Attached files
file | filename |
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8-K - FORM 8-K - MIDDLEFIELD BANC CORP | c21636e8vk.htm |
EX-99.1 - EXHIBIT 99.1 - MIDDLEFIELD BANC CORP | c21636exv99w1.htm |
EX-10.28 - EXHIBIT 10.28 - MIDDLEFIELD BANC CORP | c21636exv10w28.htm |
EX-10.26 - EXHIBIT 10.26 - MIDDLEFIELD BANC CORP | c21636exv10w26.htm |
EXHIBIT 10.27
WARRANT TO PURCHASE COMMON STOCK
THIS WARRANT HAS 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
WARRANT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER CONTAINED HEREIN. THIS WARRANT MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THIS INSTRUMENT. ANY SALE OR OTHER
TRANSFER NOT IN COMPLIANCE WITH THIS INSTRUMENT WILL BE VOID.
WARRANT
to purchase
to purchase
Shares of Common Stock of
MIDDLEFIELD BANC CORP.
No. 001 | Issue Date: , 2011 |
Name of Warrantholder: Bank Opportunity Fund LLC
1. Definitions. Unless the context otherwise requires, when used herein the
following terms shall have the meanings indicated.
Affiliate has the meaning ascribed to it in the Stock Purchase Agreement.
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 Ohio 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.
Common Stock means the common stock, no par value , of the Company.
Company means Middlefield Banc Corp., an Ohio corporation.
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 $16.00 per share of Common Stock.
Expiration Time has the meaning set forth in Section 3.
Issue Date means , 2011.
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.
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 Common Stock and to own
such Common 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 the the Board of Governors of the Federal Reserve System, or any other
federal, state, county, local or other governmental or regulatory agencies, authorities (including
self-regulatory authorities), instrumentalities, commissions, boards or bodies having jurisdiction
over the Company, the Warrantholder or any Affiliate of the Company or the Warrantholder.
Shares has the meaning set forth in Section 2.
Stock Purchase Agreement means the Stock Purchase Agreement dated as of August 15, 2011
between the Company and Warrantholder.
Warrantholder has the meaning set forth in Section 2.
Warrant means this Warrant, issued pursuant to the Stock Purchase Agreement.
2. Number of Shares; Exercise Price. This certifies that, for value received, Bank
Opportunity Fund LLC, 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 ___________ fully paid and
nonassessable shares of Common Stock at a purchase price per share of Common Stock equal to the
Exercise Price, provided that the Warrantholder does not own or control more than 24.9% of Common
Stock upon such acquisition , taking into consideration the shares issued upon exercise in whole or
part of the Warrant. The number of shares of Common Stock (the Shares) and the Exercise Price
are subject to adjustment as provided herein, and all references to Common Stock, Shares and
Exercise Price herein shall be deemed to include any such adjustment or series of adjustments.
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., Eastern 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 15985 East High Street, Middlefield, Ohio 44062 (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 tendering in cash, by certified or cashiers check payable to
the order of the Company, or by wire transfer of immediately available funds to an account
designated by the Company. If not exercised before the Expiration Time the Warrant shall become
void and all rights thereunder shall cease at the Expiration Time.
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If the Warrantholder exercises this Warrant in part, 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 and expiring at the Expiration Time 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, if any, which are required to exercise this
Warrant.
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, together with cash, as provided below in Section 5, in respect of any fractional
Shares otherwise issuable upon such exercise. The Company hereby represents and warrants that, upon
payment by the Warrantholder of the Warrant exercise price in full in accordance with Section 3,
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 Common
Stock, solely for the purpose of providing for the exercise of this Warrant, the aggregate number
of shares of Common 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 Fractional Shares or Scrip. No fractional Shares or scrip representing
fractional Shares shall be issued upon any exercise of this Warrant. If any fraction of a Share
would be issuable on the exercise of this Warrant in full or in part, the Company shall pay an
amount in cash equal to the then current market price per Share multiplied by such fraction.
6. 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. The Company will at no time close its transfer books against transfer of
this Warrant in any manner which interferes with the timely exercise of this Warrant.
7. Charges, Taxes and Expenses. Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made without charge to the Warrantholder
for any issue or transfer tax or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company.
8. Restrictions on Transfer. Warrantholder will not transfer, sell, assign or
otherwise dispose of this Warrant or any portion thereof, except as follows:(i) to any Affiliate of
Warrantholder under common control with Warrantholders ultimate parent, general partner, managing
member, or investment advisor (any such transferee shall be included in the term Warrantholder),
(ii) to any limited partner or shareholder of Warrantholder, but in each case only if the
transferee agrees in writing for the benefit of the Company (with a copy thereof to be furnished to
the Company) to be bound by the terms of
this Warrant, or (iii) to any Person with the prior written consent of the Company, which
shall not be unreasonably withheld, conditioned or delayed.
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9. Exchange and Registry of Warrant. Until the Expiration Time this Warrant is
exchangeable, upon the surrender hereof by the Warrantholder to the Company, for a new warrant or
warrants of like tenor and representing the right to purchase the same aggregate number of Shares.
The Company shall maintain a registry showing the name and address of the Warrantholder as the
registered holder of this Warrant. This Warrant may be surrendered for exchange or exercise in
accordance with its terms, at the office of the Company, and the Company shall be entitled to rely
in all respects, prior to written notice to the contrary, upon such registry.
10. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and in the case of any such loss, theft or destruction, upon receipt of a bond, indemnity
or security reasonably satisfactory to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, until the Expiration Time the Company shall make and
deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same aggregate number of Shares as provided for in such
lost, stolen, destroyed or mutilated Warrant.
11. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not be a business day,
then such action may be taken or such right may be exercised on the next succeeding day that is a
business day.
12. Adjustments and Other Rights. For so long as the Warrantholder holds this Warrant
or any portion thereof, if any event occurs that, in the good faith judgment of the Board of
Directors of the Company, would require adjustment of the Exercise Price or number of Shares into
which this Warrant is exercisable in order to fairly and adequately protect the purchase rights of
the Warrants in accordance with the essential intent and principles of the Stock Purchase Agreement
and this Warrant, then the Board of Directors shall make such adjustments in the application of
such provisions, in accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of the Board of Directors, to protect such purchase rights as
aforesaid. The good faith determination made by the Board of Directors about whether an adjustment
is necessary and about the terms of any adjustment shall be final and binding.
Whenever the Exercise Price or the number of Shares into which this Warrant is exercisable
shall be adjusted as provided in this Section 12, the Company shall forthwith file at the principal
office of the Company a statement showing in reasonable detail the facts requiring such adjustment
and the Exercise Price that shall be in effect and the number of Shares into which this Warrant
shall be exercisable after such adjustment, and the Company shall also cause a copy of such
statement to be sent by mail, first class postage prepaid, to each Warrantholder at the address
appearing in the Companys records.
13. No Impairment. The Company will not, by amendment of its Charter or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in taking of all such action
as may be necessary or appropriate in order to protect the rights of the Warrantholder.
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14. Governing Law. This Warrant will be governed by and construed in accordance with
the federal law of the United States if and to the extent such law is applicable, and otherwise in
accordance with the laws of the State of Ohio applicable to contracts made and to be performed
entirely within such State. Each of the Company and the Warrantholder agrees (a) to submit to the
exclusive jurisdiction and venue of the United States District Court for the NorthernDistrict of
Ohio for any civil action, suit or proceeding arising out of or relating to this Warrant or the
transactions contemplated hereby, and (b) that notice may be served upon the Company at the address
in Section 18 below and upon the Warrantholder at the address for the Warrantholder set forth in
the registry maintained by the Company pursuant to Section 9 hereof. To the extent permitted by
applicable law, each of the Company and the Warrantholder hereby unconditionally waives trial by
jury in any civil legal action or proceeding relating to the Warrant or the transactions
contemplated hereby or thereby.
15. Binding Effect. This Warrant shall be binding upon any successors or assigns of
the Company.
16. Amendments. This Warrant may be amended and the observance of any term of this
Warrant may be waived only with the written consent of the Company and the Warrantholder.
17. Prohibited Actions. The Company agrees that it will not take any action which
would entitle the Warrantholder to an adjustment of the Exercise Price if the total number of
shares of Common Stock issuable after such action upon exercise of this Warrant, together with all
shares of Common Stock then outstanding and all shares of Common Stock then issuable upon the
exercise of all outstanding options, warrants, conversion and other rights, would exceed the total
number of shares of Common Stock then authorized by its Charter.
18. Notices. Any notice, request, instruction or other document to be given hereunder
by any party to the other will be in writing and will be deemed to have been duly given (a) on the
date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, (b) on the
first business day following the date of dispatch if delivered by a recognized next day courier
service, or (c) on the third business day following the date of mailing if delivered by registered
or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth in Section 7.05 of the Stock Purchase Agreement, or pursuant to such other
instructions as may be designated in writing by the party to receive such notice.
19. Entire Agreement. This Warrant and the forms attached hereto contain the entire
agreement between the parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or undertakings with respect thereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a duly
authorized officer.
Dated: , 2011
COMPANY: MIDDLEFIELD BANC CORP. |
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By: | ||||
Name: | Thomas G. Caldwell | |||
Title: | President and Chief Executive Officer | |||
Attest: |
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By: | ||||
Name: | ||||
Title: |
6
[Form of Notice of Exercise]
Date:
TO:
|
MIDDLEFIELD BANC CORP Attention: Thomas G. Caldwell 15985 East High Street Middlefield, Ohio 44062 |
|
RE:
|
Election to Purchase Common Stock |
The undersigned, pursuant to the provisions set forth in the attached Warrant, hereby agrees
to subscribe for and purchase the number of shares of the Common Stock set forth below covered by
such Warrant. The undersigned, in accordance with Section 3 of the Warrant, hereby agrees to pay
the aggregate Exercise Price for such shares of Common Stock in the manner set forth below. A new
warrant evidencing the remaining shares of Common Stock covered by such Warrant, but not yet
subscribed for and purchased, if any, should be issued in the name set forth below.
Number of Shares of Common Stock
|
||||
Aggregate Exercise Price: |
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Holder: | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||