EXHIBIT 4.3
THE WARRANT GRANTED PURSUANT TO THIS AGREEMENT SHALL BE NON-TRANSFERABLE, EXCEPT
IN THE CASE OF THE WARRANT HOLDER'S DEATH, AND THEREUPON ONLY BY WILL OR UNDER
THE LAWS OF DESCENT AND DISTRIBUTION. UPON THE DEATH OF THE WARRANT HOLDER, THE
DECEASED HOLDER'S LEGAL OR PERSONAL REPRESENTATIVE, OR ANY PERMITTED TRANSFEREE
OF THE WARRANT SHALL, WITHIN 30 DAYS OF THE HOLDER'S DEATH, NOTIFY THE COMPANY
OF SUCH EVENT AND THE NEW HOLDER'S NAME, ADDRESS AND CAPACITY IN WHICH THE
WARRANT IS HELD. SUCH PERMITTED TRANSFEREE WILL BE SUBJECT TO, AND BOUND BY, THE
TERMS AND PROVISIONS OF THIS AGREEMENT TO THE SAME EXTENT AS THE ORIGINAL
HOLDER.
ORGANIZER WARRANT AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of this _____
day of _____________, 19__, by and between NBG Bancorp, Inc., a Georgia
corporation (the "Company"), and ________________________ (the "Warrant
Holder").
W I T N E S S E T H
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WHEREAS, the Warrant Holder has served as an organizer in the formation of
the Company and the formation and establishment of The National Bank of Georgia
(the "Bank"), the wholly-owned subsidiary of the Company; and
WHEREAS, the Warrant Holder has purchased ___________ shares of the
Company's common stock, $1.00 par value per share (the "Common Stock"), at a
price per share of $10.00, subject to certain adjustments; and
WHEREAS, the Company, in recognition of the financial risk undertaken by
the Warrant Holder in organizing the Company and the Bank, desires to provide
the Warrant Holder with the right to acquire the same number of shares as the
Warrant Holder purchased in the initial stock offering of the Company's Common
Stock, including any additional shares purchased specifically to attain the
minimum subscription requirements of the minimum offering.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Warrant. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby grants to the Warrant Holder the
right (the "Warrant") to purchase all or any part of an aggregate of
______________ shares of the Company's Common Stock, subject to adjustment in
accordance with Sections 7 and 8 hereof (such shares, as adjusted, the "Warrant
Shares").
2. Vesting and Term.
(a) The Warrant shall vest at the rate of 20% per year beginning on
the first anniversary of the date that the Bank opens for business (the
"Issue Date"). On each successive anniversary of the Issue Date, an
additional 20% of the Warrant shall vest. The portion of the Warrant which
is vested may be exercised in whole, or from time to time in part, at any
time prior to the Expiration Time (as defined herein).
(b) The term for the exercise of the Warrant begins at 9:00 a.m.,
Eastern Time, on the Issue Date and ends at 5:00 p.m., Eastern Time, on the
10th anniversary of the Issue Date (the "Expiration Time").
(c) Notwithstanding any other provision of this Agreement, the
Warrant shall expire on any earlier date than that provided in Section 2(b)
hereof in the event the primary federal regulator of the Company or the
Bank (the "Federal Regulator") may require the Warrant Holder to exercise
or forfeit the Warrant due to the capital of the Company or the Bank
falling below the minimum requirements as determined by the Federal
Regulator.
3. Purchase Price. The price per share to be paid by the Warrant Holder
for the Warrant Shares shall be $10.00 subject to adjustment as set forth in
Section 7 hereof (such price, as adjusted, the "Purchase Price").
4. Exercise of Warrant. The Warrant may be exercised by the Warrant
Holder by delivery to the Company, at the address of the Company set forth under
Section 11(a) hereof or such other address as to which the Company advises the
Warrant Holder pursuant to Section 11(a) hereof, of the following:
(a) A completed and signed notice of exercise (including the
Substitute Form W-9, which forms a part thereof) (the "Notice of
Exercise"), as attached hereto as Schedule A;
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(b) A cashier's or certified check payable to the Company for the
full amount of the aggregate Purchase Price for the number of Warrant
Shares as to which the Warrant is being exercised; and
(c) A copy of this Agreement.
5. Issuance of Warrant Shares. Upon receipt of the items set forth in
Section 4 hereof, and subject to the terms hereof, the Company shall cause to be
delivered to the Warrant Holder stock certificate(s) for the number of Warrant
Shares specified in the Notice of Exercise, such share or shares to be
registered under the name of the Warrant Holder. Notwithstanding the foregoing,
the Company shall not be required to issue or deliver any certificate for the
Warrant Shares or any portion thereof prior to the fulfillment of the following
conditions:
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(a) The completion of any registration or other qualification of such
shares which the Company shall deem necessary or advisable under any
federal or state law or under the rulings or regulations of the Securities
and Exchange Commission or any other governmental regulatory body, unless
the availability of an exemption from such registration or qualification
shall be established to the satisfaction of counsel for the Company;
(b) The obtaining of any approval or other clearance from any federal
or state governmental agency or body, which the Company shall determine to
be necessary or advisable; or
(c) The lapse of such reasonable period of time following the
exercise of the Warrant, or any portion thereof, as the Company from time
to time may establish for reasons of administrative convenience.
Each stock certificate delivered pursuant to the Notice of Exercise shall
be in such denomination as may be requested by the Warrant Holder and shall be
registered in the name of the Warrant Holder. If the Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of said stock
certificate(s), deliver to the Warrant Holder a new Warrant evidencing the right
of the Warrant Holder to purchase the remaining Warrant Shares covered by this
Agreement. The Company shall pay all expenses, stock transfer taxes and other
charges payable in connection with the preparation, execution and delivery of
such stock certificate(s).
6. Restrictive Legends. Each certificate representing the Warrant Shares
shall contain the following legends:
(a) "The shares of the Company's Common Stock represented by this
certificate are held subject to, and transfer of such shares restricted by,
the terms of a Warrant Agreement, dated as of the ___ day of _________,
1999, a copy of which is on file at the office of the Company. No transfer
of any share represented by this certificate shall be valid unless made in
accordance with the terms of the Warrant Agreement."
(b) "The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"),
or the securities laws of any state, in reliance upon exemptions from the
registration requirements of the 1933 Act and such state laws. These
securities may not be transferred, nor will any assignee or endorsee hereof
be recognized as an owner hereof by the issuer for any purposes, except in
transactions registered under the 1933 Act and any applicable state
securities laws, unless the availability of an exemption from registration
under the 1933 Act and any applicable state securities laws with respect to
any proposed transfer or disposition of such securities shall be
established to the satisfaction of counsel for the issuer."
The Warrant Holder understands and agrees that the Company may refuse to
permit the transfer of the Warrant Shares, and that the Warrant Holder may be
required to hold the Warrant Shares indefinitely, in the absence of compliance
with the terms of such legends.
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7. Antidilution, Etc.
(a) If, at any time, the Company shall:
(i) establish a record date for the determination of holders
of record of its outstanding shares of Common Stock for the purpose of
entitling them to receive a dividend payable in, or other
distributions of, additional shares of its Common Stock;
(ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock; or
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock;
then (A) the number of Warrant Shares for which the Warrant Holder's
Warrant is exercisable immediately after the occurrence of any such event
shall be adjusted to equal the number of shares of Company Common Stock
which a record holder of the same number of shares of Common Stock for
which Warrant Shares is exercisable immediately prior to the occurrence of
such event would own or be entitled to receive after the happening of such
event, and (B) the Purchase Price shall be adjusted to equal (x) the
Purchase Price multiplied by the Warrant Shares for which the Warrant
Holder's Warrant is exercisable immediately prior to the adjustment divided
by (y) the Warrant Shares for which Holder's Warrant is exercisable
immediately after such adjustment.
(b) The following provisions shall be applicable to adjustments made
pursuant to Section 7(a) hereof:
(i) The adjustments required by Section 7(a) hereof shall be
made whenever and as often as any event requiring an adjustment shall
occur. For the purpose of any such adjustment, any event shall be
deemed to have occurred at the close of business on the date of its
occurrence.
(ii) In computing adjustments under this Section 7(b),
fractional interests in the Company's Common Stock shall be taken into
account to the nearest 1/10th of a share. In no event, however, shall
fractional shares or a scrip representing fractional shares be issued
upon the exercise of the Warrant. In lieu thereof, a cash payment
shall be made to the Warrant Holder in an amount equal to such
fraction multiplied by the Purchase Price.
(iii) If the Company shall establish a record date for the
determination of the holders of record of the Company's Common Stock
for the purpose of entitling such holders to receive a dividend
payable in Company Common Stock and shall, thereafter and before the
distribution to shareholders thereof, legally abandon its plan to pay
or deliver such dividend, then no adjustment shall be
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required by reason of the establishment of such record date and any
such adjustment previously made in respect thereof shall be rescinded
and annulled.
8. Reorganization, Reclassification, Consolidation or Merger.
(a) If, prior to the Expiration Time, there shall be any
reorganization or reclassification of the Company's Common Stock (other
than a subdivision or combination of shares provided for in Section 7
hereof), or any consolidation or merger of the Company with another entity,
the Warrant Holder shall thereafter be entitled to receive, during the term
hereof and upon payment of the Purchase 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 the Company's Common Stock,
deliverable upon the exercise of the Warrant, would have been entitled upon
such reorganization, reclassification, consolidation or merger; and in any
case, appropriate adjustment (as determined by the Board of Directors of
the Company in its sole discretion) shall be made in the application of the
provisions herein set forth with respect to the rights and interest
thereafter of the Warrant Holder to the end that the provisions set forth
herein (including the adjustment of the Purchase Price and the Warrant
Shares) shall thereafter be applicable, as near as may reasonably be
practicable, in relation to any shares or other property thereafter
deliverable upon the exercise hereof.
(b) If any such reorganization, reclassification, consolidation,
merger or share exchange results in a cash distribution in excess of the
Purchase Price provided by this Warrant, the Warrant Holder may, at the
Warrant Holder's option, exercise this Warrant without making payment of
the Purchase Price, and in such case the Company or its successors and
assigns shall, upon distribution to such Warrant Holder, consider the
Purchase Price to have been paid in full, and in making settlement to such
Warrant Holder, shall deduct an amount equal to the Purchase Price from the
amount payable to such Warrant Holder. Notwithstanding anything herein to
the contrary, the Company will not effect any such reorganization,
reclassification, merger, consolidation or share exchange unless prior to
the consummation thereof, the corporation that may be required to deliver
any stock, securities or other assets upon the exercise of the Warrant
issuable pursuant to this Agreement shall agree by an instrument in writing
to deliver such stock, cash, securities or other assets to the Warrant
Holder. A sale, transfer or lease of all or substantially all of the assets
of the Company to another person shall be deemed a reorganization,
reclassification, consolidation, merger or share exchange for the foregoing
purposes.
9. Notice of Adjustments. Upon any adjustment provided for in Section 7
or Section 8 hereof, the Company, within 30 days thereafter, shall give written
notice thereof to the Warrant Holder at the address set forth under Section
11(a) hereof or such other address as the Warrant Holder may advise the Company
pursuant to Section 11(a) hereof, which notice shall state the Purchase Price as
adjusted and the increased or decreased number of Warrant Shares, setting, forth
in reasonable detail the method of calculation of each.
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10. Transfer and Assignment.
(a) This Agreement shall be non-transferable, except in the case of
the Warrant Holder's death, and thereupon only by will or under the laws of
descent and distribution. Upon the death of the Warrant Holder, the
deceased Warrant Holder's heirs, legal or personal representative, or any
permitted transferee of the Warrant shall, within 30 days of the Warrant
Holder's death, notify the Company of such event and the new holder's name,
address and capacity in which the Warrant is held, and present letters
testamentary, a death certificate and such other information as the Company
may reasonably request to ascertain the authority of such person. Such
permitted transferee will be subject to, and bound by, the terms and
provisions of this Agreement to the same extent as the original Warrant
Holder.
(b) The Warrant Shares granted hereby may not be transferred or sold
unless the transfer is exempt from further regulatory approval or otherwise
permissible under applicable law, including state and federal securities
laws, and will bear a legend to this effect as set forth in Section 6
hereof.
11. Miscellaneous.
(a) All notices, requests, demands and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, telegram or facsimile transmission, or
if mailed, by postage prepaid first class mail, on the third business day
after mailing, to the following address (or at such other address as a
party may notify the other hereunder):
To the Company:
NBG Bancorp, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx,
President and Chief Executive Officer
To the Warrant Holder:
_________________________
_________________________
_________________________
(b) The Company covenants that it has reserved and will keep
available, solely for the purpose of issue upon the exercise of the
Warrant, a sufficient number of shares of the Company's Common Stock to
permit the exercise of the Warrant in full.
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(c) No holder of the Warrant, as such, shall be entitled to vote or
receive dividends with respect to the Warrant Shares subject thereto or be
deemed to be a shareholder of the Company for any purpose until the
Company's Common Stock has been issued.
(d) This Agreement may be amended only by an instrument in writing
executed by the party against whom enforcement of amendment is sought.
(e) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
(f) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a
duly authorized officer and its corporate seal to be affixed hereto and the
Warrant Holder has executed this Agreement, all as of the day and year first
above written.
NBG BANCORP, INC.
By:_____________________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
WARRANT HOLDER
_______________________________________
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SCHEDULE A
NOTICE OF EXERCISE
OF WARRANT TO PURCHASE COMMON STOCK OF
NBG BANCORP, INC.
To: NBG Bancorp. Inc.
The undersigned, the registered owner of the right to purchase shares of
Common Stock (the "Common Stock") of NBG Bancorp, Inc. (the "Company"), hereby
irrevocably elects to exercise such right to purchase thereunder ________ shares
of the Common Stock of the Company and herewith makes payment of $________
therefor, and requests that the certificate(s) evidencing such shares be issued
in the name of and be delivered to:
Name:____________________________
Address:_________________________
_________________________
_________________________
Social Security or
Tax I.D. Number:_______________
and if such shares shall not be all of the shares purchasable hereunder, that a
new warrant of like tenor for the balance of the shares purchasable hereunder be
delivered to the undersigned.
Date:_________________
NAME OF WARRANT HOLDER
By:_______________________
Name:__________________
THIS NOTICE OF EXERCISE SHALL NOT BE GIVEN EFFECT
BY THE COMPANY UNLESS THE HOLDER OF THE UNDERLYING
WARRANT HAS PROPERLY COMPLETED AND SIGNED BOTH
THIS NOTICE OF EXERCISE FORM AND THE SUBSTITUTE FORM W-9
ATTACHED HERETO.
SUBSTITUTE FORM W-9
Under the penalties of perjury, I certify that:
1. The Social Security Number or Taxpayer Identification Number given
below is correct; and
2. I am not subject to backup withholding either because I have not been
notified that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or because the Internal
Revenue Service has notified me that I am no longer subject to backup
withholding.
IMPORTANT INSTRUCTIONS: You must cross out #2 above if you have been notified by
the Internal Revenue Service that you are subject to backup withholding because
of under reporting interest or dividends on your tax return and if you have not
received a notice from the Internal Revenue Service advising you that backup
withholding due to notified payee under reporting has terminated.
SIGNATURE*______________________
DATE____________________________
* If a corporation, please sign in full corporate name by president or other
authorized officer. When signing as officer, attorney, custodian, trustee,
administrator, guardian, etc., please give your full title as such. In case of
joint tenants, each person must sign.
