Exhibit 4.2
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
499,029
Shares of Common
Stock
of Village Bank and Trust
Financial Corp.
Issue Date: May 1, 2009
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)
&
