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Exhibit 4.1 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
780,000
Shares of Common Stock
of COMMUNITY BANKERS TRUST CORPORATION 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.
" 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.
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" 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.
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" 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.
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" 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.
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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.
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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,
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