Exhibit 3.3
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
200,222 Shares
of Common Stock
of 1
st
Constitution
Bancorp
Issue Date: December 23,
2008
1.
Definitions . Unless the context otherwise
requires, when used herein the following terms shall have the
meanings indicated.
“ Affiliate ” has the meaning
ascribed to it in the Purchase Agreement.
“ Appraisal Procedure ” means
a procedure whereby two independent appraisers, one chosen by the
Company and one by the Original Warrantholder, shall mutually agree
upon the determinations then the subject of
appraisal. Each party shall deliver a notice to the
other appointing its appraiser within 15 days after the Appraisal
Procedure is invoked. If within 30 days after
appointment of the two appraisers they are unable to agree upon the
amount in question, a third independent appraiser shall be chosen
within 10 days thereafter by the mutual consent of such first two
appraisers. The decision of the third appraiser so
appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers
shall be appointed and the determination of one appraiser is
disparate from the middle determination by more than twice the
amount by which the other determination is disparate from the
middle determination, then the determination of such appraiser
shall be excluded, the remaining two determinations shall be
averaged and such average shall be binding and conclusive upon the
Company and the Original Warrantholder; otherwise, the average of
all three determinations shall be binding upon the Company and the
Original Warrantholder. The costs of conducting any
Appraisal Procedure shall be borne by the Company.
“ Board of Directors ” means
the board of directors of the Company, including any duly
authorized committee thereof.
“ Business Combination ”
means a merger, consolidation, statutory share exchange or similar
transaction that requires the approval of the Company’s
stockholders.
“ business day ” means any
day except Saturday, Sunday and any day on which banking
institutions in the State of New York generally are authorized or
required by law or other governmental actions to close.
“ Capital Stock ” means (A)
with respect to any Person that is a corporation or company, any
and all shares, interests, participations or other equivalents
(however designated) of capital or capital stock of such Person and
(B) with respect to any Person that is not a corporation or
company, any and all partnership or other equity interests of such
Person.
“ Charter ” means, with
respect to any Person, its certificate or articles of
incorporation, articles of association, or similar organizational
document.
“ Common Stock ” has the
meaning ascribed to it in the Purchase Agreement.
“ Company ” means the Person
whose name, corporate or other organizational form and jurisdiction
of organization is set forth in Item 1 of Schedule A
hereto.
“ conversion ” has the
meaning set forth in Section 13(B).
“ convertible securities ”
has the meaning set forth in Section 13(B).
“ CPP ” has the meaning
ascribed to it in the Purchase Agreement.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated
thereunder.
“ Exercise Price ”
means the amount set forth in Item 2 of Schedule A
hereto.
“ Expiration Time ” has the
meaning set forth in Section 3.
“ Fair Market Value ” means,
with respect to any security or other property, the fair market
value of such security or other property as determined by the Board
of Directors, acting in good faith or, with respect to Section 14,
as determined by the Original Warrantholder acting in good
faith. For so long as the Original Warrantholder holds
this Warrant or any portion thereof, it may object in writing to
the Board of Director’s calculation of fair market value
within 10 days of receipt of written notice thereof. If
the Original Warrantholder and the Company are unable to agree on
fair market value during the 10-day period following the delivery
of the Original Warrantholder’s objection, the Appraisal
Procedure may be invoked by either party to determine Fair Market
Value by delivering written notification thereof not later than the
30 th
day after delivery of the Original
Warrantholder’s objection.
“ Governmental Entities ” has
the meaning ascribed to it in the Purchase Agreement.
“ Initial Number ” has the
meaning set forth in Section 13(B).
“Issue Date” means the date set forth in Item 3 of Schedule A
hereto.
“ Market Price ” means, with
respect to a particular security, on any given day, the last
reported sale price regular way or, in case no such reported sale
takes place on such day, the average of the last closing bid and
ask prices regular way, in either case on the principal national
securities exchange on which the applicable securities are listed
or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average of the closing bid
and ask prices as furnished by two members of the Financial
Industry Regulatory Authority, Inc. selected from time to time by
the Company for that purpose. “Market Price”
shall be determined without reference to after hours or extended
hours trading. If such security is not listed and traded
in a manner that the quotations referred to above are available for
the period required hereunder, the Market Price per share of Common
Stock shall be deemed to be (i) in the event that any portion of
the Warrant is held by the Original Warrantholder, the fair market
value per share of such security as determined in good faith by the
Original Warrantholder or (ii) in all other circumstances, the fair
market value per share of such security as determined in good faith
by the Board of Directors in reliance on an opinion of a nationally
recognized independent investment banking corporation retained by
the Company for this purpose and certified in a resolution to the
Warrantholder. For the purposes of determining the
Market Price of the Common Stock on the "trading day" preceding, on
or following the occurrence of an event, (i) that trading day shall
be deemed to commence immediately after the regular scheduled
closing time of trading on the New York Stock Exchange or, if
trading is closed at an earlier time, such earlier time and (ii)
that trading day shall end at the next regular scheduled closing
time, or if trading is closed at an earlier time, such earlier time
(for the avoidance of doubt, and as an example, if the Market Price
is to be determined as of the last trading day preceding a
specified event and the closing time of trading on a particular day
is 4:00 p.m. and the specified event occurs at 5:00 p.m. on that
day, the Market Price would be determined by reference to such 4:00
p.m. closing price).
“ Ordinary Cash Dividends ”
means a regular quarterly cash dividend on shares of Common Stock
out of surplus or net profits legally available therefor
(determined in accordance with generally accepted accounting
principles in effect from time to time), provided that
Ordinary Cash Dividends shall not include any cash dividends paid
subsequent to the Issue Date to the extent the aggregate per share
dividends paid on the outstanding Common Stock in any quarter
exceed the amount set forth in Item 4 of Schedule A hereto, as
adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction.
“ Original Warrantholder ”
means the United States Department of the Treasury. Any
actions specified to be taken by the Original Warrantholder
hereunder may only be taken by such Person and not by any other
Warrantholder.
“ Permitted Transactions ”
has the meaning set forth in Section 13(B).
“ Person ” has the meaning
given to it in Section 3(a)(9) of the Exchange Act and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
“ Per Share Fair Market Value
” has the meaning set forth in Section 13(C).
“Preferred Shares ” means the perpetual preferred stock
issued to the Original Warrantholder on the Issue Date pursuant to
the Purchase Agreement.
“ Pro Rata Repurchases ”
means any purchase of shares of Common Stock by the Company or any
Affiliate thereof pursuant to (A) any tender offer or exchange
offer subject to Section 13(e) or 14(e) of the Exchange Act or
Regulation 14E promulgated thereunder or (B) any other offer
available to substantially all holders of Common Stock, in the case
of both (A) or (B), whether for cash, shares of Capital Stock of
the Company, other securities of the Company, evidences of
indebtedness of the Company or any other Person or any other
property (including, without limitation, shares of Capital Stock,
other securities or evidences of indebtedness of a subsidiary), or
any combination thereof, effected while this Warrant is
outstanding. The “ Effective Date ”
of a Pro Rata Repurchase shall mean the date of acceptance of
shares for purchase or exchange by the Company under any tender or
exchange offer which is a Pro Rata Repurchase or the date of
purchase with respect to any Pro Rata Repurchase that is not a
tender or exchange offer.
“ Purchase Agreement ” means
the Securities Purchase Agreement – Standard Terms
incorporated into the Letter Agreement, dated as of the date set
forth in Item 5 of Schedule A hereto, as amended from time to time,
between the Company and the United States Department of the
Treasury (the “ Letter Agreement ”), including
all annexes and schedules thereto.
“ Qualified Equity Offering ”
has the meaning ascribed to it in the Purchase
Agreement.
“ Regulatory Approvals ” with
respect to the Warrantholder, means, to the extent applicable and
required to permit the Warrantholder to exercise this Warrant for
shares of Common Stock and to own such Common Stock without the
Warrantholder being in violation of applicable law, rule or
regulation, the receipt of any necessary approvals and
authorizations of, filings and registrations with, notifications
to, or expiration or termination of any applicable waiting period
under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder.
“ SEC ” means the U.S.
Securities and Exchange Commission.
“ Securities Act ” means the
Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.
“ Shares ” has the meaning
set forth in Section 2.
“trading day”
means (A) if the shares of Common
Stock are not traded on any national or regional securities
exchange or association or over-the-counter market, a
business day or (B) if the shares of Common Stock are traded on any
national or regional securities exchange or association or
over-the-counter market, a business day on which such relevant
exchange or quotation system is scheduled to be open for business
and on which the shares of Common Stock (i) are not
suspended from trading on any national or regional securities
exchange or association or over-the-counter market for any period
or periods aggregating one half hour or longer; and (ii) have
traded at least once on the national or regional securities
exchange or association or over-the-counter market that is the
primary market for the trading of the shares of Common
Stock.
“ U.S.
GAAP ” means United States generally accepted accounting
principles.
“ Warrantholder ” has the
meaning set forth in Section 2.
“ Warrant ” means this
Warrant, issued pursuant to the Purchase Agreement.
2.
Number of Shares; Exercise Price . This certifies
that, for value received, the United States Department of the
Treasury or its permitted assigns (the “ Warrantholder
”) is entitled, upon the terms and subject to the conditions
hereinafter set forth, to acquire from the Company, in whole or in
part, after the receipt of all applicable Regulatory Approvals, if
any, up to an aggregate of the number of fully paid and
nonassessable shares of Common Stock set forth in Item 6 of
Schedule A hereto, at a purchase price per share of Common Stock
equal to the Exercise Price. The number of shares of
Common Stock (the “ Shares ”) and the Exercise
Price are subject to adjustment as provided herein, and all
references to “Common Stock,” “Shares” and
“Exercise Price” herein shall be deemed to include any
such adjustment or series of adjustments.
3.
Exercise of Warrant; Term . Subject to Section 2,
to the extent permitted by applicable laws and regulations, the
right to purchase the Shares represented by this Warrant is
exercisable, in whole or in part by the Warrantholder, at any time
or from time to time after the execution and delivery of this
Warrant by the Company on the date hereof, but in no event later
than 5:00 p.m., New York City time on the tenth anniversary of the
Issue Date (the “ Expiration Time ”), by (A) the
surrender of this Warrant and Notice of Exercise annexed hereto,
duly completed and executed on behalf of the Warrantholder, at the
principal executive office of the Company located at the address
set forth in Item 7 of Schedule A hereto (or such
other office or agency of the Company in the United States as it
may designate by notice in writing to the Warrantholder at the
address of the Warrantholder appearing on the books of the
Company), and (B) payment of the Exercise Price for the Shares
thereby purchased:
(i) by having
the Company withhold, from the shares of Common Stock that would
otherwise be delivered to the Warrantholder upon such exercise,
shares of Common stock issuable upon exercise of the Warrant equal
in value to the aggregate Exercise Price as to which this Warrant
is so exercised based on the Market Price of the Common Stock on
the trading day on which this Warrant is exercised and the Notice
of Exercise is delivered to the Company pursuant to this Section 3,
or
(ii) with the
consent of both the Company and the Warrantholder, by tendering in
cash, by certified or cashier’s check payable to the order of
the Company, or by wire transfer of immediately available funds to
an account designated by the Company.
If the Warrantholder does not exercise this
Warrant in its entirety, the Warrantholder will be entitled to
receive from the Company within a reasonable time, and in any event
not exceeding three business days, a new warrant in substantially
identical form for the purchase of that number of Shares equal to
the difference between the number of Shares subject to this Warrant
and the number of Shares as to which this Warrant is so
exercised. Notwithstanding anything in this Warrant to
the contrary, the Warrantholder hereby acknowledges and agrees that
its exercise of this Warrant for Shares is subject to the condition
that the Warrantholder will have first received any applicable
Regulatory Approvals.
4.
Issuance of Shares; Authorization; Listing
. Certificates for Shares issued upon exercise of this
Warrant will be issued in such name or names as the Warrantholder
may designate and will be delivered to such named Person or Persons
within a reasonable time, not to exceed three business days after
the date on which this Warrant has been duly exercised in
accordance with the terms of this Warrant. The Company
hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued, fully
paid and nonassessable and free from all taxes, liens and charges
(other than liens or charges created by the Warrantholder, income
and franchise taxes incurred in connection with the exercise of the
Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that
the Shares so issued will be deemed to have been issued to the
Warrantholder as of the close of business on the date on which this
Warrant and payment of the Exercise Price are delivered to the
Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may
then be closed or certificates representing such Shares may not be
actually delivered on such date. The Company will at all
times reserve and keep available, out of its authorized but
unissued Common Stock, solely for the purpose of providing for the
exercise of this Warrant, the aggregate number of shares of Common
Stock then issuable upon exercise of this Warrant at any
time. The Company will (A) procure, at its sole expense,
the listing of the Shares issuable upon exercise of this Warrant at
any time, subject to issuance or notice of issuance, on all
principal stock exchanges on which the Common Stock is then listed
or traded and (B) maintain such listings of such Shares at all
times after issuance. The Company will use reasonable
best efforts to ensure that the Shares may be issued without
violation of any applicable law or regulation or of any requirement
of any securities exchange on which the Shares are listed or
traded.
5.
No Fractional Shares or Scrip . No fractional
Shares or scrip representing fractional Shares shall be issued upon
any exercise of this Warrant. In lieu of any fractional
Share to which the Warrantholder would otherwise be entitled, the
Warrantholder shall be entitled to receive a cash payment equal to
the Market Price of the Common Stock on the last trading day
preceding the date of exercise less the pro-rated Exercise Price
for such fractional share.
6.
No Rights as Stockholders; Transfer Books . This
Warrant does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Company prior to the date of
exercise hereof. The Company will at no time close its
transfer books against transfer of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
7.
Charges, Taxes and Expenses . Issuance of
certificates for Shares to the Warrantholder upon the exercise of
this Warrant shall be made without charge to the 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.
(A) Subject
to compliance with clause (B) of th
