Attached files
| file | filename |
|---|---|
| 8-K - BANC OF CALIFORNIA, INC. | fpt-8k072710.htm |
| EX-4.2 - BANC OF CALIFORNIA, INC. | ex4-2.htm |
| EX-99.1 - BANC OF CALIFORNIA, INC. | ex99-1.htm |
| EX-10.3 - BANC OF CALIFORNIA, INC. | ex10-3.htm |
| EX-10.1 - BANC OF CALIFORNIA, INC. | ex10-1.htm |
| EX-10.2 - BANC OF CALIFORNIA, INC. | ex10-2.htm |
| EX-99.3 - BANC OF CALIFORNIA, INC. | ex99-3.htm |
| EX-99.2 - BANC OF CALIFORNIA, INC. | ex99-2.htm |
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR
LAWS.
WARRANT
to
Purchase Common Stock of
FIRST
PACTRUST BANCORP, INC.
Date:
______, 2010
This
certifies that, for value received, TCW Shared Opportunity Fund V, L.P., a
Delaware limited partnership (“TCW”), together with
its registered assigns (the “Holder”), is entitled
to purchase, in the aggregate, up to Two Hundred Forty Thousand (240,000) fully
paid and nonassessable shares (the “Warrant Shares”) of
Class B Non-Voting Common Stock, par value $0.01 per share (the “Class B Common
Stock”), of First PacTrust Bancorp, Inc. a Maryland corporation (the
“Company”),
during the Warrant Exercise Period, at the Exercise
Price. Notwithstanding the foregoing, this Warrant shall be
exercisable for, in lieu of shares of Class B Common Stock, shares of common
stock, par value $0.01 per share (the “Voting Common Stock”,
and collectively, with the Class B Common Stock, the “Common Stock”) in
accordance with terms of Section 7 hereof,
and, in such event, the term “Warrant Shares” shall be deemed to include such
shares of Voting Common Stock for all purposes hereunder. This
Warrant is being granted in connection with the Subscription Agreement, dated as
of July [19], 2010 between TCW and the Company (the “Subscription
Agreement”). This Warrant and the Warrant Shares are entitled
to the benefits of the registration rights set forth on Schedule 5.3 attached
to the Subscription Agreement (the “Registration Rights
Agreement”).
This
Warrant is subject to the following terms and conditions:
1. Exercisability of
Warrant. Subject to the terms of this Warrant, the Holder hereof shall be
entitled to exercise the Warrant, in whole or in part, at any time and from time
to time during the Warrant Exercise Period. This Warrant shall expire
and no longer be exercisable as to any Warrant Share for which the Warrant has
not been exercised on or prior to 5:00 p.m., New York time, on the Expiration
Date in respect of such Warrant Shares, and all rights hereunder with respect to
such Warrant Shares shall thereupon cease.
2. Method of
Exercise.
(a) Subject
to Section 1
hereof, this Warrant may be exercised by the Holder, in whole or in part, during
the Warrant Exercise Period by (i) the payment in cash, wire transfer or
certified or bank cashier’s check to the Company of the Exercise Price in
respect of the Warrant Shares being purchased (which payment may also take the
form of a “cashless exercise” in accordance with Section 2(e) below if
so indicated on the Form of Subscription) and (ii) delivery (via facsimile or
otherwise) to the Company of the Form of Subscription attached
hereto. If
the original Warrant is not surrendered, properly endorsed, at the principal
office of the Company concurrent with the delivery of the Form of Subscription
attached hereto, the Holder will, as promptly as reasonably practicable (and in
any event within five (5) business days following such date of delivery),
deliver, or cause to be delivered, the original Warrant, properly endorsed, to
the Company.
(b) Each
exercise of this Warrant shall be deemed to have been effected immediately prior
to the close of business on the business day on which (i) the Company shall have
received payment of the Exercise Price in respect of the Warrant Shares being
purchased (other than payment in the form of a “cashless exercise” in accordance
with Section
2(e) below) and (ii) the Company shall have received the Form of
Subscription attached hereto, all as provided in this Section 2, and the
person entitled to receive the Warrant Shares being purchased shall be treated
for all purposes as the holder of record of such shares as of the close of
business on such date.
(c) In
the event of any exercise of this Warrant, Warrant Shares so purchased shall be
delivered in book-entry form through the facilities of The Depositary Trust
Company at the Company’s expense to the Holder or its designee promptly after
the Warrant shall have been so exercised, and such shares shall be free of
restrictive legends unless (i) a registration statement covering the resale of
the Warrant Shares by the Holder is not then effective and (ii) the Warrant
Shares are not eligible for re-sale pursuant to Rule 144 under the Securities
Act of 1933, as amended (the “Securities Act”),
without regard to the requirement for the Company to be in compliance with the
current public information required under Rule 144 as to such shares and without
regard to volume or manner-of-sale restrictions.
(d) Upon
surrender of this Warrant following one or more partial exercises, unless this
Warrant has expired, a new Warrant of like tenor representing the number of
Warrant Shares, if any, with respect to which this Warrant shall not then have
been exercised, shall be issued to the Holder promptly
thereafter. Any such new Warrant shall have an issuance date, as
indicated on the face of such new Warrant, which is the same as the date set
forth above.
(e) Notwithstanding
anything contained herein to the contrary, the Holder may satisfy its obligation
to pay the Exercise Price through a “cashless exercise,” in which event the
Company shall issue to the Holder the number of Warrant Shares determined as
follows:
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X =
Y [(A-B)/A]
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where:
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X =
the number of Warrant Shares to be issued to the
Holder.
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Y =
the number of Warrant Shares with respect to which this Warrant is being
exercised.
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A =
the Fair Market Value (as defined herein) of a share of Voting Common
Stock as of the Exercise Date.
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B =
the Exercise Price.
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2
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced, on
the date this Warrant was originally issued (provided that such treatment is
proper under Rule 144 and any related interpretive positions of the Securities
and Exchange Commission, each as in effect at the time of such
exercise).
3. Due Authorization and
Issuance; Reservation of Shares. The Company covenants and agrees that
any and all of the Warrant Shares issued to the Holder in accordance with the
terms hereof will, upon issuance, be duly authorized, validly issued, fully paid
and nonassessable, free from all preemptive rights of any Person and free and
clear of all taxes, liens and charges with respect to such issuance. The Company
will take all such action as may be necessary to assure that such Warrant Shares
may be issued as provided herein without violation of any applicable law or
regulation. The Company further covenants and agrees that during the Warrant
Exercise Period, the Company will at all times have authorized and reserved for
the purpose of the issue upon the exercise of this Warrant, at least the maximum
number of Warrant Shares as are then issuable upon the exercise of this
Warrant.
4. Anti-Dilution
Adjustments.
The Exercise Price and the number of
Warrant Shares as to which this Warrant may be exercised are subject to
adjustment from time to time upon the occurrence of the events set forth in this
Section
4. For purposes of this Section 4, “Common
Stock” means shares now or hereafter authorized of any class of common stock of
the Company and any other stock of the Company, however designated, that has the
right (subject to any prior rights of any class or series of preferred stock) to
participate in any distribution of the assets or earnings of the Company without
limit as to per share amount.
(a) Stock Dividends —
Split-Ups. If after the date hereof, and subject to the
provisions of Section
4(f) hereof, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock, or by a
split-up of shares of Common Stock, or other similar event, then, on the
effective date of such stock dividend, split-up or similar event, the number of
shares of Common Stock issuable on exercise of this Warrant shall be increased
in proportion to such increase in outstanding shares of Common
Stock.
(b) Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section
4(f) hereof, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares of Common Stock issuable
on exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding shares of Common Stock.
(c) Adjustments for Other
Distributions. If the Company distributes to all holders of
its Common Stock any of its assets (including cash, and including ordinary cash
dividends) or debt securities or any rights, options or warrants to purchase
debt securities, assets
3
or other
securities of the Company (other than Common Stock), the Exercise Price shall be
adjusted in accordance with the following formula:
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P’
= P ÷ M/(M-F)
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where:
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P’
= the Exercise Price immediately following the adjustment to the Exercise
Price pursuant to this Section 4(c).
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P =
the Exercise Price immediately preceding the adjustment to the Exercise
Price pursuant to this Section 4(c).
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M =
the Last Reported Sales Price (as defined herein) per share of Voting
Common Stock on the business day immediately preceding the Announcement
Date.
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F = the
fair market value (as determined in good faith by the Board of Directors
and evidenced by a board resolution) on the Announcement Date for such
distribution of the assets, securities, options, rights or warrants
distributable to one share of Common Stock after taking into account, in
the case of any rights, options or warrants, the consideration required to
be paid upon exercise thereof.
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The
adjustment shall be made successively whenever any such distribution is made and
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such distribution.
This
subsection (c) does not apply to any dividends or distributions made in
connection with, or as part of any of the actions contemplated by Section 4(a),
4(b) or 4(d). If any
adjustment is made pursuant to this subsection (c) as a result of the
issuance of rights, options or warrants and at the end of the period during
which any such rights, options or warrants are exercisable, not all such rights,
options or warrants shall have been exercised, the Warrant shall be immediately
readjusted as if “F” in the above formula was the fair market value (as
determined in good faith by the Board of Directors and evidenced by a board
resolution) on the dividend date for such distribution of the indebtedness or
assets actually distributed upon exercise of such rights, options or warrants
divided by the number of shares of Common Stock outstanding on the dividend date
for such distribution. Notwithstanding anything to the contrary
contained in this subsection (c), but subject to any other agreements between
the Company and Holder, if “M-F” in the above formula is less than $1.00, the
Company shall, in lieu of the adjustment otherwise required by this subsection
(c), distribute to the Holder, upon exercise of the Warrant, the evidences of
indebtedness, assets, rights, options or warrants (or the proceeds thereof)
which would have been distributed to the Holder had the Warrant been exercised
immediately prior to the record date for such distribution.
4
(d) Reorganization,
Reclassification, Merger, Consolidation or Disposition of
Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is any change whatsoever in, or distribution with respect to, the outstanding
Common Stock of the Company), or sell, transfer or otherwise dispose of all or
substantially all of its property, assets or business to another corporation
and, pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, (i) shares of common stock of the
successor or acquiring corporation or of the Company (if it is the surviving
corporation) or (ii) any cash, shares of stock or other securities, assets,
property or indebtedness of any nature whatsoever (including warrants or other
subscription or purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation (“Other Property”) are
to be received by or distributed to the holders of Common Stock of the Company
who are holders immediately prior to such transaction, then the Holder of this
Warrant shall have the right thereafter to receive, upon exercise of this
Warrant the number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and Other
Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In the event of receipt of shares of
common stock of the successor or acquiring corporation or of the Company and
Other Property, the aggregate Exercise Price otherwise payable for the shares of
Common Stock issuable upon exercise of this Warrant shall be allocated among the
shares of common stock and Other Property receivable as a result of such
reorganization, reclassification, merger, consolidation or disposition of assets
in proportion to the respective fair market values of such shares of common
stock and Other Property as determined in good faith by the Board of Directors
and evidenced by a board resolution. In case of any such
reorganization, reclassification, merger, consolidation or disposition of
assets, the successor or acquiring corporation (if other than the Company) shall
expressly assume the due and punctual observance and performance of each and
every covenant and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be reasonably deemed appropriate (as determined in good
faith by the Board of Directors and evidenced by a board resolution) in order to
provide for adjustments of any shares of the common stock of such successor or
acquiring corporation for which this Warrant thus becomes exercisable, with
modifications which shall be as equivalent as practicable to the adjustments
provided for in this Section
4. For purposes of this Section 4(d),
“common stock of the successor or acquiring corporation” shall include stock of
such corporation of any class that is not preferred as to dividends or assets
over any other class of stock of such corporation and that is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities that are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this Section 4(d)
shall similarly apply to successive reorganizations, reclassification, mergers,
consolidations or disposition of assets and shall apply to any securities to be
received as a result of the foregoing.
(e) Adjustments To Exercise
Price. Whenever the
number of Warrant Shares is adjusted, as provided in this Section 4, the
Exercise Price shall be adjusted (to the nearest cent) by multiplying such
Exercise Price immediately prior to such adjustment by a fraction
(i) the
5
numerator
of which shall be the number of shares of Common Stock purchasable upon the
exercise of this Warrant immediately prior to such adjustment, and (ii) the
denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
(f) Fractional
Interests. Notwithstanding any provision contained in this
Warrant, the Company shall not issue fractional shares upon exercise of this
Warrant. If, by reason of any adjustment made pursuant to this Section 4, the
Holder would be entitled, upon the exercise of this Warrant, to receive a
fractional interest in a share, the Company shall, upon such exercise, round up
or down to the nearest whole number of the shares of Common Stock to be issued
to the Holder.
(g) When De Minimis Adjustment
May be Deferred. No adjustment of the Exercise Price need be made unless
the adjustment would require an increase or decrease of at least 1.0% in the
Exercise Price. Any adjustments that are not made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 4 shall
be made to the nearest cent or to the nearest 1/100th of a share, as the case
may be.
(h) Notice of Adjustment.
Whenever any Exercise Price is adjusted, the Company, at its own expense, shall
as promptly as reasonably practicable cause its Chief Financial Officer (or
similar officer) to compute such adjustment and prepare a certificate setting
forth such adjustment (including a statement of the adjusted Exercise Price and
adjusted number or type of Warrant Shares or other securities issuable upon
exercise of this Warrant, as applicable), setting forth in reasonable detail the
acts requiring such adjustment, and stating such other facts as shall be
necessary to show the manner and figures used to compute such
adjustment. As promptly as reasonably practicable (but in no event
more than 10 days) after each such adjustment, the Company shall give a copy of
such certificate by certified mail to the Holder.
(i) Notice of Certain
Transactions. If the Company proposes to take any action that would
require an adjustment in the Exercise Price pursuant to subsections (a), (b),
(c) or (d) of this Section 4, or there
is a proposal for any liquidation or dissolution of the Company, then, in each
case, the Company shall deliver to the Holder a notice stating the proposed
record date for a dividend or distribution or the proposed effective or
consummation date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall deliver the notice at least 10 days before such
date. Notwithstanding the foregoing, the Company shall only be
required to deliver such notice if and to the extent the delivery of such notice
would not result in the dissemination of material, non-public information to the
Holder. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(j) When Adjustment Not
Required. If the Company shall take a record of the holders of its Shares
for the purpose of entitling them to receive a dividend or distribution or
subscription or purchase rights and shall, thereafter and before the
distribution to shareholders thereof, legally abandon its plan to pay or deliver
such dividend, distribution, subscription or purchase rights, then thereafter no
adjustment shall be required by reason of the taking of such record and any such
adjustment previously made in respect thereof shall be rescinded and
annulled.
6
5. No Shareholder
Rights. Nothing contained in this Warrant shall be construed as
conferring upon the Holder any rights as a shareholder of the Company (except to
the extent that this Warrant has been duly exercised or such Holder otherwise
owns any Warrant Shares) or as imposing any liabilities on such Holder to
purchase any securities or as a shareholder of the Company, whether such
liabilities are asserted by the Company or by creditors or shareholders of the
Company or otherwise.
6. Transferability. The
Holder understands, acknowledges and agrees that this Warrant and the Warrant
Shares into which they are exercisable have not been, and the Warrant and the
Warrant Shares into which they are exercisable (except as may be set forth in
the Registration Rights Agreement with respect to the Warrant Shares) will not
be, registered under the Securities Act or any state securities laws, and may
only be sold, offered for sale, pledged, hypothecated, transferred, assigned or
otherwise disposed of in compliance with the then applicable resale requirements
of the Securities Act. Subject to the provisions of this Section 6, this
Warrant is transferable, in whole or in part, when the Holder shall surrender
this Warrant with a properly executed assignment, in the form attached hereto,
to the Company at its principal office (or any other such office or agency as
identified by the Company) whereupon the Company will forthwith issue and
deliver, upon the order of the Holder, a new Warrant, registered as the Holder
may request, representing the right to purchase the number of Warrant Shares
being transferred by the Holder and, if less than the total number of Warrant
Shares then underlying this Warrant is being transferred, a new Warrant to the
Holder representing the right to purchase the number of Warrant Shares not being
transferred.
7. Exercise for Shares of
Voting Common Stock. This Warrant shall become exercisable for
shares of Voting Common Stock in lieu of shares of Class B Common Stock, subject
to the last sentence of this Section 7, (a) at the election of the initial
Holder, TCW, from time to time if, at such time, TCW owns less than 4.99% of the
aggregate outstanding shares of Voting Common Stock as a result of dilution
(i.e., not as a result of transfers by TCW) after the date of this Warrant, or
(b) if, and to the extent, this Warrant (or any portion hereof) is transferred
by the initial Holder hereof, TCW, in a Widely Dispersed Offering. A
“Widely Dispersed
Offering” is (x) a widespread public distribution, including pursuant to
Rule 144 under the Securities Act; (y) a transfer in which no transferee (or
group of associated transferees) would receive more than two percent (2%) of any
class of securities of the Company then entitled to vote generally in the
election of directors (“Voting Securities”)
(including for this purpose the Warrant Shares on an as-exercised basis) or (z)
a transfer to a transferee that would control more than fifty percent (50%) of
the Voting Securities of the Company without any transfer by the Holder
hereof. Notwithstanding anything to the contrary contained herein,
this Warrant shall only be exercisable into that number of shares of Voting
Common Stock in lieu of shares of Class B Common Stock such that, upon exercise,
the registered holder, acting alone or together with any other Person that might
be affiliated with such registered holder, or that may be deemed to be acting in
concert with such registered holder pursuant to 12 C.F.R. Part 574 would not
beneficially own more than 4.99% of the aggregate outstanding shares of Voting
Common Stock.
8. Modification and
Waiver. This Warrant and any provision hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the same is sought.
7
9. Notices. Any notice,
request or other document required or permitted to be given or delivered to the
Holder or the Company shall be delivered, or shall be sent by certified or
registered mail, postage prepaid, to the Holder at TCW Shared Opportunity Fund
V, L.P., 11100 Santa Monica Blvd., Suite 2000, Los Angeles, CA 90025, Attn: Mr.
Chad Brownstein, or, if different, its address as shown on the books of the
Company, or to the Company at 610 Bay Blvd., Chula Vista, California 91910,
Attn: Hans R. Ganz, President and Chief Executive Officer, or at such other
address as the Company may hereafter designate.
10. Descriptive Headings and
Governing Law. The descriptive headings of the several paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this
Warrant. This Warrant shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the State of New
York.
11. Lost Warrant. Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any such loss,
theft or destruction upon receipt of reasonable and customary indemnity, or in
the case of any such mutilation upon surrender and cancellation of such Warrant,
the Company will make and deliver a new Warrant in lieu of the lost, stolen,
destroyed or mutilated Warrant. Any such new Warrant shall have an
issuance date, as indicated on the face of such new Warrant, which is the same
as the date set forth above.
12. Obligations and
Remedies. The Company’s obligations to issue and deliver
Warrant Shares in accordance with the terms of this Warrant are absolute and
unconditional, irrespective of any action or inaction by the Holder to enforce
the same, any waiver or consent with respect to any provision hereof, the
recovery of any judgment against any Person or any action to enforce the same,
or any setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any obligation to
the Company (other than the obligation under Section 2(a) to pay
or otherwise satisfy the total Exercise Price) or any violation or alleged
violation of law by the Holder or any other Person, and irrespective of any
other circumstance which might otherwise limit such obligation of the Company to
the Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver shares of Common Stock (whether via physical
certificates or electronically, as appropriate) upon exercise of the
Warrant.
13. Charges, Taxes and
Expenses. Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax, transfer agent fee or other incidental tax
or expense in respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the registration of any certificates for Warrant Shares or
Warrants in a name other than that of the Holder. The Holder shall be
responsible for all other
tax liability that may arise as a result of holding or transferring this Warrant
or receiving Warrant Shares upon exercise of this Warrant, or reselling or
otherwise transferring the Warrant Shares to third parties.
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14. Dispute
Resolution. In the case of a dispute as to the determination
of the Exercise Price, the Fair Market Value or the Last Reported Sale Price or
the arithmetic calculation of the Warrant Shares, the Company shall submit the
disputed determinations or arithmetic calculations via facsimile within two
business days of receipt of the Form of Subscription giving rise to such
dispute, as the case may be, to the Holder. If the Holder and the
Company are unable to agree upon such determination or calculation of the
Exercise Price, Fair Market Value, the Last Reported Sale Price or the Warrant
Shares within three business days of such disputed determination or arithmetic
calculation being submitted to the Holder, then the Company shall, within two
business days submit via facsimile (a) the disputed determination of the
Exercise Price, the Fair Market Value or the Last Reported Sale Price to an
independent, reputable investment bank selected by the Company and approved by
the Holder or (b) the disputed arithmetic calculation of the Warrant Shares to
the Company’s independent, outside accountant. The Company shall
cause at its expense the investment bank or the accountant, as the case may be,
to perform the determinations or calculations and notify the Company and the
Holder of the results no later than ten business days from the time it receives
the disputed determinations or calculations. Such investment bank’s
or accountant’s determination or calculation, as the case may be, shall be
binding upon all parties absent demonstrable error.
15. Definitions. The
following terms shall have the meanings given to them below:
“Announcement Date”
shall mean the day on which a distribution described in Section 4(c) is
announced to the general public.
“Exercise Price” shall
mean $11.00 per Warrant Share, subject to adjustment as provided in Section
4.
“Expiration Date”
shall mean the fifth anniversary of the date hereof.
“Fair Market Value”
means the fair market value of a share of Voting Common Stock as of a particular
date, as determined in accordance with the following:
(i) if
the Voting Common Stock is listed or admitted for trading on a national
securities exchange, the average of the closing prices of the Voting Common
Stock for the five consecutive trading days immediately prior to (but excluding)
the date in question; or
(ii) if
the foregoing clause (i) does not apply and the Voting Common Stock is traded on
the OTC Bulletin Board, the average of the closing prices of the Voting Common
Stock for the five consecutive trading days immediately prior to (but excluding)
the date in question; or
(iii) if
the foregoing clauses (i) and (ii) do not apply and the Voting Common Stock is
quoted in the over-the-counter market as reported in the “pink sheets”, the
average of the
closing prices of the Voting Common Stock for the five consecutive trading days
immediately prior to (but excluding) the date in question; or
(iv) if
the foregoing clauses (i), (ii) and (iii) do not apply and actual transactions
in the Voting Common Stock are reported through The PORTAL Market, which is
9
operated
by the Nasdaq Stock Market, Inc., the last sale price of the Voting Common Stock
on such system immediately prior to (but excluding) the date in question
(provided such last sale price was not on a trading day in excess of 10 trading
days prior to the date in question); or
(v) if
the Fair Market Value cannot be calculated on a particular date on any of the
foregoing bases, the Fair Market Value on such date shall be the fair market
value of a share of Voting Common Stock as mutually determined by the Company
and the Holder. If the Company and the Holder are unable to agree
upon the fair market value of a share of Voting Common Stock under this clause
(v), then such dispute shall be resolved pursuant to Section
14.
All such
determinations to be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during the applicable calculation
period.
“Last Reported Sales
Price” of the Voting Common Stock on any particular date
means:
(i) if
the Voting Common Stock is listed or admitted for trading on a national
securities exchange, the last reported sale price reported on the date in
question in the composite transactions for the exchange on which the Voting
Common Stock is so listed; or
(ii) if
the foregoing clause (i) does not apply and the Voting Common Stock is traded on
the OTC Bulletin Board, the last quoted bid price on the date in question in the
over-the-counter market as reported by the OTC Bulletin Board; or
(iii) if
the foregoing clauses (i) and (ii) do not apply and the Voting Common Stock is
quoted in the over-the-counter market as reported in the “pink sheets”, the last
quoted bid price on the date in question; or
(iv) if
the foregoing clauses (i), (ii) and (iii) do not apply and actual transactions
in the Voting Common Stock are reported through The PORTAL Market, which is
operated by the Nasdaq Stock Market, Inc., the last sale price of the Voting
Common Stock that is so reported on the date in question; or
(v) if
the Last Reported Sales Price cannot be calculated for the Voting Common Stock
on a particular date on any of the foregoing bases, the Last Reported Sales
Price of the Voting Common Stock on such date shall be as mutually determined by
the Company and the Holder. If the Company and the Holder are unable
to agree upon the Last Reported Sales Price of the Voting Common Stock under
this clause (v), then such dispute shall be resolved pursuant to Section
14.
“Person” shall be
construed broadly and shall include, without limitation, an individual, a
partnership, a limited liability company, a corporation, an association, a joint
stock company,
a trust, a joint venture, an unincorporated organization and a governmental
entity or any department, agency or political subdivision thereof.
“Shares” means shares
of Common Stock.
10
“Warrant Exercise
Period” shall mean the period beginning on the date hereof and ending on
the Expiration Date.
11
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and
issued by its officers thereunto duly authorized as of the date first written
above.
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FIRST
PACTRUST BANCORP, INC.
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By: | ___________________________________________ |
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Hans
R. Ganz
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President
and Chief Executive Officer
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12
FORM OF
SUBSCRIPTION
(to be
signed only upon payment of the Exercise Price
pursuant
to the Warrant)
To the
Company:
1. The
undersigned, the holder of the within Warrant, hereby irrevocably elects to
purchase ___ shares of Common Stock pursuant to the terms of the
Warrant.
2. Form of Exercise
Price. The Holder intends that payment of the Exercise Price
shall be made as (check applicable ones):
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____________
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a
“Cash
Exercise” with respect to _________________ Warrant Shares;
and/or
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____________
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a
“Cashless
Exercise” with respect to _______________ Warrant
Shares.
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3. Payment of Exercise
Price. In the event that the Holder has elected a Cash Exercise with
respect to some or all of the Warrant Shares to be issued pursuant hereto, the
Holder shall pay the aggregate Exercise Price in the sum of $___________________
to the Company in accordance with the terms of the Warrant.
4. Delivery of Warrant
Shares. The Company shall deliver to Holder, or its designee
or agent as specified below, __________ Warrant Shares (__________ shares of
Voting Common Stock and __________ shares of Class B Common Stock) in book-entry
form through the facilities of The Depositary Trust Company in accordance with
the terms of the Warrant.
_______________________
_______________________
_______________________
The
undersigned represents (i) that it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of its investment in the Common Stock; and (ii) that it can bear the
economic risk of its investment in the Common Stock and can afford to lose its
entire investment in the Common Stock. The undersigned agrees that the Common
Stock may not be sold, transferred, offered for sale, pledged, hypothecated or
otherwise disposed of without registration under the Securities Act, except
pursuant to an exemption from such act.
The
undersigned represents that it has tendered payment for such shares of Common
Stock to the Company in the form indicated above.
If the
number of shares of Common Stock purchased is less than all of the Warrant
Shares evidenced hereby, and the undersigned is surrendering the Warrant in
connection with the exercise hereof, the undersigned requests that a new Warrant
representing the remaining shares of Common Stock subject to the Warrant be
issued and delivered to the undersigned.
If the
original Warrant is not surrendered in connection with the exercise
hereof: (i) the undersigned represents that it has not sold,
assigned, pledged, transferred, hypothecated, or otherwise disposed of
the original Warrant or any interest therein or represented thereby and
hereby agrees to fully and forever indemnify and hold harmless the Company and
each of its successors, assigns and affiliates from any loss, cost, damages or
expense (including reasonable attorneys’ fees) of any kind or nature whatsoever
it may hereinafter suffer or incur in connection with or as a result of
the undersigned’s failure to surrender the original Warrant in connection
with such exercise; and (ii) the undersigned will as promptly as reasonably
practicable after the delivery of this Subscription to the Company (and in any
event within five (5) business days), deliver, or cause to be delivered,
the original Warrant to the Company.
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DATED:
________________________
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______________________________________ |
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(Signature
must conform in all
respects
to name of holder as
specified
on the face of the
Warrant)
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________________________________________
________________________________________
(Address)
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FORM OF
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned, the holder of the attached Warrant, hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to [______] Warrant Shares purchasable under the Warrant
unto:
Name of
Assignee Address
_____________________________________
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__________________________________
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_______________________________________
(Signature
must conform in all
respects
to name of holder as
specified
on the face of the Warrant)
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[_____________________]
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By:
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By: _________________________________________ |
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Name:
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Title:
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