders may pledge their shares of Series D Preferred Stock or Common Stock to their brokers under the margin provisions of customer agreements. If a selling stockholder defaults on a margin loan, the broker may, from time to time, offer and sell the pledged shares of Series D Preferred Stock or Common Stock.

        Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated, which commissions as to a particular broker or dealer may be in excess of customary commissions to the extent permitted by applicable law.

        If sales of shares of Series D Preferred Stock or Common Stock offered under this prospectus are made to broker-dealers as principals, we would be required to file a post-effective amendment to the registration statement of which this prospectus is a part. In the post-effective amendment, we would be

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required to disclose the names of any participating broker-dealers and the compensation arrangements relating to such sales.

        The Company is required to pay all of its fees and expenses incident to the registration of the shares of Series D Preferred Stock and Common Stock issuable upon conversion of the Series D Preferred Stock, except for brokerage fees and commissions and the fees and disbursements of counsel to the selling stockholders. The Company has agreed to pay all of the fees and expenses of Treasury in connection with the registration and sale of the Common Stock held by Treasury. The Company has agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.

        The selling stockholders have advised the Company that they purchased the shares of Series C Preferred Stock that subsequently converted into shares of Series D Preferred Stock and Common Stock as investments in the ordinary course of business, that they have not, directly or indirectly, entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of Series D Preferred Stock or Common Stock, and that there is no an underwriter or coordinating broker acting in connection with a proposed sale of shares of Series D Preferred Stock or Common Stock by any selling stockholder. If the Company is notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of shares of Series D Preferred Stock or Common Stock, if required, the Company will file a supplement to the prospectus. If the selling stockholders use the prospectus for any sale of shares of Series D Preferred Stock or Common Stock, they will be subject to the prospectus delivery requirements of the Securities Act.

        The selling stockholders and any broker-dealers or agents that are involved in selling the Series D Preferred Stock or Common Stock offered under this prospectus may be deemed to be "underwriters" within the meaning of the Securities Act in connection with these sales. Commissions received by these broker-dealers or agents and any profit on the resale of the shares of Series D Preferred Stock or Common Stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Any broker-dealers or agents that are deemed to be underwriters may not sell shares offered under this prospectus unless and until we set forth the names of the underwriters and the material details of their underwriting arrangements in a supplement to this prospectus or, if required, in a replacement prospectus included in a post-effective amendment to the registration statement of which this prospectus is a part.

        The selling stockholders and any other persons participating in the sale or distribution of the shares of Series D Preferred Stock or Common Stock offered under this prospectus will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M. These provisions may restrict activities of, and limit the timing of purchases and sales of any of the shares of Series D Preferred Stock or Common Stock by, the selling stockholders or any other person. Furthermore, under Regulation M, persons engaged in a distribution of securities are prohibited from simultaneously engaging in market making and other activities with respect to those securities for a specified period of time prior to the commencement of such distributions, subject to specified exceptions or exemptions. All of these limitations may affect the marketability of the shares of Series D Preferred Stock or Common Stock.

        If any of the shares of Series D Preferred Stock or Common Stock offered for resale pursuant to this prospectus are transferred other than pursuant to a sale under this prospectus, then subsequent holders could not use this prospectus until a post-effective amendment or prospectus supplement is filed, naming such holders. We offer no assurance as to whether any of the selling stockholders will sell all or any portion of the shares of Series D Preferred Stock or Common Stock offered under this prospectus.

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        In connection with resales of the securities or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the securities and deliver securities to close out such short positions, or loan or pledge Common Stock to broker-dealers that in turn may sell such securities. Such transactions may be effected by the selling stockholders at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices. The selling stockholders may effect such transactions by selling the securities to or through broker-dealers and such broker-dealers may receive compensation in the form of discounts or commissions from the selling stockholders and may receive commissions from the purchasers of the securities for whom they may act as agent (which discounts or commissions from the selling stockholders or such purchasers will not exceed those customary in the type of transactions involved).

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DESCRIPTION OF SECURITIES

Common Stock

General

        We are currently authorized to issue 10,000,000 shares of Common Stock, par value $0.01 per share, and 2,000,000 shares of preferred stock, par value $0.01 per share. As of the date of this prospectus, 3,697,264 shares of Common Stock are outstanding, after giving effect to the 1-for-15 reverse stock split that was effective as of October 27, 2011, the exchange of the Series B Preferred Stock for shares of Common Stock, and the conversion of the Series C Preferred Stock into shares of Common Stock and Series D Preferred Stock.

Voting

        Our stockholders of record are entitled to one vote for each share held on all matters to be voted on by stockholders, except that if any stockholder holds more than 10% of our outstanding voting stock, that stockholder is entitled to only 1/100 of a vote for each share held in excess of 10% of our outstanding voting stock. Our certificate of incorporation expressly permits Treasury to vote all shares of Common Stock that it holds, regardless of the 10% limitation. Treasury currently owns approximately 62.8% of our Common Stock, and will own 25.2% of our outstanding Common Stock if all outstanding shares of Series D Preferred Stock are converted into shares of Common Stock. Our board of directors consists of seven directors serving staggered three-year terms. Directors are elected by a plurality of the votes cast, and there is no cumulative voting with respect to the election of directors.

Dividends

        The payment of dividends is within the discretion of our board of directors, subject to applicable regulatory restrictions. On October 29, 2010, our board of directors announced that, based on highly uncertain economic conditions and the desire to preserve capital, the Company was suspending payment of the quarterly cash dividend on the Common Stock. The payment of cash dividends in the future will be contingent upon our revenues and earnings, if any, capital requirements and general financial condition. In addition, we are subject to a Cease-and-Desist Order that prohibits us from paying any dividends without the prior consent of the Federal Reserve, and Carver Federal is subject to a Cease-and-Desist Order that prohibits Carver Federal from paying any dividends to us without the prior consent of the OCC. We may not pay any dividends on our Common Stock if we do not simultaneously pay equivalent dividends on all outstanding Series D Preferred Stock.

Other Rights

        Our stockholders have no conversion, preemptive or other subscription rights and there are no sinking fund or redemption provisions applicable to the Common Stock. All of the outstanding shares of Common Stock are fully paid and non-assessable.

Preferred Stock

General

        Our certificate of incorporation authorizes the issuance of 2,000,000 shares of blank check preferred stock with such designation, rights and preferences as may be determined from time to time by our board of directors. Accordingly, our Board of Directors is empowered, without stockholder approval, to issue preferred stock with dividend, liquidation, conversion, voting or other rights which could adversely affect the voting power or other rights of the holders of Common Stock. As of the date of this prospectus, 45,118 shares of Series D Preferred Stock are outstanding.

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Series D Preferred Stock

        Because of the conversion features of the Series D Preferred Stock, in most circumstances, a purchaser of Series D Preferred Stock pursuant to this prospectus will likely receive Common Stock instead of Series D Preferred Stock. See " —Conversion ."

Ranking

        The Series D Preferred Stock rank, with respect to dividend rights and rights on liquidation, winding up and dissolution:

•

on a parity with each other class or series of equity securities of the Company the terms of which do not expressly provide that such class or series will rank senior or junior to the Series D Preferred Stock as to dividend rights and/or rights on liquidation, winding-up and dissolution of the Company;



•

junior to each other class or series of equity securities of the Company the terms of which expressly provide that such class or series will rank senior to the Series D Preferred Stock as to dividend rights and/or rights on liquidation, winding-up and dissolution of the Company; and



•

senior to the Common Stock, and each other class or series of capital stock of the Company outstanding or established by the Company the terms of which expressly provide that it ranks junior to the Series D Preferred Stock as to dividend rights and/or rights on liquidation, winding-up and dissolution of the Company.

Dividends

        The holders of the Series D Preferred Stock are entitled to receive dividends, on an as-converted basis, simultaneously to the payment of any dividends on the Common Stock. Dividends on the Series D Preferred Stock are not cumulative. If our board of directors does not declare a dividend with respect to any dividend period, the holders of the Series D Preferred Stock will have no right to receive any dividend for that period.

        If any conversion date is prior to any record date with respect to dividends payable to holders of the Series D Preferred Stock, the holders will not have the right to receive any dividends payable on such dividend payment date with respect to the applicable dividend period. If a conversion date is after any record date but prior to the dividend payment date with respect to dividends payable to holders of the Series D Preferred Stock, the holders will have the right to receive dividends payable on such dividend payment date with respect to the applicable dividend period.

Dividend Stopper

        The Company may not declare, pay or set apart for payment any dividend or make any distribution on our Common Stock, unless at the time of such dividend or distribution the Company simultaneously pays a non-cumulative dividend or makes a distribution on each outstanding share of Series D Preferred Stock on an as-converted basis.

        If all dividends on all outstanding shares of the Series D Preferred Stock have not been declared and paid in full, the Company may not declare or pay dividends with respect to, or make any distributions on, or directly or indirectly, redeem, purchase or acquire any securities that are junior to the Series D Preferred Stock, or redeem, purchase or acquire any of the Series D Preferred Stock or any securities that are junior or pari passu , other than:

•

redemptions, purchases or other acquisitions of junior or pari passu securities in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants or in connection with a dividend

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reinvestment plan, in each case in the ordinary course of business and consistent with past practice;

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any declaration of a dividend in connection with any stockholders' rights plan, or the issuance of rights, stock or other property under any stockholders' rights plan, or the redemption or repurchase of rights pursuant thereto;



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conversions or exchanges of junior securities into or for junior securities or conversions or exchanges of pari passu securities into or for junior securities or pari passu securities; and



•

any purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged.

        If dividends payable for any dividend payment date are not paid in full, or declared and sufficient funds set aside therefor on the shares of the Series D Preferred Stock and there are issued and outstanding shares of pari passu securities with the same dividend payment date, then all dividends declared on shares of the Series D Preferred Stock and such pari passu securities on such date shall be declared pro rata so that the respective amounts of such dividends shall bear the same ratio to each other as full dividends per share payable on the shares of the Series D Preferred Stock and all such pari passu securities otherwise payable on such dividend payment (subject to such dividends on such Series D Parity Securities having been declared by the Board of Directors out of legally available funds and including, in the case of any such Series D Parity Securities that bear cumulative dividends, all accrued but unpaid dividends) bear to each other.

Voting

        The holders of Series D Preferred Stock are generally not entitled to vote, except with respect to amendments to our certificate of incorporation that would change the rights and preferences of the Series D Preferred Stock, the creation or increase of any class of securities senior to the Series D Preferred Stock, the consummation of certain mergers, consolidations or other transactions where the holders of the Series D Preferred Stock are not converted into or exchanged for preference securities of the surviving entity, and as otherwise required by applicable law.

Conversion

        The Series D Preferred Stock shall automatically convert into shares of Common Stock only upon the following transfers to third parties ("Eligible Transfers"), except for transfers to any Investor who purchased shares of Series C Preferred Stock in our private placement transaction or any affiliate of such Investor:

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a transfer in a widespread public distribution;



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a transfer in which no transferee (together with its affiliates and other transferees acting in concert with it) acquires more than 2% of our Common Stock or any other class or series of our voting stock; or



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a transfer to a transferee that (together with its affiliates and other transferees acting in concert with it) owns of controls more than 50% of our Common Stock, without regard to the transfer.

The conversion price of the Series D Preferred Stock is $ 8.1765, and is subject to adjustment in the event of stock splits, subdivisions or combinations, dividends and distributions, issuance of certain rights, spin-offs, self-tenders and exchange offers as set forth under " —Anti-Dilution Adjustments ." The Series D Preferred Stock is not convertible at the option of the holders.

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Fractional Shares

        Holders of Series D Preferred Stock will receive cash in lieu of any fractional shares of Common Stock issuable upon conversion.

Conversion Procedures

        If any holder of Series D Preferred Stock intends to effect an Eligible Transfer such holder shall, at least two business days prior to consummation of such Eligible Transfer, provide notice of such Eligible Transfer to the Company, which notice shall state the anticipated closing date of the Eligible Transfer; the name, address and telephone number of the transferee; and a certification that the holder has determined that the transfer will constitute an Eligible Transfer.

        Effective immediately prior to the close of business on the conversion date, dividends shall no longer be declared on the Series D Preferred Stock subject to the Eligible Transfer and the Series D Preferred Stock subject to the Eligible Transfer shall cease to be outstanding, in each case, subject to the right of the transferee to receive shares of Common Stock issuable upon automatic conversion (subject to the certain ownership limitations; any declared and unpaid dividends on such holder's shares of Series D Preferred Stock; and certain other payments to which such Series D Holder is otherwise entitled pursuant to the certificate of designations.

        No allowance or adjustment to the conversion price, except as described below under "— Anti-Dilution Adjustments ," shall be made in respect of dividends payable to holders of the Common Stock as of any date prior to the close of business on the conversion date. Effective immediately prior to the close of business on the conversion date, the shares of Series D Preferred Stock converted thereon shall not be deemed outstanding for any purpose, and the holders generally shall have no rights with respect to the Common Stock or other securities issuable upon conversion (including voting rights, rights to respond to tender offers for the Common Stock or other securities issuable upon conversion and rights to receive any dividends or other distributions on the Common Stock or other securities issuable upon conversion) by virtue of holding such shares of Series D Preferred Stock.

        Shares of Series D Preferred Stock duly converted in accordance with the certificate of designations, or otherwise reacquired by the Company, shall, upon the effectiveness of such conversion or reacquisition, resume the status of authorized and unissued preferred stock, undesignated as to series and available for future issuance. The Company may from time-to-time take such appropriate action as may be necessary to reduce the authorized number of shares of Series D Preferred Stock, except that the Company shall not take any such action if such action would reduce the authorized number of shares of Series D Preferred Stock below the number of shares of Series D Preferred Stock then outstanding.

        The person or persons entitled to receive the Common Stock and/or cash, securities or other property issuable upon conversion of Series D Preferred Stock shall be treated for all purposes as the record holder(s) of such shares of Common Stock and/or securities as of the close of business on the conversion date with respect thereto. In the event that a holder of Series D Preferred Stock shall not by written notice designate the name in which shares of Common Stock and/or cash, securities or other property (including payments of cash in lieu of fractional shares) to be issued or paid upon conversion of shares of Series D Preferred Stock should be registered or paid or the manner in which such shares should be delivered, the Company shall be entitled to register and deliver such shares, and make such payment, in the name of such holder, and in the manner shown on the records of the Company.

        On the conversion date, the shares of Common Stock issued upon conversion of the Series D Preferred Stock shall be registered in book-entry form upon the furnishing of appropriate endorsements and transfer documents and the payment of all transfer and similar taxes.

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Anti-Dilution Adjustment

        The conversion price will be adjusted in the following circumstances:

        (1)    Stock Dividends and Distributions .

        If the Company pays dividends or other distributions on the Common Stock in shares of Common Stock, then the conversion price in effect immediately prior to the ex-date for such dividend or distribution will be multiplied by a fraction (A) the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the ex-date for such dividend or distribution, and (B) the denominator of which shall be the sum of (I) the number of shares of Common Stock outstanding immediately prior to the ex-date for such dividend or distribution plus (II) the total number of shares of Common Stock constituting such dividend or distribution.

        If any dividend or distribution is declared but not so paid or made, the conversion price shall be readjusted to such conversion price that would be in effect if such dividend or distribution had not been declared.

        (2)    Subdivisions, Splits and Combination of the Common Stock .

        If the Company subdivides, splits or combines the shares of Common Stock, then the conversion price in effect immediately prior to the effective date of such share subdivision, split or combination will be multiplied by a fraction (A) the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to the effective date of such share subdivision, split or combination, and (B) the denominator of which shall be the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision, split or combination.

        If any subdivision, split or combination is announced but the outstanding shares of Common Stock are not subdivided, split or combined, the conversion price shall be readjusted to such conversion price that would be in effect if such subdivision, split or combination had not been announced.

        (3)    Issuance of Stock Purchase Rights .

        If the Company issues to all holders of the shares of Common Stock rights or warrants (other than rights or warrants issued pursuant to a rights offering to holders of record as of June 30, 2011, a stockholders' rights plan, a dividend reinvestment plan or share purchase plan or other similar plans) entitling them to subscribe for or purchase the shares of Common Stock at less than (or having a conversion price per share that is less than) the current market price on the date fixed for the determination of stockholders entitled to receive such rights or warrants, then the conversion price in effect immediately prior to the ex-date for such distribution will be multiplied by a fraction (A) the numerator of which shall be the sum of (I) the number of shares of Common Stock outstanding immediately prior to the ex-date for such distribution plus (II) the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the current market price on the date fixed for the determination of stockholders entitled to receive such rights or warrants, and (B) the denominator of which shall be the sum of (I) the number of shares of Common Stock outstanding immediately prior to the ex-date for such distribution plus (II) the total number of shares of Common Stock issuable pursuant to such rights or warrants.

        To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the conversion price shall be readjusted to such conversion price that would then be in effect had the adjustment made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. In determining the aggregate offering price payable for such shares of Common Stock, there shall be

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taken into account any consideration received for such rights or warrants and the value of such consideration (if other than cash, to be determined in a reasonable manner by our board of directors).

        (4)    Debt or Asset Distributions .

        If the Company distributes (including by dividend) to all holders of shares of Common Stock evidences of indebtedness, shares of capital stock, securities, cash or other assets (excluding any dividend or distribution referred to in clause (1) above; any rights or warrants referred to in " —(3) Issuance of Stock Purchase Rights " above; any dividend or distribution paid exclusively in cash; any consideration payable in connection with a tender or exchange offer made by the Company or any of its applicable subsidiaries; and any dividend of shares of capital stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit in the case of certain spin-off transactions as described below), then the conversion price in effect immediately prior to the ex-date for such distribution will be multiplied by a fraction (A) the numerator of which shall be the difference between (I) the current market price per share of Common Stock on such date minus (II) the fair market value of the portion of the distribution applicable to one share of Common Stock on such date as reasonably determined in good faith by our board of directors, and (B) the denominator of which shall be the current market price per share of Common Stock on such date.

        In a "spin-off", where the Company makes a dividend or other distribution to all holders of shares of Common Stock consisting of capital stock of any class or series, or similar equity interests of, or relating to, a subsidiary or other business unit, the conversion price will be adjusted on the fifteenth trading day after the effective date of the distribution by multiplying the conversion price in effect as of the close of business on the business day immediately preceding such fifteenth trading day by a fraction (A) the numerator of which shall be the average of the closing prices of the Common Stock over the first ten trading days commencing on and including the fifth trading day following the effective date of such distribution, and (B) the denominator of which shall be the sum of (I) the average of the closing prices of the Common Stock over the first ten trading days commencing on and including the fifth trading day following the effective date of such distribution plus (II) the average of the closing prices of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock over the first ten trading days commencing on and including the fifth trading day following the effective date of such distribution, or, if not traded on a national or regional securities exchange or over-the-counter market, the fair market value of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock on such date as reasonably determined in good faith by our board of directors.

        In the event that such distribution is not so paid or made, the conversion price shall be readjusted to the conversion price that would then be in effect if such dividend or distribution had not been declared.

        (5)    Cash Distributions .

        If the Company makes a distribution consisting exclusively of cash to all holders of the Common Stock (excluding any cash that is distributed in a reorganization event, as described under " —Reorganization Events ," or as part of a "spin-off" referred to in " —(4) Debt or Asset Distributions " above; any dividend or distribution in connection with the Corporation's liquidation, dissolution or winding up; and any consideration payable in connection with a tender or exchange offer made by the Company or any of its subsidiaries), then in each event, the conversion price in effect immediately prior to the ex-date for such distribution will be multiplied by a fraction (A) the numerator of which shall be the difference between (I) the closing price per share of Common Stock on the trading day immediately preceding the ex-date minus (II) the amount per share of Common Stock of the cash distribution, and (B) the denominator of which shall be the closing price per share of Common Stock on the trading day immediately preceding the ex-date.

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        In the event that any distribution is not so made, the conversion price shall be readjusted to the conversion price which would then be in effect if such distribution had not been declared.

        (6)    Self Tender Offers and Exchange Offers .

        If the Company or any of its subsidiaries successfully completes a tender or exchange offer for the Common Stock where the cash and the value of any other consideration included in the payment per share of the Common Stock exceeds the closing price per share of the Common Stock on the trading day immediately succeeding the expiration of the tender or exchange offer, then the conversion price in effect at the close of business on such immediately succeeding trading day will be multiplied by a fraction (A) the numerator of which shall be the product of (I) the number of shares of Common Stock outstanding immediately prior to the expiration of the tender or exchange offer, including any shares validly tendered and not withdrawn multiplied by (II) the closing price per share of Common Stock on the trading day immediately succeeding the expiration of the tender or exchange offer and (B) the denominator of which shall be the sum of (I) the aggregate cash and fair market value of the other consideration payable in the tender or exchange offer, as determined in good faith by the Board of Directors plus (II) the product of (x) the closing price per share of Common Stock on the trading day immediately succeeding the expiration of the tender or exchange offer multiplied by (y) the number of shares of Common Stock outstanding immediately after the expiration of the tender or exchange offer, giving effect to consummation of the acquisition of all shares validly tendered or exchanged (and not withdrawn) in connection with such tender or exchange.

        In the event that the Company, or one of its subsidiaries, is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company, or such subsidiary, is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the conversion price shall be readjusted to be such conversion price that would then be in effect if such tender offer or exchange offer had not been made or declared, as applicable.

        (7)    Shareholder Rights Plan .

        To the extent that the Company has a rights plan in effect on the conversion date, each share of Common Stock issued upon conversion of the Series D Preferred Stock shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any shareholder rights plan, as the same may be amended from time to time. If, however, on the conversion date, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable shareholder rights plan and the holders of the Series D Preferred Stock would not be entitled to receive any rights in respect of Common Stock issuable upon conversion of the Series D Preferred Stock, then the conversion price shall be equally and ratably adjusted at the time of the separation, subject to readjustment in the event of the expiration, termination or redemption of such rights.

        In addition, the Company may make such decreases in the conversion price as our board of directors deems it advisable to avoid or diminish any income tax to holders of the Company's capital stock resulting from any dividend or distribution of shares of Common Stock (or issuance of rights or warrants to acquire shares of Common Stock) or from any event treated as such for income tax purposes or for any other reason.

        All adjustments to the conversion price shall be calculated to the nearest one-tenth ( ¹ / 10 ) of a cent. No adjustment in the conversion price shall be required if such adjustment would be less than $0.01; provided , that any adjustments which by reason of this subparagraph are not required to be made shall be carried forward and taken into account in any subsequent adjustment; provided, further , that on the

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conversion date, adjustments to the conversion price will be made with respect to any such adjustment carried forward and which has not been taken into account before such date.

        No adjustment to the conversion price shall be made if the holders of Series D Preferred Stock may participate in the transaction that would otherwise give rise to an adjustment, as a result of holding the Series D Preferred Stock, without having to convert the Series D Preferred Stock, as if they held the full number of shares of Common Stock into which a share of the Series D Preferred Stock, as applicable, may then be converted.

        The conversion price shall not be adjusted: (i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company's securities and the investment of additional optional amounts in shares of Common Stock under any such plan; (ii) upon the issuance of any shares of Common Stock or rights or warrants to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its subsidiaries; (iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of June 29, 2011 and not substantially amended thereafter; (iv) for a change in the par value or no par value of Common Stock; or (v) for accrued but unpaid dividends on the Series D Preferred Stock.

        As soon as practicable following the occurrence of an event that requires an adjustment to the conversion price, the Company shall provide a written notice to the holders of Series D Preferred Stock of the occurrence of such event, and compute the conversion price. As soon as practicable following such computation of the revised conversion price, the Company shall provide written notice to the holders of Series D Preferred Stock setting forth in reasonable detail the method by which the adjustment to the conversion price was determined and setting forth the revised conversion price.

        The "current market price" on any date is the average of the daily closing price per share of the Common Stock or other securities on each of the five consecutive trading days preceding the earlier of the day before the date in question and the day before the ex-date with respect to the issuance or distribution giving rise to an adjustment to the conversion price. The "ex-date," when used with respect to any issuance or distribution, means the first date on which the Common Stock or other securities trade without the right to receive the issuance or distribution giving rise to an adjustment of the conversion price.

Reorganization Event.

        In the event of:

•

any reorganization, merger, shares exchange or consolidation, or similar transaction (other than a transaction pursuant to which the Company is the surviving entity and pursuant to which the shares of Common Stock outstanding immediately prior to the transaction are not exchanged for cash, securities or other property of the Company or another person);



•

any transaction resulting in the sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company, in each case pursuant to which the Common Stock will be converted into cash, securities or other property of the Company or another person; or



•

any statutory exchange of the outstanding shares of Common Stock for securities of another Person (other than in connection with a merger or acquisition),

each of which is a "reorganization event," then each share of Series D Preferred Stock outstanding immediately prior to such reorganization event shall be deemed to have converted, effective immediately prior to the effective time of the reorganization event, into the number of shares of

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Common Stock into which one share of Series D Preferred Stock would then be convertible (without regard to any applicable ownership limitations), and the holders of the Series D Preferred Stock will be entitled to receive the type and amount of securities, cash and other property receivable in such reorganization event (such securities, cash and other property, the "exchange property") by the holder of the number of shares of Common Stock into which one share of Series D Preferred Stock held by such holder. If the receipt of the exchange property would require a holder or any affiliate of a holder to file an application, notice, rebuttal or waiver with any banking regulator or cause a holder or any of its affiliates to be deemed to "control" any person for purposes of federal banking law, such holder will receive a cash payment equivalent to the fair market value of such exchange property instead of receiving the exchange property. In the event that holders of the shares of Common Stock have the opportunity to elect the form of consideration to be received in such transaction, the holders of Series D Preferred Stock shall likewise be entitled to make such an election.

Redemptions

        The Company may not redeem the Series D Preferred Stock prior to June 28, 2013. After June 28, 2013, the Company may redeem the Series D Preferred Stock at a redemption price of $1,000 per share plus accrued and unpaid dividends, subject to regulatory approval. All redemption must be on a pro rata basis, and must not cause any holder of Series D Preferred Stock, together with its affiliates, to own more than 9.9% of our outstanding voting stock (4.9% if the holder is a bank holding company, a savings and loan holding company or an affiliate of either) or to own, control or have the power to vote securities which represent more than 24.9% of any class of our voting stock.

Transferability

        The Series D Preferred Stock is freely transferable, subject to certain rights of first refusal held by us. Certain transfers may result in the automatic conversion of the Series D Preferred Stock into shares of Common Stock. See "—Conversion ."

Liquidation

        The holders of the Series D Preferred Stock are entitled to receive a liquidation preference of $0.01 per share, plus accrued and unpaid dividends. After the payment of this liquidation preference, the holders of the Series D Preferred Stock will participate in any amounts distributed to the holders of Common Stock, on an as-converted basis.

Maturity

        The Series D Preferred Stock is perpetual unless converted or redeemed.

Registration Rights

        The holders of Series D Preferred Stock, shares of Common Stock issued upon conversion of the Series C Preferred Stock and in exchange for the Series B Preferred Stock, and shares of Common Stock into which the Series D Preferred Stock may be converted are entitled to registration rights with respect to such shares. The Company is only required to use its best efforts to cause the registration statement relating to the resale to be declared effective and, once effective, only to use its best efforts to maintain the effectiveness of the registration statement. The registration rights associated with any such shares terminate with respect to shares sold pursuant to a registration statement, with respect to shares that cease to be outstanding, and with respect to shares sold in any transaction pursuant to which the registration rights are not specifically assigned. We will bear the expenses incurred in connection with the filing of any such registration statements.

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Anti-Takeover Provisions

        Our certificate of incorporation provides for a classified board of directors serving staggered three-year terms, which may make it more difficult for stockholders to elect a majority to our board of directors. In addition, directors may not be removed by stockholders except for cause and only upon the approval of 80% of the total votes eligible to be cast. Our certificate of incorporation also provides that a stockholder who owns more than 10% of our outstanding voting stock is entitled to cast 1/100 ^th  of a vote with respect to each such share held in excess of 10% of our outstanding voting stock. Our certificate of incorporation expressly permits Treasury to vote shares of Common Stock that it holds in excess of 10% of our outstanding voting stock.

        We are prohibited, under certain circumstances, from engaging in a "business combination" with:

•

a stockholder who owns 10% or more of our outstanding voting stock (otherwise known as an "interested stockholder");



•

an affiliate of an interested stockholder; or



•

an associate of an interested stockholder,

for two years following the date that the stockholder became an interested stockholder. A "business combination" includes a merger or sale of more than 5% of our assets. However the above provisions do not apply if:

•

the business combination is approved by our stockholders by an affirmative vote of at least 80% of the total votes eligible to be cast and by at least 50% of the total number of votes eligible to be cast by persons other than the interested stockholder and affiliates and associates of the interested stockholder; or



•

the business combination is approved by a majority of directors who are not affiliates of, associates of, or otherwise affiliated with the interested stockholder and who were members of the board of directors prior to the time that the interested stockholder became an interested stockholder (or who were recommended by a majority of such directors in office at the time of their nominations), and the business combination satisfies certain requirements as to the fairness of consideration to stockholders other than the interested stockholder.

        These provisions of our certificate of incorporation could prohibit or delay mergers or other change in control attempts, and thus may discourage attempts to acquire us. Furthermore, because we are a savings and loan holding company, any transaction involving a change of control is subject to regulatory review and approval.

Transfer Agent

        Our transfer agent and registrar is American Stock Transfer & Trust Company, 6201 15th Avenue, Brooklyn, New York 11219. Its telephone number is (718) 921-8261.

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DIRECT REGISTRATION SYSTEM

        We have a direct registration (book-entry) program with respect to record ownership of our Common Stock and Series D Preferred Stock. Direct registration is a service that allows shares to be owned, reported and transferred electronically without having a physical stock certificate issued. Persons who acquire shares of the Series D Preferred Stock or our Common Stock upon an offering and sale by a selling stockholder by use of this prospectus will not receive a physical stock certificate; rather, ownership of the shares acquired will be recorded in the names of such persons electronically on the books and records of our transfer agent, American Stock Transfer & Trust Company. Direct registration is intended to alleviate the problems relating to stolen, misplaced or lost stock certificates and to reduce the paperwork relating to the transfer of ownership of our stock. Under direct registration, the voting, dividend and other rights and benefits of holders of the Series D Preferred Stock and our Common Stock remain the same as with holders of certificates.

        Prior to the effectiveness of this registration, the shares of the Series D Preferred Stock and Common Stock which may be sold from time to time by the selling stockholders named in this prospectus were "restricted securities" under the Securities Act. Upon completion of a resale by use of this prospectus, the acquiring stockholders whose shares are registered in their own names will receive a statement confirming the appropriate number of shares of Series D Preferred Stock or Common Stock, as applicable, registered in the acquiring stockholders' names through direct registration, rather than a physical stock certificate. For a stockholder who is acquiring Series D Preferred Stock or Common Stock through a broker or other nominee that is a member of (or has a correspondent relationship with) the Depository Trust Company, that stockholder's shares of Series D Preferred Stock or Common Stock will be credited to the stockholder's account by the broker or other nominee.

        To utilize the services of a stockbroker to sell shares, a stockholder holding shares through direct registration must first add the appropriate stockbroker information to the direct registration account maintained by the transfer agent. Thereafter, such stockholder may transfer the shares by telephone to a brokerage account and then may sell or transfer the shares by giving instructions to the broker.

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CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS

        The following is a summary of certain U.S. federal income tax and, for non-U.S. holders (as defined below), estate tax consequences of the purchase, ownership, conversion and disposition of the the Series D Preferred Stock and our Common Stock received in respect thereof as of the date hereof. Except where noted, this summary deals only with the Series D Preferred Stock and our Common Stock held as capital assets. As used herein, the term "U.S. holder" means a beneficial owner of the Series D Preferred Stock or our Common Stock that is for U.S. federal income tax purposes:

•

an individual citizen or resident of the United States;



•

a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;



•

an estate the income of which is subject to U.S. federal income taxation regardless of its source; or



•

a trust if it (1) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.

        As used herein, the term "non-U.S. holder" means a beneficial owner of the Series D Preferred Stock or our Common Stock that is neither a U.S. holder nor a partnership (or other entity treated as a partnership for U.S. federal income tax purposes).

        This summary is not a detailed description of the U.S. federal income tax consequences applicable to you if you are subject to special treatment under the U.S. federal income tax laws, including if you are:

•

a dealer in securities or currencies;



•

a financial institution;



•

a regulated investment company;



•

a real estate investment trust;



•

an insurance company;



•

a tax-exempt organization;



•

a person holding the Series D Preferred Stock or our Common Stock as part of a hedging, integrated, conversion or constructive sale transaction or a straddle;



•

a trader in securities that has elected the mark-to-market method of accounting for your securities;



•

a person liable for alternative minimum tax;



•

a partnership or other pass-through entity for U.S. federal income tax purposes;



•

a person who is an investor in a pass-through entity;



•

a U.S. holder whose "functional currency" is not the U.S. dollar;



•

a "controlled foreign corporation";



•

a "passive foreign investment company"; or



•

a U.S. expatriate.

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        This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations, rulings and judicial decisions as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in U.S. federal income and estate tax consequences different from those summarized below.

        If a partnership holds the Series D Preferred Stock or our Common Stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding the Series D Preferred Stock or our Common Stock, you should consult your own tax advisors.

        This summary does not contain a detailed description of all the U.S. federal income and estate tax consequences to you in light of your particular circumstances and does not address the effects of any state, local or non-U.S. tax laws. If you are considering the purchase, ownership or disposition of the Series D Preferred Stock, you should consult your own tax advisors concerning the U.S. federal income and estate tax consequences to you in light of your particular situation as well as any consequences arising under the laws of any other taxing jurisdiction.

U.S. Holders

Dividends

        Distributions on the Series D Preferred Stock or our Common Stock will be dividends for U.S. federal income tax purposes to the extent paid out of our current or accumulated earnings and profits, as determined for U.S. federal income tax purposes, and will be taxable as ordinary income although possibly at reduced rates, as discussed below. Although we expect that our current and accumulated earnings and profits will be such that all distributions paid with respect to the Series D Preferred Stock or our Common Stock will qualify as dividends for U.S. federal income tax purposes, we cannot guarantee that result. Our accumulated earnings and profits and our current earnings and profits in future years will depend in significant part on our future profits or losses, which we cannot accurately predict. To the extent that the amount of any distribution paid on the the Series D Preferred Stock or our Common Stock exceeds our current and accumulated earnings and profits attributable to that share of the Series D Preferred Stock or our Common Stock, the distribution will be treated first as a tax-free return of capital and will be applied against and will reduce the U.S. holder's adjusted tax basis (but not below zero) in that share of the Series D Preferred Stock or our Common Stock. This reduction in basis will increase any gain, or reduce any loss realized by the U.S. holder on the subsequent sale, redemption or other disposition of the Series D Preferred Stock or our Common Stock. The amount of any such distribution in excess of the U.S. holder's adjusted tax basis will be taxed as capital gain. For purposes of the remainder of the discussion under this heading, it is assumed that distributions paid on the Series D Preferred Stock will constitute dividends for U.S. federal income tax purposes.

        If we make a distribution on the Series D Preferred Stock in the form of our Series D Preferred Stock, such distribution will generally be taxable for U.S. federal income tax purposes in the same manner as distributions described above to the extent we distribute property, including cash, to other holders of our stock or certain of our other securities. If such a distribution is taxable, a U.S. holder's tax basis in such Series D Preferred Stock received will equal the fair market value of such Series D Preferred Stock on the distribution date, and such U.S. holder's holding period for such Series D Preferred Stock received will begin on the day following the distribution date. If such a distribution is not taxable, a U.S. holder's tax basis in its Series D Preferred Stock prior to such distribution will be allocated between such Series D Preferred Stock and the Series D Preferred Stock received in the distribution, and such U.S. holder's holding period for such Series D Preferred Stock received will include such U.S. holder's holding period for the Series D Preferred Stock on which such distribution was made.

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        If a U.S. holder is a corporation, dividends that are received by it will generally be eligible for a 70% dividends received deduction under the Code. However, the Code disallows this dividends received deduction in its entirety if the Series D Preferred Stock or our Common Stock with respect to which the dividend is paid is held by such U.S. holder for less than 46 days during the 91-day period beginning on the date which is 45 days before the date on which the Series D Preferred Stock or our Common Stock becomes ex-dividend with respect to such dividend. (A 91-day minimum holding period applies to any dividends on the Series D Preferred Stock that are attributable to periods in excess of 366 days.)

        Under current law, if a U.S. holder is an individual or other non-corporate holder, dividends received by such U.S. holder generally will be subject to a reduced maximum tax rate of 15% for taxable years beginning before January 1, 2011, after which the rate applicable to dividends is scheduled to return to the tax rate generally applicable to ordinary income. The rate reduction does not apply to dividends received to the extent that U.S. holders elect to treat the dividends as "investment income," for purposes of the rules relating to the limitation on the deductibility of investment-related interest, which may be offset by investment expense. Furthermore, the rate reduction will also not apply to dividends that are paid to such holders with respect to the Series D Preferred Stock or our Common Stock that is held by the holder for less than 61 days during the 121-day period beginning on the date which is 60 days before the date on which the Series D Preferred Stock or our Common Stock become ex-dividend with respect to such dividend. (A 91-day minimum holding period applies to any dividends on Series D Preferred Stock that are attributable to periods in excess of 366 days.)

        In general, for purposes of meeting the holding period requirements for both the dividends received deduction and the reduced maximum tax rate on dividends described above, U.S. holders may not count towards their holding period any period in which they (a) have the option to sell, are under a contractual obligation to sell, or have made (and not closed) a short sale of the Series D Preferred Stock or our Common Stock, as the case may be, or substantially identical stock or securities, (b) are the grantor of an option to buy the Series D Preferred Stock or our Common Stock, as the case may be, or substantially identical stock or securities or (c) otherwise have diminished their risk of loss on the Series D Preferred Stock or our Common Stock, as the case may be, by holding one or more other positions with respect to substantially similar or related property. The U.S. Treasury regulations provide that a taxpayer has diminished its risk of loss on stock by holding a position in substantially similar or related property if the taxpayer is the beneficiary of a guarantee, surety agreement, or similar arrangement that provides for payments that will substantially offset decreases in the fair market value of the stock. In addition, the Code disallows the dividends received deduction as well as the reduced maximum tax rate on dividends if the recipient of a dividend is obligated to make related payments with respect to positions in substantially similar or related property. This disallowance applies even if the minimum holding period has been met. U.S. holders are advised to consult their own tax advisors regarding the implications of these rules in light of their particular circumstances.

        U.S. holders that are corporations should consider the effect of Section 246A of the Code, which reduces the dividends received deduction allowed with respect to "debt-financed portfolio stock." The Code also imposes a 20% alternative minimum tax on corporations. In some circumstances, the portion of dividends subject to the dividends received deduction will serve to increase a corporation's minimum tax base for purposes of the determination of the alternative minimum tax. In addition, a corporate stockholder may be required to reduce its basis in stock with respect to certain "extraordinary dividends", as provided under Section 1059 of the Code. U.S. holders should consult their own tax advisors in determining the application of these rules in light of their particular circumstances.

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Sale or Other Disposition

        A sale, exchange, or other disposition of the Series D Preferred Stock or our Common Stock will generally result in gain or loss equal to the difference between the amount realized upon the disposition (not including any amount attributable to declared and unpaid dividends, which will be taxable as described above to U.S. holders of record who have not previously included such dividends in income) and a U.S. holder's adjusted tax basis in the Series D Preferred Stock or our Common Stock, as the case may be. Such gain or loss will be capital gain or loss and will be long-term capital gain or loss if the U.S. holder's holding period for the Series D Preferred Stock or our Common Stock, as applicable, exceeds one year. Under current law, if a U.S. holder is an individual or other non-corporate holder, net long-term capital gain realized by such U.S. holder is subject to a reduced maximum tax rate of 15%. For taxable years beginning on or after January 1, 2011, the maximum rate is scheduled to return to the previously effective 20% rate. The deduction of capital losses is subject to limitations.

Conversion of the Series D Preferred Stock into Common Stock

        As a general rule, a U.S. holder will not recognize any gain or loss in respect of the receipt of Common Stock upon the conversion of the Series D Preferred Stock. The adjusted tax basis of Common Stock received on conversion will equal the adjusted tax basis of the Series D Preferred Stock converted (reduced by the portion of adjusted tax basis allocated to any fractional Common Stock exchanged for cash, as described below), and the holding period of such Common Stock received on conversion will generally include the period during which the converted Series D Preferred Stock was held prior to conversion.

        Cash received in lieu of a fractional common share will generally be treated as a payment in a taxable exchange for such fractional common share, and capital gain or loss will be recognized on the receipt of cash in an amount equal to the difference between the amount of cash received and the amount of adjusted tax basis allocable to the fractional common share. Any cash received attributable to any declared and unpaid dividends on the Series D Preferred Stock will be treated as described above under " U.S. Holders—Dividends ."

Adjustment of Conversion Rate

        The conversion rate of the Series D Preferred Stock is subject to adjustment under certain circumstances. U.S. Treasury regulations promulgated under Section 305 of the Code would treat a U.S. holder of the Series D Preferred Stock as having received a constructive distribution includable in such U.S. holder's income in the manner as described above under " U.S. Holders—Dividends ," above, if and to the extent that certain adjustments in the conversion rate increase the proportionate interest of a U.S. holder in our assets or our earnings and profits. For example, any decrease in the conversion price described above under " Description of Securities—Series D Preferred Stock—Conversion " would result in an upward adjustment in the conversion rate and so will generally give rise to a deemed taxable dividend to the holders of the Series D Preferred Stock to the extent of our current and accumulated earnings and profits. Thus, under certain circumstances, U.S. holders may recognize income in the event of a constructive distribution even though they may not receive any cash or property. However, adjustments to the conversion price made pursuant to a bona fide reasonable adjustment formula which has the effect of preventing dilution in the interest of the U.S. holders of the Series D Preferred Stock will generally not be considered to result in a constructive dividend distribution.

Information Reporting and Backup Withholding

        In general, information reporting will apply to dividends in respect of the Series D Preferred Stock or our Common Stock and the proceeds from the sale, exchange or other disposition of the Series D Preferred Stock or our Common Stock that are paid to a U.S. holder within the United States (and in

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certain cases, outside the United States), unless a U.S. holder is an exempt recipient such as a corporation. A backup withholding tax may apply to such payments if a U.S. holder fails to provide a taxpayer identification number or certification of other exempt status or fails to report in full dividend and interest income.

        Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. holder's U.S. federal income tax liability provided the required information is furnished to the IRS.

Non-U.S. Holders

Dividends

        Dividends (including distributions in the form of the Series D Preferred Stock or Common Stock taxable as dividends and any constructive distributions taxable as dividends) paid to a non-U.S. holder of the Series D Preferred Stock or our Common Stock generally will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. However, dividends that are effectively connected with the conduct of a trade or business by the non-U.S. holder within the United States (and, if required by an applicable income tax treaty, are attributable to a U.S. permanent establishment) are not subject to the withholding tax, provided certain certification and disclosure requirements are satisfied. Instead, such dividends are subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a U.S. person as defined under the Code. Any such effectively connected dividends received by a foreign corporation may be subject to an additional "branch profits tax" at a 30% rate or such lower rate as may be specified by an applicable income tax treaty.

        A non-U.S. holder of the Series D Preferred Stock or our Common Stock who wishes to claim the benefit of an applicable treaty rate and avoid backup withholding, as discussed below, for dividends will be required (a) to complete Internal Revenue Service Form W-8BEN (or other applicable form) and certify under penalty of perjury that such holder is not a U.S. person as defined under the Code and is eligible for treaty benefits or (b) if the Series D Preferred Stock or our Common Stock is held through certain foreign intermediaries, to satisfy the relevant certification requirements of applicable U.S. Treasury regulations. Special certification and other requirements apply to certain non-U.S. holders that are pass-through entities rather than corporations or individuals.

        A non-U.S. holder of the Series D Preferred Stock or our Common Stock eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the Internal Revenue Service.

Sale or Other Disposition

        Any gain realized on the disposition of the Series D Preferred Stock or our Common Stock (including, in the case of conversion, the deemed exchange that gives rise to a payment of cash in lieu of a fractional common share) generally will not be subject to U.S. federal income tax unless:

•

the gain is effectively connected with a trade or business of the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, is attributable to a U.S. permanent establishment of the non-U.S. holder);



•

the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and certain other conditions are met; or



•

we are or have been a "United States real property holding corporation" for U.S. federal income tax purposes.

        An individual non-U.S. holder described in the first bullet point immediately above will be subject to tax on the net gain derived from the sale under regular graduated U.S. federal income tax rates. An

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individual non-U.S. holder described in the second bullet point immediately above will be subject to a flat 30% tax on the gain derived from the sale, which may be offset by U.S. source capital losses, even though the individual is not considered a resident of the United States. If a non-U.S. holder that is a foreign corporation falls under the first bullet point immediately above, it will be subject to tax on its net gain in the same manner as if it were a U.S. person as defined under the Code and, in addition, may be subject to the branch profits tax equal to 30% of its effectively connected earnings and profits or at such lower rate as may be specified by an applicable income tax treaty.

        We believe we are not and do not anticipate becoming a "United States real property holding corporation" for U.S. federal income tax purposes.

Conversion into Common Stock

        Non-U.S. holders will generally not recognize any gain or loss in respect of the receipt of Common Stock upon the conversion of the Series D Preferred Stock, except with respect to any cash received in lieu of a fractional share that is taxable as described above under " Non-U.S. Holders—Sale or Other Disposition ."

Adjustment of Conversion Rate

        As described above under " U.S. Holders—Adjustment of Conversion Rate ," adjustments in the conversion rate (or failures to adjust the conversion rate) that increase the proportionate interest of a non-U.S. holder in our earning and profits could result in deemed distributions to the non-U.S. holder that are taxed as described under " Non-U.S. Holders—Dividends ."

Federal Estate Tax

        Shares of the Series D Preferred Stock and our Common Stock owned or treated as owned by an individual who is not a citizen or resident of the United States (as specially defined for U.S. federal estate tax purposes) at the time of death will be included in the individual's gross estate for U.S. federal estate tax purposes, unless an applicable estate tax or other treaty provides otherwise and, therefore, may be subject to U.S. federal estate tax.

Information Reporting and Backup Withholding

        We must report annually to the Internal Revenue Service and to each non-U.S. holder the amount of dividends paid to such holder and the tax withheld with respect to such dividends, regardless of whether withholding was required. Copies of the information returns reporting such dividends and withholding may also be made available to the tax authorities in the country in which the non-U.S. holder resides under the provisions of an applicable income tax treaty.

        A non-U.S. holder will be subject to backup withholding for dividends paid to such holder unless such holder certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that such holder is a U.S. person as defined under the Code), or such holder otherwise establishes an exemption.

        Information reporting and, depending on the circumstances, backup withholding will apply to the proceeds of a sale of the Series D Preferred Stock or our Common Stock within the United States or conducted through certain U.S.-related financial intermediaries, unless the beneficial owner certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that the beneficial owner is a U.S. person as defined under the Code), or such owner otherwise establishes an exemption.

        Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a non-U.S. holder's U.S. federal income tax liability provided the required information is furnished to the Internal Revenue Service.

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CERTAIN ERISA CONSIDERATIONS

        The following is a summary of certain considerations associated with the purchase of the Series D Preferred Stock or our Common Stock, as the case may be, by employee benefit plans subject to Title I of the U.S. Employee Retirement Income Security Act of 1974, as amended, which we refer to as ERISA; plans, individual retirement accounts and other arrangements subject to Section 4975 of the Code or provisions under any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, which we collectively refer to as Similar Laws; and entities whose underlying assets are considered to include "plan assets" of any such plan, account or arrangement (each of which we call a Plan).

        Each fiduciary of a Plan should consider the fiduciary standards of ERISA or any applicable Similar Laws in the context of the Plan's particular circumstances before authorizing an investment in the Series D Preferred Stock or our Common Stock. Accordingly, among other factors, the fiduciary should consider whether the investment would satisfy the prudence and diversification requirements of ERISA or any applicable Similar Laws and would be consistent with the documents and instruments governing the Plan.

        Section 406 of ERISA and Section 4975 of the Code prohibit Plans subject to such provisions, which we call ERISA Plans, from engaging in certain transactions involving "plan assets" with persons that are "parties in interest" under ERISA or "disqualified persons" under the Code with respect to such ERISA Plans. A violation of these "prohibited transaction" rules may result in an excise tax or other liabilities under ERISA and/or Section 4975 of the Code for those persons, unless exemptive relief is available under an applicable individual, class, statutory or administrative exemption. Employee benefit plans that are governmental plans (as defined in Section 3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and foreign plans (as described in Section 4(b)(4) of ERISA) are not subject to the requirements of ERISA or Section 4975 of the Code, but may be subject to Similar Laws.

        Prohibited transactions within the meaning of Section 406 of ERISA or Section 4975 of the Code could arise if the Series D Preferred Stock or our Common Stock were acquired or held by an ERISA Plan with respect to which a selling stockholder, we or any of their or our affiliates are a party in interest or a disqualified person. For example, if we are a party in interest or disqualified person with respect to an investing ERISA Plan (either directly or by reason of our ownership of our subsidiaries), a prohibited transaction between the investing ERISA Plan and us may be deemed to occur, unless exemptive relief were available under an applicable exemption. In this regard, the United States Department of Labor has issued prohibited transaction class exemptions, or PTCEs, that may provide exemptive relief for direct or indirect prohibited transactions resulting from the purchase, holding or disposition of the Series D Preferred Stock or our Common Stock. Those class exemptions include:

•

PTCE 96-23—for certain transactions determined by in-house asset managers;



•

PTCE 95-60—for certain transactions involving insurance company general accounts;



•

PTCE 91-38—for certain transactions involving bank collective investment funds;



•

PTCE 90-1—for certain transactions involving insurance company separate accounts; and



•

PTCE 84-14—for certain transactions determined by independent qualified professional asset managers.

No assurance can be made that all of the conditions of any such exemptions will be satisfied.

        Because of the possibility that direct or indirect prohibited transactions or similar violations of applicable Similar Laws could occur as a result of the purchase or holding of the Series D Preferred Stock or our Common Stock by a Plan, neither the Series D Preferred Stock nor our Common Stock

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may be purchased or held by any Plan, or any person investing the assets of any Plan, unless its purchase and holding of any such securities will not constitute or result in a non-exempt prohibited transaction under ERISA or the Code or a similar violation of any applicable Similar Laws. Each purchaser and holder of the Series D Preferred Stock or our Common Stock or any interest in the Series D Preferred Stock or our Common Stock will be deemed to have represented by its purchase and holding of the Series D Preferred Stock or our Common Stock that either:

•

it is not a Plan and is not purchasing or holding the shares of such security or any interest in such security on behalf of or with the assets of any Plan; or



•

its purchase and holding of any of the shares of the Series D Preferred Stock or our Common Stock or interest in any of the Series D Preferred Stock or our Common Stock will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a similar violation of any applicable Similar Laws.

        Due to the complexity of these rules and the penalties imposed upon persons involved in non-exempt prohibited transactions, it is important that any person considering the purchase or holding of the Series D Preferred Stock or our Common Stock on behalf of or with the assets of any Plan consult with its counsel regarding the consequences under ERISA, the Code and any applicable Similar Laws, whether any exemption would be applicable, and whether all conditions of such exemption have been satisfied such that the purchase and holding of the Series D Preferred Stock or our Common Stock by the Plan is entitled to full exemptive relief thereunder.

        Nothing herein shall be construed as, and the sale of shares of the Series D Preferred Stock or our Common Stock to a Plan is in no respect, a representation by us or the selling stockholders that any investment in the Series D Preferred Stock or our Common Stock would meet any or all of the relevant legal requirements with respect to investment by, or is appropriate for, Plans generally or any particular Plan.

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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

        We incorporate by reference the documents listed below that we have filed with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as superseded, supplemented or modified by this prospectus:

•

our Annual Report on Form 10-K for the year ended March 31, 2011;



•

our Quarterly Reports on Form 10-Q and Form 10-Q/A for the fiscal periods ended June 30, 2011 and September 30, 2011;



•

our Current Reports on Form 8-K dated filed with the SEC on February 10, 2011, February 23, 2011, April 1, 2011, April 6, 2011, April 22, 2011, May 27, 2011, July 6, 2011, September 9, 201, September 29, 2011, October 19, 2011, October 27, 2011, November 1, 2011 and December 1, 2011; and



•

our definitive Proxy Statement filed with the SEC on September 16, 2011.

        Any statement in a document incorporated or deemed to be incorporated by reference in this prospectus is deemed to be modified or superseded to the extent that a statement contained in this prospectus. If any statement is modified or superseded, it does not constitute a part of this prospectus, except as modified or superseded.

        You may obtain a copy of any of the agreements summarized herein (subject to certain restrictions because of the confidential nature of the subject matter) or any of our SEC filings without charge by written request directed to Carver Bancorp, Inc., 75 West 125 ^th  Street, New York, New York, 10027-4512, Attention: Mark A. Ricca, or by calling Carver Bancorp, Inc. at (718) 230-2900.

        You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents.

LEGAL MATTERS

        The validity of the securities offered in this prospectus is being passed upon for us by Luse Gorman Pomerenk & Schick, P.C., Washington, D.C.

EXPERTS

        The consolidated financial statements of Carver Bancorp, Inc. appearing in our Annual Report on Form 10-K for the year ended March 31, 2011, have been audited by KPMG, LLP, independent registered public accounting firm, as set forth in its report which is incorporated by reference in this prospectus. Our consolidated financial statements are incorporated herein by reference in reliance upon the report of KPMG, LLP given on their authority as experts in accounting and auditing.

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WHERE YOU CAN FIND ADDITIONAL INFORMATION

        We have filed a registration statement on Form S-1 with respect to the Series D Preferred Stock and Common Stock offered in this prospectus with the SEC in accordance with the Securities Act, and the rules and regulations enacted under its authority. In addition, we file Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, proxy materials on Schedule 14A and other information with the SEC. This prospectus, which constitutes a part of the registration statement, does not contain all of the information included in the registration statement and its exhibits and schedules. Statements contained in this prospectus regarding the contents of any document referred to in this prospectus are not necessarily complete, and in each instance, we refer you to the full text of the document that is filed as an exhibit to the registration statement. Each statement concerning a document that is filed as an exhibit should be read along with the entire document. You may read and copy any materials that we file with the SEC, including our periodic reports and the registration statement of which this prospectus forms a part, without charge at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission at (800) 732-0330 for further information on the Public Reference Room.

        The SEC also maintains an Internet website that contains reports, proxy and information statements, and other information regarding issuers, such as us, that file electronically with the SEC. The SEC's website address is http://www.sec.gov .

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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13.    OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

        The estimated expenses payable by us in connection with the offering described in this registration statement (other than the underwriting discount and commissions) will be as follows:

ITEM 14.    INDEMNIFICATION OF DIRECTORS AND OFFICERS.

        Our certificate of incorporation provides that all directors, officers, employees and agents of the registrant shall be entitled to be indemnified by us to the fullest extent permitted by Section 145 of the Delaware General Corporation Law. In particular, Article X, Section 1of our Certificate of Incorporation provides:

         Section 1.    Actions, Suits or Proceedings Other than by or in Right of the Corporation.     To the fullest extent permitted by the General Corporation Law of the State of Delaware, the Corporation shall indemnify any person who is or was or has agreed to become a director or officer of the Corporation who was or is made a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was or has agreed to become a director or officer of the Corporation, or by reason of any action alleged to have been taken or omitted in such capacity, and the Corporation may indemnify any other person who is or was or has agreed to become an employee or agent of the Corporation who was or is made a party to or is threatened to made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal or administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was or has agreed to become an employee or agent of the Corporation, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her or on his or her behalf in connection with such action, suit or proceeding and any appeal therefrom, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was

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unlawful. Notwithstanding anything contained in this Article X, but subject to Section 7 hereof, the Corporation shall not be obligated to indemnify any director or officer in connection with an action, suit or proceeding, or part thereof, initiated by such person against the Corporation unless such action, suit or proceeding, or part thereof, was authorized or consented to by the Board of Directors.

         Section 2.    Actions or Suits by or in the Right of the Corporation.     To the fullest extent permitted by the General Corporation Law of the State of Delaware, the Corporation shall indemnify any person who is or was or has agreed to become a director or officer of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was or has agreed to become a director or officer of the Corporation, or by reason of any action alleged to have been taken or omitted in such capacity, and the corporation may indemnify any other person who is or was or has agreed to become an employee or agent of the Corporation who was or is made a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was or has agreed to become an employee or agent of the Corporation, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or her or on his or her behalf in connection with defense or settlement of such action or suit and any appeal therefrom, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, except no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such costs, charges and expenses which the Court of Chancery or such other court shall deem proper. Notwithstanding anything contained in this Article X, but subject to Section 7 hereof, the corporation shall not be obligated to indemnify any director of officer in connection with an action or suit, or part thereof, initiated by such person against the Corporation unless such action or suit, or part thereof, was authorized or consented to by the Board of Directors.

         Section 3.    Indemnification for Costs, Charges and Expenses of a Successful Party.     To the extent that a director, officer, employee or agent of the Corporation has been successful, on the merits or otherwise (including, without limitation, the dismissal of an action without prejudice), in defense of any action, suit or proceeding referred to in Section 1 or 2 of this Article X, or in defense of any claim, issue or matter therein, such person shall be indemnified against all costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by such person or on such person's behalf in connection therewith.

         Section 4.    Indemnification for Expenses of a Witness.     To the extent that any person who is or was or has agreed to become a director or officer of the Corporation is made a witness to any action, suit or proceeding to which he or she is not a party by reason of the fact that he or she was, is or has agreed to become a director or officer of the Corporation, or is or was serving or has agreed to serve as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, a the written request of the Corporation, such person shall be indemnified against all costs, charges and expenses actually and reasonably incurred by such person or on such person's behalf in connection therewith.

        To the extent that any person who is or was or has agreed to become an employee or agent of the Corporation is made a witness to any action, suit or proceeding to which he or she is not a party by reason of the fact that he or she was, is or has agreed to become an employee or agent of the Corporation, or is or was serving or has agreed to serve as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, at the written request of the

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Corporation, such person may be indemnified against all costs, charges and expenses actually and reasonably incurred by such person or on such person's behalf in connection herewith.

* * *

         Section 6.    Advancement of Costs, Charges and Expenses.     Costs, charges and expenses (including attorneys' fees) incurred by or on behalf of a director or officer in defending a civil or criminal action, suit or proceeding referred to in Section 1 or 2 of this Article X shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding; provided, however , that the payment of such costs, charges and expenses incurred by or on behalf of a director or officer in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of a written undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article X or by law. No security shall be required for such undertaking and such undertaking shall be accepted without reference to the recipient's financial ability to make repayment. The majority of the directors who were not parties to such action, suit or proceeding may, upon approval of such director or officer of the Corporation, authorize the Corporation's counsel to represent such person, in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding.

* * *

         Section 9.    Other Rights; Continuation of Right to Indemnification; Individual Contracts.     The indemnification and advancement of costs, charges and expenses provided by or granted pursuant to this Article X shall not be deemed exclusive of any other rights to which those persons seeking indemnification or advancement of costs, charges and expenses may be entitled under law (common or statutory) or by any Bylaw, agreement, policy of indemnification insurance or vote of stockholders or directors or otherwise, both as to action in his or her official capacity and as to action in any other capacity while holding office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the legatees, heirs, distributes, executors and administrators of such person. Nothing contained in this Article X shall be deemed to prohibit the Corporation from entering into, and the Corporation is specifically authorized to enter into, agreements with directors, officers, employees and agents providing indemnification rights and procedures different from those set forth herein. All rights to indemnification under this Article X shall be deemed to be a contract between the Corporation and each director, officer, employee or agent of the Corporation who serves or served in such capacity at any time while this Article X is in effect.

* * *

         Section 11.    Insurance.     The Corporation may purchase and maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee or agent of the Corporation against any costs, charges or expenses, liability or loss incurred by such person in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such costs, charges or expenses, liability or loss under the Certificate of Incorporation or applicable law; provided, however , that such insurance is available on acceptable terms as determined by the Board. To the extent that any director, officer, employee or agent is reimbursed by an insurance company under an indemnification insurance policy for any costs, charges, expenses (including attorney's fees), judgments, fines and amounts paid in settlement to the fullest extent permitted by any applicable portion of this Article X, the Bylaws, any agreement, the policy or indemnification insurance or otherwise, the Corporation shall not be obligated to reimburse the person to be indemnified in connection with such proceeding.

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        Section 145 of the Delaware General Corporation Law concerning indemnification of officers, directors, employees and agents is set forth below.

        "Section 145. Indemnification of officers, directors, employees and agents; insurance.

        (a)   A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful.

        (b)   A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

        (c)   To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith.

        (d)   Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.

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        (e)   Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

        (f)    The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office.

        (g)   A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.

        (h)   For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.

        (i)    For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section.

        (j)    The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

        (k)   The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation's obligation to advance expenses (including attorneys' fees)."

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed

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

        Pursuant to our bylaws, we also maintain a directors' and officers' insurance policy which insures our directors and officers against liability asserted against such person in such capacity whether or not such directors or officers have the right to indemnification pursuant to the Delaware General Corporation Law.

ITEM 15.    RECENT SALES OF UNREGISTERED SECURITIES.

        On June 29, 2011, the Company completed the sale of 55,000 shares of Series C Preferred Stock to certain institutional investors for an aggregate cash purchase price of $55,000,000. The offer and sale of the Series C Preferred Stock was conducted pursuant to an exemption from registration under Section 4(2) of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder.

        On October 28, 2011, (a) the outstanding 55,000 shares of Series C Preferred Stock automatically converted into (i) 1,208,039 shares of common stock (after giving effect to a 1-for-15 reverse stock split that was effected as of October 27, 2011), and (ii) 45,118 shares of Series D Preferred Stock; and (b) the outstanding 18,980 shares of Series B Preferred Stock were exchanged for 2,321,286 shares of common stock (after giving effect to a 1-for-15 reverse stock split that was effected as of October 27, 2011), in each case pursuant to an exemption from registration under Section 3(a)(9) of the Securities Act of 1933, as amended.

ITEM 16.    EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

        (a)   The following exhibits are filed as part of this Registration Statement:

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Item 17.    Undertakings

        The undersigned Registrant hereby undertakes:

        (1)   To file, during any period in which it 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 a 20 percent 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 the 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, if the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statement 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 a registration statement or prospectus that is part of the registration 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;

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        (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.

        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 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.

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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 New York, State of New York, on this 23 ^rd  day of January, 2012.

        Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

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