Exhibit 10.3
STOCK WARRANT AGREEMENT
__________, 2005
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| Warrant Holder:_____________________ |
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No. of Shares:_______________ |
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Atlantic
Bancshares, Inc. (the “Company”), a South Carolina corporation and the holding
company for Atlantic Community Bank (proposed) (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, representing one share of common stock for
every share of common stock purchased by the Warrant Holder in the Company’s initial
public offering (provided that the maximum number of shares which may be covered by this
Warrant is 10,000 shares), in consideration of the financial risk associated with Warrant
Holder’s investment in the Company during its organizational stage and the time,
expertise, and continuing involvement of the Warrant Holder in the management of the Bank.
Such Warrants are granted on the following terms and conditions:
1. Exercise of Warrants. All of the shares (the
“Shares”) subject to the Warrants granted in this Agreement shall be
immediately vested. Exercise of the Warrants is subject to the following:
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(a) |
Exercise Price. The exercise price (the “Exercise
Price”) shall be $10.00 per Share, subject to adjustment pursuant to
Section 2 below. |
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(b) |
Expiration of Warrant Term. The Warrants will expire at
5:00 p.m. Eastern Standard Time on the tenth anniversary of the opening date of
the bank (subject to earlier termination in certain circumstances pursuant to
Section 5 below), and may not be exercised thereafter (the “Expiration
Date”). |
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(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. |
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(d) |
Method of Exercise. The Warrants shall be exercisable by a written
notice delivered to the Chief Executive Officer or Secretary of the Company
which shall: |
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(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); |
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(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 Bank 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. |
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(e) |
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. |
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(f) |
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 Bank or the holder hereof, as applicable, obtains
any approval or other clearance which the Bank determines to be necessary or
advisable from the Federal Reserve Board, 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 Warrant 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 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
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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. This Agreement and the
Warrants may not be assigned, transferred, pledged, or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to
execution, attachment, or similar process. Any attempted assignment, transfer,
pledge, hypothecation, or other disposition of these Warrants contrary to the
provisions hereof shall be without legal effect.
5.
Mandatory Exercise; Termination.
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(a) |
Warrant Holder shall exercise all of Warrant Holder’s then exercisable
Warrants within 90 days of the date that Warrant Holder ceases to serve the
Company as an executive officer, or director, or the then exercisable Warrants
shall terminate; provided that such 90 day period shall be extended to one year
if the cessation of service was a result of the Warrant Holder’s death or
disability. In the event the Warrant Holder fails to exercise any of the
Warrants referred to in this subparagraph within the specified day period, such
Warrants shall be forfeited. |
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(b) |
The Company may be required to increase its capital to meet capital requirements
imposed by statute, rule, regulation, or guideline. In order to achieve such
capital increase, the Regulatory Agencies may direct the Company to require, or
the Company on its on volition may decide to require, the Warrant Holders to
either (i) exercise all or part of their Warrants or (ii) allow the Warrants to
be terminated. In such an event, the Warrant Holder must exercise or forfeit the
Warrants as set forth below. |
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(c) |
When the Company is required or determines to increase its capital as described
in subsection (b) above, the Company shall send a notice (the
“Notice”) to the Warrant Holder (i) specifying the number of Shares
relating to the Warrants for which the Warrants must be exercised (the
“Number”) (if less than all shares relating to warrants held by all
holders of warrants of the Company under agreements substantially similar to
this one are required by the Company to be exercised or cancelled, the Number
for the Warrant Holder shall reflect a proportionate allocation based on the
number of Shares subject to this Agreement as compared to the total number of
shares subject to warrants held by all such warrant holders as a group); (ii)
specifying the date prior to which the Warrants must be totally or partially
exercised, as the case may be (the “Deadline”); and (iii) stating
that the failure of the Warrant holder to exercise the Warrants shall result in
their automatic termination. |
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(d) |
If the Warrant Holder does not exercise the Warrants pursuant to the terms of
the Notice, this Agreement shall be automatically terminated on the Deadline,
without further act or action by the Warrant Holder or the Company, and the
Warrant Holder shall deliver this Agreement to the Company for cancellation. If
the Number is less than the total number of Shares that are then subject to
exercise under this Agreement, the Company shall issue a new Stock Warrant
Agreement in compliance with Section 1(e) hereof. |
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6. Covenants of the Company. During the term of the
Warrants, the Company shall:
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(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; |
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(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 |
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(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, 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. |
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.
8. Amendment. Neither this Agreement nor the rights
granted hereunder may be amended, changed or waived except in writing signed by
each party hereto.
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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.
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ATLANTIC BANCSHARES, INC. |
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By:____________________________ | | |
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Xxxxxx X. Xxxxx, Chief Executive Officer | | |
| (CORPORATE SEAL) | | |
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Attest:__________________________ | | |
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______________________, Secretary | | |
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WARRANT HOLDER: | | |
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By:____________________________ | | |
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Signature | | |
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_______________________________
Print Name | | |
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