WARRANT AGREEMENT
Exhibit 4.8
Agreement made as of , 2009 between PAB Bankshare, Inc., a Georgia corporation
(“Company”), and [ ], a [ ] (“Warrant Agent”).
WHEREAS, the Company is offering subscription rights (the “Rights”) to its shareholders as of
5:00 p.m., Eastern Time, on [ ], 2009, to purchase units consisting of one share of common
stock, no par value (“Common Stock”), of the Company and one warrant to purchase .25 of a share of
Common Stock at $[ ] per whole share (“Warrant”) until the seventh anniversary of its issuance,
subject to adjustment as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “SEC”) a
Registration Statement on Form S-1, as amended (the “Registration Statement”) for the registration
under the Securities Act of 1933, as amended (the “Act”) of the Rights, the Common Stock issuable
upon exercise of the Rights, the Warrants and the Common Stock issuable upon exercise of each of
the Warrants;
WHEREAS, following the closing of the offering, the Warrants will trade separately from the
Common Stock; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance, registration, transfer,
exchange and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms
upon which they shall be issued and exercised, and the respective rights, limitation of rights, and
immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant
Agent, as provided herein, the valid, binding and legal obligations of the Company, and to
authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant
Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2. Warrants.
2.1 Form of Warrant. Each Warrant shall be issued in registered form only,
shall be in substantially the form of Exhibit A hereto, the provisions of which are
incorporated herein and shall be signed by or bear the facsimile signature of the Chief Executive
Officer of the Company and the Secretary or Treasurer of the Company. In the event the person whose
facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in
which such person signed the Warrant before such Warrant is issued, it may be issued with the same
effect as if he or she had not ceased to be such at the date of issuance.
2.2 Effect of Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not
be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall maintain books (“Warrant
Register”), for the registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof in such denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.3.2 Registered Holder. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose
name such Warrant shall be registered upon the Warrant Register (“registered holder”), as the
absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any
notation of ownership or other writing on the Warrant Certificate made by anyone other than the
Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes,
and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
3. Terms and Exercise of Warrants
3.1 Warrant Price. Each Warrant shall, when countersigned by the Warrant
Agent, entitle the registered holder thereof, subject to the provisions of such Warrant and of this
Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $[ ] per whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this
Warrant Agreement refers to the price per share at which Common Stock may be purchased at the time
a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time
prior to the Expiration Date for a period of no less than 10 business days; provided, however, that
the Company will provide notice to registered holders of the Warrants of such extension of not less
than 20 days.
3.2 Duration of Warrants. A Warrant may be exercised only during the period
(“Exercise Period”) commencing on 9:00 a.m., Eastern Time on [ ] and terminating at 5:00
p.m., Eastern Time on [ ] (“Expiration Date”). Each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and all rights in respect thereof
under this Agreement shall cease at the close of business on the Expiration Date. The Company in
its sole discretion may extend the duration of the Warrants by delaying the Expiration Date;
provided, however, that the Company will provide notice to registered holders of the Warrants of
such extension of not less than 20 days.
3.3 Exercise of Warrants.
3.3.1 Requirements to Exercise. In order to exercise a Warrant, the registered
holder must be exercising Warrants to purchase either (i) a minimum of twenty (20) shares of Common
Stock per exercise, or (ii) if registered holder owns Warrants to purchase less than twenty (20)
shares of Common Stock, then the registered holder must exercise all Warrants owned.
3.3.2 Payment. Subject to the provisions of the Warrant and this Warrant Agreement, a
Warrant, when countersigned by the Warrant Agent, may be exercised by the registered holder thereof
by surrendering it, at the office of the Warrant Agent, or at the office of its successor as
Warrant Agent, in [ ], with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full the Warrant Price for each full share of Common Stock as to which
the Warrant is exercised and any and all applicable taxes due in connection with the exercise of
the Warrant by:
(a) having the Warrant Agent withhold, from the shares of Common Stock that would
otherwise be delivered to the registered holder upon such exercise, shares of Common Stock
issuable upon exercise of the Warrant equal in value to the aggregate Warrant Price as to
which the Warrant is so exercised based on the Market Price (as defined below) of the Common
Stock on the trading day on which the Warrant is exercised and the notice of exercise is
delivered to the Warrant Agent, or
(b) tendering in cash, by certified or cashier’s check payable to the order of the
Company (or as otherwise agreed to by the Company).
For purposes of this Agreement, “Market Price” means, with respect to a particular security,
on any given day, the last reported sale price regular way or, in case no such reported sale takes
place on such day, the average of the last closing bid and ask prices regular way, in either case
on the principal national securities exchange on which
the applicable securities are listed or admitted to trading, or if not listed or admitted to
trading on any national securities exchange, the average of the closing bid and ask prices as
furnished by two members of the Financial Industry Regulatory Authority, Inc. selected from time to
time by the Company for that purpose. “Market Price” shall be determined without reference to
after hours or extended hours trading. If such security is not listed and traded in a manner that
the quotations referred to above are available for the period required hereunder, the Market Price
per share of Common Stock shall be deemed to be the fair market value per share of such security as
determined in good faith by the board of directors of the Company in reliance on an opinion of a
nationally recognized independent investment banking corporation retained by the Company for this
purpose and certified in a resolution to the registered holder. For the purposes of determining
the Market Price of the Common Stock on the “trading day” preceding, on or following the occurrence
of an event, (i) that trading day shall be deemed to commence immediately after the regular
scheduled closing time of trading on the NASDAQ Global Select Stock Market or such other national
securities exchange on which the Common Stock is listed or, if trading is closed at an earlier
time, such earlier time and (ii) that trading day shall end at the next regular scheduled closing
time, or if trading is closed at an earlier time, such earlier time (for the avoidance of doubt,
and as an example, if the Market Price is to be determined as of the last trading day preceding a
specified event and the closing time of trading on a particular day is 4:00 p.m. and the specified
event occurs at 5:00 p.m. on that day, the Market Price would be determined by reference to such
4:00 p.m. closing price).
3.3.3 Issuance of Certificates. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant Price, the Company shall issue to
the registered holder of such Warrant a certificate or certificates for the number of full shares
of Common Stock to which such registered holder is entitled, registered in such name or names as
may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall not have been
exercised. The Company will at all times reserve and keep available, out of its authorized but
unissued Common Stock, solely for the purpose of providing for the exercise of the Warrant, the
aggregate number of shares of Common Stock then issuable upon exercise of the Warrant at any time.
The Company will (a) procure, at its sole expense, the listing of the Shares issuable upon exercise
of the Warrant at any time, subject to issuance or notice of issuance, on all principal stock
exchanges on which the Common Stock is then listed or traded and (b) maintain such listings of such
Shares at all times after issuance. The Company will use reasonable best efforts to ensure that
the Shares may be issued without violation of any applicable law or regulation or of any
requirement of any securities exchange on which the Shares are listed or traded.
3.3.4 Valid Issuance. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and
non-assessable.
3.3.5 Date of Issuance. Each person in whose name any such certificate for
shares of Common Stock is issued shall for all purposes be deemed to have become the holder of
record of such shares on the date on which the Warrant was surrendered and payment of the Warrant
Price was made, irrespective of the date of delivery of such certificate, except that, if the date
of such surrender and payment is a date when the stock transfer books of the Company are closed,
such person shall be deemed to have become the holder of such shares at the close of business on
the next succeeding date on which the stock transfer books are open.
4. Adjustments. The Warrant Price and the number of shares of Common Stock
issuable upon exercise of any Warrant shall be subject to adjustment from time to time as follows;
provided, that if more than one subsection of this Section 4 is applicable to a single event, the
subsection shall be applied that produces the largest adjustment and no single event shall cause an
adjustment under more than one subsection of this Section 4 so as to result in duplication:
4.1. Stock Splits, Subdivisions, Reclassifications or Combinations. If the Company
shall (i) declare and pay a dividend or make a distribution on its Common Stock in shares of Common
Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock into a greater number of
shares, or (iii) combine or reclassify the outstanding shares of Common Stock into a smaller number
of shares, the number of shares issuable upon exercise of the Warrant at the time of the record
date for such dividend or distribution or the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the registered holder after such date
shall be entitled to purchase the number of shares of Common Stock which such holder would have
owned or been entitled to receive in respect of the shares of Common Stock subject to the Warrant
after such date had the
Warrant been exercised immediately prior to such date. In such event, the Warrant Price in
effect at the time of the record date for such dividend or distribution or the effective date of
such subdivision, combination or reclassification shall be adjusted to the number obtained by
dividing (x) the product of (1) the number of shares issuable upon the exercise of the Warrant
before such adjustment and (2) the Warrant Price in effect immediately prior to the record or
effective date, as the case may be, for the dividend, distribution, subdivision, combination or
reclassification giving rise to this adjustment by (y) the new number of shares issuable upon
exercise of the Warrant determined pursuant to the immediately preceding sentence.
4.2. Certain Issuances of Common Shares or Convertible Securities. Until the third
anniversary of the date of issuance, if the Company shall issue shares of Common Stock (or rights
or warrants or other securities exercisable or convertible into or exchangeable (collectively, a
“conversion”) for shares of Common Stock) (collectively, “convertible securities”) (other than in
Permitted Transactions (as defined below) or a transaction to which Section 4.1 is applicable)
without consideration or at a consideration per share (or having a conversion price per share) that
is less than 90% of the Market Price on the last trading day preceding the date of the agreement on
pricing such shares (or such convertible securities) then, in such event:
(a) the number of shares issuable upon the exercise of the Warrant immediately prior to
the date of the agreement on pricing of such shares (or of such convertible securities) (the
“Initial Number”) shall be increased to the number obtained by multiplying the Initial
Number by a fraction (A) the numerator of which shall be the sum of (x) the number of shares
of Common Stock of the Company outstanding on such date and (y) the number of additional
shares of Common Stock issued (or into which convertible securities may be exercised or
convert) and (B) the denominator of which shall be the sum of (I) the number of shares of
Common Stock outstanding on such date and (II) the number of shares of Common Stock which
the aggregate consideration receivable by the Company for the total number of shares of
Common Stock so issued (or into which convertible securities may be exercised or convert)
would purchase at the Market Price on the last trading day preceding the date of the
agreement on pricing such shares (or such convertible securities); and
(b) the Warrant Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Warrant Price in effect immediately prior to the date of the agreement on
pricing of such shares (or of such convertible securities) by a fraction, the numerator of
which shall be the number of shares of Common Stock issuable upon exercise of the Warrant
prior to such date and the denominator of which shall be the number of shares of Common
Stock issuable upon exercise of the Warrant immediately after the adjustment described in
clause (A) above.
For purposes of the foregoing, the aggregate consideration receivable by the Company in
connection with the issuance of such shares of Common Stock or convertible securities shall
be deemed to be equal to the sum of the net offering price (including the fair market value,
as determined by the board of directors of the Company, acting in good faith (the “Fair
Market Value”), of any non-cash consideration and after deduction of any related expenses
payable to third parties) of all such securities plus the minimum aggregate amount, if any,
payable upon exercise or conversion of any such convertible securities into shares of Common
Stock; and “Permitted Transactions” shall mean issuances (i) as consideration for or to fund
the acquisition of businesses and/or related assets, (ii) in connection with employee
benefit plans and compensation related arrangements approved by the board of directors of
the Company, (iii) in connection with a public or broadly marketed offering and sale of
Common Stock or convertible securities for cash conducted by the Company or its affiliates
pursuant to registration under the Securities Act or Rule 144A thereunder on a basis
consistent with capital raising transactions by comparable financial institutions and (iv)
in connection with the exercise of preemptive rights on terms existing as of the date of
issuance. Any adjustment made pursuant to this Section 4.2 shall become effective
immediately upon the date of such issuance.
4.3. Other Distributions. In case the Company shall fix a record date for the making
of a distribution to all holders of shares of its Common Stock of securities, evidences of
indebtedness, assets, cash, rights or warrants (excluding ordinary cash dividends, dividends of its
Common Stock and other dividends or distributions referred to in Section 4.1), in each such case,
the Warrant Price in effect prior to such record date shall be reduced immediately thereafter to
the price determined by multiplying the Warrant Price in effect immediately prior to the
reduction by the quotient of (x) the Market Price of the Common Stock on the last trading day
preceding the first date on which the Common Stock trades regular way on the principal national
securities exchange on which the Common Stock is listed or admitted to trading without the right to
receive such distribution, minus the amount of cash and/or the Fair Market Value of the securities,
evidences of indebtedness, assets, rights or warrants to be so distributed in respect of one share
of Common Stock (such amount and/or Fair Market Value, the “Per Share Fair Market Value”) divided
by (y) such Market Price on such date specified in clause (x); such adjustment shall be made
successively whenever such a record date is fixed. In such event, the number of shares issuable
upon the exercise of the Warrant shall be increased to the number obtained by dividing (x) the
product of (1) the number of shares issuable upon the exercise of the Warrant before such
adjustment, and (2) the Warrant Price in effect immediately prior to the distribution giving rise
to this adjustment by (y) the new Warrant Price determined in accordance with the immediately
preceding sentence. In the case of adjustment for a cash dividend that is, or is coincident with,
a regular quarterly cash dividend, the Per Share Fair Market Value would be reduced by the per
share amount of the portion of the cash dividend that would constitute an ordinary cash dividend.
In the event that such distribution is not so made, the Warrant Price and the number of shares
issuable upon exercise of the Warrant then in effect shall be readjusted, effective as of the date
when the board of directors of the Company determines not to distribute such shares, evidences of
indebtedness, assets, rights, cash or warrants, as the case may be, to the Warrant Price that would
then be in effect and the number of shares that would then be issuable upon exercise of the Warrant
if such record date had not been fixed.
4.4. Certain Repurchases of Common Stock. In case the Company effects a Pro Rata
Repurchase (as defined below) of Common Stock, then the Warrant Price shall be reduced to the price
determined by multiplying the Warrant Price in effect immediately prior to the Effective Date (as
defined below) of such Pro Rata Repurchase by a fraction of which the numerator shall be (i) the
product of (x) the number of shares of Common Stock outstanding immediately before such Pro Rata
Repurchase and (y) the Market Price of a share of Common Stock on the trading day immediately
preceding the first public announcement by the Company or any of its affiliates of the intent to
effect such Pro Rata Repurchase, minus (ii) the aggregate purchase price of the Pro Rata
Repurchase, and of which the denominator shall be the product of (i) the number of shares of Common
Stock outstanding immediately prior to such Pro Rata Repurchase minus the number of shares of
Common Stock so repurchased and (ii) the Market Price per share of Common Stock on the trading day
immediately preceding the first public announcement by the Company or any of its Affiliates of the
intent to effect such Pro Rata Repurchase. In such event, the number of shares of Common Stock
issuable upon the exercise of the Warrant shall be increased to the number obtained by dividing (x)
the product of (1) the number of shares issuable upon the exercise of the Warrant before such
adjustment, and (2) the Warrant Price in effect immediately prior to the Pro Rata Repurchase giving
rise to this adjustment by (y) the new Warrant Price determined in accordance with the immediately
preceding sentence. For the avoidance of doubt, no increase to the Warrant Price or decrease in the
number of Shares issuable upon exercise of the Warrant shall be made pursuant to this Section 4.4.
“Pro Rata Repurchases” means any purchase of shares of Common Stock by the Company or any
affiliate thereof pursuant to (a) any tender offer or exchange offer subject to Section 13(e) or
14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (b) any other offer available
to substantially all holders of Common Stock, in the case of both (a) or (b), whether for cash,
shares of capital stock of the Company, other securities of the Company, evidences of indebtedness
of the Company or any other person or any other property (including, without limitation, shares of
capital stock, other securities or evidences of indebtedness of a subsidiary), or any combination
thereof, effected while the Warrant is outstanding. The “Effective Date” of a Pro Rata Repurchase
shall mean the date of acceptance of shares for purchase or exchange by the Company under any
tender or exchange offer which is a Pro Rata Repurchase or the date of purchase with respect to any
Pro Rata Repurchase that is not a tender or exchange offer.
4.5. Business Combinations. In case of any merger, consolidation, statutory share
exchange or similar transaction that requires the approval of the Company’s stockholders (“Business
Combination”) or reclassification of Common Stock (other than a reclassification of Common Stock
referred to in Section 4.1), the registered holder’s right to receive shares upon exercise of the
Warrant shall be converted into the right to exercise the Warrant to acquire the number of shares
of stock or other securities or property (including cash) which the Common Stock issuable (at the
time of such Business Combination or reclassification) upon exercise of the Warrant immediately
prior to such Business Combination or reclassification would have been entitled to receive upon
consummation of such Business Combination or reclassification; and in any such case, if necessary,
the provisions
set forth herein with respect to the rights and interests thereafter of the registered holder
shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to the
registered holder’s right to exercise the Warrant in exchange for any shares of stock or other
securities or property pursuant to this paragraph. In determining the kind and amount of stock,
securities or the property receivable upon exercise of the Warrant following the consummation of
such Business Combination, if the holders of Common Stock have the right to elect the kind or
amount of consideration receivable upon consummation of such Business Combination, then the
consideration that the registered holder shall be entitled to receive upon exercise shall be deemed
to be the types and amounts of consideration received by the majority of all holders of the shares
of Common Stock that affirmatively make an election (or of all such holders if none make an
election).
4.6. Rounding of Calculations; Minimum Adjustments. All calculations under this
Section 4 shall be made to the nearest one-tenth (1/10th) of a cent or to the nearest one-hundredth
(1/100th) of a share, as the case may be. Any provision of this Section 4 to the contrary
notwithstanding, no adjustment in the Warrant Price or the number of shares into which the Warrant
is exercisable shall be made if the amount of such adjustment would be less than $0.01 or one-tenth
(1/10th) of a share of Common Stock, but any such amount shall be carried forward and an adjustment
with respect thereto shall be made at the time of and together with any subsequent adjustment
which, together with such amount and any other amount or amounts so carried forward, shall
aggregate $0.01 or 1/10th of a share of Common Stock, or more.
4.7. Timing of Issuance of Additional Common Stock Upon Certain Adjustments. In any
case in which the provisions of this Section 4 shall require that an adjustment shall become
effective immediately after a record date for an event, the Company may defer until the occurrence
of such event (i) issuing to the registered holder of the Warrant exercised after such record date
and before the occurrence of such event the additional shares of Common Stock issuable upon such
exercise by reason of the adjustment required by such event over and above the shares of Common
Stock issuable upon such exercise before giving effect to such adjustment and (ii) paying to such
holder any amount of cash in lieu of a fractional share of Common Stock; provided, however, that
the Company upon request shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder’s right to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment.
4.8. Other Events. For so long as the registered holder holds the Warrant or any
portion thereof, if any event occurs as to which the provisions of this Section 4 are not strictly
applicable or, if strictly applicable, would not, in the good faith judgment of the board of
directors of the Company, fairly and adequately protect the purchase rights of the Warrants in
accordance with the essential intent and principles of such provisions, then the board of directors
of the Company shall make such adjustments in the application of such provisions, in accordance
with such essential intent and principles, as shall be reasonably necessary, in the good faith
opinion of the board of directors of the Company, to protect such purchase rights as aforesaid.
The Warrant Price or the number of shares into which the Warrant is exercisable shall not be
adjusted in the event of a change in the par value of the Common Stock or a change in the
jurisdiction of incorporation of the Company.
4.9 Notices of Changes in Warrant. Upon every adjustment of the Warrant
Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such event.
4.10 No Fractional Shares. No fractional shares of Common Stock or scrip
representing fractional shares shall be issued upon any exercise of the Warrant. In lieu of any
fractional share to which the registered holder would otherwise be entitled, the registered holder
shall be entitled to receive a cash payment equal to the Market Price of the Common Stock on the
last trading day preceding the date of exercise less the pro-rated Warrant Price for such
fractional share.
4.11 Form of Warrant. The form of Warrant need not be changed because of any
adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same
Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant
to this Agreement. However, the Company
may at any time in its sole discretion make any change in the form of Warrant that the Company
may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter
issued or countersigned, whether in exchange or substitution for an outstanding Warrant or
otherwise, may be in the form as so changed.
4.12 Statement Regarding Adjustments. Whenever the Warrant Price or the number of
shares of Common Stock into which the Warrant is exercisable shall be adjusted as provided in
Section 4, the Company shall forthwith file at the principal office of the Company a statement
showing in reasonable detail the facts requiring such adjustment and the Warrant Price that shall
be in effect and the number of Shares into which the Warrant shall be exercisable after such
adjustment, and the Company shall also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each registered holder at the address appearing in the Company’s records.
4.13 Notice of Certain Transactions. In the event that the Company shall
propose to take any action of the type described in this Section 4 (but only if the action of the
type described in this Section 4 would result in an adjustment in the Warrant Price or the number
of shares of Common Stock into which the Warrant is exercisable or a change in the type of
securities or property to be delivered upon exercise of the Warrant), the Company shall give notice
to the registered holder, in the manner set forth in Section 4.12, which notice shall specify the
record date, if any, with respect to any such action and the approximate date on which such action
is to take place. Such notice shall also set forth the facts with respect thereto as shall be
reasonably necessary to indicate the effect on the Warrant Price and the number, kind or class of
shares or other securities or property which shall be deliverable upon exercise of the Warrant. In
the case of any action which would require the fixing of a record date, such notice shall be given
at least 10 days prior to the date so fixed, and in case of all other action, such notice shall be
given at least 15 days prior to the taking of such proposed action. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of any such action.
4.14 Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent
to the taking of any action which would require an adjustment pursuant to this Section 4, the
Company shall take any action which may be necessary, including obtaining regulatory, New York
Stock Exchange, NASDAQ Stock Market or other applicable national securities exchange or stockholder
approvals or exemptions, in order that the Company may thereafter validly and legally issue as
fully paid and nonassessable all shares of Common Stock that the registered holder is entitled to
receive upon exercise of the Warrant pursuant to this Section 4.
5. Transfer and Exchange of Warrants.
5.1 Registration of Transfer. The Warrant Agent shall register the transfer,
from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such
Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant
Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time
to time upon request.
5.2 Procedure for Surrender of Warrants. Warrants may be surrendered to the
Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant
Agent shall issue in exchange therefore one or more new Warrants as requested by the registered
holder of the Warrants so surrendered, representing an equal aggregate number of Warrants.
5.3 Fractional Warrants. The Warrant Agent shall not be required to effect
any registration of transfer or exchange which will result in the issuance of a warrant certificate
for a fraction of a Warrant.
5.4 Service Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5 Warrant Execution and Countersignature. The Warrant Agent is hereby
authorized to countersign and to deliver, in accordance with the terms of this Agreement, the
Warrants required to be issued pursuant to the provisions of this Section 5, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed
on behalf of the Company for such purpose.
6. Other Provisions Relating to Rights of Holders of Warrants.
6.1. Exchange. At any time following the date on which the shares of Common Stock of
the Company are no longer listed or admitted to trading on a national securities exchange (other
than in connection with any Business Combination), the registered holder may cause the Company to
exchange all or a portion of the Warrant for an economic interest (to be determined by the Board of
Directors) of the Company classified as permanent equity under U.S. GAAP having a value equal to
the Fair Market Value of the portion of the Warrant so exchanged.
6.2 No Rights as Shareholder. A Warrant does not entitle the registered
holder thereof to any of the rights of a shareholder of the Company, including, without limitation,
the right to receive dividends, or other distributions, exercise any preemptive rights to vote or
to consent or to receive notice as shareholders in respect of the meetings of shareholders or the
election of directors of the Company or any other matter.
6.3 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost,
stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to
indemnity or otherwise as they may in their discretion impose (which shall, in the case of a
mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor,
and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
6.4 Reservation of Common Stock. The Company shall at all times reserve and
keep available a number of its authorized but unissued shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
7. Concerning the Warrant Agent and Other Matters.
7.1 Payment of Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the
issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall
not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
7.2 Resignation, Consolidation, or Merger of Warrant Agent.
7.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If
the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise,
the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after it has been
notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the
Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the
holder of any Warrant may apply to the Court of the State of [ ] for the County of [ ] for
the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent,
whether appointed by the Company or by such court, shall be a corporation organized and existing
under the laws of the State of [ ], in good standing and having its principal office in the
[ ], City and State of [ ], and authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by federal or state authority. After appointment,
any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities,
duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as
Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes
necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense
of the Company, an instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor
Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in
writing for more fully and effectually vesting in and confirming to such successor Warrant Agent
all such authority, powers, rights, immunities, duties, and obligations.
7.2.2 Notice of Successor Warrant Agent. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent
and the transfer agent for the Common Stock not later than the effective date of any such
appointment.
7.2.3 Merger or Consolidation of Warrant Agent. Any corporation into which
the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting
from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor
Warrant Agent under this Agreement without any further act.
7.3 Fees and Expenses of Warrant Agent.
7.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable
remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent
upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of
its duties hereunder.
7.3.2 Further Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such
further and other acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Agreement.
7.4 Liability of Warrant Agent.
7.4.1 Reliance on Company Statement. Whenever in the performance of its
duties under this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a statement signed by the
Chief Executive Officer or Chief Financial Officer of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good
faith by it pursuant to the provisions of this Agreement.
7.4.2 Indemnity. The Warrant Agent shall be liable hereunder only for its
own negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and save it harmless against any and all liabilities, including judgments, costs and reasonable
counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent’s negligence, willful misconduct, or bad faith.
7.4.3 Exclusions. The Warrant Agent shall have no responsibility with
respect to the validity of this Agreement or with respect to the validity or execution of any
Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4 hereof or
responsible for the manner, method, or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment; nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares
of Common Stock will, when issued, be valid and fully paid and non-assessable.
7.5 Acceptance of Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and conditions herein
set forth and among other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant
Agent for the purchase of shares of Common Stock through the exercise of Warrants.
8. Miscellaneous Provisions.
8.1 Successors. All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
8.2 Notices. Any notice, statement or demand authorized by this Warrant
Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be sufficiently given when so delivered, if by hand or overnight delivery or if sent
by certified mail or private courier service, within five days after deposit of such notice,
postage prepaid, addressed (until another address is filed in writing by the Company with the
Warrant Agent), as follows:
PAB Bankshares, Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000
Attn: Xxxxxx “Xxx” Xxxxxxx, Jr., President and Chief Executive Officer
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000
Attn: Xxxxxx “Xxx” Xxxxxxx, Jr., President and Chief Executive Officer
with a copy to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxxx
Any notice, statement or demand authorized by this Agreement to be given or made by the holder
of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so
delivered, if by hand or overnight delivery or if sent by certified mail or private courier
service, within five days after deposit of such notice, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company), as follows:
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
8.3 Applicable law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws of the State of
Georgia, without giving effect to conflicts of law principles that would result in the application
of the substantive laws of another jurisdiction. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this Agreement shall be
brought and enforced in the courts of the State of Georgia or the United States District Court for
the [ ] District of Georgia, and irrevocably submits to such jurisdiction, which jurisdiction
shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenience forum. Any such process or summons to be served upon the
Company may be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in Section 8.2 hereof.
Such mailing shall be deemed personal service and shall be legal and binding upon the Company in
any action, proceeding or claim.
8.4 Persons Having Rights under this Agreement. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other than the parties hereto
and the registered holders of the Warrants any right, remedy, or claim under or by reason of this
Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All
covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement
shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns
and of the registered holders of the Warrants.
8.5 Examination of the Warrant Agreement. A copy of this Agreement shall be
available at all reasonable times at the office of the Warrant Agent in the [ ], City and
State of [ ], for inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
8.6 Counterparts. This Agreement may be executed in any number of original
or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the same instrument.
8.7 Effect of Headings. The Section headings herein are for convenience only
and are not part of this Warrant Agreement and shall not affect the interpretation thereof.
8.8 Amendments. This Agreement may be amended by the parties hereto without
the consent of any registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding or changing any
other provisions with respect to matters or questions arising under this Agreement as the parties
may deem necessary or desirable and that the parties deem shall not adversely affect the interest
of the registered holders. All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall require the written consent of the
registered holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing,
the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to
Sections 3.1 and 3.2, respectively, without the consent of the registered holders.
8.9 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect the validity or
enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day
and year first above written.
| PAB BANKSHARES, INC. |
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| [ ] |
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