Exhibit 10.8
WARRANT AGREEMENT
Agreement, dated as of this ____ day of ______, 2002, by and between
1ST COLONIAL BANCORP, INC., a Pennsylvania corporation (the "Company") and STOCK
TRANS, INC. (the "Warrant Agent").
W I T N E S S E T H
WHEREAS, the Company is offering for sale up to _______ Units (the
"Units"), each Unit consisting of one share of the Company's Common Stock, no
par value (the "Common Stock"), and one Warrant (the "Warrant") which entitles
the holder thereof to purchase one share of Common Stock at the purchase price
of $_____ per share at any time on or before ______ __, 2005.
WHEREAS, the Company desires to appoint the Warrant Agent to act on its
behalf in connection with the (i) issuance, transfer and exchange of the
certificates representing the Warrants (the "Warrant Certificates"), (ii) the
exercise of the Warrants by the holders thereof (together with any registered
successors or assigns, the "Holders") and (iii) the adjustment of the Warrants
in certain events as contained herein in accordance with the terms of the
Warrants and this Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE I
APPOINTMENT OF WARRANT AGENT
The Company hereby appoints the Warrant Agent as its agent to issue the
Warrant Certificates, as set forth herein, subject to resignation or replacement
of the Warrant Agent as provided herein. The Warrant Agent agrees to accept such
appointment, subject to the terms and conditions as set forth herein and to
issue, transfer and exchange the Warrant Certificates pursuant to the terms
provided for herein and to notify the Company's transfer agent to issue the
certificates representing the appropriate number of shares of Common Stock (or
other
consideration) upon exercise of the Warrants. The Company agrees to issue and
honor the Warrants on the terms and conditions as herein set forth and to
instruct its transfer agent to issue its Common Stock (or other securities) upon
notice from the Warrant Agent of the proper exercise of any Warrant. The Warrant
Agent is hereby empowered to enforce any rights of the Holders for the benefit
of any Holders, subject to the terms and conditions contained herein.
ARTICLE II
ISSUANCE OF WARRANT CERTIFICATES
2.1 Form of Warrant Certificate. All Warrants shall be issued
substantially in the form of the Warrant Certificate annexed hereto as Exhibit
A. The terms of such Warrant Certificate are incorporated herein by reference.
2.2 Execution of Warrants. The Warrants shall be issued in registered
form only. No Warrants shall have been duly and validly issued until a Holder
has received a Warrant Certificate executed by the president or executive vice
president of the Company and the secretary or treasurer of the Company and such
Certificate is countersigned by an authorized officer of the Warrant Agent. All
Warrant Certificates shall bear the Company's corporate seal. Any Warrant
Certificates may be executed by the officers of the Company by means of a
facsimile signature. The Warrant Agent shall maintain the register of all
Holders.
2.3 Maximum Number of Warrants. The Company hereby authorizes the
Warrant Agent to issue up to __________ Warrants, subject to adjustment as
hereafter provided in Section 4 hereof.
2.4 Initial Holders. The Company shall deliver to the Warrant Agent a
list of the names of the persons who shall be the initial Holders of the
Warrants and the number of Warrants to which each such person is entitled. The
Warrant Agent is hereby authorized by the Company to promptly issue Warrant
Certificates for up to __________ Warrants upon receipt of the written request
of the Company, which shall include the list referred to in the preceding
sentence. The Company shall deliver to the Warrant Agent, along with this
Warrant Agreement, a sufficient number of duly executed Warrant Certificates.
The Warrant Certificates requested by the Company shall be completed and
countersigned by the Warrant Agent and promptly delivered to the Company to be
mailed or delivered to the Holders pursuant to the terms hereof.
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When requested by the Warrant Agent, from time to time hereafter, the Company
will execute additional Warrant Certificates in blank for the Warrant Agent to
issue hereunder.
2.5 Rights of a Holder. Subject to adjustment as provided herein, each
Warrant shall evidence the right to purchase one share of the Company's Common
Stock at the Warrant Price of $_____. Following the Expiration Date, as defined
in Section 3.1 below, any Warrant not previously exercised shall be null and
void.
ARTICLE III
EXERCISE OF WARRANT
3.1 Exercise Period. The Warrants may be exercised, in whole or in
part, at any time commencing __________ __, 2002, but not later than 5:00 P.M.,
New Jersey time, on __________ __, 2005 (the "Expiration Date"). If the
Expiration Date is not a Business Day, it shall automatically be extended to
5:00 P.M. on the next day which is a Business Day. Business Day means any day
other than a Saturday, Sunday, or holiday on which banks in New Jersey are
authorized or required by law or executive order to close.
3.2 Means of Exercise. In order to exercise a Warrant, the Holder must
present and surrender the Warrant Certificate to the Warrant Agent at its
office, with the Subscription Form on the back of the Warrant Certificate duly
executed and it must be accompanied by payment in full, in the form of cash or
by certified or official bank check payable to the order of the Company or its
successor, of the aggregate Warrant Price for the number of shares of Common
Stock specified in such Subscription Form. The Warrant Agent shall immediately
pay over to the Company any funds received upon such exercise of Warrants.
3.3 Issuance of Common Stock. Upon the request of the Warrant Agent,
the Company shall promptly deliver or cause its transfer agent to deliver to the
Holder exercising a Warrant a certificate or certificates evidencing the shares
of Common Stock purchased when any Warrant is validly exercised.
3.4 Certain Exercise Provisions. If any Warrant is exercised in part
only, a new Warrant Certificate, dated the date of such exercise, evidencing the
rights of the Holder thereof to purchase the balance of the shares of Common
Stock purchasable under such original Warrant
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shall promptly be issued to such Holder. Upon receipt of any Warrant Certificate
by the Warrant Agent, at its office, in proper form for exercise and accompanied
by payments as herein provided, the Holder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder.
ARTICLE IV
ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES
PURCHASABLE AND OTHER TERMS IN CERTAIN EVENTS
The Warrant Price and the number of shares of Common Stock purchasable
upon exercise of any Warrant and the other terms and conditions of the Warrant
shall be subject to adjustment and modification as follows in the circumstances
provided:
4.1 Declaration of Stock Dividend, Splits, Reverse Splits or
Reclassification or Reorganization.
(a) In case the Company shall declare any dividend or other
distribution upon its outstanding shares of Common Stock payable in Common Stock
or shall subdivide its outstanding shares of Common Stock into a greater number
of shares, then the number of shares of Common Stock which may thereafter be
purchased upon the exercise of any Warrant shall be increased in proportion to
the increase in the number of shares of Common Stock outstanding through such
dividend or subdivision and the Warrant Price per share shall be decreased in
such proportion. In case the Company shall at any time combine the outstanding
shares of its Common Stock into a smaller number of shares, the number of shares
of Common Stock which may thereafter be purchased upon the exercise of any
Warrant shall be decreased in proportion to the decrease in the number of shares
of Common Stock outstanding through such combination and the Warrant Price per
share shall be increased in such proportion. The Company shall cause a notice to
be mailed to each Holder at least ten (10) days prior to the applicable record
date for the activity covered by this Section 4.1(a). The Company's failure to
give the notice required by this Section 4.1(a) or any defect therein shall not
affect the validity of the activity covered by this Section 4.1(a).
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(b) In case the Company shall at any time (i) distribute any
rights, options or warrants to all holders of shares of Common Stock, (ii) issue
other securities to all holders of shares of Common Stock by reclassification of
its shares of Common Stock, or (iii) issue by means of a capital reorganization
other securities of the Company in lieu of the Common Stock or in addition to
the Common Stock, then the number of shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the Holder of each
Warrant shall be entitled to receive the kind and number of shares or other
securities of the Company that the Holder would have owned or have been entitled
to receive after the happening of the event described above, had such Warrant
been exercised immediately prior to the happening of such event or any record
date with respect thereto. The Company shall cause a notice to be mailed to each
Holder at least ten (10) days prior to the applicable record date for the
activity covered by this Section 4.1(b). The Company's failure to give the
notice required by this Section 4.1(b) or any defect therein shall not affect
the validity of the activity covered by this Section 4.1(b).
(c) An adjustment made pursuant to this Section 4.1 shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(d) For the purpose of this Section 4.1, the term "shares of
Common Stock" shall mean (x) the class of stock designated as the Common Stock
at the date of this Warrant Agreement, or (y) any other class of stock resulting
from successive changes or reclassifications of such shares consisting solely of
changes in par value, from no par value to par value or from par value to no par
value. In the event that at any time, as a result of an adjustment made pursuant
to this Section 4.1, the Holder shall become entitled to purchase any shares of
the Company other than shares of Common Stock, thereafter the number of such
other shares so purchasable upon exercise of each Warrant and the Warrant Price
of such shares shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
the shares of Common Stock contained in this Section 4.1.
4.2 Liquidation, Dissolution or Winding Up. Notwithstanding any other
provisions hereof, in the event of the liquidation, dissolution, or winding up
of the affairs of the Company (other than in connection with a consolidation,
merger or sale or conveyance of all or substantially all of its assets outside
of the ordinary course of business), the right to exercise this
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Warrant shall terminate and expire at the close of business on the last full
business day before the earliest date fixed for the payment of any distributable
amount on the Common Stock. The Company shall cause a notice to be mailed to
each Holder at least ten (10) days prior to the applicable record date for such
payment stating the date on which such liquidation, dissolution or winding up is
expected to become effective, and the date on which it is expected that holders
of shares of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property or assets (including cash)
deliverable upon such liquidation, dissolution or winding up, and that each
Holder may exercise outstanding Warrants during such ten (10) day period and,
thereby, receive consideration in the liquidation on the same basis as other
previously outstanding shares of the same class as the shares acquired upon
exercise. The Company's failure to give notice required by this Section 4.2 or
any defect therein shall not affect the validity of such liquidation,
dissolution or winding up.
4.3 Merger, Consolidation, Etc.
(a) In case of any consolidation with or merger of the Company
into another corporation or sale or conveyance of all or substantially all of
its assets outside of the ordinary course of business (such consolidation,
merger, sale or conveyance, collectively referred to hereinafter as a "Change")
then, as a condition of such Change, lawful and adequate provisions shall be
made whereby the Holders shall thereafter have the right to receive upon payment
of the Warrant Price in effect immediately prior to such Change, upon the basis
and upon the terms and conditions specified in this Agreement (including but not
limited to all provisions contained in this Section 4.3), and in lieu of the
shares of the Company's Common Stock purchasable upon the exercise of the
Warrants, such shares of stock, securities, cash or assets which such Holder
would have been entitled to receive after the happening of such Change had such
Warrant been exercised immediately prior to such Change. The provisions of this
Section 4.3 shall similarly apply to successive Changes. The Company shall cause
a notice to be mailed to each Holder at least ten (10) days prior to the
applicable record date for the Change covered by this Section 4.3(a) and shall
provide notice of the Change and shall set forth the first and last date on
which the Holder may exercise outstanding Warrants. The Company's failure to
give the notice required by this Section 4.3(a) or any defect therein shall not
affect the validity of the Change covered by this Section 4.3(a).
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(b) Notwithstanding the foregoing, if as a result of such
Change, holders of the Company Common Stock shall receive consideration other
than solely in shares of stock or other securities in exchange for their Company
Common Stock, the Company may, at its option, fulfill its obligation hereunder
by causing the Notice required by Section 4.3(a) hereof to include notice to
Holders of the opportunity to exercise their Warrants before the applicable
record date for the Change, and thereby receive consideration in the Change, on
the same basis as other previously outstanding shares of the Company Common
Stock. If the notice specified in the preceding sentence is provided to Holders,
Warrants not exercised in accordance with this Section 4.3(b) before
consummation of the Change shall be canceled and become null and void on the
effective date of the Change. The notice provided by the Warrant Agent pursuant
to this Section 4.3(b) shall include a description of the terms of this
Agreement providing for cancellation of the Warrants in the event that Warrants
are not exercised by the prescribed date. The Company's failure to give any
notice required by this Section 4.3(b) or any defect therein shall not affect
the validity of any such Change.
4.4 Duty to Make Fair Adjustments in Certain Cases. If any event occurs
as to which in the opinion of the Board of Directors of the Company the other
provisions of this Section 4 are not strictly applicable or if strictly
applicable would not fairly protect the purchase rights of the Holders in
accordance with the essential intent and principles of this Agreement, then the
Board of Directors shall make an adjustment in the application of such
provisions, in accordance with such essential intent and principles, as to
protect the purchase rights of the Holders. Notwithstanding the foregoing, the
issuance of Common Stock or any securities convertible into Common Stock by the
Company either for cash or in a merger, consolidation, exchange or acquisition
shall not, by itself, constitute a basis for requiring any adjustment in the
Warrants unless specifically enumerated herein.
4.5 Good Faith Determination. Any determination as to whether an
adjustment or limitation of exercise is required pursuant to this Section 4 (and
the amount of any adjustment), shall be binding upon the Holders and the Company
if made in good faith by the Board of Directors of the Company.
4.6 Notice of Adjustment. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants or the Warrant Price is adjusted,
the Company
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shall promptly file in the custody of its Secretary or an Assistant Secretary at
its principal office and with the Warrant Agent, an officer's certificate
setting forth the number of shares of Common Stock purchasable upon the exercise
of the Warrants, the Warrant Price after such adjustment, a statement, in
reasonable detail, of the facts requiring such adjustment and the computation by
which such adjustment was made. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Warrant Holders, and the
Warrant Agent shall, promptly after each adjustment, promptly mail a copy of
such certificate to such Holders by first class mail, postage prepaid.
4.7 No Change of Warrant Necessary. Irrespective of any adjustment in
the Warrant Price or in the number or kind of shares issuable upon exercise of
the Warrants, the Warrant Certificates may continue to express the same price
and number and kind of shares as are stated in the Warrant Certificates as
initially issued.
ARTICLE V
SHARES TO BE FULLY PAID; RESERVATION OF SHARES
The Company covenants and agrees for the benefit of the Holders:
(a) That all shares of Common Stock that may be issued upon
the exercise of the rights represented by the Warrant Certificates will, upon
issue and payment of the aggregate Warrant Price therefor, be duly authorized,
validly issued, fully paid and non-assessable and free and clear of all liens
and encumbrances (except those granted by the Holder), with no personal
liability attaching to the ownership thereof.
(b) That during the period within which the rights represented
by the Warrant Certificates may be exercised, the Company will at all times have
authorized and reserved for the purpose of issue upon exercise of the rights
evidenced by the Warrant Certificates, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by the Warrant
Certificates.
(c) That the Company will take all such action as may be
necessary to ensure that the shares of Common Stock issuable upon the exercise
of the Warrants may be so issued without violation of any applicable federal or
state law or regulation, or of any requirements of any securities exchange upon
which any capital stock of the Company may be listed, if any.
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(d) That the Company has filed a registration statement under
the Securities Act of 1933 with the United States Securities and Exchange
Commission and has made all appropriate state blue sky filings with state
securities administrators with respect to Warrants and the Common Stock issuable
thereunder.
(e) That prior to the issue of any shares of Common Stock, the
Company shall promptly secure the listing thereof upon all securities exchanges
and automated quotation systems on which the Common Stock of the Company is then
listed.
ARTICLE VI
EXCHANGE, ASSIGNMENT OR LOSS OF WARRANT CERTIFICATE
6.1 Exchange. The Warrants shall be exchangeable at the option of the
Holder, upon presentation and surrender of the Warrant Certificate at the office
of the Warrant Agent for other Warrant Certificates of different denominations.
Any Warrant Certificate may be divided or combined with other Warrant
Certificates into a Warrant Certificate evidencing the same aggregate number of
Warrants.
6.2 Transfer or Assignment. The Warrants and all rights of Holders
thereof are immediately assignable and transferable in whole or in part by the
Holders thereof, in person or by duly authorized attorney, by surrender of any
Warrant Certificate to the Warrant Agent at its office with the Assignment Form
annexed thereto duly executed and funds sufficient to pay any applicable
transfer tax. In such event, the Warrant Agent shall execute and deliver, in the
case of an assignment or transfer in whole, a new Warrant Certificate in the
name of the assignee or transferee, or, in the case of an assignment or transfer
in part, a new Warrant Certificate in the name of such assignee or transferee
representing the number of Warrants so assigned or transferred and a new Warrant
Certificate in the name of the assignor or transferor representing the number of
Warrants not so assigned or transferred.
6.3 Lost or Destroyed Warrant Certificates. Upon receipt by the Warrant
Agent of evidence satisfactory to it of the loss, theft, destruction or
mutilation of a Warrant Certificate and (i) in the case of such loss, theft or
destruction, of reasonably satisfactory indemnification and bonding, or (ii) if
mutilated, upon surrender and cancellation of such Warrant Certificate, the
Warrant Agent shall execute and deliver a new Warrant Certificate of like tenor.
Any such new
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Warrant Certificate executed and delivered shall constitute an additional
contractual obligation on the part of the Company, whether or not the Warrant
Certificate so lost, stolen, destroyed or mutilated shall be at any time
enforceable by anyone.
ARTICLE VII
NO ISSUANCE OF FRACTIONAL INTERESTS IN COMMON STOCK
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of the Warrants. If any fraction of a share of Common
Stock would be issuable upon the exercise of the Warrants (or any specified
portion thereof), the Company shall pay an amount in cash equal to the product
of (a) such fraction and (b) the closing price per share of Common Stock as
quoted by the NASDAQ Bulletin Board the NASDAQ Stock Market, or on any other
exchange on which the Common Stock is listed, on the trading day prior to the
date the Warrant is exercised.
ARTICLE VIII
NO RIGHTS AS SHAREHOLDERS;
CERTAIN NOTICES AND REPORTS TO HOLDERS.
8.1 Dividends; Voting Rights. Except as specifically provided in this
Agreement, nothing contained in this Agreement or in the Warrant Certificates
shall be construed as conferring upon the Holders or any transferees the right
to vote or to receive dividends or to receive notice as shareholders in respect
of any meeting of shareholders for the election of directors of the Company or
any other matter, or any rights whatsoever as shareholders of the Company. If,
however, between the date hereof and the Expiration Date (or if earlier the
occurrence of any event specified in Section 4.2 or 4.3(b) terminating the
Warrants), any of the following events shall occur:
(a) the Company shall declare any cash dividend upon its
shares of Common Stock payable at a rate in excess of the Company's net income
per share; or
(b) the Company shall declare any dividend payable in any
securities other than shares of Common Stock upon its shares of Common Stock or
make any distribution (other than a regular cash dividend out of undistributed
net income) to the holders of its shares of Common Stock; or
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(c) the Company shall distribute any rights, options or
warrants to the holders of shares of Common Stock; or
(d) a capital reorganization or reclassification of the
Company's capital stock shall be proposed;
then in any one or more of such events, the Company shall give to the Holders at
least twenty (20) days' prior written notice of the date fixed as a record date
or the date of closing of the transfer books for the determination of the
shareholders entitled to receive such dividend or distribution. Any such notice
shall also specify, in the case of any such dividend or distribution, the date
on which such dividend or distribution will be paid. Failure to mail such notice
or any defect therein or in the mailing thereof shall not affect the validity of
any action taken in connection with such dividend or distribution.
8.2 Reports. The Company shall transmit by mail to all registered
Holders, all reports and other documents that the Company transmits to holders
of shares of Common Stock generally, at the same time and in the same manner as
such reports and other documents are transmitted to holders of shares of Common
Stock.
ARTICLE IX
AGREEMENT OF WARRANT HOLDERS
Every Holder of a Warrant, by his acceptance thereof, consents and
agrees with the Company, the Warrant Agent and every other Holder of a Warrant
that:
(a) The Warrants are transferable only on the registry books
of the Company by the Holder thereof in person or by his attorney duly
authorized in writing and only if the Warrant Certificates representing such
Warrants are surrendered at the office of the Warrant Agent, duly endorsed or
accompanied by a proper instrument of transfer satisfactory to the Warrant Agent
and the Company in their sole discretion, together with payment of any
applicable transfer taxes; and
(b) The Company and the Warrant Agent may deem and treat the
person in whose name the Warrant Certificate is registered as the Holder and as
the absolute, true and
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lawful owner of the Warrants represented thereby for all purposes, and neither
the Company nor the Warrant Agent shall be affected by any notice or knowledge
to the contrary.
ARTICLE X
DUTIES OF WARRANT AGENT
The Warrant Agent acts hereunder as agent and in a ministerial capacity
for the Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not by issuing and delivering Warrant
Certificates, or by any other act hereunder, be deemed to make any
representations (i) as to the validity, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of any securities or other
property delivered upon exercise of any Warrant, (ii) or whether any stock
issued upon exercise of any Warrant is fully paid and nonassessable.
The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder of Warrant Certificates to make or cause to be made
any adjustment of the Warrant Price provided in this Agreement, or to determine
whether any fact exists that may require any such adjustment, or with respect to
the nature or extent of any such adjustment, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not (i) be liable
for any recital or statement of facts contained herein or for any action taken,
suffered or omitted by it in reliance on any Warrant Certificate or other
document or instrument believed by it in good faith to be genuine and to have
been signed or presented by the proper party or parties, (ii) be responsible for
any failure on the part of the Company to comply with any of its covenants and
obligations contained in this Agreement or in any Warrant Certificate, or (iii)
be liable for any act or omission in connection with this Agreement except for
its own gross negligence or willful misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed by the
President, any Vice President, its Secretary, or Assistant Secretary (unless
other evidence in respect thereof is herein specifically
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prescribed). The Warrant Agent shall not be liable for any action taken,
suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand believed by it to be genuine.
The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse it for its reasonable expenses hereunder
and further agrees to indemnify the Warrant Agent and save it harmless against
any and all losses, expenses and liabilities, including judgments, costs and
counsel fees, for anything done or omitted by the Warrant Agent in the execution
of its duties and powers hereunder except losses, expenses and liabilities
arising as a result of the Warrant Agent's gross negligence or willful
misconduct.
The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own gross negligence or willful misconduct), after giving
thirty days' prior written notice to the Company. At least fifteen days prior to
the date such resignation is to become effective, the Warrant Agent shall cause
a copy of such notice of resignation to be mailed to the Holder of each Warrant
Certificate at the Company's expense. Upon such resignation, or any inability of
the Warrant Agent to act as such hereunder, the Company shall appoint a new
warrant agent in writing. The Company shall have complete discretion in the
naming of a new warrant agent, who may be an affiliate, subsidiary or department
of the Company, or any person used by the Company as transfer agent for the
Common Stock. If the Company shall fail to make such appointment within a period
of fifteen days after it has been notified in writing of such resignation by the
resigning Warrant Agent, then the Holder of any Warrant Certificate may apply to
any court of competent jurisdiction for the appointment of a new warrant agent.
The Company may, upon notice to the Holders, remove and replace the
Warrant Agent if the Warrant Agent is the transfer agent for the Company's
Common Stock and the Warrant Agent ceases to be the transfer agent for the
Company's Common Stock for any reason.
After acceptance in writing of an appointment by a new warrant agent is
received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed. Any former warrant agent hereby agrees to
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cooperate with and deliver all records and Warrant Certificates to the new
warrant agent at the direction of the new agent and the Company.
Not later than the effective date of an appointment of a new warrant
agent by the Company, the Company shall file notice with the resigning or
terminated warrant agent and shall forthwith cause a copy of such notice to be
mailed to each Holder.
Any corporation into which the Warrant Agent or any new warrant agent
may be converted or merged or any corporation resulting from any consolidation
to which the Warrant Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent shall be a
successor warrant agent under this Agreement without any further act. Any such
successor warrant agent shall promptly cause notice of its succession as warrant
agent to be mailed to the Company and to each Holder.
Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company.
ARTICLE XI
MODIFICATION OF AGREEMENT
The Warrant Agent and the Company may by supplemental agreement make
any changes or corrections in this Agreement: (i) that they deem appropriate to
cure any ambiguity or to correct any defective or inconsistent provision or
manifest mistake or error herein contained; or (ii) that they deem necessary or
desirable and which shall not adversely affect the purchase or other material
rights of the Holders of Warrant Certificates. This Agreement shall not
otherwise be modified, supplemented or amended in any respect except with the
consent in writing of the Holders of Warrant Certificates representing not less
than 50% of the Warrants then outstanding, but no such amendment, modification
or supplement which changes the number or nature of the securities purchasable
upon the exercise of any Warrant, the Warrant Price or accelerates the
Expiration Date, shall be made without the consent in writing of each and every
Holder (but no consent shall be required for such changes as are specifically
contemplated by this Agreement as originally executed).
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ARTICLE XII
MISCELLANEOUS
12.1 Entire Agreement. This Agreement and the form of Warrant
Certificate annexed hereto as Exhibit A contains the entire Agreement between
the parties hereto with respect to the transactions contemplated by this
Agreement and supersedes all prior negotiations, arrangements or understandings
with respect thereto.
12.2 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
12.3 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania, without giving effect to the principles of
conflicts of laws thereof.
12.4 Descriptive Headings. The descriptive headings of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
12.5 Notices. Any notice or other communications required hereunder to
be given to a Holder shall be in writing and shall be sufficiently given if
mailed (first class, postage prepaid), or personally delivered, addressed in the
name and at the address of such Holder appearing from time to time on the
records of the Warrant Agent. Notices or other communications to the Company
shall be deemed to have been sufficiently given if delivered by hand or mailed
to the Company at its then principal office, Attention: President, or at such
other address as the Company shall have designated by written notice to the
Warrant Agent. Notices or other communications to the Warrant Agent shall be
deemed to have been sufficiently given if delivered by hand or mailed (first
class, postage prepaid) to its then principal office. Notice by mail shall be
deemed given when deposited in the mail, postage prepaid.
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IN WITNESS WHEREOF, the Company and the Warrant Agent have executed
this Agreement by their duly authorized officers as of the date first set forth
above.
1ST COLONIAL BANCORP, INC.
By:_____________________________________
Name:
Title:
STOCK TRANS, INC.
By:_____________________________________
Name:
Title:
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EXHIBIT A
WARRANT CERTIFICATE
Certificate Number
____________________
Initial Issuance
Dated: ____________ ____________ Warrants
VOID AFTER ____________, 2005
WARRANT CERTIFICATE FOR
PURCHASE OF COMMON STOCK
1ST COLONIAL BANCORP, INC.
This certifies that FOR VALUE RECEIVED
___________________________________ or his registered assigns (the "Holder") is
the registered owner of ______________________ Warrants ("Warrants") issued by
1st Colonial Bancorp, Inc., a Pennsylvania corporation (the "Company"). The
Warrants are subject to the terms and conditions set forth in this certificate
and the Warrant Agreement (as hereinafter defined). Each Warrant entitles the
Holder to purchase one share of common stock, no par value ("Common Stock"), of
the Company, at any time after the Initial Issuance Date of the warrants set
forth above until the Expiration Date (as hereinafter defined), upon the
presentation and surrender of this Warrant Certificate with the Subscription
Form on the reverse side hereof duly executed, at the corporate office of the
Warrant Agent (as hereafter defined), accompanied by payment of $_____ (the
"Warrant Price") in cash, by official bank or certified check made payable to
the Company or its successor.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions set
forth in the Warrant Agreement (the "Warrant Agreement"), dated
___________________, 2002 by and between the Company and StockTrans, Inc. (the
"Warrant Agent"), a copy of which may be obtained from the Company at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 or the Warrant Agent at 00 X.
Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 by a written request from the Holder hereof
or which may be inspected by any Holder or his agent at the principal office of
the Company or the Warrant Agent.
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As provided in Article 4 of the Warrant Agreement, in certain
circumstances: (i) the Warrant Price and the number of shares of Common Stock
the Holder is entitled to receive upon the exercise of any Warrants shall be
adjusted; (ii) the Warrants shall automatically represent the right to receive
upon exercise consideration which is different from or in addition to the
consideration specified on the face of this Certificate; and (iii) the Warrants,
at the option of the Company under specifically defined circumstances, may
expire prior to the Expiration Date.
No fractional shares of Common Stock will be issued upon exercise of
the Warrant. In the case of the exercise of less than all the Warrants
represented hereby, the Company shall cancel this Warrant Certificate upon the
surrender hereof and shall execute and deliver a new Warrant Certificate or
Warrant Certificates of like tenor, which the Warrant Agent shall countersign,
for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 P.M. (New Jersey time) on
_____________, 2005. If such date is not a Business Day as defined in the
Warrant Agreement, the Expiration Date shall mean 5:00 P.M. (New Jersey time)
the next following Business Day. The Expiration Date may be accelerated as
provided in the Warrant Agreement under certain specifically defined
circumstances upon notice to the registered holder hereof.
A Registration Statement with respect to the Warrants and the Common
Stock issuable thereunder has been filed with and declared effective by the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
and the Company has taken action under appropriate blue sky laws. This Warrant
shall not be exercisable by a Holder in any state where such exercise would be
unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by
the Holder at the corporate office of the Warrant Agent, for a new Warrant
Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants. Upon due presentment of this Warrant Certificate
for registration or transfer at such office, upon payment of any tax or
governmental charge imposed in connection therewith, a new Warrant Certificate
or Warrant Certificates representing an equal or aggregate number of Warrants
will be issued to the transferee in exchange therefor.
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The Warrants and all rights of Holders thereof are immediately
assignable and transferable in whole or in part by the Holders thereof, in
person or by duly authorized attorney, by surrender of any Warrant Certificate
to the Warrant Agent at its office with the Assignment Form annexed thereto duly
executed and funds sufficient to pay any applicable transfer tax.
Prior to the exercise of any Warrant represented hereby, the Holder
shall not be entitled to any rights of a shareholder of the Company by reason of
such person being a Holder, including, without limitation, the right to vote or
to receive dividends or other distributions, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided in the
Warrant Agreement.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent shall treat the Holder as the absolute owner
hereof and of each Warrant represented hereby for all purposes and shall not be
affected by any notice to the contrary.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or in facsimile by two of its officers thereunto duly
authorized, and a facsimile of its corporate seal to be imprinted thereon.
(SEAL) 1ST COLONIAL BANCORP, INC.
Dated:_____________________________ By:_________________________________
Chairman or President
By__________________________________
Secretary or Treasurer
STOCK TRANS, INC., as Warrant Agent
By:_________________________________
Name:
Title:
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SUBSCRIPTION FORM
Dated: ______________, 200_
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ______ shares of Common Stock and hereby
makes payment of _____________ in payment of the Warrant Price thereof.
________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name____________________________________________________________________________
(please typewrite or print in block letters)
Address_________________________________________________________________________
Signature_______________________________________________________________________
Tax Identification Number_______________________________________________________
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ASSIGNMENT FORM
FOR VALUE RECEIVED, ___________________ hereby sells, assigns and transfers unto
Name____________________________________________________________________________
(please typewrite or print in block letters)
Address_________________________________________________________________________
________________________ (______) Warrants and does hereby irrevocable
constitute and appoint ____________________________ Attorney, to transfer the
same on the books of the Company with full power of substitution in the
premises.
Date__________________________________________, 200__
Signature ___________________________________________
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