EXHIBIT 99.1
THE WARRANTS MAY NOT BE ASSIGNED OR TRANSFERRED BY THE WARRANT HOLDER, EXCEPT
WITH THE COMPANY'S PRIOR WRITTEN CONSENT IN LIMITED CIRCUMSTANCES AS DESCRIBED
HEREIN, AND IF SO REQUESTED BY THE COMPANY, THE DELIVERY BY THE WARRANT HOLDER
TO THE COMPANY OF AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE COMPANY STATING THAT SUCH TRANSFER OR ASSIGNMENT IS IN COMPLIANCE WITH THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
XXXXX.XXX, INC.
STOCK WARRANT AGREEMENT
2/14/01
WARRANT HOLDER: XXXXXXX XXXXX NO. OF SHARES: 20,000
THIS IS TO CERTIFY THAT, for good and valuable consideration received,
xxxxx.xxx, Inc. (the "Company"), a Georgia corporation and the holding company
for ebank (the "Bank"), hereby grants to the person identified above as the
Warrant Holder warrants (the "Warrants") to purchase the number of shares set
forth above. Such Warrants are granted on the following terms and conditions:
1. EXERCISE OF WARRANTS. The Warrants granted in this Agreement
may be exercised in whole or in part at any time beginning on or after the date
of this Agreement through the Expiration Date (defined below), subject to the
restrictions and conditions set forth in this Agreement.
(a) EXERCISE PRICE. The exercise price (the "Exercise Price")
shall be $3.50 per Share, subject to adjustment pursuant to
Section 2 below.
(b) EXPIRATION OF WARRANT TERM. The Warrants will expire on the
earlier of 5:00 p.m. Eastern Standard Time on the fifth
anniversary of the date of this Agreement, or 30 days after
the Company mails notice to the Warrant Holder that that the
closing price of the Company's common stock equaled or
exceeded $5.00 per shares for 20 consecutive trading days, and
may not be exercised thereafter (the "Expiration Date");
(c) PAYMENT. The purchase price for Shares as to which the
Warrants are being exercised shall be paid in cash, by wire
transfer, by certified or bank cashier's check, or by personal
check drawn on funds on deposit with the Bank, or by cashless
exercise as set forth below.
(d) CASHLESS EXERCISE.
(i) In lieu of the payment of the Exercise Price, the
Warrant Holder may propose to have the Company
convert the Warrant, in whole or in part,
into Shares of the Company as described below. The
Company has complete discretion whether to permit the
Warrant Holder to effect a cashless exercise. To
effect a cashless exercise, the Warrant Holder shall
request in writing that the Company deliver to the
Warrant Holder (without payment by the Warrant Holder
of any of the Exercise Price) and in accordance with
this Section 1 that amount of Common Stock of the
Company equal to the product of (x) the number of
Shares as to which the Warrant is being exercised
multiplied by (y) a fraction the numerator of which
is the per Share Market Price (as defined herein) of
the Common Stock less the Exercise Price then in
effect and the denominator of which is the per Share
Market Price (in each case adjusted for fractional
shares as herein provided). The Company has no
obligation to permit such cashless exercise under any
circumstances, and shall notify the Warrant Holder
within a reasonable time after delivery of the notice
whether it will honor such request;
(ii) "Market Price" on any date shall mean (i) the closing
sales price of the Common Stock, regular way, on such
date on the national securities exchange having the
greatest volume of trading in the Common Stock during
the thirty-day period preceding the day the value is
to be determined or, if such exchange was not open
for trading on such date, the next preceding date on
which it was open; (ii) if the Common Stock is not
traded on any national securities exchange, the
average of the closing high bid and low asked prices
of the Common Stock on the over-the-counter market on
the day such value is to be determined, or in the
absence of closing bids on such day, the closing bids
on the next preceding day on which there were bids;
or (iii) if the Common Stock also is not traded on
the over-the-counter market, the fair market value as
determined in good faith by the Board based on such
relevant facts as may be available to the Board,
which may include opinions of independent experts,
the price at which recent sales have been made, the
book value of the Common Stock, and the Company's
current and future earnings.
(e) METHOD OF EXERCISE. The Warrants shall be exercisable
by a written notice delivered to the President or
Secretary of the Company which shall:
(i) State the owner's election to exercise the
Warrants, the number of Shares with respect
to which it is being exercised, the person
in whose name the stock certificate for such
Shares is to be registered, and such
person's address and tax identification
number (or, if more than one, the names,
addresses and tax identification numbers of
such persons);
(ii) Be signed by the person or persons entitled
to exercise the Warrants and, if the
Warrants are being exercised by any person
or persons other than the original holder
thereof, be accompanied by proof
satisfactory to counsel for the Company of
the right of such person or persons to
exercise the Warrants; and
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(iii) Be accompanied by the originally executed
copy of this Stock Warrant Agreement.
(f) PARTIAL EXERCISE. In the event of a partial exercise
of the Warrants, the Company shall either issue a new
agreement for the balance of the Shares subject to
this Stock Warrant Agreement after such partial
exercise, or it shall conspicuously note hereon the
date and number of Shares purchased pursuant to such
exercise and the number of Shares remaining covered
by this Stock Warrant Agreement.
(g) RESTRICTIONS ON EXERCISE. The Warrants may not be
exercised (i) if the issuance of the Shares upon such
exercise would constitute a violation of any
applicable federal or state securities or banking
laws or other law or regulation or (ii) unless the
Company or the holder hereof, as applicable, obtains
any approval or other clearance which the Company
determines to be necessary or advisable from the
Office of Thrift Supervision, the Federal Deposit
Insurance Corporation or any other state or federal
banking regulatory agency with regulatory authority
over the operation of Company or the Bank
(collectively the "Regulatory Agencies"). The Company
may require representations and warranties from the
Warranty Holder as required to comply with applicable
laws or regulations, including the Securities Act of
1933 and state securities laws.
2. ANTI-DILUTION; MERGER. If, prior to the exercise of Warrants
hereunder, the Company (i) declares, makes or issues, or fixes a record date for
the determination of holders of common stock entitled to receive, a dividend or
other distribution payable on the Shares in shares of its capital stock, (ii)
subdivides the outstanding Shares, (iii) combines the outstanding Shares, (iv)
issues any shares of its capital stock by reclassification of the Shares,
capital reorganization or otherwise (including any such reclassification or
reorganization in connection with a consolidation or merger or and sale of all
or substantially all of the Company's assets to any person), then the Exercise
Price, and the number and kind of shares receivable upon exercise, in effect at
the time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be proportionately adjusted
so that the holder of any Warrant exercised after such time shall be entitled to
receive the aggregate number and kind of shares which, if such Warrant had been
exercised immediately prior to such time, he would have owned upon such exercise
and been entitled to receive by virtue of such dividend, distribution,
subdivision, combination, reclassification, reorganization, consideration,
merger or sale.
3. VALID ISSUANCE OF COMMON STOCK. The Company possesses the full
authority and legal right to issue, sell, transfer, and assign this Warrant and
the Shares issuable pursuant to this Warrant. The issuance of this Warrant vests
in the holder the entire legal and beneficial interests in this Warrant, free
and clear of any liens, claims, and encumbrances and subject to no legal or
equitable restrictions of any kind except as described herein. The Shares that
are issuable upon exercise of this Warrant, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, and non-assessable, and
will be free of restrictions on transfer other than restrictions under
applicable state and federal securities.
4. RESTRICTIONS ON TRANSFERABILITY. The Warrants may not be
assigned or transferred by the Warrant Holder without the Company's prior
written consent and, if so requested by the Company, the delivery by the Warrant
Holder to the Company of an opinion of counsel in form
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and substance satisfactory to the Company stating that such transfer or
assignment is in compliance with the Securities Act of 1933 and applicable state
securities 4. laws.
5. COVENANTS OF THE COMPANY. During the term of the Warrants, the
Company shall:
(a) at all times authorize, reserve and keep available, solely for
issuance upon exercise of this Warrant, sufficient shares of
common stock from time to time issuable upon exercise of this
Warrant;
(b) on receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft, or destruction, on delivery
of any indemnity agreement or bond reasonably satisfactory in
form and amount to the Company or, in the case of mutilation,
on surrender and cancellation of this Warrant, at its expense
execute and deliver, in lieu of this Warrant, a new Warrant of
like tenor; and
(c) on surrender for exchange of this Warrant or any Warrant
substituted therefor pursuant hereto, properly endorsed, to
the Company, at its expense, issue and deliver to or on the
order of the holder thereof a new Warrant or Warrants of like
tenor, in the name of such holder or as such holder (on
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof
for the issuances of the number of shares of common stock
issuable pursuant to the terms of the Warrant or Warrants so
surrendered.
6. COVENANTS OF THE WARRANT HOLDER. The Warrant Holder
understands that this Warrant and the Common Stock issuable upon exercise of the
Warrant may not be sold, transferred or otherwise disposed of without
registration under the Securities Act of 1933, or an exemption therefrom, that
in the absence of an effective registration statement covering such shares or an
available exemption from registration under the Securities Act of 1933, such
shares must be held indefinitely, and that the certificates representing the
Shares will bear a legend to this effect. The holder understands that the Shares
are not registered under the Securities Act of 1933 on the ground that the sale
provided for in this Stock Warrant Agreement and the issuance of securities
hereunder is exempt from registration under the Securities Act of 1933 pursuant
to Section 4(2) thereof, and that the Company's reliance on such exemption is
predicated in part on the Warrant Holder's representations set forth herein. In
the absence of an effective registration statement covering the Shares, the
Warrant Holder will sell, transfer or otherwise dispose of the Shares only
pursuant to an exemption from the requirements for registration under the
Securities Act of 1933. The Warrant Holder also acknowledges and agrees that the
resale of shares issuable upon exercise of the Warrant is subject to the terms
and conditions of a Registration Rights Agreement dated as of the date hereof.
7. NO DILUTION OR IMPAIRMENT. The Company shall not amend its
Articles of Incorporation or participate in any reorganization, transfer of
assets, consolidation, merger, dissolution, issuance or sale of securities or
any other voluntary action for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith assist in carrying
out all such action as may be reasonably necessary in order to protect the
exercise rights of the holder against improper dilution or other impairment.
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8. AMENDMENT. Neither this Agreement nor the rights granted
hereunder may be amended, changed or waived except in writing signed by each
party hereto.
9. NOTICE. The address of record for Warrant Holder maintained by
the Company for all purposes of this Warrant Agreement and the Shares shall be
that address set forth beneath Warrant Holder's signature on the Subscription
Agreement. Warrant Holder may change his address of record only by notifying the
Company 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 Agreement or
with respect to the Shares 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.
IN WITNESS WHEREOF, the Company has executed and the holder has
accepted this Stock Warrant Agreement as of the date and year first above
written.
XXXXX.XXX, INC.
By: /s/ Xxxxx X. Box
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Chief Executive Officer
(CORPORATE SEAL)
Attest: /s/ Xxxx X. Xxxxxxx
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Secretary
WARRANT HOLDER:
By: /s/ Xxxxxxx X. Xxxxx
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Signature
Xxxxxxx X. Xxxxx
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Print Name
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