EXHIBIT 10.5
NEITHER THIS WARRANT, NOR THE SHARES OF COMMON STOCK FOR WHICH IT IS
EXERCISABLE, HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NO
TRANSFER OR ASSIGNMENT OF THIS WARRANT OR THE SHARES ISSUABLE UPON ITS EXERCISE
MAY BE MADE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
OR THE AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF SUCH ACT
IN RESPECT OF SUCH TRANSFER OR ASSIGNMENT.
DATED: ___________, 1999
No ___ _____ Shares
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK, $.01 PAR VALUE
This is to certify that, for value received, _________________
("Holder"), or its or his successors, is entitled, upon the due exercise hereof
at any time during the period commencing on the closing date for the Initial
Public Offering (as hereinafter defined) of Marine Bancshares, Inc., a Florida
corporation (the "Commencement Date") and terminating at 5:00 p.m., Atlanta,
Georgia local time, on the tenth anniversary of the Commencement Date, unless
earlier terminated as provided in Section 2 hereunder (the "Termination Date"),
to purchase _____ shares (subject to adjustment as provided herein) of the $.01
par value Common Stock of Marine Bancshares, Inc. at a price per share as
specified in Section 2 of this Warrant and to exercise the other rights, powers
and privileges hereinafter provided, all on the terms and subject to the
conditions specified herein.
Section 1. CERTAIN DEFINITIONS. Unless the context otherwise requires,
the following terms as used in this Warrant shall have the following meanings:
(a) "AVERAGE MARKET VALUE" shall mean the average of the
Closing Prices for the Common Stock for the five trading
days immediately preceding the date of determination.
(b) "BANK" shall mean Marine National Bank of Naples, a
national banking association (in organization) and a
wholly-owned subsidiary of the Company.
(c) "CLOSING PRICE" shall mean:
(i) if the primary market for the Common Stock is a national
securities exchange, the NASDAQ Stock Market, or other
market or quotation system in which last sale transactions
are reported on a contemporaneous basis, the last reported
sales price, regular way, of such security on such
exchange or in such quotation system for such trading day,
or, if there shall not have been a sale on such exchange
or reported through such system on such trading day, the
closing or last bid quotations therefor on such exchange
or quotation system on such trading day;
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 2
(ii) if the primary market for the Common Stock is not a
national securities exchange or quotation system in which
last sale transactions are contemporaneously reported, the
last bid quotation in the over-the-counter market on such
trading day as reported by the National Association of
Securities Dealers through NASDAQ, its automated system
for reporting quotations, or its successor, or such other
generally accepted source of publicly reported bid
quotations as the Company may reasonably designate; or
(iii) if the Closing Price cannot be ascertained by any of the
methods set forth in the immediately preceding paragraphs
(i) and (ii), such Closing Price shall be deemed to be the
amount equal to a quotient determined by dividing the Fair
Market Value by the number of shares (including any
fractional shares) of Common Stock then outstanding.
(d) "COMMENCEMENT DATE" shall mean the day that the Bank opens for
business.
(e) "COMMON STOCK" shall mean the Company's $.01 par value common
stock, any security into which such common stock shall have been
changed or any security resulting from reclassification of such
common stock.
(f) "COMPANY" shall mean Marine Bancshares, Inc., a Florida
corporation, and its successors and assigns.
(g) "EXERCISE DATE" shall mean the date on which the Company shall
have received from the Holder all deliveries required by Section
3 of this Warrant.
(h) "FAIR MARKET VALUE" shall mean the price, as determined by a
written appraisal prepared by an appraiser acceptable to the
Company, that would be paid by the most likely hypothetical
buyer in a single transaction, for 100% of the equity capital of
the Company on a going-concern basis. The Company shall pay for
the cost of any such appraisal.
(i) "INITIAL PUBLIC OFFERING" shall mean the initial public offering
of Common Stock by the Company, pursuant to an effective
registration statement on Form SB-2 filed with the United States
Securities and Exchange Commission under the Securities Act of
1933, as amended, which initial public offering is anticipated
to occur and close no later than December 31, 1998.
Section 2. EXERCISE PRICE; TERMINATION. Subject to the adjustments
provided for herein, the exercise price per share of Common Stock issuable
pursuant to this Warrant (the "Exercise Price") shall be equal to $10.00. In the
event that the Company does not close the Initial Public Offering on or before
5:00 p.m., Atlanta, Georgia local time, on December 31, 1998, then this Warrant
and all rights hereunder shall immediately terminate, shall become null and void
and shall be of no further force or effect.
2
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 3
Section 3. EXERCISE OF WARRANT. The Holder of this Warrant may, at any
time on or after the Commencement Date but prior to the Termination Date,
exercise this Warrant in whole at any time or in part from time to time for the
number of shares which such Holder is then entitled to purchase hereunder.
The Holder may exercise its rights under this Warrant only as follows:
(i) no part of the Warrant may be exercised prior to the
Commencement Date;
(ii) beginning on the first anniversary of the Commencement Date, the
Warrant may be exercised with respect to a maximum of _______ of
the shares of Common Stock subject to this Warrant;
(iii) beginning on the second anniversary of the Commencement Date,
this Warrant may be exercised with respect to an additional
______ of the shares of Common Stock subject to this Warrant;
and
(iv) beginning on the third anniversary of the Commencement Date,
this Warrant may be exercised with respect to an additional
______ of the shares of Common Stock subject to this Warrant.
The Holder may exercise this Warrant, in whole or in part, by
delivering to the Company at its offices maintained pursuant to Section 4 for
such purpose (i) a written notice of such Holder's election to exercise this
Warrant, which notice shall specify the number of shares to be purchased, (ii)
this Warrant, and (iii) a sum equal to the Exercise Price therefor in cash (U.S.
dollars) or by certified or cashier's check.
Such notice shall be substantially in the form of, and shall be subject
to the requirements set forth in, the Election to Subscribe attached as Exhibit
A hereto. Upon delivery thereof, the Company shall, as promptly as practicable
and in any event within ten (10) business days thereafter, cause to be executed
and sent to such Holder a certificate or certificates representing the aggregate
number of shares of Common Stock issuable upon such exercise.
The certificate or certificates for shares of Common Stock so delivered
shall be in such denominations as may be specified in said notice and shall be
registered in the name of such Holder or such other name or names as shall be
designated in said notice. Such certificate or certificates shall be deemed to
have been issued and the person designated to be named in such certificate shall
be deemed to have become a holder of record of such shares, and to have become
entitled, to the extent permitted by law, to the right to vote such shares or to
consent or receive notice as a stockholder, as of the Exercise Date. If this
Warrant shall have been exercised only in part, the Company shall, at the time
of delivery of said certificate or certificates, deliver to such Holder a new
warrant dated the date it is issued, evidencing the rights of such Holder to
purchase the remaining shares of Common Stock issuable pursuant to this Warrant,
which new warrant shall in all other respects be identical with this Warrant,
or, at the request of such Holder, appropriate notation may be made on this
Warrant and the Warrant returned to such Holder.
3
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 4
The Company shall pay all expenses, transfer taxes and other charges
payable in connection with the preparation, issuance and delivery of stock
certificates under this Section 3, except that, in the event such stock
certificates are to be registered in a name or names other than the name of the
Holder, funds sufficient to pay all stock transfer and any other applicable
taxes payable upon the issuance of such certificates shall be paid by the Holder
not later than the Exercise Date.
Section 4. WARRANT REGISTRATION. At all times while any portion of this
Warrant remains outstanding and exercisable the Company shall keep and maintain
at its principal offices a register in which the ownership and any exchange of
this Warrant shall be recorded. The Company shall not at any time, except upon
the dissolution, liquidation or winding up of the Company, close such register
so as to result in the prevention or delay of the proper exercise of this
Warrant.
Section 5. TRANSFERABILITY. This Warrant and all rights hereunder shall
not be transferable by the Holder except by operation of law. The Company may
deem and treat the registered Holder as the absolute owner of this Warrant for
all purposes and shall not be affected by any notice to the contrary.
Section 6. EXCHANGE. This Warrant is exchangeable, upon the surrender
hereof by the Holder at the offices of the Company, for a new warrant or
warrants, in such denominations as Holder shall designate at the time of
surrender for exchange, of like tenor and date, representing in the aggregate
the right to subscribe for and purchase the number of shares which may be
subscribed for and purchased hereunder, each of such new warrants to represent
the right to subscribe for and purchase not less than _____ shares of Common
Stock (except to the extent necessary to reflect the balance of the number of
shares purchasable hereunder).
Section 7. REPRESENTATIONS AND COVENANTS OF ISSUER.
(a) The Company hereby represents to the Holder as follows:
(i) The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State
of Florida.
(ii) The Company has the corporate power and authority to
execute and deliver this Warrant and to perform the terms
hereof, including the issuance of shares of Common Stock
issuable upon exercise hereof. The Company has taken all
action necessary to authorize the execution, delivery and
performance of this Warrant and the issuance of the shares
of Common Stock issuable upon exercise hereof. This
Warrant has been duly authorized and executed by the
Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company
in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally.
4
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 5
(b) The Company covenants and agrees that all shares of Common Stock
which may be issued upon the exercise of this Warrant will, upon
issuance, be fully paid and nonassessable and free from all
taxes, liens and charges (other than taxes in respect of any
transfer occurring contemporaneously with such issuance).
Section 8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE. The Exercise Price and number of shares of Common Stock purchasable
pursuant to this Warrant shall be subject to adjustment from time to time as
follows:
(a) In the event the Company shall at any time exchange, as a whole,
by subdivision or combination in any manner or by the making of
a stock dividend, the number of shares of Common Stock then
outstanding into a different number of shares, with or without
par value, then thereafter the number of shares of Common Stock
which the Holder shall be entitled to purchase pursuant to this
Warrant (calculated immediately prior to such change), shall be
increased or decreased, as the case may be, in direct proportion
to the increase or decrease in the number of shares of
outstanding Common Stock of the Company by reason of such
change, and the Exercise Price after such change shall, in the
event of an increase in the number of shares of Common Stock
outstanding, be proportionately reduced, and, in the event of a
decrease in the number of shares of Common Stock outstanding, be
proportionately increased.
(b) In the event of any reclassification or change of outstanding
shares of Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par
value, or as a result of a subdivision, combination or stock
dividend as provided for in Section 8(a)), or in the event of
any consolidation of the Company with, or merger of the Company
into, another corporation, or in the event of any sale of all or
substantially all of the property, assets, business and goodwill
of the Company, the Company, or such successor or purchasing
corporation, as the case may be, shall provide that the Holder
of this Warrant shall thereafter be entitled to purchase, by
exercise of this Warrant, the kind and amount of shares of stock
and other securities and property receivable upon such
reclassification, change, consolidation, merger or sale by a
holder of the number of shares of Common Stock which this
Warrant entitles the Holder to purchase immediately prior to
such reclassification, change, consolidation, merger or sale.
Any such successor corporation thereafter shall be substituted
for the Company for purposes of this Warrant.
5
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 6
Section 9. HOLDER'S RIGHTS. Except as otherwise expressly set forth
herein, this Warrant shall not entitle the Holder to any rights of a stockholder
of the Company, except that if the Company, during the period in which this
Warrant is exercisable, declares a dividend upon the Common Stock payable
otherwise than in cash out of earnings or earned surplus (computed in accordance
with generally accepted accounting principles) or otherwise than in Common Stock
or securities convertible into Common Stock, then the Holder, upon exercise of
this Warrant, shall receive the number of shares of Common Stock purchasable
upon such exercise and, in addition and without further payment, the cash, stock
or other securities or property which the Holder would have received by way of
dividends or other distribution if, continuously since the date hereof, such
Holder (a) had been the record holder of the number of shares of Common Stock
then being purchased, and (b) had retained all such cash, stock and other
securities (other than Common Stock or securities convertible into Common Stock)
and/or other property payable in respect of such Common Stock or in respect of
any stock or securities paid as dividends and originating directly or indirectly
from such Common Stock.
Section 10. NOTICES. If there shall be any adjustment as provided in
Section 8 hereof, or if securities or property other than shares of Common Stock
of the Company shall become purchasable in lieu of shares of Common Stock upon
exercise of this Warrant, the Company shall forthwith cause written notice
thereof to be sent by registered mail, postage prepaid, to the registered Holder
of this Warrant at the address of such Holder shown on the books of the Company,
which notice shall be accompanied by an explanation setting forth in reasonable
detail the basis for the Holder=s becoming entitled to purchase such shares and
the number of shares which may be purchased and the exercise price thereof, or
the facts requiring any such adjustment and the exercise price and number of
shares purchasable subsequent to such adjustment, or the kind and amount of any
such securities or property so purchasable upon the exercise of this Warrant, as
the case may be. At the request of the Holder and upon surrender of this
Warrant, the Company shall reissue this Warrant in a form conforming to such
adjustments.
Section 11. CASH IN LIEU OF FRACTIONAL SHARES. The Company shall not be
required to issue fractional shares upon the exercise of this Warrant. If, by
reason of any change made pursuant to Sections 8 or 9 hereof, the Holder of this
Warrant would be entitled, upon the exercise of any rights evidenced hereby, to
receive a fractional share, the Company shall, upon such exercise, pay to the
Holder an amount in cash equal to the Average Market Value of such fractional
interest, determined as of the Exercise Date.
Section 12. FORFEITURE. If at any time while this Warrant is
outstanding, the Board of Governors of the Federal Reserve System makes a formal
capital call upon the Company or the Comptroller of the Currency makes a formal
capital call upon the Bank, the Holder will exercise this Warrant in whole or in
part as may be needed for additional required capital, or the Warrant shall be
forfeited. The number of shares of Common Stock as to which the Warrant shall be
exercised by each Holder to meet the capital call will be calculated pro rata on
the basis of the number of shares of Common Stock subject to a Warrant held by
each Holder. The exercise price for shares of Common Stock purchased upon such
exercise will be equal to the greater of the Exercise Price determined pursuant
to Section 2 hereof and the then-current book value per share of Common Stock of
the Company. Any portion of this Warrant not required to be exercised under the
terms of any such capital call may be exercised under the original terms of this
Warrant.
6
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 7
Section 13. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If this
Warrant shall become lost, stolen, mutilated, or destroyed, the Company shall,
on such terms as to indemnity or otherwise as it may in its reasonable
discretion impose upon the registered Holder hereof (as shown on the register of
Warrants maintained by the Company), issue a new warrant of like denomination,
tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed.
Section 14. LIMITATION OF LIABILITY. No provision hereof, in the
absence of affirmative action by the Holder hereof to purchase shares of Common
Stock, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of such Holder for the purchase price of the
shares or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
Section 15. APPLICABLE LAW. The validity, interpretation, and
performance of this Warrant shall be governed by the laws of the State of
Florida.
Section 16. SUCCESSORS AND ASSIGNS. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company and the Holder hereof.
Section 17. HEADINGS. Headings of the paragraphs in this Warrant
are for convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
7
MARINE BANCSHARES, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 8
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed this ___ day of ________, 1999, by its duly authorized officers.
MARINE BANCSHARES, INC.
By:
----------------------------------
Name:
Title:
ATTEST:
--------------------------
Name:
Title:
8
EXHIBIT A
[Subscription Form to Be Executed Upon Exercise of Warrant]
ELECTION TO SUBSCRIBE
The undersigned registered holder or permitted assignee of such
registered holder of the within Warrant hereby (1) subscribes for ______ Shares
which the undersigned is entitled to purchase under the terms of the within
Warrant, (2) makes the full cash payment therefor called for by the within
Warrant, and (3) directs that the shares issuable upon exercise of said Warrant
be issued as follows:
--------------------------------
(Name)
--------------------------------
(Address)
Signature
----------------------
Dated
-----------------------
NOTICE: The signature on this subscription form must correspond with the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement, or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank or trust company, or by a firm having membership
on a registered national securities exchange.
