ex4-3.htm


    
       

      WARRANT
TO PURCHASE PREFERRED STOCK

       

      THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE 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 INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER AND
OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE
SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH
THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.

       

      WARRANT

      to
purchase

      385.00385

      Shares
of Preferred Stock

      of
Valley Commerce Bancorp

       

      Issue
Date: January 30, 2009

       

      1.           Definitions.  Unless
the context otherwise requires, when used herein the following terms shall have
the meanings indicated.

       

      “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 New York 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.

       

      “Company” means the Person
whose name, corporate or other organizational form and jurisdiction of
organization is set forth in Item 1 of Schedule A hereto.

       

      “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 the
amount set forth in Item 2 of Schedule A hereto.

       

      “Expiration Time” has the
meaning set forth in Section 3.

       

      “Issue Date” means the date
set forth in Item 3 of Schedule A hereto.

       

      “Liquidation Amount” means the
amount set forth in Item 4 of Schedule A hereto.

       

      “Original Warrantholder” means
the United States Department of the Treasury. Any actions specified to be taken
by the Original Warrantholder hereunder may only be taken by such Person and not
by any other Warrantholder.

       

      “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.

       

      “Preferred Stock” means the
series of perpetual preferred stock set forth in Item 5 of Schedule A
hereto.

       

      “Purchase Agreement” means the
Securities Purchase Agreement – Standard Terms incorporated into the Letter
Agreement, dated as of the date set forth in Item 6 of Schedule A hereto, as
amended from time to time, between the Company and the United States Department
of the Treasury (the “Letter
Agreement”), including all annexes and schedules thereto.

       

      “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 Preferred Stock
and to own such Preferred 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, or
expiration or termination of any applicable waiting period under, the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder.

       

      “SEC” means the U.S.
Securities and Exchange Commission.

       

      “Securities Act” means the
Securities Act of 1933, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.

       

      “Shares” has the meaning set
forth in Section 2.

       

      “Warrantholder” has the
meaning set forth in Section 2.

       

      “Warrant” means this Warrant,
issued pursuant to the Purchase Agreement.

       

      2.           Number of Shares; Exercise
Price.  This certifies that, for value received, the United
States Department of the Treasury 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 an aggregate of the number of fully paid and
nonassessable shares of Preferred Stock set forth 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        in Item 7
of Schedule A hereto (the “Shares”), at a purchase price
per share of Preferred Stock equal to the Exercise Price.

      

       

      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., New York
City 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 the address set forth in Item 8 of Schedule A hereto
(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 having the Company withhold,
from the shares of Preferred Stock that would otherwise be delivered to the
Warrantholder upon such exercise, shares of Preferred Stock issuable upon
exercise of the Warrant with an aggregate Liquidation Amount equal in value to
the aggregate Exercise Price as to which this Warrant is so
exercised.

       

      If the
Warrantholder does not exercise this Warrant in its entirety, 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 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.

       

      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.
The Company hereby represents and warrants that 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 preferred stock, solely for the purpose of providing for
the exercise of this Warrant, the aggregate number of shares of Preferred 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 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.

       

      6.           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.

       

      7.           Transfer/Assignment.

       

      (A)           Subject
to compliance with clause (B) of this Section 7, this Warrant and all rights
hereunder are transferable, in whole or in part, upon the books of the Company
by the registered holder hereof in person or by duly authorized attorney, and a
new warrant shall be made and delivered by the Company, of the same tenor and
date as this Warrant but registered in the name of one or more transferees, upon
surrender of this Warrant, duly endorsed, to the office or agency of the Company
described in Section 3. All expenses (other than stock transfer taxes) and other
charges payable in connection with the preparation, execution and delivery of
the new warrants pursuant to this Section 7 shall be paid by the
Company.

       

      (B)           The
transfer of the Warrant and the Shares issued upon exercise of the Warrant are
subject to the restrictions set forth in Section 4.4 of the Purchase Agreement.
If and for so long as required by the Purchase Agreement, this Warrant shall
contain the legends as set forth in Section 4.2(a) of the Purchase
Agreement.

       

      8.           Exchange and Registry of
Warrant.  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.

       

      9.           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, 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.

       

      10.           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.

      

       

      11.           Rule 144
Information.  The Company covenants that it will use its
reasonable best efforts to timely file all reports and other documents required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations promulgated by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Warrantholder,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will use reasonable best efforts
to take such further action as any Warrantholder may reasonably request, in each
case to the extent required from time to time to enable such holder to, if
permitted by the terms of this Warrant and the Purchase Agreement, sell this
Warrant without registration under the Securities Act within the limitation of
the exemptions provided by (A) Rule 144 under the Securities Act, as such rule
may be amended from time to time, or (B) any successor rule or regulation
hereafter adopted by the SEC. Upon the written request of any Warrantholder, the
Company will deliver to such Warrantholder a written statement that it has
complied with such requirements.

       

      12.           Adjustments and Other
Rights.  For so long as the Original 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 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.

       

      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 Company’s 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.

       

      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 New
York 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


       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        District
of Columbia 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 17 below and upon the
Warrantholder at the address for the Warrantholder set forth in the registry
maintained by the Company pursuant to Section 8 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.           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, or (b) on the second business day following the date of
dispatch if delivered by a recognized next day courier service. All notices
hereunder shall be delivered as set forth in Item 9 of Schedule A hereto, or
pursuant to such other instructions as may be designated in writing by the party
to receive such notice.

       

      18.           Entire
Agreement.  This Warrant, the forms attached hereto and
Schedule A hereto (the terms of which are incorporated by reference herein), and
the Letter Agreement (including all documents incorporated therein), 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.

       

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      [Form
of Notice of Exercise]

       

      Date:
_________

      TO:           Valley
Commerce Bancorp

       

      RE:           Election
to Purchase Preferred Stock

       

      The undersigned, pursuant to the
provisions set forth in the attached Warrant, hereby agrees to subscribe for and
purchase such number of shares of Preferred Stock covered by the Warrant such
that after giving effect to an exercise pursuant to Section 3(B) of the Warrant,
the undersigned will receive the net number of shares of Preferred Stock set
forth below. The undersigned, in accordance with Section 3 of the Warrant,
hereby agrees to pay the aggregate Exercise Price for such shares of Preferred
Stock in the manner set forth in Section 3(B) of the Warrant.

      


      Number of
Shares of Preferred
Stock:     _________________________

      


      The undersigned agrees that it is
exercising the attached Warrant in full and that, upon receipt by the
undersigned of the number of shares of Preferred Stock set forth above, such
Warrant shall be deemed to be cancelled and surrendered to the
Company.

       

      Holder:   _____________________________

      By:         
_____________________________  

      Name:     _____________________________                                                                 

      Title:       _____________________________                                                               

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a
duly authorized officer.

       

      Dated: January 30,
2009

       

      
        
          
            	 	COMPANY: Valley
      Commerce Bancorp	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	/s/ Donald A.
      Gilles 	 
	 	 	Name:
      Donald A. Gilles 	 
	 	 	Title:
      President and CEO	 
	 	 	 	 


          

        

      

      


      
        
          	 	Attest:	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Roy O.
      Estridge 	 
	 	 	Name: Roy
      O. Estridge	 
	 	 	Title:
      Chief
      Financial Officer	 
	 	 	 	 


        

      

       

      [Signature
Page to Warrant]

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      SCHEDULE
A

       

      
        	
                Item
      1

                Name:

                Corporate
      or other organizational form:

                Jurisdiction
      of organization:

                 

              	 	
                 

                Valley
      Commerce Bancorp

                Corporation

                California

              
	
                Item
      2

                Exercise
      Price:

                 

              	 	
                 

                $0.01
      per share

              
	
                Item
      3

                Issue
      Date:

                 

              	 	
                 

                January
      30, 2009

              
	
                Item
      4

                Liquidation
      Amount:

                 

              	 	
                 

                $1,000.00

              
	
                Item
      5

                Series
      of Perpetual Preferred Stock:

                 

              	 	
                 

                Fixed
      Rate Cumulative Perpetual Preferred Stock, Series C

              
	
                Item
      6

                Date
      of Letter Agreement between the Company and the United States Department
      of the Treasury:

                 

              	 	
                 

                January
      30, 2009

              
	
                Item
      7

                Number
      of shares of Preferred Stock:

                 

              	 	
                 

                385.00385

              
	
                Item
      8

                Company’s
      address:

              	 	
                200
      S. Court Street

                Visalia,
      CA 93291

                Attn:
      Chief Financial Officer

                 

              
	
                Item
      9

                Notice
      information:

              	 	
                Valley
      Commerce Bancorp

                200
      S. Court Street

                Visalia,
      CA 93291

                Attn:
      Chief Financial Officer