Warrant No. [Specimen] Number of Shares: (Subject to adjustment as provided in this Warrant)
Exhibit 10.4
NEITHER THIS WARRANT NOR ANY OF THE WARRANT SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN JURISDICTION. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE AND FOREIGN SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
September 2, 2008
| Warrant No. [Specimen] | Number of Shares: (Subject to adjustment as provided in this Warrant) |
(Void after the date set forth in Section 1(a) hereof)
This Common Stock Purchase Warrant (this “Warrant”) certifies that, for value
received,
, or his, her or its permitted designees or
assignees (the “Holder”), is entitled, upon the terms and subject to the conditions
hereinafter set forth, to purchase from ServisFirst Bancshares, Inc., a Delaware corporation (the
“Company”), fully paid and nonassessable shares (the “Warrant
Shares”) of Common Stock, $0.001 par value per share, of the Company (the “Common
Stock”) at a purchase price of $25.00 per share (the “Exercise Price”).
1. Exercise of Warrant.
(a) This Warrant may be exercised by the Holder, in whole or in part, at any time, or from
time to time, during the period commencing on the issuance date set forth above and ending on the
later of either (i) September 1, 2013 or (ii) such date which is sixty (60) days following the date
that the Common Stock is listed for trading on a “national securities exchange” as defined in
Securities Exchange Act of 1934, as amended (the “Exercise Period”), by the surrender of
this Warrant and the Notice of Exercise attached hereto as Exhibit A duly completed and
executed on behalf of the Holder, at the office of the Company in Birmingham, Alabama (or such
other office or agency of the Company as it may designate by notice in writing to the Holder at the
address of such Holder appearing on the books of the Company), and upon payment by check payable to
the Company or wire transfer to an account designated by the Company of the Exercise Price of the
Warrant Shares thereby purchased.
(b) As soon as practicable after the exercise of this Warrant in full or in part, the Company
at its expense will cause to be issued in the name of the Holder:
(i) a certificate for the number of full Warrant Shares to which the Holder shall be
entitled upon such exercise plus, in lieu of any fractional Warrant Share to
which the Holder would otherwise be entitled, cash in an amount determined pursuant to Section 4
hereof; and
(ii) in case such exercise is in part only, a new warrant (dated the date hereof) of
like tenor, for the number of Warrant Shares equal (without giving effect to any adjustment
therein) to the number of such Warrant Shares called for on the face of this Warrant minus
the number of Warrant Shares purchased by the Holder upon such exercise as provided in
subsection (a) above.
(c) Each exercise of this Warrant shall be deemed to have been effected immediately prior to
the close of business on the day on which the Notice of Exercise, this Warrant and the applicable
Exercise Price shall have been received by the Company. At such time, the Holder shall be deemed
to have become the holder of record of the Warrant Shares represented by the certificate required
to be issued upon each exercise of this Warrant as provided in subsection (b) above.
2. No Impairment. The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issuance or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant or the rights granted to the
Holder hereunder (including, without limitation, Section 3). The Company represents and warrants
to the Holder that all shares of Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance in accordance with the terms of this Warrant, be
duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights
of any stockholder and free of all taxes, liens and charges with respect to the issue thereof. The
Company covenants and agrees that during the Exercise Period, the Company will at all times have
authorized and reserved, for the purpose of issuance or transfer upon exercise of the rights
evidenced by this Warrant, a sufficient number of shares of authorized but unissued Common Stock
free from all preemptive rights therein, when and as required to provide for the exercise of the
rights represented by this Warrant. The Company will take all such action as may be necessary to
assure that such shares of Common Stock may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities exchange upon which
the Common Stock may be listed; provided, however, that the Company shall not be obligated to
effect a registration under any federal or state securities laws in connection with such exercise.
The Company will not take any action which would result in any adjustment (as described in Section
3 hereof) if the total number of shares of Common Stock issuable after such action upon exercise of
all outstanding Warrants, together with all shares of Common Stock then outstanding and all shares
of Common Stock then issuable upon exercise of all options and warrants and upon the conversion of
all convertible securities then outstanding, would exceed the total number of shares of Common
Stock then authorized by the Company’s Certificate of Incorporation.
3. Adjustment. The Exercise Price and the number of Warrant Shares purchasable upon
the exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence
of certain events described in this Section 3.
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(a) Subdivision or Combination.
(i) In case the Company shall (A) pay a dividend on its Common Stock in Common Stock, (B)
subdivide its outstanding shares of Common Stock, or (C) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then, in such an event, the Exercise Price
in effect immediately prior thereto shall be adjusted proportionately so that the adjusted Exercise
Price will bear the same relation to the Exercise Price in effect immediately prior to any such
event as the total number of shares of Common Stock outstanding immediately prior to any such event
shall bear to the total number of shares of Common Stock outstanding immediately after such event.
An adjustment made pursuant to this subsection (a) shall become effective retroactively immediately
after the record date in the case of a dividend or shall become effective immediately after the
effective date in the case of a subdivision or combination. The Exercise Price, as so adjusted,
shall be readjusted in the same manner upon the happening of any successive event or events
described herein.
(ii) Upon each adjustment of the Exercise Price pursuant to subsection (a)(i) above, the
number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted to the number
of Warrant Shares, calculated to the nearest one hundredth of a share, obtained by multiplying the
number of Warrant Shares purchasable immediately prior to such adjustment by the Exercise Price in
effect prior to such adjustment and dividing the product so obtained by the new Exercise Price.
(b) Reorganization, Reclassification, Consolidation, Merger or Sale. If there shall
occur any capital reorganization or reclassification of the Company’s Common Stock (other than a
change in par value or a stock dividend, or a subdivision or combination as provided for in
subsection (a) above), or any consolidation or merger of the Company with or into another
corporation, or a transfer of all or substantially all of the assets of the Company, then, as part
of any such reorganization, reclassification, consolidation, merger or sale, as the case may be,
lawful provision shall be made so that the Holder shall have the right thereafter to receive upon
the exercise hereof the kind and amount of shares of stock or other securities or property which
such Holder would have been entitled to receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger or sale, as the case may be, such Holder had held the
number of shares of Common Stock which were then purchasable upon the exercise of this Warrant. In
any such case, appropriate adjustment (as reasonably determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions set forth herein and
in such transaction with respect to the rights and interests thereafter of the Holder of this
Warrant such that the provisions set forth in this Section 3 (including provisions with respect to
adjustment of the Exercise Price) shall thereafter be applicable, as nearly as is reasonably
practicable, in relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
(c) Adjustments for Non-Cash Dividends. If while this Warrant, or any portion hereof,
remains outstanding and unexpired the holders of the securities as to which purchase rights under
this Warrant exist at the time shall have received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become entitled to receive, without payment
therefor, other or additional stock or other securities or property of the Company (other than
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Common Stock and other than cash) by way of dividend, then and in each case, this Warrant shall
represent the right to acquire, in addition to the number of shares of the security receivable upon
exercise of this Warrant, and without payment of any additional consideration therefor, the amount
of such other or additional stock or other securities or property of the Company (other than Common
Stock and other than cash) that such Holder would hold on the date of such exercise had it been the
holder of record of the security receivable upon exercise of this Warrant on the date hereof and
had thereafter, during the period from the date hereof to and including the date of such exercise,
retained such shares and/or all other additional stock available by it as aforesaid during such
period, giving effect to all adjustments called for during such period by the provisions of this
Section 3.
(d) Certificate as to Adjustments. Upon the occurrence of each adjustment or
readjustment pursuant to this Section 3, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to the Holder a
certificate setting forth such adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based. The Company shall, upon the written request of the
Holder, furnish or cause to be furnished to the Holder a certificate setting forth: (i) such
adjustments and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the number
of Warrant Shares and the amount, if any, of other property that at the time would be received upon
the exercise of the Warrant.
4. Fractional Shares. The Company shall not be required upon the exercise of this
Warrant to issue any fractional Warrant Shares, but shall make an adjustment therefor in cash on
the basis of the then market value of the Warrant Shares as shall be reasonably determined by the
Board of Directors of the Company.
5. Notices of Record Date. In case:
(a) the Company shall take a record of the holders of its Common Stock (or other stock or
securities at the time deliverable upon the exercise of this Warrant) for the purpose of entitling
or enabling them to receive any dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any other securities, or to receive
any other right, or shall otherwise determine to pay any dividend or other distribution, or to
receive any such right; or
(b) of any capital reorganization of the Company, any reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into another corporation, or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company,
including, without limitation, a Deemed Liquidation Event (as defined in the Certificate of
Incorporation of the Company);
then, and in each such case, the Company will mail or cause to be mailed to the Holder a notice
specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character or such dividend,
distribution or
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right, or (ii) the effective date on which such dividend, distribution, right,
reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place or become effective, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the time deliverable
upon the exercise of this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be delivered at least twenty (20) days prior to the record date or
effective date for the event specified in such notice.
6. Transfer and Exchange.
(a) The Holder acknowledges that this Warrant and the Warrant Shares have not been registered
under the Securities Act of 1933, as amended (the “Act”), and agrees not to sell, pledge,
distribute, offer for sale, transfer or otherwise dispose of (each, a “Transfer”) this
Warrant, in whole or in part, or any Warrant Shares issued upon its exercise in the absence of (i)
an effective registration statement under the Act as to this Warrant or such Warrant Shares, as
applicable, and registration or qualification of this Warrant or such Warrant Shares, as
applicable, under any applicable “Blue Sky” or state securities law then in effect, or (ii) an
exemption from any such registration and qualification. If reasonably requested by the Company, an
opinion of counsel to the transferring Holder shall be supplied to the Company, at such
transferring Holder’s expense, to the effect that the proposed Transfer complies with the
applicable federal and state securities laws. The Holder understands that the certificate or
certificates representing any Warrant Shares acquired by the Holder upon exercise of this Warrant
shall bear a restrictive legend to the foregoing effect.
(b) Subject to subsection (a) above, this Warrant and all rights hereunder are transferable,
in whole or in part, upon surrender of this Warrant with a properly executed assignment (in the
form of Exhibit B hereto) at the principal office of the Company. Upon the surrender by
the Holder of any Warrant, properly endorsed, to the Company at the principal office of the
Company, the Company will issue and deliver to or upon the order of such Holder, at the Company’s
expense, a new Warrant or Warrants of like tenor, in the name of such Holder or as such Holder may
direct, calling in the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant or Warrants so surrendered, or such other
amount as may be appropriate following the adjustments contemplated by Section 3 hereof.
7. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and in case of loss, theft or destruction, of indemnity reasonably satisfactory to it, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver to
the Holder a new Warrant of like tenor, in lieu of this Warrant.
8. Applicable Law. The validity, interpretation and legal effect of this Agreement
shall be governed by the laws of the State of Alabama without reference to that State’s conflict of
law principles.
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9. No Rights as Stockholder. Until the exercise of this Warrant, the Holder shall not
have or exercise any rights by virtue hereof as a stockholder of the Company.
10. Miscellaneous.
(a) Amendments. This Warrant may be amended and the observance of any term of this
Warrant may be waived only with the written consent of both the Company and the Holder.
(b) Notices. All notices, requests, demands and other communications under this
Warrant shall be in writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or three days after the date of
mailing if mailed to the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows: if to the Holder, at the Holder’s
address as shown in the Company records; and if to the Company, at its principal office. Any party
may change its address for purposes of this subsection by giving the other party written notice of
the new address in the manner set forth above.
(c) Headings. The headings in this Warrant are for purposes of reference only and
shall not limit or otherwise affect the meaning of any provision of this Warrant.
(d) Binding Effect. This Warrant shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns, heirs and legal representatives.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of the date first written above.
| SERVISFIRST BANCSHARES, INC. |
||||
| By: | ||||
| Xxxxxx X. Xxxxxxxxx, III | ||||
| Its: President and CEO | ||||
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Exhibit A
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase shares of the Common Stock of
SERVISFIRST BANCSHARES, INC., a Delaware corporation, pursuant to the terms of the attached
Warrant, and tenders herewith payment of the Exercise Price for such shares.
2. Please issue a certificate or certificates representing said shares of Common Stock in the
name of the undersigned or in such other name as is specified below:
Name: |
||||||||
| By: | ||||||||
| Its: | ||||||||
Date: |
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A - 1
Exhibit B
ASSIGNMENT
FOR VALUE RECEIVED,
hereby sells, assigns and transfers
all of the rights of the undersigned under the attached Warrant with respect to the number of
shares of Common Stock covered thereby set forth below, unto:
Name of Assignee
|
Address | No. of Shares | ||
| By: | ||||||||
| Its: | ||||||||
Date: |
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B - 1
