Exhibit 4.3
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
114.44444
Shares of Preferred
Stock
of First Guaranty Bancshares,
Inc.
Issue Date:
August 28, 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.
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 book
