SHAREHOLDER WARRANT AGREEMENT
Exhibit 4.3
This Shareholder Warrant Agreement (“Agreement”) is executed as of this ___day of
2008 by United Business Holdings, Inc., a Nevada corporation (“Company”), in favor of the persons
listed on Exhibit A (each, an “Initial Holder”), in accordance with the terms and subject
to the conditions set forth in this Agreement.
WHEREAS, in recognition of the financial risks undertaken by the initial shareholders of the
Company, the Company desires to grant to each Initial Holder warrants to purchase shares of common
stock of the Company (each, a “Warrant” and, collectively, the “Warrants”) equal to one warrant for
each five shares purchased in the initial offering of common stock of the Company.
NOW, THEREFORE, in consideration of the foregoing and the agreements hereinafter set forth,
the receipt and sufficiency of which are hereby acknowledged, the Company and, by acceptance of a
Warrant, each Initial Holder (as defined herein) agree as follows:
1. Grant of Warrants. Subject to the terms, restrictions, limitations and conditions
stated in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company
hereby grants to Initial Holder the number of Warrants set forth beside his name on Exhibit
A. Each Warrant initially shall be exercisable for one fully paid and non-assessable share of
common stock, par value $0.01 per share, of the Company (“Share”), subject to adjustment as
provided in Section 11 of this Agreement. The Initial Holders and all subsequent registered
holders of the Warrants (each, a “Holder” and, collectively, the “Holders”) shall have the rights
and obligations set forth in this Agreement.
2. Warrant Certificates. Each Warrant shall be evidenced by a warrant certificate,
which shall be substantially in the form attached to this Agreement as Exhibit B (“Warrant
Certificate”). Each Warrant Certificate shall have such marks of identification or designation and
such legends or endorsements thereon as the Company deems appropriate, so long as they are not
inconsistent with the provisions of this Agreement, or as are required to comply with any law, rule
or regulation applicable to the Company or the Shares. The Warrant Certificates shall be executed
on behalf of the Company by the manual, facsimile or imprinted signature of its Chairman of the
Board, its President or any senior vice president and shall be attested by the manual, facsimile or
imprinted signature its Secretary or Cashier, or any assistant secretary or assistant cashier.
3. Term of Warrants.
(a) The term for the exercise of the Warrants shall begin at 9:00 a.m., Carson City, Nevada
time on , 2008 (the “Issue Date”). The term for the exercise of the Warrants shall
expire at 2:00 p.m., Carson City, Nevada time on the earlier to occur of (i) the seventh
anniversary of the Issue Date, or (ii) the date provided in Section 3(b) of this Agreement (the
“Expiration Time”).
(b) Notwithstanding any provision of this Agreement or any Warrant Certificate to the
contrary, the Warrants shall expire, to the extent not exercised, within 45 days following the
receipt of notice from the Company’s primary regulator (“Regulator”) that (i) the Company has not
maintained its minimum capital requirements (as determined by the Regulator); and (ii) the
Regulator is requiring exercise or forfeiture of warrants. Upon receipt of such notice from the
Regulator, the Company shall promptly notify each Holder that he must exercise the Warrants granted
to him prior to the end of the 45-day period or such earlier period as may be specified by the
Regulator or forfeit such Warrant(s). In case of forfeiture, no Holder shall have any cause of
action, of any kind or nature, against the Company or any of its officers or directors with respect
to the forfeiture. In addition, the Company shall not be liable to any Holder due to the failure
or inability of the Company to provide adequate notice to Holder.
4. Exercise of Warrants. The purchase price per Share to be paid by a Holder for
Shares subject to the Warrants shall be $10.00, subject to adjustment as set forth in Section 11 of
this Agreement (the “Exercise Price”). A Holder may exercise Warrants evidenced by a Warrant
Certificate in whole or in part at any time prior to the Expiration Time by delivering to the
secretary of the Company (i) the Warrant Certificate; (ii) a written notice to the Company
specifying the number of Shares with respect to which Warrants are being exercised; and (iii) a
check for the full amount of the aggregate Exercise Price of the Shares being acquired.
5. Delivery of Shares; Partial Exercise. Upon receipt of the items set forth in
Section 4, and subject to the terms of this Agreement, the Company shall promptly deliver to, and
register in the name of, the Holder a certificate or certificates representing the number of Shares
acquired by exercise of a Warrant. In the event of a partial exercise of Warrant(s), a new Warrant
Certificate evidencing the number of Shares that remain subject to the Warrant shall be issued by
the Company to such Holder or to his duly authorized assigns.
6. Registration of Transfer and Exchange.
(a) The Company shall keep, or cause to be kept, at its principal place of business or at such
other location designated by the Company, a register or registers in which, subject to such
reasonable regulations as the Company may prescribe, the registrar and transfer agent (the
“Securities Registrar”) shall register the Warrant Certificates and the transfers thereof as
provided herein (“Securities Register”). The initial Securities Registrar shall be the secretary
of the Company, and thereafter, the Securities Registrar may be removed and/or appointed as
authorized by the Company.
(b) Upon surrender for registration of transfer of any Warrant Certificate, the Company shall
issue and deliver to the Holder or his duly authorized assigns, one or more new Warrant
Certificates of like tenor and in like aggregate amount.
(c) At the option of the Holder, Warrant Certificates may be exchanged for other Warrant
Certificates of like tenor and in like aggregate amount upon surrender of the Warrant Certificates
to be exchanged. Upon such surrender, the Company shall issue and deliver to the Holder or his
duly authorized assigns, one or more new Warrant Certificates of like tenor and in like aggregate
amount.
(d) Every Warrant Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied (if so required by the Company or the Securities Registrar) by a
written instrument or instruments of transfer, in form satisfactory to the Company or the
Securities Registrar, duly executed by the registered Holder or by such Holder’s duly authorized
attorney in writing.
2
7. Replacement of Warrant Certificates.
(a) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of a Warrant Certificate and, in the case of loss, theft or destruction,
on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or,
in the case of mutilation, surrender and cancellation of such Warrant Certificate, the Company
shall issue and deliver to the Holder or his duly authorized assigns, one or more new Warrant
Certificates of like tenor and in like aggregate amount. In the case of loss, theft or destruction
of a Warrant Certificate, prior to the issuance of a replacement Warrant Certificate, the Company
may also require that a bond be posted in such amount as the Company may determine is necessary as
indemnity against any claim that may be made against it with respect to such Warrant Certificate.
(b) All Warrants shall be held and owned under the express condition that the provisions of
this Section are exclusive with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Warrant Certificates and shall preclude (to the extent lawful) all other rights and
remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.
(c) Upon the issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Company
and its agents and counsel) connected therewith.
(d) Every new Warrant Certificate issued pursuant to this Section shall constitute an
additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder.
8. Persons Deemed Holders. Prior to the due presentment of a Warrant Certificate for
registration of transfer or exchange, the Company, any Securities Registrar and any other agent of
the Company may treat the person in whose name such Warrant Certificate is registered in the
Securities Register as the sole Holder of such Warrant Certificate and of the Warrant represented
by such Warrant Certificate for all purposes whatsoever, and shall not be bound to recognize any
equitable or other claim to or interest in such Warrant Certificate or in the Warrant represented
by such Warrant Certificate on the part of any person and shall be unaffected by any notice to the
contrary.
9. Cancellation. All Warrant Certificates surrendered for the purpose of exercise,
exchange or registration of transfer shall be cancelled by the Securities Registrar, and no Warrant
Certificates shall be issued in lieu thereof, except as expressly permitted by the provisions of
this Agreement.
10. Fractional Shares. The Company shall not be required to issue Warrant
Certificates exercisable for fractional Shares or to issue fractional Shares upon the exercise of
Warrants. Warrant Certificates exercisable for fractional Shares shall expire as of the Expiration
Date, and a Holder of such Warrant Certificates shall not be entitled to any consideration of any
kind or nature in respect of such Warrant or Warrant Certificate.
11. Stock Dividends, Splits, Etc.
(a) If, prior to the Expiration Time, the Company shall subdivide its outstanding Shares into
a greater number of Shares, or declare and pay a dividend of its Shares payable in additional
3
Shares, the Exercise Price, as then in effect, shall be proportionately reduced, and the
Company shall proportionately increase the number of Shares then subject to exercise under this
Warrant (and not previously exercised.)
(b) If, prior to the Expiration Time, the Company shall combine its outstanding Shares into a
lesser number of Shares, the Exercise Price, as then in effect, shall be proportionately increased,
and the Company shall proportionately reduce the number of Shares then subject to exercise under
this Warrant (and not previously exercised.)
12. Reorganization, Reclassifications, Consolidation or Merger. If, prior to the
Expiration Time, there shall be a reorganization or reclassification of the Shares (other than as
provided in Section 11 of this Agreement), or any consolidation or merger of the Company with
another entity, the Holder shall be entitled to receive, during the remainder of the term of this
Agreement and upon payment of the Exercise Price, the number of shares of stock or other securities
or property of the Company or of the successor entity (or its parent company) resulting from such
consolidation or merger, as the case may be, to which a holder of Shares, deliverable upon the
exercise of a Warrant, would have been entitled upon such reorganization, reclassification,
consolidation or merger; and, in any case, the Company shall make appropriate adjustments (as
determined by the board of directors of the Company in its sole discretion) in the application of
the provisions with respect to the rights and interests of the Holders so that the provisions set
forth in this Agreement (including the adjustment to the Exercise Price and the number of Shares
issuable upon exercise of the Warrants) shall be applicable, as nearly as may be practicable, to
any shares or other property thereafter deliverable upon the exercise of this Warrant.
13. Certificate as to Adjustments; Issuance of New Warrant Certificates. Within
thirty (30) days following any adjustment provided for in Section 11 or 12 of this Agreement, the
Company shall give written notice of the adjustment to the Holders as provided in Section 14(a) of
this Agreement. The notice shall state the Exercise Price as adjusted and the increased or
decreased number of shares purchasable upon the exercise of the Warrant(s) and shall set forth in
reasonable detail the method of calculation for each. Notwithstanding anything to the contrary set
forth herein or in the Warrant Certificates, the Company may, at its option, issue new Warrant
Certificates evidencing the Warrants, in such form as may be approved by the Company, to reflect
any adjustment or change in the Exercise Price and the number or kind of stock or other securities
or property purchasable upon exercise of the Warrants.
14. Miscellaneous.
(a) Any notice or other communication required or permitted to be made hereunder shall be in
writing, duly signed by the party giving such notice or communication and shall be deemed delivered
and effective when given personally or mailed by first-class registered or certified mail, postage
prepaid as follows (or at such other address for a party as shall be specified by like notice): (i)
if given to the Company, at its principal place of business; and (ii) if given to a Holder, at the
address set forth for the Holder on the books and records of the Company. A notice given to the
Company by a Holder with respect to the exercise of a Warrant shall not be effective until received
by the Company.
(b) The Company shall, at all times, reserve and keep available out of its authorized and
unissued Shares or out of any Shares held in treasury that number of Shares that will from time to
time be sufficient to permit the exercise in full of all outstanding Warrants. The Company shall
take all such action as may be necessary to ensure that all Shares delivered upon exercise of any
Warrants shall, at the time of delivery of the Warrant Certificates for such Shares, be duly
authorized, validly issued, fully paid and nonassessable.
4
(c) The Company shall pay when due and payable any and all federal and state transfer taxes
and charges (other than any applicable income taxes) that may be payable in respect of the issuance
and delivery of Warrant Certificates or of certificates for Shares receivable upon the exercise of
any Warrants; provided, however, that the Company shall not be required to pay any tax that may be
payable in respect of the issuance and delivery (i) of any Warrant Certificate or stock certificate
registered in a name other than that of the Holder of the Warrant Certificate that has been
surrendered, or (ii) of any Warrant Certificate under Section 7.
(d) No Holder, in his capacity as such, shall be entitled to vote or receive dividends or
shall be deemed for any other purpose the holder of the Shares or other securities which may at any
time be issuable upon the exercise of such Warrant. Nothing contained herein or in any Warrant
Certificate shall be construed to confer upon any Holder, in his capacity as such, any of the
rights of a shareholder of the Company, including any right to vote for the election of directors
or upon any matter submitted to shareholders of the Company at any meeting thereof, to give or
withhold consent to any corporate action, or to receive notices of meeting or other actions
affecting shareholders.
(e) Each Holder, by accepting a Warrant Certificate, accepts and agrees to the terms of this
Agreement. The terms of this Agreement shall be binding upon the Company and the Holders and their
respective heirs, successors, representatives and permitted assigns. Nothing expressed or referred
to herein is intended or will be construed to give any person other than the Company or the Holders
any legal or equitable right, remedy or claim under or in respect of this Agreement, or any
provision herein contained, it being the intention of the Company and the Holders that this
Agreement, the assumption of obligations and statements of responsibilities hereunder, and all
other conditions and provisions hereof are for the sole benefit of the Company and the Holders and
for the benefit of no other person.
(f) This Agreement constitutes the full understanding of the Company and the Holders, a
complete allocation of risks between them and a complete and exclusive statement of the terms and
conditions of their agreement relating to the subject matter hereof and supersedes any and all
prior agreements, whether written or oral, that may exist between the Company and any Holder with
respect thereto. Except as otherwise specifically provided in this Agreement, no conditions, usage
of trade, course of dealing or performance, understanding or agreement purporting to modify, vary,
explain or supplement the terms or conditions of this Agreement will be binding unless hereafter or
contemporaneously herewith made in writing and signed by the party to be bound, and no modification
will be effected by the acknowledgment or acceptance of documents containing terms or conditions at
variance with or in addition to those set forth in this Agreement.
(g) The headings contained in this Agreement are for convenience of reference only and will
not affect in any way the meaning or interpretation of this Agreement. The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement will refer to this
Agreement as a whole and not to any particular provision in this Agreement. Each use herein of the
masculine, neuter or feminine gender will be deemed to include the other genders. Each use herein
of the plural will include the singular and vice versa, in each case as the context requires or as
is otherwise appropriate. The word “or” is used in the inclusive sense. References to a person
are also to its permitted successors or assigns. No provision of this Agreement is to be construed
to require, directly or indirectly, any person to take any action, or omit to take any action,
which action or omission would violate applicable law (whether statutory or common law), rule or
regulation.
(h) This Agreement shall terminate upon the earlier of (i) the Expiration Time, or (ii) the
close of business on the date on which all Warrants shall have been exercised.
5
(i) Notwithstanding anything in this Agreement to the contrary, no Warrants will be
exercisable and the Company will not be obligated to issue shares of common stock upon the exercise
of Warrants unless at the time a Holder seeks to exercise such Warrants, a prospectus or
registration statement relating to the common stock issuable upon exercise of the Warrants is
current with and the common stock has been registered or qualifies for or is deemed to be exempt
under the securities laws of the United States and the state of residence of the Holder of the
Warrants. In the event that a prospectus or registration statement relating to the common stock
issuable upon exercise of the Warrants is not current with and the common stock has not been
registered or does not qualify for or is not deemed to be exempt under the securities laws of the
United States and the state of residence of the Holder of the Warrants, Holders will be unable to
exercise Warrants and the Company will be under no obligation to settle any such Warrant exercise.
(j) THIS AGREEMENT, EACH WARRANT AND EACH WARRANT CERTIFICATE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA WITHOUT REGARD TO THE LAWS THAT MIGHT
OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS. IN THE EVENT OF A DISPUTE
INVOLVING THIS AGREEMENT, THE PARTIES IRREVOCABLY AGREE THAT VENUE FOR SUCH DISPUTE SHALL LIE
EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION IN XXXXX COUNTY, NEVADA.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized
officer as of the date first above written.
| UNITED BUSINESS HOLDINGS, INC. a Nevada corporation |
||||
| By: | ||||
| Xxxxxx X. Xxxxxx, Chairman | ||||
6
EXHIBIT A
LIST OF INITIAL HOLDERS
EXHIBIT B
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
RESTRICTIONS SPECIFIED IN THAT CERTAIN SHAREHOLDER WARRANT AGREEMENT DATED AS OF
, 2008, BY UNITED BUSINESS HOLDINGS, INC., A NEVADA CORPORATION (“COMPANY”),
IN FAVOR OF THE PERSONS LISTED ON EXHIBIT A THERETO, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME (“AGREEMENT”). A COPY OF THE FORM OF THE AGREEMENT IS ON
FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY DURING
NORMAL BUSINESS HOURS. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE AGREEMENT.
| No. W-___ | Number of Warrants: |
UNITED BUSINESS HOLDINGS, INC.
WARRANT CERTIFICATE
WARRANT CERTIFICATE
This Warrant Certificate certifies that , or registered assigns, is the
registered holder of a warrant to purchase the number of fully-paid and non-assessable shares of
common stock, $0.01 per shares par value of the Company (“Shares”) set forth above, at the exercise
price, subject to adjustment in certain events (“Exercise Price”), of $10.00 per share (“Warrant”).
The Warrant evidenced by this Warrant Certificate is part of a duly authorized issue of Warrants
issued pursuant to the Agreement, which is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Company and the Holder. All terms used, but
not otherwise defined, in this Warrant Certificate shall have the meanings assigned to them in the
Agreement. If any provision of this Warrant Certificate conflicts with a provision of the
Agreement, the provision of the Agreement shall supercede.
This Warrant may not be exercised after 2:00 p.m., Carson City, Nevada time, on the earlier to
occur of (i) the seventh anniversary of the Issue Date, or (ii) the date provided in Section 3(b)
of the Agreement (the “Expiration Time”).
The Holder may exercise the Warrant evidenced by this Warrant Certificate in whole or in part at
any time prior to the Expiration Time by delivering to the secretary or cashier of the Company (i)
the Warrant Certificate; (ii) a written notice to the Company specifying the number of Shares with
respect to which Warrants are being exercised; and (iii) a check for the full amount of the
aggregate Exercise Price of the Shares being acquired. Notwithstanding anything in this Agreement
to the contrary, in no event will the Holder of a Warrant be entitled to receive a net-cash
settlement or other consideration in lieu of physical settlement in Shares upon exercise of the
Warrant if the Shares underlying the Warrant are not covered by an effective registration statement
under federal or applicable state securities laws. Accordingly, the Warrant may expire unexercised
and worthless if either a current registration statement covering the Shares is not effective or if
no exemption to registration of the Shares under federal or applicable state securities laws is
available.
Upon receipt of the items set forth above, and subject to the terms of the Agreement, the Company
shall promptly deliver to, and register in the name of, the Holder a certificate or certificates
representing the number of Shares acquired by exercise of this Warrant. In the event of a partial
exercise of this Warrant,
a new Warrant Certificate evidencing the number of Shares that remain subject to this Warrant shall
be issued by the Company to such Holder or to his duly authorized assigns.
The Agreement provides that upon the occurrence of certain events the Exercise Price and the type
and/or number of the Company’s securities issuable thereupon may, subject to certain conditions, be
adjusted. In such event, the Company may, at its option, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type of securities issuable
upon the exercise of the Warrants.
Upon surrender for registration of transfer of this Warrant Certificate, subject to the terms of
the Agreement, the Company shall issue and deliver to the Holder or his duly authorized assigns,
one or more new Warrant Certificates of like tenor and in like aggregate amount.
Prior to the due presentment of this Warrant Certificate for registration of transfer or exchange,
the Company, any Securities Registrar and any other agent of the Company may treat the person in
whose name this Warrant Certificate is registered in the Securities Register as the sole Holder of
this Warrant Certificate and of the Warrant represented by this Warrant Certificate for all
purposes whatsoever, and shall not be bound to recognize any equitable or other claim to or
interest in this Warrant Certificate or in the Warrant represented by this Warrant Certificate on
the part of any person and shall be unaffected by any notice to the contrary.
The Holder, in his capacity as such, shall not be entitled to vote or receive dividends or shall be
deemed from any other purpose the holder of the Shares or other securities which may at any time be
issuable upon the exercise of this Warrant. Nothing contained in this Warrant Certificate shall be
construed to confer upon the Holder, in his capacity as such, any of the rights of a shareholder of
the Company, including any right to vote for the election of directors or upon any matter submitted
to shareholders of the Company at any meeting thereof, to give or withhold consent to any
corporation action, or to receive notices of meeting or other actions affecting shareholders.
Any notice or other communication required or permitted to be made by the Holder to the Company
shall be in writing, duly signed by the Holder and shall be deemed delivered and effective when
given personally or mailed by first-class registered or certified mail, postage prepaid to the
Company, at (or such other address as designated in writing to the Holder by
the Company). A notice given to the Company by a Holder with respect to the exercise of this
Warrant shall not be effective until received by the Company.
The Holder understands and acknowledges that upon exercise of this Warrant, the Holder may
recognize taxable income equal to the difference between the fair market value of the underlying
Shares and the Exercise Price of the Warrant. Holders are encouraged to consult with their tax
advisors before exercising the Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its
corporate seal.
Dated as of , 2008.
| UNITED BUSINESS HOLDINGS, INC. a Nevada corporation |
||||
| By: | ||||
| Xxxxxx X. Xxxxxx, Chairman | ||||
[SEAL]
Attest:
