EXHIBIT 4.(ii)
WARRANT
THIS WARRANT SHALL BE TRANSFERABLE SEPARATELY FROM THE CONTEMPORANEOUSLY
ISSUED COMMON STOCK AND MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH SECTION 4
THEREOF.
No. W- ______ Warrants which Expire June 22, 2003
To Purchase One Share of Common Stock Each
TEMECULA VALLEY BANK, NATIONAL ASSOCIATION
Organized Under the Laws of the United States
THIS CERTIFIES THAT for value received, ________________, the
registered holder hereof ("Holder") is entitled to purchase from Temecula
Valley Bank, N.A. ("Bank"), at the purchase price of $5.00 per share
("Warrant Price") one share of Common Stock of the Bank ("Common Stock") for
each Warrant set forth above. The number of shares purchasable upon exercise
of this Warrant and the Warrant Price per share shall be subject to
adjustment from time to time as set forth herein.
This Warrant is one of a duly authorized issue of 200,000
Warrants evidencing the right to purchase an aggregate of up to 200,000
shares of Common Stock and is issued in connection with the Bank's Offering
of 200,000 Units; each Unit consisting of four (4) shares of Common Stock and
one (1) Warrant to purchase one (1) share of Common Stock. Shares of Common
Stock to be issued upon exercise of Warrants are referred to herein as
"Warrant Shares."
The Warrants may be exchanged, without charge, for another
Warrant(s) entitling the holder thereof to purchase a like aggregate number
of Warrant Shares as the Warrant(s) surrendered and any Holder desiring to
exchange a Warrant(s) shall make such request in writing delivered to the
Bank and shall surrender, properly endorsed, the Warrant(s) to be so
exchanged. Thereupon, the Bank shall deliver to the person entitled thereto
new Warrants as so requested.
The Warrants shall be transferable only on the books of the Bank
upon delivery thereof duly endorsed with signatures properly guaranteed by a
commercial bank or securities brokerage firm or accompanied by proper
evidence of succession, assignment or authority to transfer. Upon any
registration of transfer, the Bank shall deliver a new Warrant or Warrants to
the persons entitled thereto.
[The following legend will be placed on warrants issued to
directors and executive officers of the Bank]:
If the capital of the Bank falls below the minimum capital
requirements contained in 12 C.F.R. Part 3, or falls below a
higher requirement as determined by the Comptroller of the
Currency ("Comptroller"), the Comptroller may direct the Bank to
require Warrant holders to exercise or forfeit their Warrants.
The Bank will notify the holder of this Warrant within 45 days of
the date the Comptroller notifies the Bank in writing that
holders of Warrants must exercise or forfeit their Warrants. The
Bank will cancel Warrants not exercised within 21 days of the
Bank's notice. The Bank has agreed to comply with any
Comptroller request that the Bank invoke its right to require
holders of Warrants to exercise or forfeit their Warrants under
the circumstances stated above.
1. Expiration Date. The Warrants represented hereby will
expire at 5:00 p.m. Pacific Time on ____________, 2003 ("Expiration Date")
and shall be exercisable at any time until the Expiration Date. The Board of
Directors, in its sole discretion, may establish additional periods for the
exercise of the Warrants, and may extend the Expiration Date. The
appropriate terms utilized herein shall be applicable in the event of any
such extension(s).
2. Period of Exercise. Subject to the terms of this Warrant,
each Holder shall have the right, commencing on the date of issuance of the
Warrants and extending until 5:00 p.m. Pacific Time on the Expiration Date,
to purchase from the Bank the number of Warrant Shares indicated on the front
of this certificate. The Warrant Shares shall be fully paid and
nonassessable (except to the extent provided by the National Bank Act).
Prior to exercise, upon request of the Holder, the Bank will provide Holders
with the most current public financial information then available. The Bank
represents and warrants that it will provide, at a minimum, the information
that would be publicly available if the Bank, at the time of any such
exercise, were required to file quarterly and annual report with the Office
of the Comptroller of the Currency pursuant to 12 C.F.R. Part 16.20, which
references the Securities and Exchange Act of 1934, as amended, and the
regulations promulgated thereunder.
3. Manner of Exercise. A Warrant may be exercised by
contacting the Bank's transfer agent, U.S. Stock Transfer Corp., 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, (000) 000-0000 and upon presentation and
surrender hereof, together with the Warrant Purchase Form at the end hereof,
duly filled in and signed, and upon payment to the Bank of the Warrant Price
(subject to adjustment in accordance with the provisions of Section 9
hereof), for the number of Warrant Shares in respect of which such Warrants
are then exercised. Payment of the aggregate Warrant Price shall be made in
cash, by check or any combination thereof.
The Bank shall not be required to issue fractional Warrant Shares
on the exercise of Warrants. When Warrants are presented for exercise in
full at the same time by the same Holder, the number of full Warrant Shares
shall be issuable upon the exercise of the Warrants so presented. If any
fraction of a Warrant Share would be issuable on the exercise of any Warrants
in full, the Bank shall pay an amount in cash equal to the then current
market price per Warrant Share multiplied by such fraction. When Warrants
are presented for exercise as to a specified portion, only full Warrant
Shares shall be issuable and a new Warrant shall be issuable evidencing the
remaining Warrant or Warrants.
Upon surrender of Warrants and payment of the Warrant Price as
aforesaid, the Bank shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and in such name or names
as the Holder may designate, a certificate or certificates for the number of
full Warrant Shares so purchased upon the exercise of such Warrants, together
with payment, as provided above in this Section 3, in respect of any
fractional Warrant Share otherwise issuable upon surrender. Such certificate
or certificates shall be deemed to have been issued and any person so
designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the surrender of such
Warrants and payment of the Warrant Price, as aforesaid; provided, however,
that if, at the date of surrender of such Warrants and payment of the Warrant
Price, the transfer books for the Warrant Shares or other class of stock
purchasable upon the exercise of such Warrants shall be closed, the
certificates for the Warrant Shares in respect of which such Warrants are
then exercised shall be issuable as of the date on which such books shall
next be opened (whether before or after the Expiration Dates) and until such
date the Bank shall be under no duty to deliver any certificate for such
Warrant Shares. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the Holders thereof, either in full or in
part, from time to time in part and, in the event that a Warrant is exercised
in respect of less than all of the Warrant Shares purchasable on such
exercise at any time prior to the date of expiration of the Warrants, a new
Warrant evidencing the remaining Warrant or Warrants will be issued;
provided, however, the Bank shall not be required to issue fractional
Warrants. All Warrants surrendered in the exercise of the rights thereby
evidenced shall be cancelled by the Bank.
4. Transferability of Warrants. The Warrants shall be
transferable separately from the contemporaneously issued Common Stock.
Transfers may take place by utilizing the Assignment Form at the end hereof.
5. Payment of Taxes. The Bank will pay all documentary stamp
taxes, if any, attributable to the initial issuance of Warrant Shares upon
the exercise of Warrants; provided, however, that the Bank shall not be
required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issuance or delivery of any Warrants or certificate
for Warrant Shares in a name other than that of the Holder of Warrants in
respect of which such Warrant Shares are issued, and in such case the Bank
shall not be required to issue or deliver any certificate for shares of
Common Stock or any Warrant until the person requesting the same has paid to
the Bank the amount of such tax or has established to the Bank's satisfaction
that such tax has been paid.
6. Mutilated or Missing Warrants. In case any of the Warrants
shall be mutilated, lost, stolen or destroyed, the Bank may at its discretion
issue, upon cancellation of the mutilated Warrant, or in lieu of and in
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest; but only upon receipt
of evidence satisfactory to the Bank of such loss, theft or destruction of
such Warrant, and indemnity, if requested, also satisfactory to the Bank. An
applicant for such a substitute Warrant shall also comply with such other
reasonable regulations as the Bank may prescribe.
7. Reservation of Warrant Shares. The Bank shall at all
times, while the Warrants are exercisable, keep reserved, out of its
authorized Common Stock, a number of shares of Common Stock sufficient to
provide for the exercise of the rights of purchase represented by the
outstanding Warrants. Promptly after the expiration of the Warrants, no
shares shall be subject to reservation in respect of such Warrants.
8. Cancellation of Warrants. The Bank shall cancel any
Warrants surrendered for exchange, substitution, transfer or exercise in
whole or in part.
9. Adjustment of Warrant Price and Number of Warrant Shares.
The number and kind of securities purchasable upon the exercise of each
Warrant and the Warrant Price shall be subject to adjustments from time to
time upon the happening of certain events, as hereinafter defined:
9.1 Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price shall be
subject to adjustment as follows:
(a) In case the Bank shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or (iv) issue by reclassification of its
shares of Common Stock or capital reorganization other securities of the
Bank, the number of Warrant Shares purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the Holder of each
Warrant shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Bank which the Holder would have owned or have been
entitled to receive, assuming the Warrant had been exercised. An adjustment
made pursuant to this Section (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event.
(b) No adjustment shall be made in the number of
Warrant Shares purchasable upon the exercise of each Warrant unless such
adjustment would require an increase or decrease of at least 1% in the number
of Warrant Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this Section (b) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest one-
hundredth of a share.
(c) Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant is adjusted, as herein
provided, the Warrant Price payable upon exercise of each Warrant shall be
adjusted by multiplying the Warrant Price immediately prior to adjustment by
a fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of each Warrant immediately prior to the
adjustment, and of which the denominator shall be the number of Warrant
Shares so purchasable immediately thereafter.
(d) For the purpose of this Section 9.1., the term
"shares of Common Stock" or "Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Bank at the date of this Warrant, or
(ii) any other class of stock resulting from successive changes or
reclassification of such shares consisting solely of changes in par value, or
from par value to no par value, or from no par value to par value. In the
event that at any time, as a result of an adjustment made pursuant to Section
9.1 (a) above, the Holder shall become entitled to purchase any shares of the
Bank other than shares of Common Stock, thereafter the number of such other
shares so purchasable upon exercise of each Warrant and the Warrant Price of
such shares shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in Sections 9.1 (a) through (c) above, and
the provisions of Sections 1 and 2 and Sections 9.2 through 9.4, with respect
to the Warrant Shares, shall apply on like terms to any such other shares.
9.2 Notice of Adjustment. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant or the Warrant Price of
such Warrant Shares are adjusted, as herein provided, the Bank shall cause to
be mailed by first class mail, postage prepaid, to each Holder notice of such
adjustment or adjustments setting forth the number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price of such
Warrant Shares after adjustment, and the Bank shall further set forth a brief
statement of the facts and computations supporting such adjustment. Any
failure by the Bank to give notice to the Holder or any defect therein shall
not affect the validity of such adjustment or of the event resulting in the
adjustment, nor of the Holder's rights to such adjustment.
9.3 No Adjustment for Dividends or Distributions. Except
as provided in Sections 9.1 and 9.5, no adjustment in respect of any
dividends or distributions shall be made during the term of a Warrant or upon
the exercise of a Warrant.
9.4 Rights Upon Consolidation, Merger, etc.
(a) In case of any consolidation of the Bank with
or merger of the Bank into another corporation or in case of any sale or
conveyance to another corporation of the property of the Bank as an entirety
or substantially as an entirety, such successor or purchasing corporation may
assume the obligations hereunder, and may execute with the Bank an agreement
that each Holder shall have the right thereafter upon payment of the Warrant
Price to purchase upon exercise of each Warrant the kind and amount of shares
and other securities and property (including cash) which he would have owned
or have been entitled to receive after the happening of such consolidation,
merger, sale or conveyance had such Warrant been exercised immediately prior
to such action. The Bank shall mail by first class mail, postage prepaid, to
each Holder notice of the execution of any such agreement. Such agreement
shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The
provisions of this Section 9.4 shall similarly apply to successive
consolidation, mergers, sales or conveyances.
(b) In the event that such successor corporation
does not execute such an agreement with the Bank as provided in Section 9.4
(a) above, then as to outstanding Warrants then exercisable, each Holder
shall be entitled to exercise outstanding Warrants upon the payment of the
Warrant Price during a period of at least thirty days which period terminates
at least five days prior to consummation of the consolidation, merger, sale
or conveyance, and thereby receive consideration in the transaction on the
same basis as other previously outstanding shares of the same class as the
Warrant Shares acquired upon exercise. If Section 9.4 (a) is not applicable
and Warrants are not exercised in accordance with this Section 9.4 (b) before
consummation of the transaction, then all Warrants will be cancelled and
become null and void. The Bank shall mail by first class mail, postage
prepaid, to each Holder, at least ten days prior to the first date on which
the Warrant shall become exercisable, notice of the proposed transaction
setting forth the first and last date on which the Holder may exercise
outstanding Warrants and a description of the terms of this Warrant providing
for cancellation of the Warrants in the event that Warrants are not exercised
by the prescribed date.
(c) The Bank's failure to give any notice required
by this Section 9.4 or any defect therein shall not affect the validity of
any such agreement, consolidation, merger, sale or conveyance or property.
9.5 Rights Upon Liquidation. In case (a) the Bank shall
make any distribution of its assets to holders of its shares of Common Stock
as a liquidation dividend or by way of return of capital, or other than as a
dividend payable out of capital and unimpaired surplus legally available for
dividends under the National Bank Act, or (b) the Bank shall liquidate,
dissolve or wind up its affairs (other than in connection with a
consolidation, merger or sale of all or substantially all of its property,
assets and business as an entirety), then the Bank shall cause to be mailed
to each Holder of Warrants then exercisable, by first class mail, at least
twenty days prior to the applicable record date, a notice stating the date on
which such distribution, liquidation, dissolution or winding up is expected
to become effective, and the date on which it is expected that holders of
shares of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property or assets (including cash)
deliverable upon such distribution, liquidation, dissolution or winding up.
The Bank's failure to give the notice required by this Section 9.5 or any
defect therein shall not affect the validity of such distribution,
liquidation, dissolution or winding up.
9.6 Statement on Warrants. Irrespective of any
adjustments in the Warrant Price or the number or kind of shares purchasable
upon the exercise of the Warrants, Warrants theretofore or thereafter issued
may continue to express the same price and number and kind of shares as are
stated in the Warrants initially issued.
10. No Rights as Shareholders. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof the right to
vote or to receive dividends or to consent to or receive notice as
shareholders in respect of any meeting of shareholders called for the
election of directors of the Bank or any other matter, or to any rights
whatsoever as shareholders of the Bank.
11. Notices. Any notice pursuant to this Warrant by any Holder
to the Bank or by the Bank to the Holder, shall be in writing. If to the
Bank, the notice shall be mailed first class, postage or hand delivered or
delivered by a nationally recognized overnight service to the Bank at its
office at 00000 Xxxxxxxxx Xxxxxx, Xxxxx X000, Xxxxxxxx, XX 00000 or such
other address as the Bank may designate in writing to the Holder. If to the
Holder, the notice shall be mailed first-class, postage prepaid or delivered
by a nationally recognized overnight service at the Holder's address on the
books of the Bank.
12. Applicable Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of California, to the
extent not preempted by federal law without giving effect to principles of
conflict of laws.
13. State Securities Law. The exercise of Warrants is
prohibited unless the issuance of the Warrant Shares has been registered or
qualified under laws of the state where registered unless there is an
exemption available from such requirements.
14. Captions. The captions of the sections of this Warrant
have been inserted for convenience only and shall have no substantive effect.
WITNESS the facsimile seal of the Bank and the signatures of its
duly authorized officers.
TEMECULA VALLEY BANK, NATIONAL
ASSOCIATION
By: /S/ XXXXXXX X. XXXXXXXX
XXXXXXX X. XXXXXXXX
President, CEO & Chairman of the
Board
By: /S/ XXXXXX X. XXXXXXX
XXXXXX X. XXXXXXX
Senior Vice President, Chief
Financial Officer
Dated: __________, 2001
(Corporate Seal)
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
(Name and address of Assignee must be printed or typewritten)
Please provide Social Security No. or Federal Tax I.D. No. of
Assignee:
the within Warrant(s) hereby irrevocably constituting and
appointing:
Attorney to transfer said Warrant(s) on the books of the Bank,
with full power of substitution in the premises.
Dated: ______________, 200__
Signature of Record Holder
Signature of Record Holder
Signature(s) Guaranteed By: _________________________
NOTE: The signature(s) of this assignment must correspond with
the name as it appears upon the face of the within
Warrant Certificate in every particular, without
alteration or enlargement or any change whatever.
WARRANT PURCHASE FORM
TO: TEMECULA VALLEY BANK, NATIONAL ASSOCIATION
00000 XXXXXXXXX XXXXXX, XXXXX X000
XXXXXXXX, XX 00000
The undersigned hereby irrevocably elects to exercise
the right of purchase represented by the within Warrant for, and
to purchase thereunder, __________________ shares of the
Temecula Valley Bank, National Association Common Stock (upon
exercise of ______ Warrants to purchase one (1) share each), and
requests that certificates for such shares be issued in the
name(s) of:
Name (please print or type) Name (please print or type)
Street Address Street Address
City, State and Zip City, State and Zip
Social Security/Taxpayer I.D.# Social Security/Taxpayer I.D.#
Signature Signature
If said number of shares shall not be all the shares purchasable
thereunder, a new Warrant for the balance remaining of the whole
number of Warrants shall be registered in the name of the
undersigned Warrant holder or his assignee as indicated below
and delivered to the address stated below.
DATED: _____________________________,
Address: _________________________________
Signature of Holder or Assignee
Signature of Holder or Assignee
NOTE: The above signature(s) must correspond with the name(s) as
written upon the face of this Warrant in every particular,
without alteration or enlargement or any change whatsoever.
Signature(s) guaranteed by: ____________________________
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