-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LYEuAljIzqnvvQUnTiJpqmMRlZjo11sO0rVDq7WmC/bLZRT0XRBZjVdsDsGdp0Ba 6UTMKcMFkbkNMppmajejPw== 0001362310-08-003227.txt : 20080613 0001362310-08-003227.hdr.sgml : 20080613 20080613165013 ACCESSION NUMBER: 0001362310-08-003227 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20080613 DATE AS OF CHANGE: 20080613 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Community Bankers Trust CORP CENTRAL INDEX KEY: 0001323648 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 202652949 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81857 FILM NUMBER: 08898695 BUSINESS ADDRESS: STREET 1: 4235 INNSLAKE DRIVE CITY: GLENN ALLEN STATE: VA ZIP: 23060 BUSINESS PHONE: (804) 934-9999 MAIL ADDRESS: STREET 1: 4235 INNSLAKE DRIVE CITY: GLENN ALLEN STATE: VA ZIP: 23060 FORMER COMPANY: FORMER CONFORMED NAME: Community Bankers Acquisition Corp. DATE OF NAME CHANGE: 20050413 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Simanson Gary A CENTRAL INDEX KEY: 0001339459 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: BUSINESS PHONE: 703-759-2502 MAIL ADDRESS: STREET 1: 717 KING STREET CITY: ALEXANDRIA STATE: VA ZIP: 22314 SC 13D 1 c73641sc13d.htm SC 13D Filed by Bowne Pure Compliance
     
 
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No.  )*

Community Bankers Trust Corporation
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
203612 106
(CUSIP Number)
Gary A. Simanson
9912 Georgetown Pike, Suite D203
Great Falls, VA 22066
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 30, 2008
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. þ

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 
 


 

                     
CUSIP No.
 
203612 106 
 

 

           
1   NAMES OF REPORTING PERSONS

Gary A. Simanson
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

  (a)   o 
  (b)   þ 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  U.S.A.
       
  7   SOLE VOTING POWER
     
NUMBER OF   1,101,740 shares(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   0 shares
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   1,651,740 shares(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
    0 shares
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  1,651,740 shares(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  7.6%(1)(2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  IN
1) All of such shares are held of record by Community Bankers Acquisition LLC, of which the Reporting Person is the sole manager and has sole dispositive power as to such shares. Includes 239,240 shares issuable upon exercise of warrants to purchase common stock which warrants are exercisable in the event there is an effective registration statement covering the issuance of the shares but does not include 1,052,184 shares issuable upon exercise of 1,052,184 warrants to purchase common stock which are subject to restrictions on disposition, including exercise, as described below.
2) Percentage is calculated pursuant to Rule 13d-3 based on 21,463,483 shares outstanding as of June 12, 2008.


 

NOTE: This Schedule 13D amends the Schedule 13G previously filed with the SEC by the Reporting Person on January 10, 2008.
Item 1. Security and Issuer
This statement on Schedule 13D relates to the shares of common stock, par value $0.01 per share (the “Common Stock”), of Community Bankers Trust Corporation, formerly Community Bankers Acquisition Corp., a Delaware corporation (the “Issuer”), with principal executive offices at 4235 Innslake Drive, Ste. 200, Glen Allen, VA 23060.
Item 2. Identity and Background
(a)-(c) This schedule is being filed by Gary A. Simanson (the “Reporting Person”) with business address at 9912 Georgetown Pike, Ste. D203, Great Falls, VA 22066. Mr. Simanson’s principal occupation is Vice Chairman and Chief Strategic Officer of the Issuer.
(d)-(e) During the past five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) and has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration
The acquisition by the Reporting Person of the shares as reported below was financed pursuant to a loan through RBC, Introducing Broker, Legend Merchant Group, LLC.
Item 4. Purpose of Transaction
The acquisition of shares reported herein was effected in support of the previously announced merger between the Issuer and TransCommunity Financial Corporation.
Except as set forth herein, the Reporting Person has no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Act.
Item 5. Interest in Securities of the Issuer
(a-c) The aggregate number of shares of Common Stock to which this Schedule 13D relates is 1,412,500 shares held in the name of Community Bankers Acquisition LLC, a Delaware limited liability company, of which the Reporting Person is the sole manager and has sole dispositive power, and an additional 239,240 shares issuable upon exercise of outstanding warrants to purchase common stock also held in the name of the Community Bankers Acquisition LLC. Such shares held by the Reporting Person do not include 1,052,184 shares issuable upon exercise of 1,052,184 Warrants to purchase Common Stock, which warrants are subject to restrictions on disposition, including exercise, through June 8, 2010, pursuant to option agreements between Community Bankers Acquisition LLC and certain third party option holders. The Reporting Person, as manager of Community Bankers Acquisition LLC, has sole power, directly or indirectly, to dispose or to direct the disposition of all of the shares of Common Stock reported herein and the power to vote or to direct the vote with respect to 1,101,740 of the shares of Common Stock reported herein. Such shares constitute, in accordance with Rule 13d-3, approximately 7.6% of the 21,463,483 outstanding shares of the Issuer’s Common Stock as of June 12, 2008. The Reporting Person has not effected any transactions other than those reported herein during the past 60 days other than the following:
On May 30, 2008, the Reporting Person acquired 738,606 shares of Common Stock in a block transaction at a price of $7.73 and on such date sold 75,000 of such shares at a price of $7.73 per share pursuant to a block transaction. On June 3, 2008, the Reporting Person transferred 575,000 shares of Common Stock acquired in April 2005 to Community Bankers Acquisition LLC for nominal value; and sold 68,290 shares of Common Stock at a price of $6.00 per share. On June 5, 2008, the Reporting Person sold 595,316 shares at $5.25 per share pursuant to a block transaction.
(d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such Common Stock.
(e) Not applicable.

 

 


 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The Reporting Person is party to a registration rights agreement with the Issuer pursuant to which the holder of a majority of the shares held by the stockholders party to the registration rights agreement can cause the Issuer to register all or a portion of the Issuer’s shares held by them beginning on the date such shares are released from escrow. In addition, these stockholders have certain “piggy-back” registration rights on registration statements filed subsequent to such date. The Issuer will bear the expenses incurred in connection with the filing of any such registration statements.
As reported by Community Bankers Acquisition LLC, such entity has granted options to purchase up to 1,052,184 shares and up to 1,052,184 warrants to certain third parties pursuant to the terms set forth in Option Agreements, the form of which is attached as Exhibit 99.3. All of the shares of Common Stock outstanding immediately prior to the Issuer’s initial public offering, including 862,500 shares of Common Stock held by the Reporting Person, are held in escrow pursuant to a Stock Escrow Agreement dated as of June 8, 2006, between the Issuer, certain initial stockholders including the Reporting Person and Continental Stock Transfer & Trust Company until June 2, 2009, and subject to irrevocable instructions that such shares thereafter shall be retained and held in escrow pursuant to the terms of the Option Escrow Agreement dated as of May 28, 2008, between the Reporting Person and Continental Stock Transfer & Trust Co. along with the warrants until the earlier of distribution in accordance therewith or June 8, 2010, the form of which Option Escrow Agreement is attached as Exhibit 99.4.
Item 7. Material to be Filed as Exhibits
Exhibit 99.1 Registration Rights Agreement entered into by the Issuer and certain of its stockholders (included as Exhibit 10.3 to the Issuer’s Quarterly Report on Form 10-Q on November 14, 2007 (File No. 001-32590) and incorporated herein by reference.
Exhibit 99.2 Stock Escrow Agreement entered into by the Issuer and certain of its stockholders (included as Exhibit 10.2 to the Issuer’s Quarterly Report on Form 10-Q on November 14, 2007 (File No. 001-32590) and incorporated herein by reference.
*Exhibit 99.3 Option Agreement entered into between Community Bankers Acquisition LLC and certain third parties.
*Exhibit 99.4 Option Escrow Agreement entered into between Community Bankers Acquisition LLC and Continental Stock Transfer & Trust Co.
* Filed herewith
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
     
Dated: June 13, 2008
  /s/ Gary A. Simanson
 
   
 
  Name: Gary A. Simanson

 

 

EX-99.3 2 c73641exv99w3.htm EXHIBIT 99.3 Filed by Bowne Pure Compliance
Exhibit 99.3
THE OPTION (AS DEFINED HEREIN) AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), UNDER THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
OPTION AGREEMENT
This Option Agreement is made and entered into as of May  _____  , 2008 (the “Effective Date”), by and between Community Bankers Acquisition, LLC (the “Optiongrantor”) and the undersigned optionholder (the “Optionholder”). Reference is also made to that certain Stock Escrow Agreement (the “Initial Escrow Agreement”), dated as of June 8, 2006, by and between Community Bankers Acquisition Corp. (the “Company”), Continental Stock Transfer & Trust Company, as escrow agent (the "Escrow Agent”), and the Optiongrantor, Gary A. Simanson (“Simanson”), the David and Vicki Jo Zalman 2006 Childrens’ Trust, the Eugene S. Putnam, Jr. 2004 Irrevocable Trust, Stewart J. Paperin, Keith Walz and David W. Spainhour and Carolyn E. Spainhour, Trustees of the Spainhour Family Trust U/A/ Dated 8/22/97 (collectively, the “Initial Stockholders”), pursuant to which the Initial Stockholders deposited certificates evidencing an aggregate of 1,875,000 shares of the Company’s common stock, par value $0.01 (the “Common Stock”), with the Escrow Agent, to be held in escrow until disbursed in accordance with Section 3 thereof. In addition, reference is also made to that certain Option Escrow Agreement (the “Option Escrow Agreement”), dated as of [ ¡ ], 2008, by and between the Escrow Agent and the Optiongrantor, pursuant to which the Optiongrantor has deposited certificates evidencing an aggregate of [ ¡ ] warrants, each of which is exercisable for one share of Common Stock at a price of $5.00 and expires on June 4, 2011 (the "Warrants”), with the Escrow Agent and upon the disbursement of Escrow Shares (as defined in the Initial Escrow Agreement) in accordance with Section 3 of the Initial Escrow Agreement will cause the Escrow Agent to transfer [ ¡ ] shares of Common Stock currently held under the Initial Escrow Agreement to the Option Escrow Agreement, all of which shares of Common Stock and Warrants will be held in escrow until disbursed in accordance with Section 3 thereof. A form of Warrant is attached hereto as Exhibit A.
In order to induce the Optionholder to purchase [ ¡ ] shares of the Company’s currently outstanding Common Stock (the “Acquired Shares”), for value received, the Optiongrantor hereby grants the Optionholder, subject to the terms and conditions hereof, an option (the “Option”) to purchase from the Optiongrantor (i) one share of Common Stock (“Option Stock”) for a purchase price of $0.01 per share and (ii) one Warrant for a purchase price of $0.10 per Warrant (“Option Warrants” and together with the Option Stock, the “Option Securities”), in each case for every four Acquired Shares purchased by the Optionholder, subject to adjustment pursuant to Section 2 and Section 6. By acceptance of this Option Agreement, the Optionholder agrees to all the terms and conditions hereof.
1. Exercise Period. The Option may be exercised at any time and from time to time during the one-year period (the “Exercise Period”) commencing on the earliest of (i) June 8, 2009 (ii) the Company’s consummation of a merger, stock exchange or similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property (a “Fundamental Transaction”) (it being understood and agreed that the Optionholder may conditionally exercise the Option prior to the consummation of such Fundamental Transaction such that the Optionholder can participate in such transaction upon its consummation) and (iii) with respect to the Option Warrants only, the date the Company issues a notice exercising its right to call the Warrants, unless sooner terminated in accordance with the provisions hereof.

 

 


 

2. Method of and Amount of Exercise. This Option may be exercised in whole or in part (meaning it can be exercised from time to time, in the Optionholder’s sole discretion, (i) solely for Option Stock, (ii) solely for Option Warrants and/or (iii) a combination of Option Stock and Option Warrants, in each case in such amounts as the Optionholder shall determine) during the Exercise Period by delivery of the following to the Optiongrantor at its address set forth on the signature page hereto (or at such other address as it may designate by notice in writing to the Optionholder): (i) an executed Notice of Exercise in the form attached hereto as Exhibit B (with a copy to the Escrow Agent) and (ii) payment in United States dollars by check or wire transfer in readily available funds of the aggregate exercise price of the Option Securities to be purchased; provided, however, that the maximum number of each of the shares of Option Stock and the Option Warrants that may be purchased by the Optionholder hereunder at the time of any exercise shall be equal to twenty-five percent (25%) of the Acquired Shares held by the Optionholder on the date payment for the Option Securities is received by the Optiongrantor pursuant to this Section 2, less the amount of any shares of Option Stock and Option Warrants, as applicable, that have been previously purchased pursuant to this Option Agreement.
3. Representations and Warranties of Optiongrantor and Simanson. Each of the Optiongrantor and Simanson represents, warrants and agrees as follows:
a. The Optiongrantor has the power and authority to execute and deliver this Option Agreement and to perform its obligations hereunder, all of which have been duly authorized by all requisite action. This Option Agreement has been duly authorized, executed and delivered by the Optiongrantor and constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
b. The Optiongrantor owns of record and beneficially, and shall continue to own throughout the Exercise Period, all of the Option Securities subject to the Option and a sufficient number of other issued and outstanding shares of Common Stock and Warrants to satisfy its obligations under any other option agreements (issued contemporaneously herewith or otherwise) and any other agreements for the sale, delivery or transfer of any shares of Common Stock or Warrants or other commitments of similar character (the “Other Options”). All shares of Option Stock and Option Warrants are, and when delivered to the Optionholder upon exercise of this Option shall be, validly issued, fully paid and non-assessable, shall be free from all taxes, liens, encumbrances, charges or claims (other than any encumbrances created by or imposed upon the Optionholder), and shall have the same rights, preferences and privileges, and shall be subject to the same restrictions, as the Option Stock and Option Warrants, as applicable, generally, including, with respect to the Option Stock, the Option Warrants and the shares of Common Stock underlying the Option Warrants, registration rights pursuant to that certain Registration Rights Agreement by and among the Company and certain parties listed therein, dated as of June 8, 2006. The Optiongrantor and Simanson shall use their best efforts to cause the Company to include the Option Stock, the Option Warrants and the shares of Common Stock underlying the Option Warrants on the first Registration Statement filed pursuant to such Registration Rights Agreement and to list the Optiongrantor as a selling stockholder with respect to such securities on such Registration Statement. The Optionholder and the Optiongrantor acknowledge and agree that, upon exercise of the Option, each shall be required to execute and deliver such other documents as may be required to grant the Optionholder the same rights, and subject the Optionholder to the same duties and obligations, as holders of Option Stock and Option Warrants, as applicable, generally. During the Exercise Period, the Optiongrantor shall not exercise the Option Warrants.

 

-2-


 

c. Other than certain option agreements which are substantially identical to this Option Agreement and entered into on even date herewith, the Optiongrantor has not entered into any agreement, arrangement or other understanding (i) granting any option, warrant or right of first refusal with respect to the Option Securities to any person, (ii) restricting its right to enter into this Option Agreement or sell the Option Securities to the Optionholder upon the exercise of this Option, or (iii) restricting any other of its rights with respect to the Option Securities.
d. The execution, delivery and performance of this Option Agreement, the transfer of shares of Common Stock and Warrants to the Optiongrantor to enable it to satisfy the Option and the Other Options and the sale of the Option Securities by the Optiongrantor upon exercise of the Option do not and will not (i) conflict with or constitute a violation of, or default (with the passage of time or the delivery of notice) under, (A) any agreement or instrument to which the Optiongrantor is a party or by which it or any of its property is bound or (B) any law, administrative regulation, ordinance or judgment, order or decree of any court or governmental agency, arbitration panel or authority binding upon the Optiongrantor or any of its property, or (ii) violate its organizational documents.
e. Other than any filings that may need to be made under Section 16 of the Securities Exchange Act of 1934 (the “Exchange Act”) and the filing of any Exchange Act Schedule 13D or 13G, as applicable, no authorization, approval, consent or order of or registration or filing with any governmental or regulatory authority, commission, board, body or agency is required for the execution, delivery and performance of this Option Agreement, the transfer of shares of Common Stock and Warrants to the Optiongrantor to enable it to satisfy the Option and the Other Options and the sale of the Option Securities by the Optiongrantor to the Optionholder upon exercise of the Option.
f. Each of the Optiongrantor and Simanson, jointly and severally, shall indemnify, defend and hold harmless each of the Optionholder and its agents, shareholders, partners, members, officers, directors, representatives and affiliates (each an “Indemnitee” and collectively, the "Indemnitees”) from and against any and all losses, damages, liabilities, claims and expenses, including reasonable attorneys’ fees, sustained by any Indemnitee resulting from or arising out of any material inaccuracy in, breach of, or non-fulfillment of any representation, warranty, covenant or agreement made by or other obligation of the Optiongrantor contained in this Option Agreement.
4. Optionholder Representations and Warranties. The Optionholder represents and warrants as follows:
a. The Optionholder is acquiring the Option for its own account for investment purposes, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof. The undersigned has no present intention of selling, transferring, granting any participation in, or otherwise distributing the Option, and does not presently have reason to anticipate a change in such intention. The undersigned has no contract, agreement, undertaking or arrangement with any person to sell, transfer, grant participation in or otherwise distribute the Option. The Optionholder understands that the Optiongrantor is granting the Option in reliance upon the Optionholder’s representations herein.
b. The Optionholder has received all the information that it has requested from the Optiongrantor and that it considers necessary or appropriate for deciding whether to acquire the Option. The undersigned has had an opportunity to ask questions and receive answers from the Optiongrantor regarding the terms and conditions of the Option Agreement and to obtain any additional information from the Optiongrantor necessary to verify the accuracy of the information given to the Optionholder.
c. The Optionholder acknowledges that acquisition of the Option involves a high degree of risk. The Optionholder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its acquisition of the Option and of protecting its own interests in connection with this transaction. The Optionholder is able, without materially impairing its financial condition, to hold the Option for an indefinite period of time and to suffer a complete loss of the Option.

 

-3-


 

d. The Optionholder understands that it is acquiring the Option in a transaction not involving a public offering within the United States within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and that the Option has not been registered under the Securities Act and, therefore, the Option cannot be resold unless it is registered under the Securities Act or an exemption from registration is available. The Optionholder understands that the Company is under no obligation to register the Option. The Optionholder understands that no public market now exists for the Option, and that it is uncertain whether such a public market will ever exist.
e. The Optionholder understands that the Option is a “restricted security” under the U.S. federal securities laws inasmuch as it is being acquired in a transaction not involving any public offering, and that under such laws and applicable regulations such security may be resold without registration under the Securities Act only in certain limited circumstances. The Optionholder is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
f. The Optionholder agrees not to make any disposition of all or any part of the Option.
5. No Fractional Shares; Share Certificates. No fractional shares shall be issued upon exercise of this Option. If upon exercise of this Option a fractional share results, the Optiongrantor shall pay the Optionholder the cash value of that fractional share based on the market value of the Option Securities. The certificates representing any Option Stock and the Option Warrants purchased upon exercise of this Option shall be delivered to the Optionholder as soon as practicable after exercise of the Option in accordance with Section 2, but in no event later than three (3) business days after such exercise.
6. Adjustment of Exercise Price and Number of Option Securities. In the event of any change in the outstanding common stock of the Company by reason of a stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares, separation, reorganization, liquidation, Fundamental Transaction or the like (each, an “Adjustment Event”), the Option Securities purchasable upon exercise of this Option and the applicable purchase price of the Option Securities shall be correspondingly adjusted to give the Optionholder, upon exercise of this Option for the same aggregate purchase price, the aggregate number, class and kind of shares or other securities or cash or other property that the Optionholder would have received had the Optionholder exercised the Option prior to such Adjustment Event and continued to hold the shares, cash or other property and Warrants so received until after such Adjustment Event. Any adjustment pursuant to this Section 6 shall become effective at the close of business on the effective date of such Adjustment Event; provided, however, that if a record date is fixed for such Adjustment Event, then the effective date of such adjustment shall be such record date. The form of this Option Agreement need not be changed because of any adjustment pursuant to this Section 6. Upon the occurrence of each adjustment pursuant to this Section 6, the Optiongrantor, at its expense, will promptly compute such adjustment in accordance with the terms of this Option Agreement and prepare a certificate setting forth such adjustment, describing the transactions giving rise to such adjustment and showing in detail the facts upon which such adjustment is based. The Optiongrantor will promptly deliver a copy of each such certificate to the Optionholder with five (5) business days of the occurrence of such adjustment.
7. Option Escrow Agreement. As a condition precedent to the execution of this Option Agreement, Optiongrantor has entered into the Option Escrow Agreement in the form attached hereto as Exhibit C and has provided to the Escrow Agent irrevocable instructions to transfer the Option Securities subject to the Initial Escrow Agreement to the escrow account under the Option Escrow Agreement upon the disbursement of the Escrow Shares (as defined in the Initial Escrow Agreement) in accordance with Section 3 of the Initial Escrow Agreement.

 

-4-


 

8. No Shareholder Rights. Nothing contained herein shall be construed as conferring upon the Optionholder or any other person any rights, preferences or privileges as a shareholder of the Company, until and only to the extent that this Option is exercised for shares of Option Stock.
9. Governing Law. This Option Agreement and the rights and obligations of the parties hereunder shall be governed by and construed under the laws of the State of Delaware, without regard to its choice of law or conflicts of law provisions.
10. Attorneys’ Fees. In any legal proceeding arising out of or related to this Option Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and out-of-pocket costs, in addition to any other relief to which such party may be entitled.
11. Entire Agreement. This Option Agreement and any documents delivered pursuant hereto or thereto, constitutes the full and complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements between the parties with respect thereto.
12. Severability. If any provision hereof is held unenforceable in any respect, such provision shall be invalid only to the extent of such unenforceability, without invalidating the remainder of such provision or any other provision of this Option Agreement.
13. No Implied Waiver. No failure to exercise, delay in exercising or partial exercise of any right or remedy hereunder shall operate as a waiver of any provision of this Option Agreement. No waiver of any provision of this Option Agreement shall operate as a waiver of any other provision (whether or not similar), nor shall it operate as a continuing waiver, unless so provided in writing by the waiving party.
14. Remedies Cumulative. All remedies afforded to any party hereto, either under this Option Agreement or by law or otherwise, shall be cumulative and not alternative.
15. Counterparts. This Option Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Facsimile signatures hereto shall be valid.
16. Headings. The headings used in this Option Agreement are for convenience only and are not to be considered in construing this Option Agreement.
17. Amendment; Waiver. This Option Agreement may be modified, amended or terminated, and any provision hereof waived, either generally or in a particular instance and either retroactively or prospectively, only by the written consent of the Optiongrantor and the Optionholder.
18. Assignment. This Option Agreement may not be assigned or transferred by the Optiongrantor. Any attempted assignment in violation of this provision shall be null and void.
19. Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Option Agreement, and any consents or stipulations hereunder, shall inure to the benefit of and be binding upon the respective successors and assigns of each party.

 

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20. Third Party Beneficiaries. Except as otherwise provided herein, nothing in this Option Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations or liabilities.
21. Notices. The address of record for Optionholder for all purposes of this Option Agreement shall be that address set forth beneath Optionholder’s signature on this Option Agreement. The address of record for the Optiongrantor for all purposes of this Option Agreement shall be at the address set forth beneath the Optiongrantor’s signature on this Option Agreement. Either party may change his address of record only by notifying the other party in the manner prescribed herein. All notices, requests, and other communications required or permitted to be given or delivered hereunder to either party must be in writing, and shall be personally delivered, sent by certified or registered mail, postage prepaid or by overnight courier such as Fedex to such party at the address of record. Any notice under this Option Agreement or with respect to the Option Securities shall be deemed to have been sufficiently given or served and effective for all purposes when deposited with the United States Postal Service or overnight courier.
22. Further Assurances. Each party agrees to execute and deliver such other documents and to take such other actions as may reasonably be necessary to give full effect to the purposes of this Option Agreement and the terms and conditions hereof.
[Remainder of this page intentionally left blank]

 

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In Witness Whereof, the parties hereto have executed this Option Agreement as of the date first written above.

 
“OPTIONGRANTOR”
 
By:  
 
 
Address:  
 
 
Address:  
 
 
“OPTIONHOLDER”
 
By:  
 
 
Address:  
 
 
Address:  
 
 


Consented as of the date hereof on behalf
of the Representatives of the Underwriters
I-Bankers Securities, Inc.
By:  
 
 
Acknowledged and agreed as of the date hereof
(for purposes of Section 3)
 
Gary A. Simanson


[Signature Page to Option Agreement]

 

 


 

EXHIBIT A

 

 


 

EXHIBIT B
NOTICE OF EXERCISE
To:  
Optiongrantor
The undersigned, party to the attached Option Agreement, hereby elects to purchase  _____  shares of the Common Stock, par value, $0.01 (the “Shares”) of the Company and  _____  Warrants (the “Warrants”) exercisable into  _____  shares of Common Stock, par value, $0.01 of the Company.
The undersigned :
     
o
  Tenders herewith payment of the aggregate exercise price of the Shares, together with any applicable transfer taxes thereon.
o
  Tenders herewith payment of the aggregate exercise price of the Warrants, together with any applicable transfer taxes thereon.
The undersigned represents that:
a) It holds, as of the date hereof,  _____  of the  _____  Acquired Shares originally purchased by it.
b) It has previously elected to purchase  _____  shares of Common Stock and  _____  Warrants.
Please issue a certificate or certificates representing said Shares and said Warrants in the name of the undersigned.

 
Optionholder:  
 
 
By:  
 
 
Address:  
 
 
Address:  
 
 
Date:  
 
 


COUNTERSIGNED:
COMMUNITY BANKERS ACQUISITION LLC
By:  
 
 
Gary A. Simanson, Its Manager


 

 


 

EXHIBIT C

 

 

EX-99.4 3 c73641exv99w4.htm EXHIBIT 99.4 Filed by Bowne Pure Compliance
Exhibit 99.4
OPTION ESCROW AGREEMENT
OPTION ESCROW AGREEMENT, dated as of May  _____  , 2008 (the “Agreement”), by and between CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as escrow agent (the “Escrow Agent”), and Community Bankers Acquisition, LLC, a Delaware limited liability company (sometimes referred to herein as "Optiongrantor”).
WHEREAS, pursuant to that certain Stock Escrow Agreement, dated as of June 8, 2006, (the "Escrow Agreement”) by and between Community Bankers Acquisition Corp., a Delaware corporation (the "Company”), the Escrow Agent and the Optiongrantor, Gary A. Simanson, the David and Vicki Jo Zalman 2006 Childrens’ Trust, the Eugene S. Putnam, Jr. 2004 Irrevocable Trust, Stewart J. Paperin, Keith Walz and David W. Spainhour and Carolyn E. Spainhour, Trustees of the Spainhour Family Trust U/A/ Dated 8/22/97 (collectively, the “Initial Stockholders”), the Initial Stockholders deposited certificates evidencing an aggregate of 1,875,000 shares of the Company’s common stock, par value $0.01 (the “Common Stock”), with the Escrow Agent, to be held in escrow until disbursed in accordance with Section 3 thereof.
WHEREAS, in order to induce certain entities listed on Exhibit B hereto (each an “Optionholder”) to purchase an aggregate of at least [ ¡ ] shares of the Company’s currently outstanding Common Stock, for value received, the Optiongrantor has entered into with each Optionholder an Option Agreement substantially identical to the form of Option Agreement attached hereto as Exhibit A (each, an “Option Agreement” and collectively the “Option Agreements”).
WHEREAS, the Optiongrantor, in furtherance of the Option Agreements, has agreed to deposit that certain number of shares of Common Stock, and that certain number of warrants to purchase Common Stock (“Warrants”) beneficially held by it, in such amounts as set forth on Exhibit C attached hereto, in escrow pursuant to this Agreement to be held and disbursed by the Escrow Agent as hereinafter provided, such shares of Common Stock and Warrants hereinafter referred to as the “Option Securities.”
WHEREAS, the Optiongrantor desires that the Escrow Agent accept the Option Securities in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent. The Optiongrantor hereby appoints the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such terms.
2. Deposit of Escrow Securities. The Optiongrantor has delivered or caused to be delivered to the Escrow Agent the Option Securities not currently held by the Escrow Agent, to be held and disbursed subject to the terms and conditions of this Agreement. The Optiongrantor has also provided the Escrow Agent with irrevocable instructions that the Option Securities currently held by the Escrow Agent pursuant to the Escrow Agreement, in lieu of being disbursed in accordance with the terms of the Escrow Agreement, shall be retained and held by the Escrow Agent in the escrow account covered by this Agreement, subject to the terms and conditions of this Agreement. If during the term of this Agreement, there is a stock dividend or stock split, all securities issuable with respect to the Option Securities shall be deposited hereunder and shall be deemed “Option Securities” for purposes of this Agreement. If during the term of this Agreement, there is another type of Adjustment Event (as defined in the Option Agreements) affecting the Option Securities, then the cash, securities or other property issuable in connection with or upon conversion of the Option Securities shall be deposited hereunder and shall be deemed “Option Securities” for purposes of this Agreement.

 

 


 

3. Disbursement of the Escrow Securities. The Escrow Agent shall hold the Option Securities and distribute the Option Securities only (a) upon receipt of and only in accordance with the terms of (i) a copy of an executed Notice of Exercise (in the form appended to the Option Agreement), a copy of which shall be countersigned by the Optiongrantor and provided to the Escrow Agent prior to disbursement, and (ii) evidence of the payment in United States dollars by check or wire transfer of the aggregate exercise price of the Option Securities to be purchased (which Notice of Exercise and evidence of payment (which may be a copy of a check or a Fed Reference Number of a wire) may be supplied by an Optionholder); provided that such items are delivered to the Escrow Agent during the Exercise Period (as defined in the Option Agreements) (the last day of such period, the “Termination Date”); and (b) in the event that Option Securities remain undistributed immediately following the Termination Date (and there are no outstanding Notices of Exercise that have been delivered to the Escrow Agent but not satisfied by delivery of Option Securities), the Escrow Agent shall forthwith return the Option Securities that are not subject to outstanding Notices of Exercise to the Optiongrantor. For the avoidance of doubt, a Notice of Exercise shall be timely if received by the Escrow Agent in executed form from the Optionholder on or before the Termination Date; disbursement to occur, however, only upon receipt of a copy of the Notice of Exercise countersigned by the Optiongrantor promptly thereafter. The Escrow Agent shall have no further duties hereunder after the disbursement of the Option Securities in accordance with this Section 3.
4. Restrictions on Transfer of Option Securities. Until after the Termination Date (and resolution of outstanding Notices of Exercise), no sale, transfer or other disposition may be made of any of the Option Securities other than distributions in accordance with Section 3 of this Agreement.
5. Concerning the Escrow Agent.
5.1 Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.

 

2


 

5.2 Indemnification. The Escrow Agent shall be indemnified and held harmless by the Optiongrantor from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Option Securities held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall promptly notify the Optiongrantor in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Option Securities or it may deposit the Option Securities with the clerk of any appropriate court or it may retain the Option Securities pending receipt of a final, non appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Option Securities are to be disbursed and delivered. The provisions of this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6 below.
5.3 Compensation. The Escrow Agent shall be entitled to reasonable compensation from the Optiongrantor for all services rendered by it hereunder. The Escrow Agent shall also be entitled to reimbursement from the Optiongrantor for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges.
5.4 Further Assurances. From time to time on and after the date hereof, the Optiongrantor shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.5 Resignation. The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Optiongrantor (which appointment may be made only with the prior written consent of the Required Holders (as defined in Section 6.2 below)), the Option Securities held hereunder. The Optiongrantor shall be obligated to appoint a successor escrow agent (on substantially the same terms as this Agreement) within 30 days of the giving of such notice of resignation. If no new escrow agent is so appointed within the 60 day period following the giving of such notice of resignation, the Escrow Agent may deposit the Option Securities with any court it reasonably deems appropriate.
5.6 Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time by the Optiongrantor (which request may be made only with the prior written consent of the Required Holders); provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.

 

3


 

5.7 Liability. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
6. Miscellaneous.
6.1 Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of the State of Delaware, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
6.2 Third Party Beneficiaries. The parties hereto acknowledge that each Optionholder is a third party beneficiary of this Agreement. This Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the prior written consent of all Optionholders holding Acquired Shares and options to purchase Option Securities (the “Required Holders”); provided that any Optionholder may give a waiver in writing as to itself. No such amendment or waiver (unless given by an Optionholder as to itself) shall be effective to the extent that it applies to less than all of the Optionholders. No consideration shall be offered or paid to any Optionholder to amend or consent to a waiver or modification of any provision of any of this Agreement unless the same consideration also is offered to all of the Optionholders.
6.3 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by the party to the charged.
6.4 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
6.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and assigns.
6.6 Notices. Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid, and shall be deemed given when so delivered personally or, if mailed, two days after the date of mailing, as follows:
If to the Optiongrantor, to:
Community Bankers Acquisition LLC
9912 Georgetown Pike, Ste. D-203
Great Falls, VA 22066
Attn: Gary A. Simanson, Manager
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Chairman

 

4


 

The parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.

 

5


 

WITNESS the execution of this Agreement as of the date first above written.
         
  OPTIONGRANTOR:

COMMUNITY BANKERS ACQUISITION LLC
 
 
  By:      
    Name:   Gary A. Simanson   
    Title:   Manager   
 
  CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
 
 
  By:      
    Name:      
    Title:      
 

 

6


 

EXHIBIT A
[Option Agreement]

 

 


 

EXHIBIT B
[List of Optionholders and Acquired Shares]
The following are Optionholders as of the date of this Agreement:
     
Name of Optionholder   Acquired Shares
 
   
 
   
 
   
 
   

 

 


 

EXHIBIT C
                 
Name and Address of   Number     Number  
Optiongrantor   of Shares     of Warrants  
             
Community Bankers Acquisition LLC
9912 Georgetown Pike, Ste D-203
Great Falls, VA 22066
    (1 )     (2 )
     
(1)   Shares currently held in escrow pursuant to the Stock Escrow Agreement and to be transferred to the escrow account under this Option Escrow Agreement in lieu of being disbursed in accordance with the terms of the Stock Escrow Agreement.
 
(2)   Warrants currently held in escrow pursuant to this Option Escrow Agreement.

 

 

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