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EXHIBIT 4.3
THE WARRANT GRANTED PURSUANT TO THIS AGREEMENT SHALL BE NON-TRANSFERABLE,
EXCEPT IN THE CASE OF THE WARRANT HOLDER'S DEATH, AND THEREUPON ONLY BY WILL OR
UNDER THE LAWS OF DESCENT AND DISTRIBUTION. UPON THE DEATH OF THE WARRANT
HOLDER, THE DECEASED HOLDER'S LEGAL OR PERSONAL REPRESENTATIVE, OR ANY
PERMITTED TRANSFEREE OF THE WARRANT SHALL, WITHIN 30 DAYS OF THE HOLDER'S
DEATH, NOTIFY THE COMPANY OF SUCH EVENT AND THE NEW HOLDER'S NAME, ADDRESS AND
CAPACITY IN WHICH THE WARRANT IS HELD. SUCH PERMITTED TRANSFEREE WILL BE
SUBJECT TO, AND BOUND BY, THE TERMS AND PROVISIONS OF THIS AGREEMENT TO THE
SAME EXTENT AS THE ORIGINAL HOLDER.
ORGANIZER WARRANT AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of this
_____ day of _____________, 2000, by and between SouthernBank Holdings, Inc., a
Georgia corporation (the "Company"), and ________________________ (the "Warrant
Holder").
WITNESSETH
WHEREAS, the Warrant Holder has served as an organizer in the
formation of the Company and the formation and establishment of SouthernBank,
N.A. (the "Bank"), the wholly-owned subsidiary of the Company; and
WHEREAS, the Warrant Holder has purchased ___________ shares of the
Company's common stock, $1.00 par value per share (the "Common Stock"), at a
price per share of $10.00, subject to certain adjustments; and
WHEREAS, the Company, in recognition of the financial risk undertaken
by the Warrant Holder in organizing the Company and the Bank, desires to
provide the Warrant Holder with the right to acquire the same number of shares
as the Warrant Holder purchased in the initial stock offering of the Company's
Common Stock, including any additional shares purchased specifically to attain
the minimum subscription requirements of the minimum offering.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Warrant. Subject to the terms, restrictions, limitations
and conditions stated herein, the Company hereby grants to the Warrant Holder
the right (the "Warrant") to purchase all or any part of an aggregate of
______________ shares of the Company's Common Stock, subject to adjustment in
accordance with Sections 7 and 8 hereof (such shares, as adjusted, the "Warrant
Shares").
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2. Vesting and Term.
(a) The Warrant shall vest at the rate of 33 1/3% per year
beginning on the first anniversary of the close of the Company's
initial public offering of its common stock (the "Issue Date"). On each
successive anniversary of the Issue Date, an additional 33 1/3% of the
Warrant shall vest. The portion of the Warrant which is vested may be
exercised in whole, or from time to time in part, at any time prior to
the Expiration Time (as defined herein).
(b) The term for the exercise of the Warrant begins at 9:00
a.m., Eastern Time, on the Issue Date and ends at 5:00 p.m., Eastern
Time, on the 10th anniversary of the Issue Date (the "Expiration
Time").
(c) Notwithstanding any other provision of this Agreement,
the Warrant shall expire on any earlier date than that provided in
Section 2(b) hereof in the event the primary federal regulator of the
Company or the Bank (the "Federal Regulator") may require the Warrant
Holder to exercise or forfeit the Warrant due to the capital of the
Company or the Bank falling below the minimum requirements as
determined by the Federal Regulator.
3. Purchase Price. The price per share to be paid by the Warrant
Holder for the Warrant Shares shall be $10.00 subject to adjustment as set
forth in Section 7 hereof (such price, as adjusted, the "Purchase Price").
4. Exercise of Warrant. The Warrant may be exercised by the Warrant
Holder by delivery to the Company, at the address of the Company set forth
under Section 11(a) hereof or such other address as to which the Company
advises the Warrant Holder pursuant to Section 11(a) hereof, of the following:
(a) A completed and signed notice of exercise (including the
Substitute Form W-9, which forms a part thereof) (the "Notice of
Exercise"), as attached hereto as Schedule A;
(b) A cashier's or certified check payable to the Company for
the full amount of the aggregate Purchase Price for the number of
Warrant Shares as to which the Warrant is being exercised; and
(c) A copy of this Agreement.
5. Issuance of Warrant Shares. Upon receipt of the items set forth in
Section 4 hereof, and subject to the terms hereof, the Company shall cause to
be delivered to the Warrant Holder stock certificate(s) for the number of
Warrant Shares specified in the Notice of Exercise, such share or shares to be
registered under the name of the Warrant Holder. Notwithstanding the foregoing,
the Company shall not be required to issue or deliver any certificate for the
Warrant Shares or any portion thereof prior to the fulfillment of the following
conditions:
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(a) The completion of any registration or other qualification
of such shares which the Company shall deem necessary or advisable
under any federal or state law or under the rulings or regulations of
the Securities and Exchange Commission or any other governmental
regulatory body, unless the availability of an exemption from such
registration or qualification shall be established to the satisfaction
of counsel for the Company;
(b) The obtaining of any approval or other clearance from any
federal or state governmental agency or body, which the Company shall
determine to be necessary or advisable; or
(c) The lapse of such reasonable period of time following the
exercise of the Warrant, or any portion thereof, as the Company from
time to time may establish for reasons of administrative convenience.
Each stock certificate delivered pursuant to the Notice of Exercise
shall be in such denomination as may be requested by the Warrant Holder and
shall be registered in the name of the Warrant Holder. If the Warrant shall
have been exercised only in part, the Company shall, at the time of delivery of
said stock certificate(s), deliver to the Warrant Holder a new Warrant
evidencing the right of the Warrant Holder to purchase the remaining Warrant
Shares covered by this Agreement. The Company shall pay all expenses, stock
transfer taxes and other charges payable in connection with the preparation,
execution and delivery of such stock certificate(s).
6. Restrictive Legends. Each certificate representing the Warrant
Shares shall contain the following legends:
(a) "The shares of the Company's Common Stock represented by
this certificate are held subject to, and transfer of such shares
restricted by, the terms of a Warrant Agreement, dated as of the ___
day of _________, 2000, a copy of which is on file at the office of
the Company. No transfer of any share represented by this certificate
shall be valid unless made in accordance with the terms of the Warrant
Agreement."
(b) "The securities evidenced by this certificate have not
been registered under the Securities Act of 1933, as amended (the
"1933 Act"), or the securities laws of any state, in reliance upon
exemptions from the registration requirements of the 1933 Act and such
state laws. These securities may not be transferred, nor will any
assignee or endorsee hereof be recognized as an owner hereof by the
issuer for any purposes, except in transactions registered under the
1933 Act and any applicable state securities laws, unless the
availability of an exemption from registration under the 1933 Act and
any applicable state securities laws with respect to any proposed
transfer or disposition of such securities shall be established to the
satisfaction of counsel for the issuer."
The Warrant Holder understands and agrees that the Company may refuse
to permit the transfer of the Warrant Shares, and that the Warrant Holder may
be required to hold the Warrant Shares indefinitely, in the absence of
compliance with the terms of such legends.
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7. Antidilution, Etc.
(a) If, at any time, the Company shall:
(i) establish a record date for the determination of
holders of record of its outstanding shares of Common Stock
for the purpose of entitling them to receive a dividend
payable in, or other distributions of, additional shares of
its Common Stock;
(ii) subdivide its outstanding shares of Common
Stock into a larger number of shares of Common Stock; or
(iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock;
then (A) the number of Warrant Shares for which the Warrant Holder's
Warrant is exercisable immediately after the occurrence of any such
event shall be adjusted to equal the number of shares of Company
Common Stock which a record holder of the same number of shares of
Common Stock for which Warrant Shares is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive
after the happening of such event, and (B) the Purchase Price shall be
adjusted to equal (x) the Purchase Price multiplied by the Warrant
Shares for which the Warrant Holder's Warrant is exercisable
immediately prior to the adjustment divided by (y) the Warrant Shares
for which Holder's Warrant is exercisable immediately after such
adjustment.
(b) The following provisions shall be applicable to
adjustments made pursuant to Section 7(a) hereof:
(i) The adjustments required by Section 7(a) hereof
shall be made whenever and as often as any event requiring an
adjustment shall occur. For the purpose of any such
adjustment, any event shall be deemed to have occurred at the
close of business on the date of its occurrence.
(ii) In computing adjustments under this Section
7(b), fractional interests in the Company's Common Stock
shall be taken into account to the nearest 1/10th of a share.
In no event, however, shall fractional shares or a scrip
representing fractional shares be issued upon the exercise of
the Warrant. In lieu thereof, a cash payment shall be made to
the Warrant Holder in an amount equal to such fraction
multiplied by the Purchase Price.
(iii) If the Company shall establish a record date
for the determination of the holders of record of the
Company's Common Stock for the purpose of entitling such
holders to receive a dividend payable in Company Common Stock
and shall, thereafter and before the distribution to
shareholders thereof, legally abandon its plan to pay or
deliver such dividend, then no adjustment shall be
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required by reason of the establishment of such record date
and any such adjustment previously made in respect thereof
shall be rescinded and annulled.
8. Reorganization, Reclassification, Consolidation or Merger.
(a) If, prior to the Expiration Time, there shall be any
reorganization or reclassification of the Company's Common Stock
(other than a subdivision or combination of shares provided for in
Section 7 hereof), or any consolidation or merger of the Company with
another entity, the Warrant Holder shall thereafter be entitled to
receive, during the term hereof and upon payment of the Purchase
Price, the number of shares of stock or other securities or property
of the Company or of the successor entity (or its parent company)
resulting from such consolidation or merger, as the case may be, to
which a holder of the Company's Common Stock, deliverable upon the
exercise of the Warrant, would have been entitled upon such
reorganization, reclassification, consolidation or merger; and in any
case, appropriate adjustment (as determined by the Board of Directors
of the Company in its sole discretion) shall be made in the
application of the provisions herein set forth with respect to the
rights and interest thereafter of the Warrant Holder to the end that
the provisions set forth herein (including the adjustment of the
Purchase Price and the Warrant Shares) shall thereafter be applicable,
as near as may reasonably be practicable, in relation to any shares or
other property thereafter deliverable upon the exercise hereof.
(b) If any such reorganization, reclassification,
consolidation, merger or share exchange results in a cash distribution
in excess of the Purchase Price provided by this Warrant, the Warrant
Holder may, at the Warrant Holder's option, exercise this Warrant
without making payment of the Purchase Price, and in such case the
Company or its successors and assigns shall, upon distribution to such
Warrant Holder, consider the Purchase Price to have been paid in full,
and in making settlement to such Warrant Holder, shall deduct an
amount equal to the Purchase Price from the amount payable to such
Warrant Holder. Notwithstanding anything herein to the contrary, the
Company will not effect any such reorganization, reclassification,
merger, consolidation or share exchange unless prior to the
consummation thereof, the corporation that may be required to deliver
any stock, securities or other assets upon the exercise of the Warrant
issuable pursuant to this Agreement shall agree by an instrument in
writing to deliver such stock, cash, securities or other assets to the
Warrant Holder. A sale, transfer or lease of all or substantially all
of the assets of the Company to another person shall be deemed a
reorganization, reclassification, consolidation, merger or share
exchange for the foregoing purposes.
9. Notice of Adjustments. Upon any adjustment provided for in Section
7 or Section 8 hereof, the Company, within 30 days thereafter, shall give
written notice thereof to the Warrant Holder at the address set forth under
Section 11(a) hereof or such other address as the Warrant Holder may advise the
Company pursuant to Section 11(a) hereof, which notice shall state the Purchase
Price as adjusted and the increased or decreased number of Warrant Shares,
setting, forth in reasonable detail the method of calculation of each.
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10. Transfer and Assignment.
(a) This Agreement shall be non-transferable, except in the
case of the Warrant Holder's death, and thereupon only by will or
under the laws of descent and distribution. Upon the death of the
Warrant Holder, the deceased Warrant Holder's heirs, legal or personal
representative, or any permitted transferee of the Warrant shall,
within 30 days of the Warrant Holder's death, notify the Company of
such event and the new holder's name, address and capacity in which
the Warrant is held, and present letters testamentary, a death
certificate and such other information as the Company may reasonably
request to ascertain the authority of such person. Such permitted
transferee will be subject to, and bound by, the terms and provisions
of this Agreement to the same extent as the original Warrant Holder.
(b) The Warrant Shares granted hereby may not be transferred
or sold unless the transfer is exempt from further regulatory approval
or otherwise permissible under applicable law, including state and
federal securities laws, and will bear a legend to this effect as set
forth in Section 6 hereof.
11. Miscellaneous.
(a) All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, telegram or
facsimile transmission, or if mailed, by postage prepaid first class
mail, on the third business day after mailing, to the following
address (or at such other address as a party may notify the other
hereunder):
To the Company:
SouthernBank Holdings, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 0X
Xxxxxx, Xxxxxxx 00000
Attention: D. Xxxxxx Xxxxxxx, Xx.,
Chief Executive Officer
To the Warrant Holder:
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(b) The Company covenants that it has reserved and will keep
available, solely for the purpose of issue upon the exercise of the
Warrant, a sufficient number of shares of the Company's Common Stock
to permit the exercise of the Warrant in full.
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(c) No holder of the Warrant, as such, shall be entitled to
vote or receive dividends with respect to the Warrant Shares subject
thereto or be deemed to be a shareholder of the Company for any
purpose until the Company's Common Stock has been issued.
(d) This Agreement may be amended only by an instrument in
writing executed by the party against whom enforcement of amendment is
sought.
(e) This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute
one and the same instrument.
(f) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer and its corporate seal to be affixed hereto and
the Warrant Holder has executed this Agreement, all as of the day and year
first above written.
SOUTHERNBANK HOLDINGS, INC.
By:
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D. Xxxxxx Xxxxxxx, Xx.
Chief Executive Officer
WARRANT HOLDER
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SCHEDULE A
NOTICE OF EXERCISE
OF WARRANT TO PURCHASE COMMON STOCK OF
SOUTHERNBANK HOLDINGS, INC.
To: SouthernBank Holdings, Inc.
The undersigned, the registered owner of the right to purchase shares
of Common Stock (the "Common Stock") of SouthernBank Holdings, Inc. (the
"Company"), hereby irrevocably elects to exercise such right to purchase
thereunder ________ shares of the Common Stock of the Company and herewith
makes payment of $________ therefor, and requests that the certificate(s)
evidencing such shares be issued in the name of and be delivered to:
Name:
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Address:
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Social Security or
Tax I.D. Number:
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and if such shares shall not be all of the shares purchasable hereunder, that a
new warrant of like tenor for the balance of the shares purchasable hereunder
be delivered to the undersigned.
Date:
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NAME OF WARRANT HOLDER
By:
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Name:
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THIS NOTICE OF EXERCISE SHALL NOT BE GIVEN EFFECT
BY THE COMPANY UNLESS THE HOLDER OF THE UNDERLYING
WARRANT HAS PROPERLY COMPLETED AND SIGNED BOTH
THIS NOTICE OF EXERCISE FORM AND THE SUBSTITUTE FORM W-9
ATTACHED HERETO.
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SUBSTITUTE FORM W-9
Under the penalties of perjury, I certify that:
1. The Social Security Number or Taxpayer Identification Number
given below is correct; and
2. I am not subject to backup withholding either because I have
not been notified that I am subject to backup withholding as
a result of a failure to report all interest or dividends, or
because the Internal Revenue Service has notified me that I
am no longer subject to backup withholding.
IMPORTANT INSTRUCTIONS: You must cross out #2 above if you have been notified
by the Internal Revenue Service that you are subject to backup withholding
because of under reporting interest or dividends on your tax return and if you
have not received a notice from the Internal Revenue Service advising you that
backup withholding due to notified payee under reporting has terminated.
SIGNATURE*
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DATE
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* If a corporation, please sign in full corporate name by president or other
authorized officer. When signing as officer, attorney, custodian, trustee,
administrator, guardian, etc., please give your full title as such. In case of
joint tenants, each person must sign.
