EXHIBIT 99.5
THE WARRANTS MAY NOT BE ASSIGNED OR TRANSFERRED BY THE WARRANT HOLDER, EXCEPT
WITH THE COMPANYSEC.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
____________________, 2001
WARRANT HOLDER: ____________________ NO. OF SHARES:______________________
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
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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
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$4.00 per Share, subject to adjustment pursuant to Section 2 below.
(b) EXPIRATION OF WARRANT TERM. The Warrants will expire on the earlier of
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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
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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.
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(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
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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
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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,
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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
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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
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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
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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
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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 laws.
5. COVENANTS OF THE COMPANY. During the term of the Warrants, the
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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
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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. 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.
7. NO DILUTION OR IMPAIRMENT. The Company shall not amend its
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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
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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
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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
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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:________________________________
Chief Executive Officer
(CORPORATE SEAL)
Attest:____________________________
Secretary
WARRANT HOLDER:
By:________________________________
Signature
___________________________________
Print Name
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Schedule to Exhibit 99.5
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Between April 2001 and August 2001, Xxxxxxxxx, Xxxxxx & Company and the
following individuals were issued stock warrant agreements in the form of this
Exhibit 99.5 to purchase an aggregate of 200,000 shares of Common Stock:
- Xxxxx Xxxxx
- Xxxxxxx Xxxxxxxxx
- Xxxxxx Xxxxxxxxx
- Xxxxx Xxxx Xxxxxx
- Xxxxxx Xxxxxx
- Xxxx Xxxxx
- Xxxxxx XxXxx
- Xxxxxxx Xxxxxx
- Xxxxx Xxxxxx
- Xxxx Xxxxxxxxx
- Xxxxxxx Xxxxx
- Xxxxx Xxxxxx
- Xxxxxx Xxxxxx
- Xxxx Xxxx
