Exhibit 4.2
WARRANT TO PURCHASE PREFERRED
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 600.006 Shares of
Fixed Rate Cumulative Perpetual Preferred Stock, Series B
(no par value)
of
FNB BANCORP
Issue Date: February 27, 2009
1.
Definitions
Unless the context otherwise requires, when used herein the
following terms shall have the meanings indicated.
“
Board of Directors ” means the board of directors of
the Company, including any duly authorized committee
thereof.
“
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.
“
Charter ” means, with respect to any Person, its
certificate or articles of incorporation, articles of association,
or similar organizational document.
“
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.
“
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.
“Issue
Date” means the
date set forth in Item 3 of Schedule A hereto.
“
Liquidation Amount ” means the amount set forth in
Item 4 of Schedule A hereto.
“
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.
“
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.
“Preferred
Stock ” means the
series of perpetual preferred stock set forth in Item 5 of Schedule
A hereto.
“
Purchase Agreement ” means the Securities Purchase
Agreement – Standard Terms incorporated into the Letter
Agreement, dated as of the date set forth in Item 6 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.
“
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
Preferred Stock and to own such Preferred 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.
“
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 Preferred Stock
set forth in Item 7 of Schedule A hereto (the “ Shares
”), at a purchase price per share of Preferred Stock equal to
the Exercise Price.
2
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 8 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,
by having the Company withhold, from the shares of Preferred Stock
that would otherwise be delivered to the Warrantholder upon such
exercise, shares of Preferred Stock issuable upon exercise of the
Warrant with an aggregate Liquidation Amount equal in value to the
aggregate Exercise Price as to which this Warrant is so
exercised.
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
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 tr
