EXHIBIT 4.2
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE OR
OTHER JURISDICTION, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED
UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION COVERING SUCH
SECURITIES, (II) THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT AND
ANY APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION, OR (III) THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE ACT AND ANY APPLICABLE SECURITIES LAW OF ANY STATE
OR OTHER JURISDICTION.
SUTTER HOLDING COMPANY, INC.
COMMON STOCK PURCHASE WARRANT
No. [__] December ___, 2002
FOR VALUE RECEIVED, Sutter Holding Company,
Inc., a Delaware corporation (the "Company"), hereby grants
to __________________ and its permitted successors and assigns (referred to
herein as the "holder" or "holder hereof") the right, subject to the terms and
conditions herein set forth, to purchase at any time prior to the termination of
this Warrant pursuant to Section 7 below, at a price equal to $11.00 per share,
subject to adjustment as provided herein (the "Warrant Price"), that number of
fully paid and nonassessable shares of the Common Stock of the Company
determined in accordance with Section 1 below (subject to adjustment as provided
herein, the "Warrant Shares"). This Warrant is nontransferable (except as
provided Section 6 below) and may only be exercised at one time for all Warrant
Shares and not in partial increments. Capitalized terms used in this Warrant,
but not otherwise defined herein, will have the respective meanings set forth in
that certain Stock Purchase Agreement dated as of the date hereof among the
Company, the holder hereof, RCH, LLC, Lawrence Anspach, and Diana Mead (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Purchase Agreement"). This Warrant is one of the Warrants issued by the Company
pursuant to Section 2.1.1(d) of the Purchase Agreement (together, as the same
may be amended, supplemented or otherwise modified from time to time, the
"Warrants").
1. Number of Warrant Shares. The number of Warrant Shares for which
this Warrant is exercisable is equal to _________________________, subject to
adjustment as provided herein.
2. Adjustment of Warrant Price and Warrant Shares. The Warrant Shares
issuable upon the exercise of this Warrant and the Warrant Price will be subject
to adjustment from time
to time as follows, and the Company agrees to give the holder of this Warrant 15
days advance notice of the effective date of the following:
(a) Consolidation, Merger, Sale of Assets, etc. If at any time the
Company proposes to (i) consolidate with or merge into any other Person and will
not be the continuing or surviving Person of such consolidation or merger, or
(ii) permit any other Person to consolidate with or merge into the Company and
the Company will be the continuing or surviving Person but, in connection with
such consolidation or merger, the Warrant Shares will be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (iii) sell or otherwise transfer all or substantially all of its
properties or assets to any other Person, or (iv) effect a capital
reorganization or reclassification of any Warrant Shares or other capital stock
of the Company (other than a capital reorganization or reclassification to the
extent that such capital reorganization or reclassification results in an
adjustment in the Warrant Shares and/or the Warrant Price as provided in Section
2(b) or 2(c) hereof), then, and in the case of each such transaction, the
Company will make and/or arrange to be made proper provision so that, upon the
basis and the terms and in the manner provided in this Warrant, the holder of
this Warrant, upon the exercise hereof at any time after the consummation of
such transaction, will be entitled to receive (at the aggregate Warrant Price in
effect at the time of such consummation for all Warrant Shares issuable upon
such exercise immediately prior to such consummation), in lieu of the Warrant
Shares issuable upon such exercise prior to such consummation, the greatest
amount of securities, cash or other property to which such holder would actually
have been entitled as a member upon such consummation if such holder had
exercised the rights represented by this Warrant immediately prior thereto,
subject to adjustments (subsequent to such consummation) as nearly equivalent as
possible to the adjustments provided for in Section 2(b) or 2(c) hereof, and, to
the extent this Warrant has not been exercised by the effective date of such
transaction, this Warrant will, at the holder's option, (i) terminate or (ii) be
exchanged for a warrant for the number of shares provided in the following
sentence. The foregoing notwithstanding, a merger or consolidation of the
Company with or into another corporation after which the shareholder(s) of the
Company holding more than 50% of the voting power of the Company immediately
prior to such transaction hold more than 50% of the voting power of the
surviving entity, will not result in termination of this Warrant; instead this
Warrant will be exchanged for a warrant of the surviving corporation that will
entitle the holder hereof to acquire upon the exercise thereof the number of
shares of stock or other property to which the holder of the number of shares of
the Warrant Shares which are subject to this Warrant on the effective date of
the merger would have been entitled to receive for such securities under the
terms of the merger.
(b) Reclassification, etc. If the Company at any time will, by
subdivision, combination or reclassification of securities or otherwise, change
any of the securities to which purchase rights under this Warrant exist into the
same or a different number of securities of any class or classes, this Warrant
will thereafter be to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities which
were subject to the purchase rights under this Warrant immediately prior to such
subdivision, combination, reclassification, or other change. If shares of the
class of the Company's stock for which this Warrant is being exercised are
subdivided or combined into a greater or smaller number of shares of stock, the
Warrant Price will be proportionately reduced in the case of subdivision of
shares or proportionately increased in the case of combination of shares, in
both cases by the ratio which the total number of shares of such class of stock
to be outstanding
immediately after such event bears to the total number of shares of such class
of stock outstanding immediately prior to such event.
(c) Adjustment for Dividends in Stock or other Securities or
Property. In case at any time or from time to time on, whether before or after
the date hereof, the holders of the shares of the Company's capital stock of the
same class and series as the Warrant Shares (or any shares of stock or other
securities or property at the time receivable upon the exercise of this Warrant)
will have received, or, on or after the record date fixed for the determination
of eligible shareholders, will have become entitled to receive, without payment
therefor, other or additional stock or other securities or property of the
Company by way of dividend or distribution, then and in each case, the holder of
this Warrant will, upon the exercise hereof, be entitled to receive, in addition
to the number of shares of Warrant Shares receivable thereupon, and without
payment of any additional consideration therefor, the amount of such other or
additional stock or securities in or property of the Company which such holder
would hold on the date of such exercise had it been the holder of record of such
Warrant Shares on the date hereof and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and/or all other additional stock or other securities or property receivable by
it as aforesaid during such period, giving effect to all adjustments called for
during such period by this Section 2, and all such additional stock or other
securities or property will thenceforth constitute part of the Warrant Shares.
(d) No Impairment. The Company will not, by amendment of its
certificate of incorporation or other organizational documents 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 Section 2 and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the holder of this Warrant against impairment.
3. No Shareholder Rights. Subject to Sections 2 and 5 of this Warrant,
this Warrant, by itself, as distinguished from any shares purchased hereunder,
will not entitle its holder to any of the rights of a shareholder of the
Company. Nothing contained in this Warrant will be construed as imposing any
obligation on its holder to purchase any securities or as imposing any
liabilities on such holder as a shareholder of the Company, whether such
obligation or liabilities are asserted by the Company or by creditors of the
Company.
4. Exercise of Warrant. This Warrant may be exercised in whole or in
part by the holder, at any time after the date hereof and prior to the
termination of this Warrant, by the surrender of this Warrant, together with the
Notice of Exercise attached hereto as Attachment 1, duly completed and executed
at the principal office of the Company, accompanied by payment in full of the
Warrant Price in cash or by check with respect to the shares of Warrant Shares
being purchased. This Warrant will be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Warrant Shares
issuable upon such exercises will be treated for all purposes as holder of such
shares of record as of the close of business on such date. As promptly as
practicable (and in any event within seven (7) calendar days) after such date,
the Company, at its sole expense (including the payment by it of any applicable
issue taxes), will issue and deliver to
the person or persons entitled to receive the same a certificate or certificates
for the number of full shares of Warrant Shares issuable upon such exercise. No
fractional shares or scrip representing fractional shares will be issued upon
the exercise of this Warrant. In lieu of any fractional share to which the
holder would otherwise be entitled, the Company will make a cash payment equal
to the fair market value of one share of the Company's common stock (and/or
other securities and/or property corresponding to Warrant Shares) multiplied by
such fraction. In the event that this Warrant is exercised in part but not in
whole, the Company will issue the holder a replacement warrant on substantially
the same terms representing the portion of this Warrant not exercised.
5. Certificate of Adjustment. Whenever the Warrant Price or number or
type of Warrant Shares is adjusted, as herein provided, the Company will
promptly (and no less than seven (7) calendar days thereafter) deliver to the
record holder of this Warrant a certificate of an executive officer of the
Company setting forth in reasonable detail the reason for and nature of such
adjustment, the method of calculation, and other facts upon which such
adjustment is based, and the Warrant Price and Warrant Shares before and after
such adjustment. In addition, upon the written request at any time of the
holder, the Company will furnish to such holder a report setting forth the then
current number of Warrant Shares and the then current Warrant Price and showing
in reasonable detail how same were calculated.
6. Transfer of Warrant. This Warrant may not be transferred or assigned
by the holder hereof in whole or in part, except that the holder may assign or
transfer this Warrant to (i) any affiliate of the holder, or (ii) if the holder
is an individual or trust, to his or her spouse, children, grandchildren,
parents, grandparents, siblings or other lineal descendants, or a trust,
partnership or other entity for the exclusive benefit of the foregoing, or his
or her heirs, legates, executors, or other legal representatives. This Warrant
will bind the Company and Company's successors and assigns (to the extent
permitted under this Warrant) and will inure to the benefit of the holder
including its permitted successors and assigns. The Company will not, without
the prior written consent of the holder, assign any of its rights or obligations
under this Warrant.
7. Termination. This Warrant will terminate at 5:00 p.m., Eastern
standard time, on the fifth anniversary of the date hereof.
8. Registration. The Company shall notify the holder of this Warrant in
writing at least five (5) days prior to filing any registration statement on
Form S-8 under the Securities Act of 1933, as amended, for purposes of effecting
a the registration of securities of the Company and will afford the holder an
opportunity to include in such registration statement all or any part of the
Warrant Shares; provided, that, at such time, the Warrant Shares are eligible
for registration on a Form S-8 registration statement.
9. Miscellaneous. This Warrant will be governed by the laws of the
State of Delaware, as such laws are applied to contracts to be entered into and
performed entirely in Delaware by Delaware residents. The headings in this
Warrant are for purposes of convenience and reference only, and will not be
deemed to constitute a part hereof. Neither this Warrant nor any term hereof may
be changed or waived orally, but only by an instrument in writing signed by the
Company and the holder of this Warrant. All notices and other communications
from the Company to the holder of this Warrant will be delivered personally or
mailed by overnight
courier or first class mail, postage prepaid, to the address furnished to the
Company in writing by the last holder of this Warrant who will have furnished an
address to the Company in writing, and if mailed will be deemed given three days
after deposit in the United States mail.
10. Reservation of Shares, etc. The Company will at all times reserve
and keep available, solely for issuance and delivery upon exercise of this
Warrant and the other Warrants, the number of Warrant Shares from time to time
issuable upon exercise of this Warrant and all other Warrants at the time
outstanding. All Warrant Shares issuable upon exercise of this or any other
Warrants will be duly authorized and, when issued upon such exercise, will be
validly issued and fully paid and nonassessable with no liability on the part of
the holders thereof.
11. Replacement of Warrant. If this Warrant becomes mutilated and is
surrendered by the holder with respect thereto to the Company, or if holder
claims that this Warrant has been lost, destroyed or wrongfully taken, the
Company will execute and deliver to such holder a replacement Warrant, in like
tenor, upon the affidavit attesting to such loss, destruction or wrongful taking
with respect to this Warrant and upon the provision of customary indemnification
of the Company by the holder. Such lost, destroyed, mutilated, surrendered or
wrongfully taken Warrant will be deemed to be replaced for all purposes hereof.
ISSUED: December ___, 2002
SUTTER HOLDING COMPANY, INC.
By: ________________________________
Name: William G. Knuff, III
Title: Chief Executive Officer
Attachment 1
NOTICE OF EXERCISE
TO: SUTTER HOLDING COMPANY, INC.
1. The undersigned hereby elects to purchase _____________________
shares of Common Stock of Sutter Holding Company, Inc., pursuant to the terms of
the attached Warrant, and tenders herewith payment of the purchase price in
full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
(Name)
(Address)
- ------------------------------------- -------------------------------------
(Date) (Name of Warrant Holder)
By:
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Title:
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Name:
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Title:
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