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
303.00303
Shares of Preferred Stock
of
Heritage Bankshares,
Inc.
Issue Date: September 25,
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 33 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 at any time. 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 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.
