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
254.44444
Shares of Preferred Stock
of First Priority Financial
Corp.
Issue Date: February 20,
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 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 preferred stock,
solely for the purpose of providing for the exercise of this
Warrant, the aggregate number of shares of Preferred Stock then
issuable upon exercise of this Warrant
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