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EXHIBIT 4.2
UST No. 204
WARRANT TO PURCHASE COMMON STOCK
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT
RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT OR SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE
RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A SECURITIES
PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES AND THE
INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH THE
ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID
AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID
AGREEMENT WILL BE VOID.
WARRANT
to purchase
599,042
Shares of Common Stock
of FIRST CALIFORNIA FINANCIAL GROUP, INC.
Issue Date: December 19, 2008
1. Definitions . Unless the context otherwise requires,
when used herein the following terms shall have the meanings
indicated.
" Affiliate " has the meaning ascribed to it in the
Purchase Agreement.
" Appraisal Procedure " means a procedure whereby two
independent appraisers, one chosen by the Company and one by the
Original Warrantholder, shall mutually agree upon the
determinations then the subject of appraisal. Each party shall
deliver a notice to the other appointing its appraiser within 15
days after the Appraisal Procedure is invoked. If within 30 days
after appointment of the two appraisers they are unable to agree
upon the amount in question, a third independent appraiser shall be
chosen within 10 days thereafter by the mutual consent of such
first two appraisers. The decision of the third appraiser so
appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be
appointed and the determination of one appraiser is disparate from
the middle determination by more than twice the amount by which the
other determination is disparate from the middle determination,
then the determination of such appraiser shall be excluded, the
remaining two determinations shall be averaged and such average
shall be binding and conclusive upon the Company and the Original
Warrantholder; otherwise, the average of all three determinations
shall be binding upon the Company and the Original Warrantholder.
The costs of conducting any Appraisal Procedure shall be borne by
the Company.
UST Sequence Number: 204
" Board of Directors " means the board of
directors of the Company, including any duly authorized committee
thereof.
" Business Combination " means a merger, consolidation,
statutory share exchange or similar transaction that requires the
approval of the Company’s stockholders.
" business day " means any day except Saturday, Sunday
and any day on which banking institutions in the State of New York
generally are authorized or required by law or other governmental
actions to close.
" Capital Stock " means (A) with respect to any
Person that is a corporation or company, any and all shares,
interests, participations or other equivalents (however designated)
of capital or capital stock of such Person and (B) with
respect to any Person that is not a corporation or company, any and
all partnership or other equity interests of such Person.
" Charter " means, with respect to any Person, its
certificate or articles of incorporation, articles of association,
or similar organizational document.
" Common Stock " has the meaning ascribed to it in the
Purchase Agreement.
" Company " means the Person whose name, corporate or
other organizational form and jurisdiction of organization is set
forth in Item 1 of Schedule A hereto.
" conversion " has the meaning set forth in
Section 13(B).
" convertible securities " has the meaning set forth in
Section 13(B).
" CPP " has the meaning ascribed to it in the Purchase
Agreement.
" Exchange Act " means the Securities Exchange Act of
1934, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.
" Exercise Price " means the amount set forth in
Item 2 of Schedule A hereto.
" Expiration Time " has the meaning set forth in
Section 3.
" Fair Market Value " means, with respect to any security
or other property, the fair market value of such security or other
property as determined by the Board of Directors, acting in good
faith or, with respect to Section 14, as determined by the
Original Warrantholder acting in good faith. For so long as the
Original Warrantholder holds this Warrant or any portion thereof,
it may object in writing to the Board of Director’s
calculation of fair market value within 10 days of receipt of
written notice thereof. If the Original Warrantholder and the
Company are unable to agree on fair market value during the 10-day
period following the delivery of the Original Warrantholder’s
objection, the Appraisal Procedure may be invoked by either party
to determine Fair Market Value by delivering written notification
thereof not later than the 30th day after delivery of the Original
Warrantholder’s objection.
" Governmental Entities " has the meaning ascribed to it
in the Purchase Agreement.
UST Sequence Number: 204
2
" Initial Number " has the meaning set
forth in Section 13(B).
"Issue Date" means the date set forth in Item 3 of
Schedule A hereto.
" Market Price " means, with respect to a particular
security, on any given day, the last reported sale price regular
way or, in case no such reported sale takes place on such day, the
average of the last closing bid and ask prices regular way, in
either case on the principal national securities exchange on which
the applicable securities are listed or admitted to trading, or if
not listed or admitted to trading on any national securities
exchange, the average of the closing bid and ask prices as
furnished by two members of the Financial Industry Regulatory
Authority, Inc. selected from time to time by the Company for that
purpose. "Market Price" shall be determined without reference to
after hours or extended hours trading. If such security is not
listed and traded in a manner that the quotations referred to above
are available for the period required hereunder, the Market Price
per share of Common Stock shall be deemed to be (i) in the
event that any portion of the Warrant is held by the Original
Warrantholder, the fair market value per share of such security as
determined in good faith by the Original Warrantholder or
(ii) in all other circumstances, the fair market value per
share of such security as determined in good faith by the Board of
Directors in reliance on an opinion of a nationally recognized
independent investment banking corporation retained by the Company
for this purpose and certified in a resolution to the
Warrantholder. For the purposes of determining the Market Price of
the Common Stock on the "trading day" preceding, on or following
the occurrence of an event, (i) that trading day shall be
deemed to commence immediately after the regular scheduled closing
time of trading on the New York Stock Exchange or, if trading is
closed at an earlier time, such earlier time and (ii) that
trading day shall end at the next regular scheduled closing time,
or if trading is closed at an earlier time, such earlier time (for
the avoidance of doubt, and as an example, if the Market Price is
to be determined as of the last trading day preceding a specified
event and the closing time of trading on a particular day is 4:00
p.m. and the specified event occurs at 5:00 p.m. on that day, the
Market Price would be determined by reference to such 4:00 p.m.
closing price).
" Ordinary Cash Dividends " means a regular quarterly
cash dividend on shares of Common Stock out of surplus or net
profits legally available therefor (determined in accordance with
generally accepted accounting principles in effect from time to
time), provided that Ordinary Cash Dividends shall not
include any cash dividends paid subsequent to the Issue Date to the
extent the aggregate per share dividends paid on the outstanding
Common Stock in any quarter exceed the amount set forth in
Item 4 of Schedule A hereto, as adjusted for any stock split,
stock dividend, reverse stock split, reclassification or similar
transaction.
" Original Warrantholder " means the United States
Department of the Treasury. Any actions specified to be taken by
the Original Warrantholder hereunder may only be taken by such
Person and not by any other Warrantholder.
" Permitted Transactions " has the meaning set forth in
Section 13(B).
UST Sequence Number: 204
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" Person " has the meaning given to it in
Section 3(a)(9) of the Exchange Act and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act.
" Per Share Fair Market Value " has the meaning set forth
in Section 13(C).
"Preferred Shares " means the perpetual preferred stock
issued to the Original Warrantholder on the Issue Date pursuant to
the Purchase Agreement.
" Pro Rata Repurchases " means any purchase of shares of
Common Stock by the Company or any Affiliate thereof pursuant to
(A) any tender offer or exchange offer subject to
Section 13(e) or 14(e) of the Exchange Act or Regulation 14E
promulgated thereunder or (B) any other offer available to
substantially all holders of Common Stock, in the case of both
(A) or (B), whether for cash, shares of Capital Stock of the
Company, other securities of the Company, evidences of indebtedness
of the Company or any other Person or any other property
(including, without limitation, shares of Capital Stock, other
securities or evidences of indebtedness of a subsidiary), or any
combination thereof, effected while this Warrant is outstanding.
The " Effective Date " of a Pro Rata Repurchase shall mean
the date of acceptance of shares for purchase or exchange by the
Company under any tender or exchange offer which is a Pro Rata
Repurchase or the date of purchase with respect to any Pro Rata
Repurchase that is not a tender or exchange offer.
" Purchase Agreement " means the Securities Purchase
Agreement – Standard Terms incorporated into the Letter
Agreement, dated as of the date set forth in Item 5 of
Schedule A hereto, as amended from time to time, between the
Company and the United States Department of the Treasury (the "
Letter Agreement "), including all annexes and schedules
thereto.
" Qualified Equity Offering " has the meaning ascribed to
it in the Purchase Agreement.
" Regulatory Approvals " with respect to the
Warrantholder, means, to the extent applicable and required to
permit the Warrantholder to exercise this Warrant for shares of
Common Stock and to own such Common Stock without the Warrantholder
being in violation of applicable law, rule or regulation, the
receipt of any necessary approvals and authorizations of, filings
and registrations with, notifications to, or expiration or
termination of any applicable waiting period under, the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations thereunder.
" SEC " means the U.S. Securities and Exchange
Commission.
" Securities Act " means the Securities Act of 1933, as
amended, or any successor statute, and the rules and regulations
promulgated thereunder.
" Shares " has the meaning set forth in
Section 2.
"trading day" means (A) if the shares of Common
Stock are not traded on any national or regional securities
exchange or association or over-the-counter market, a business day
or (B) if the shares of Common Stock are traded on any
national or regional securities exchange or association or
over-the-counter market, a business day on which such relevant
exchange or quotation system is
UST Sequence Number: 204
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scheduled to be open for business and on which
the shares of Common Stock (i) are not suspended from trading
on any national or regional securities exchange or association or
over-the-counter market for any period or periods aggregating one
half hour or longer; and (ii) have traded at least once on the
national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading
of the shares of Common Stock.
" U.S. GAAP " means United States generally accepted
accounting principles.
" Warrantholder " has the meaning set forth in
Section 2.
" Warrant " means this Warrant, issued pursuant to the
Purchase Agreement.
2. Number of Shares; Exercise Price . This certifies
that, for value received, the United States Department of the
Treasury or its permitted assigns (the " Warrantholder ") is
entitled, upon the terms and subject to the conditions hereinafter
set forth, to acquire from the Company, in whole or in part, after
the receipt of all applicable Regulatory Approvals, if any, up to
an aggregate of the number of fully paid and nonassessable shares
of Common Stock set forth in Item 6 of Schedule A hereto, at a
purchase price per share of Common Stock equal to the Exercise
Price. The number of shares of Common Stock (the " Shares ")
and the Exercise Price are subject to adjustment as provided
herein, and all references to "Common Stock," "Shares" and
"Exercise Price" herein shall be deemed to include any such
adjustment or series of adjustments.
3. Exercise of Warrant; Term . Subject to Section 2,
to the extent permitted by applicable laws and regulations, the
right to purchase the Shares represented by this Warrant is
exercisable, in whole or in part by the Warrantholder, at any time
or from time to time after the execution and delivery of this
Warrant by the Company on the date hereof, but in no event later
than 5:00 p.m., New York City time on the tenth anniversary of the
Issue Date (the " Expiration Time "), by (A) the
surrender of this Warrant and Notice of Exercise annexed hereto,
duly completed and executed on behalf of the Warrantholder, at the
principal executive office of the Company located at the address
set forth in Item 7 of Schedule A hereto (or such other office
or agency of the Company in the United States as it may designate
by notice in writing to the Warrantholder at the address of the
Warrantholder appearing on the books of the Company), and
(B) payment of the Exercise Price for the Shares thereby
purchased:
(i) by having the Company withhold, from the shares of Common
Stock that would otherwise be delivered to the Warrantholder upon
such exercise, shares of Common stock issuable upon exercise of the
Warrant equal in value to the aggregate Exercise Price as to which
this Warrant is so exercised based on the Market Price of the
Common Stock on the trading day on which this Warrant is exercised
and the Notice of Exercise is delivered to the Company pursuant to
this Section 3, or
(ii) with the consent of both the Company and the Warrantholder,
by tendering in cash, by certified or cashier’s check payable
to the order of the Company, or by wire transfer of immediately
available funds to an account designated by the Company.
UST Sequence Number: 204
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If the Warrantholder does not exercise this
Warrant in its entirety, the Warrantholder will be entitled to
receive from the Company within a reasonable time, and in any event
not exceeding three business days, a new warrant in substantially
identical form for the purchase of that number of Shares equal to
the difference between the number of Shares subject to this Warrant
and the number of Shares as to which this Warrant is so exercised.
Notwithstanding anything in this Warrant to the contrary, the
Warrantholder hereby acknowledges and agrees that its exercise of
this Warrant for Shares is subject to the condition that the
Warrantholder will have first received any applicable Regulatory
Approvals.
4. Issuance of Shares; Authorization; Listing .
Certificates for Shares issued upon exercise of this Warrant will
be issued in such name or names as the Warrantholder may designate
and will be delivered to such named Person or Persons within a
reasonable time, not to exceed three business days after the date
on which this Warrant has been duly exercised in accordance with
the terms of this Warrant. The Company hereby represents and
warrants that any Shares issued upon the exercise of this Warrant
in accordance with the provisions of Section 3 will be duly
and validly authorized and issued, fully paid and nonassessable and
free from all taxes, liens and charges (other than liens or charges
created by the Warrantholder, income and franchise taxes incurred
in connection with the exercise of the Warrant or taxes in respect
of any transfer occurring contemporaneously therewith). The Company
agrees that the Shares so issued will be deemed to have been issued
to the Warrantholder as of the close of business on the date on
which this Warrant and payment of the Exercise Price are delivered
to the Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may
then be closed or certificates representing such Shares may not be
actually delivered on such date. The Company will at all times
reserve and keep available, out of its authorized but unissued
Common Stock, solely for the purpose of providing for the exercise
of this Warrant, the aggregate number of shares of Common Stock
then issuable upon exercise of this Warrant at any time. The
Company will (A) procure, at its sole expense, the listing of
the Shares issuable upon exercise of this Warrant at any time,
subject to issuance or notice of issuance, on all principal stock
exchanges on which the Common Stock is then listed or traded and
(B) maintain such listings of such Shares at all times after
issuance. The Company will use reasonable best efforts to ensure
that the Shares may be issued without violation of any applicable
law or regulation or of any requirement of any securities exchange
on which the Shares are listed or traded.
5. No Fractional Shares or Scrip . No fractional Shares
or scrip representing fractional Shares shall be issued upon any
exercise of this Warrant. In lieu of any fractional Share to which
the Warrantholder would otherwise be entitled, the Warrantholder
shall be entitled to receive a cash payment equal to the Market
Price of the Common Stock on the last trading day preceding the
date of exercise less the pro-rated Exercise Price for such
fractional share.
6. No Rights as Stockholders; Transfer Books . This
Warrant does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Company prior to the date of
exercise hereof. The Company will at no time close its transfer
books against transfer of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
UST Sequence Number: 204
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7. Charges, Taxes and Expenses . Issuance
of certificates for Shares to the Warrantholder upon the exercise
of this Warrant shall be made without charge to the Warrantholder
for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company.
8. Transfer/Assignment .
(A) Subject to compliance with clause (B) of this
Section 8, this Warrant and all rights hereunder are
transferable, in whole or in part, upon the books of the Company by
the registered holder hereof in person or by duly authorized
attorney, and a new warrant shall be made and delivered by the
Company
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