ORGANIZER WARRANT AGREEMENT
EXHIBIT
4.2
This
Organizer Warrant Agreement (“Agreement”) is executed as of this ____ day of
_______, 2006 by Solera National Bancorp, Inc., a Delaware corporation
(“Company”), in favor of the organizers listed on Exhibit
A
(each,
an “Initial Holder”), in accordance with the terms and subject to the conditions
set forth in this Agreement.
WHEREAS,
the organizers of the Company have undertaken substantial financial risk in
connection with the organization of the Company through direct cash advances
made to the Company and guaranties made by these members on behalf of and for
the benefit of the Company; and
WHEREAS,
in recognition of their efforts in organizing the Company and the financial
risks undertaken, the Company desires to grant to each organizer warrants to
purchase shares of common stock of the Company (each, a “Warrant” and,
collectively, the “Warrants”) in the amounts set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the agreements hereinafter
set
forth, the receipt and sufficiency of which are hereby acknowledged, the Company
and, by acceptance of a Warrant, each Holder (as defined herein) agree as
follows:
1. Grant
of Warrants.
Subject
to the terms, restrictions, limitations and conditions stated in this Agreement,
the receipt and sufficiency of which are hereby acknowledged, the Company hereby
grants to Initial Holder the number of Warrants set forth beside his name on
Exhibit
A.
Each
Warrant initially shall be exercisable for one fully paid and nonassessable
share of common stock, par value $0.01 per share, of the Company (“Share”),
subject to adjustment as provided in Section 11
of this
Agreement. The Initial Holders and all subsequent registered holders of the
Warrants (each, a “Holder” and, collectively, the “Holders”) shall have the
rights and obligations set forth in this Agreement.
2. Warrant
Certificates.
Each
Warrant shall be evidenced by a warrant certificate, which shall be
substantially in the form attached to this Agreement as Exhibit
B
(“Warrant Certificate”). Each Warrant Certificate shall have such marks of
identification or designation and such legends or endorsements thereon as the
Company deems appropriate, so long as they are not inconsistent with the
provisions of this Agreement, or as are required to comply with any law, rule
or
regulation applicable to the Company or the Shares. The
Warrant Certificates shall be executed on behalf of the Company by the manual,
facsimile or imprinted signature of its Chairman of the Board, its President
or
any senior vice president and shall be attested by the manual, facsimile or
imprinted signature its secretary or cashier, or any assistant secretary or
assistant cashier.
3. Term
of Warrants.
(a) The
term
for the exercise of the Warrants shall begin at 9:00 a.m., Denver, Colorado
time
on the date that the Company opens for business (the “Issue Date”). The term for
the exercise of the Warrants shall expire at 2:00 p.m., Denver, Colorado time
on
the earlier to occur of (i) the tenth anniversary of the Issue Date or (ii)
the
date provided in Section 3(b)
of this
Agreement (the “Expiration Time”).
(b) Notwithstanding
any provision of this Agreement or any Warrant Certificate to the contrary,
the
Warrants shall expire, to the extent not exercised, within 45 days following
the
receipt of notice from the Company’s state or primary federal regulator
(“Regulator”) that (i) the Company has not maintained its minimum capital
requirements (as determined by the Regulator) and (ii) the Regulator is
requiring exercise or forfeiture of warrants. Upon receipt of such notice from
the Regulator, the Company promptly shall notify each Holder that he must
exercise the Warrants granted to him prior to the end of the 45-day period
or
such earlier period as may be specified by the Regulator or forfeit such
Warrant(s). In case of forfeiture, no Holder shall have any cause of action,
of
any kind or nature, against the Company or any of its officers or directors
with
respect to the forfeiture. In addition, the Company shall not be liable to
any
Holder due to the failure or inability of the Company to provide adequate notice
to Holder.
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4. Exercise
of Warrants.
The
purchase price per Share to be paid by a Holder for Shares subject to the
Warrants shall be $10.00, subject to adjustment as set forth in Section
11
of this
Agreement (the “Exercise Price”). A Holder may exercise Warrants evidenced by a
Warrant Certificate in whole or in part at any time prior to the Expiration
Time
by delivering to the secretary of the Company (i) the Warrant Certificate;
(ii)
a written notice to the Company specifying the number of Shares with respect
to
which Warrants are being exercised; and (iii) a check for the full amount of
the
aggregate Exercise Price of the Shares being acquired.
5. Delivery
of Shares; Partial Exercise.
Upon
receipt of the items set forth in Section 4,
and
subject to the terms of this Agreement, the Company shall promptly deliver
to,
and register in the name of, the Holder a certificate or certificates
representing the number of Shares acquired by exercise of a Warrant. In the
event of a partial exercise of Warrant(s), a new Warrant Certificate evidencing
the number of Shares that remain subject to the Warrant shall be issued by
the
Company to such Holder or to his duly authorized assigns.
6. Registration
of Transfer and Exchange.
(a) The
Company shall keep, or cause to be kept, at its principal place of business
or
at such other location designated by the Company, a register or registers in
which, subject to such reasonable regulations as the Company may prescribe,
the
registrar and transfer agent (the “Securities Registrar”) shall register the
Warrant Certificates and the transfers thereof as provided herein (“Securities
Register”). The initial Securities Registrar shall be the secretary or cashier
of the Company, and thereafter, the Securities Registrar may be removed and/or
appointed as authorized by the Company.
(b) Upon
surrender for registration of transfer of any Warrant Certificate, the Company
shall issue and deliver to the Holder or his duly authorized assigns, one or
more new Warrant Certificates of like tenor and in like aggregate amount.
(c) At
the
option of the Holder, Warrant Certificates may be exchanged for other Warrant
Certificates of like tenor and in like aggregate amount upon surrender of the
Warrant Certificates to be exchanged. Upon such surrender, the Company shall
issue and deliver to the Holder or his duly authorized assigns, one or more
new
Warrant Certificates of like tenor and in like aggregate amount.
(d) Every
Warrant Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied (if so required by the Company or the Securities
Registrar) by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Securities Registrar, duly executed by the
registered Holder or by such Holder’s duly authorized attorney in
writing.
7. Replacement
of Warrant Certificates.
(a) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of a Warrant Certificate and, in the case of loss,
theft or destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of mutilation,
surrender and cancellation of such Warrant Certificate, the Company shall issue
and deliver to the Holder or his duly authorized assigns, one or more new
Warrant Certificates of like tenor and in like aggregate amount. In the case
of
loss, theft or destruction of a Warrant Certificate, prior to the issuance
of a
replacement Warrant Certificate, the Company may also require that a bond be
posted in such amount as the Company may determine is necessary as indemnity
against any claim that may be made against it with respect to such Warrant
Certificate.
-2-
(b) All
Warrants shall be held and owned under the express condition that the provisions
of this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Warrant Certificates and shall preclude
(to
the extent lawful) all other rights and remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
(c) Upon
the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Company and its agents and counsel) connected
therewith.
(d) Every
new
Warrant Certificate issued pursuant to this Section shall constitute an
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Warrant Certificates duly issued
hereunder.
8. Persons
Deemed Holders.
Prior to
the due presentment of a Warrant Certificate for registration of transfer or
exchange, the Company, any Securities Registrar and any other agent of the
Company may treat the person in whose name such Warrant Certificate is
registered in the Securities Register as the sole Holder of such Warrant
Certificate and of the Warrant represented by such Warrant Certificate for
all
purposes whatsoever, and shall not be bound to recognize any equitable or other
claim to or interest in such Warrant Certificate or in the Warrant represented
by such Warrant Certificate on the part of any person and shall be unaffected
by
any notice to the contrary.
9. Cancellation.
All
Warrant Certificates surrendered for the purpose of exercise, exchange or
registration of transfer shall be cancelled by the Securities Registrar, and
no
Warrant Certificates shall be issued in lieu thereof, except as expressly
permitted by the provisions of this Agreement.
10. Fractional
Shares.
The
Company shall not be required to issue Warrant Certificates exercisable for
fractional Shares or to issue fractional Shares upon the exercise of Warrants.
Warrant Certificates exercisable for fractional Shares shall expire as of the
Expiration Date, and a Holder of such Warrant Certificates shall not be entitled
to any consideration of any kind or nature in respect of such Warrant or Warrant
Certificate.
-3-
11. Stock
Dividends, Splits, Etc.
(a) If,
prior
to the Expiration Time, the Company shall subdivide its outstanding Shares
into
a greater number of Shares, or declare and pay a dividend of its Shares payable
in additional Shares, the Exercise Price, as then in effect, shall be
proportionately reduced, and the Company shall proportionately increase the
number of Shares then subject to exercise under this Warrant (and not previously
exercised).
(b) If,
prior
to the Expiration Time, the Company shall combine its outstanding Shares into
a
lesser number of Shares, the Exercise Price, as then in effect, shall be
proportionately increased, and the Company shall proportionately reduce the
number of Shares then subject to exercise under this Warrant
(and
not previously exercised).
12. Reorganization,
Reclassifications, Consolidation or Merger.
If,
prior to the Expiration Time, there shall be a reorganization or
reclassification of the Shares (other than as provided in Section 11
of this
Agreement), or any consolidation or merger of the Company with another entity,
the Holder shall be entitled to receive, during the remainder of the term of
this Agreement and upon payment of the Exercise Price, the number of shares
of
stock or other securities or property of the Company or of the successor entity
(or its parent company) resulting from such consolidation or merger, as the
case
may be, to which a holder of Shares, deliverable upon the exercise of a Warrant,
would have been entitled upon such reorganization, reclassification,
consolidation or merger; and, in any case, the Company shall make appropriate
adjustments (as determined by the board of directors of the Company in its
sole
discretion) in the application of the provisions with respect to the rights
and
interests of the Holders so that the provisions set forth in this Agreement
(including the adjustment to the Exercise Price and the number of Shares
issuable upon exercise of the Warrants) shall be applicable, as nearly as may
be
practicable, to any shares or other property thereafter deliverable upon the
exercise of this Warrant.
13. Certificate
as to Adjustments; Issuance of New Warrant Certificates.
Within
thirty (30) days following any adjustment provided for in Section 11
or
12
of this
Agreement, the Company shall give written notice of the adjustment to the
Holders as provided in Section 14(a)
of this
Agreement. The notice shall state the Exercise Price as adjusted and the
increased or decreased number of shares purchasable upon the exercise of the
Warrant(s) and shall set forth in reasonable detail the method of calculation
for each. Notwithstanding anything to the contrary set forth herein or in the
Warrant Certificates, the Company may, at its option, issue new Warrant
Certificates evidencing the Warrants, in such form as may be approved by the
Company, to reflect any adjustment or change in the Exercise Price and the
number or kind of stock or other securities or property purchasable upon
exercise of the Warrants.
14. Miscellaneous.
(a) Any
notice or other communication required or permitted to be made hereunder shall
be in writing, duly signed by the party giving such notice or communication
and
shall be deemed delivered and effective when given personally or mailed by
first-class registered or certified mail, postage prepaid as follows (or at
such
other address for a party as shall be specified by like notice): (i) if given
to
the Company, at its principal place of business and (ii) if given to a Holder,
at the address set forth for the Holder on the books and records of the
Company.
A notice
given to the Company by a Holder with respect to the exercise of a Warrant
shall
not be effective until received by the Company.
(b) The
Company shall, at all times, reserve and keep available out of its authorized
and unissued Shares or out of any Shares held in treasury that number of Shares
that will from time to time be sufficient to permit the exercise in full of
all
outstanding Warrants. The Company shall take all such action as may be necessary
to ensure that all Shares delivered upon exercise of any Warrants shall, at
the
time of delivery of the Warrant Certificates for such Shares, be duly
authorized, validly issued, fully paid and nonassessable.
-4-
(c) The
Company shall pay when due and payable any and all federal and state transfer
taxes and charges (other than any applicable income taxes) that may be payable
in respect of the issuance and delivery of Warrant Certificates or of
certificates for Shares receivable upon the exercise of any Warrants; provided,
however, that the Company shall not be required to pay any tax that may be
payable in respect of the issuance and delivery (i) of any Warrant Certificate
or stock certificate registered in a name other than that of the Holder of
the
Warrant Certificate that has been surrendered or (ii) of any Warrant Certificate
under Section 7.
(d) No
Holder, in his capacity as such, shall be entitled to vote or receive dividends
or shall be deemed for any other purpose the holder of the Shares or other
securities which may at any time be issuable upon the exercise of such Warrant.
Nothing contained herein or in any Warrant Certificate shall be construed to
confer upon any Holder, in his capacity as such, any of the rights of a
shareholder of the Company, including any right to vote for the election of
directors or upon any matter submitted to shareholders of the Company at any
meeting thereof, to give or withhold consent to any corporate action, or to
receive notices of meeting or other actions affecting shareholders.
(e) Each
Holder, by accepting a Warrant Certificate, accepts and agrees to the terms
of
this Agreement. The terms of this Agreement shall be binding upon the Company
and the Holders and their respective heirs, successors, representatives and
permitted assigns. Nothing expressed or referred to herein is intended or will
be construed to give any person other than the Company or the Holders any legal
or equitable right, remedy or claim under or in respect of this Agreement,
or
any provision herein contained, it being the intention of the Company and the
Holders that this Agreement, the assumption of obligations and statements of
responsibilities hereunder, and all other conditions and provisions hereof
are
for the sole benefit of the Company and the Holders and for the benefit of
no
other person.
(f) This
Agreement constitutes the full
understanding of the Company and the Holders, a complete allocation of risks
between them and a complete and exclusive statement of the terms and conditions
of their agreement relating to the subject matter hereof and supersedes any
and
all prior agreements, whether written or oral, that may exist between the
Company and any Holder with respect thereto. Except as otherwise specifically
provided in this Agreement, no conditions, usage of trade,
course of dealing or performance, understanding or agreement purporting to
modify, vary, explain or supplement the terms or conditions of this Agreement
will be binding unless hereafter or contemporaneously herewith made in writing
and signed by the party to be bound, and no modification will be effected by
the
acknowledgment or acceptance of documents containing terms or conditions at
variance with or in addition to those set forth in this Agreement.
(g) The
headings contained in this Agreement are for convenience of reference only
and
will not affect in any way the meaning or interpretation of this Agreement.
The
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement will refer to this Agreement as a whole and not to any
particular provision in this Agreement. Each use herein of the masculine, neuter
or feminine gender will be deemed to include the other genders. Each use herein
of
the
plural will include the singular and
vice
versa, in each case as the context requires or as is otherwise appropriate.
The
word “or” is used in the inclusive sense.
References to a person are also to its permitted successors or
assigns.
No
provision of this Agreement is to be construed to require, directly or
indirectly, any person to take any action, or omit to take any action, which
action or omission would violate applicable law (whether statutory or common
law), rule or regulation.
-5-
(h) This
Agreement shall terminate upon the earlier of (i) the Expiration Time or
(ii) the close of business on the date on which all Warrants shall have
been exercised.
(i) THIS
AGREEMENT, EACH WARRANT AND EACH WARRANT CERTIFICATE SHALL BE GOVERNED BY,
AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS
OF LAWS. IN THE EVENT OF A DISPUTE INVOLVING THIS AGREEMENT, THE PARTIES
IRREVOCABLY AGREE THAT VENUE FOR SUCH DISPUTE SHALL LIE EXCLUSIVELY IN A COURT
OF COMPETENT JURISDICTION IN DENVER COUNTY, COLORADO.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by a
duly
authorized officer as of the date first above written.
By:_________________________________
____________,
President
-6-
EXHIBIT
A
LIST
OF INITIAL HOLDERS
A-1
EXHIBIT
B
FORM
OF WARRANT CERTIFICATE
THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
RESTRICTIONS SPECIFIED IN THAT CERTAIN WARRANT AGREEMENT DATED AS OF
______________, 2006, BY SOLERA NATIONAL BANCORP, INC., A DELAWARE CORPORATION
(“COMPANY”), IN FAVOR OF THE ORGANIZERS LISTED ON EXHIBIT
A
THERETO, AS THE SAME MAY BE AMENDED FROM TIME TO TIME (“AGREEMENT”). A COPY OF
THE FORM OF THE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL
EXECUTIVE OFFICE OF THE COMPANY DURING NORMAL BUSINESS HOURS. THE HOLDER OF
THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE
PROVISIONS OF THE AGREEMENT.
|
No.
W-___
|
Number
of Warrants:________
|
WARRANT
CERTIFICATE
This
Warrant Certificate certifies that ____________________,
or
registered assigns, is the registered holder of a warrant to purchase the number
of fully-paid and non-assessable shares of common stock, $0.01 par value of
the
Company (“Shares”) set forth above, at the exercise price, subject to adjustment
in certain events (“Exercise Price”), of $10.00 per share
(“Warrant”).
The
Warrant evidenced by this Warrant Certificate is part of a duly authorized
issue
of Warrants issued pursuant to the Agreement, which is hereby incorporated
by
reference in and made a part of this instrument and is hereby referred to for
a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the Holder. All
terms used, but not otherwise defined, in this Warrant Certificate shall have
the meanings assigned to them in the Agreement. If
any
provision of this Warrant Certificate conflicts with a provision of the
Agreement, the provision of the Agreement shall supercede.
This
Warrant may not be exercised after 2:00 p.m., Denver, Colorado time,
on
the
earlier to occur of (i) the tenth anniversary of the date that the Company
opens for business, or (ii) the date provided in Section 3(b)
of the
Agreement (the “Expiration Time”).
The
Holder may exercise the Warrant evidenced by this Warrant Certificate in whole
or in part at any time prior to the Expiration Time by delivering to the
secretary or the cashier of the Company (i) the Warrant Certificate, (ii) a
written notice to the Company specifying the number of Shares with respect
to
which Warrants are being exercised and (iii) a check for the full amount of
the
aggregate Exercise Price of the Shares being acquired.
Upon
receipt of the items set forth above, and subject to the terms of the Agreement,
the Company shall promptly deliver to, and register in the name of, the Holder
a
certificate or certificates representing the number of Shares acquired by
exercise of this Warrant. In the event of a partial exercise of this Warrant,
a
new Warrant Certificate evidencing the number of Shares that remain subject
to
this Warrant shall be issued by the Company to such Holder or to his duly
authorized assigns.
The
Agreement provides that upon the occurrence of certain events the Exercise
Price
and the type and/or number of the Company’s securities issuable thereupon may,
subject to certain conditions, be adjusted. In such event, the Company may,
at
its option, issue a new Warrant Certificate evidencing the adjustment in the
Exercise Price and the number and/or type of securities issuable upon the
exercise of the Warrants.
B-1
Upon
surrender for registration of transfer of this Warrant Certificate, subject
to
the terms of the Agreement, the Company shall issue and deliver to the Holder
or
his duly authorized assigns, one or more new Warrant Certificates of like tenor
and in like aggregate amount.
Prior
to
the due presentment of this Warrant Certificate for registration of transfer
or
exchange, the Company, any Securities Registrar and any other agent of the
Company may treat the person in whose name this Warrant Certificate is
registered in the Securities Register as the sole Holder of this Warrant
Certificate and of the Warrant represented by this Warrant Certificate for
all
purposes whatsoever, and shall not be bound to recognize any equitable or other
claim to or interest in this Warrant Certificate or in the Warrant represented
by this Warrant Certificate on the part of any person and shall be unaffected
by
any notice to the contrary.
The
Holder, in his capacity as such, shall not be entitled to vote or receive
dividends or shall be deemed from any other purpose the holder of the Shares
or
other securities which may at any time be issuable upon the exercise of this
Warrant. Nothing contained in this Warrant Certificate shall be construed to
confer upon the Holder, in his capacity as such, any of the rights of a
shareholder of the Company, including any right to vote for the election of
directors or upon any matter submitted to shareholders of the Company at any
meeting thereof, to give or withhold consent to any corporate action, or to
receive notices of meeting or other actions affecting shareholders.
Any
notice or other communication required or permitted to be made by the Holder
to
the Company shall be in writing, duly signed by the Holder and shall be deemed
delivered and effective when given personally or mailed by first-class
registered or certified mail, postage prepaid to the Company, at its principal
place of business (or such other address as designated in writing to the Holder
by the Company). A notice given to the Company by a Holder with respect to
the
exercise of this Warrant shall not be effective until received by the
Company.
IN
WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed under its corporate seal.
Dated
as
of ________________, 2006.
a
Delaware corporation
By:_________________________________
Name:_______________________________
Title:________________________________
[SEAL]
Attest:
By:________________________________
Name:______________________________
Title:_______________________________
B-2
