EXHIBIT 99.3
THE WARRANTS MAY NOT BE ASSIGNED OR TRANSFERRED BY THE WARRANT HOLDER, EXCEPT
WITH THE COMPANY'S PRIOR WRITTEN CONSENT IN LIMITED CIRCUMSTANCES AS DESCRIBED
HEREIN, AND IF SO REQUESTED BY THE COMPANY, THE DELIVERY BY THE WARRANT HOLDER
TO THE COMPANY OF AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE COMPANY STATING THAT SUCH TRANSFER OR ASSIGNMENT IS IN COMPLIANCE WITH THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
XXXXX.XXX, INC.
STOCK WARRANT AGREEMENT
AUGUST 28, 2000
WARRANT HOLDER: XXXXXXX X. XXXXX NO. OF SHARES: 22,857
xxxxx.xxx, Inc. (the "Company"), a Georgia corporation and the holding
company for ebank (the "Bank"), hereby grants to the person identified above as
the Warrant Holder warrants (the "Warrants") to purchase the number of shares
set forth above in consideration of guaranteeing a $2,500,000 loan between the
Company and The Bankers Bank. Such Warrants are granted on the following terms
and conditions:
1. EXERCISE OF WARRANTS. The Warrants granted in this Agreement
may be exercised in whole or in part at any time beginning on or after the date
of this Agreement through the Expiration Date (defined below), subject to
Section 5 and the following conditions.
(a) EXERCISE PRICE. The exercise price (the "Exercise Price")
shall be $3.00 per Share, subject to adjustment pursuant to
Section 2 below.
(b) EXPIRATION OF WARRANT TERM. The Warrants will expire at 5:00
p.m. Eastern Standard Time on the tenth anniversary of the
date of this Agreement, and may not be exercised thereafter
(the "Expiration Date").
(c) PAYMENT. The purchase price for Shares as to which the
Warrants are being exercised shall be paid in cash, by wire
transfer, by certified or bank cashier's check, or by personal
check drawn on funds on deposit with the Bank.
(d) METHOD OF EXERCISE. The Warrants shall be exercisable by a
written notice delivered to the President or Secretary of the
Company which shall:
(i) State the owner's election to exercise the Warrants,
the number of Shares with respect to which it is
being exercised, the person in whose name the stock
certificate for such Shares is to be registered, and
such person's address and tax identification number
(or, if more than one, the names, addresses and tax
identification numbers of such persons);
(ii) Be signed by the person or persons entitled to
exercise the Warrants and, if the Warrants are being
exercised by any person or persons other than the
original holder thereof, be accompanied by proof
satisfactory to counsel for the Company of the right
of such person or persons to exercise the Warrants;
and
(iii) Be accompanied by the originally executed copy of
this Stock Warrant Agreement.
(e) PARTIAL EXERCISE. In the event of a partial exercise of the
Warrants, the Company shall either issue a new agreement for
the balance of the Shares subject to this Stock Warrant
Agreement after such partial exercise, or it shall
conspicuously note hereon the date and number of Shares
purchased pursuant to such exercise and the number of Shares
remaining covered by this Stock Warrant Agreement.
(f) RESTRICTIONS ON EXERCISE. The Warrants may not be exercised
(i) if the issuance of the Shares upon such exercise would
constitute a violation of any applicable federal or state
securities or banking laws or other law or regulation or (ii)
unless the Company or the holder hereof, as applicable,
obtains any approval or other clearance which the Company
determines to be necessary or advisable from the Office of
Thrift Supervision, the Federal Deposit Insurance Corporation
or any other state or federal banking regulatory agency with
regulatory authority over the operation of Company or the Bank
(collectively the "Regulatory Agencies"). The Company may
require representations and warranties from the Warranty
Holder as required to comply with applicable laws or
regulations, including the Securities Act of 1933 and state
securities laws.
2. ANTI-DILUTION; MERGER. If, prior to the exercise of Warrants
hereunder, the Company (i) declares, makes or issues, or fixes a record date for
the determination of holders of common stock entitled to receive, a dividend or
other distribution payable on the Shares in shares of its capital stock, (ii)
subdivides the outstanding Shares, (iii) combines the outstanding Shares, (iv)
issues any shares of its capital stock by reclassification of the Shares,
capital reorganization or otherwise (including any such reclassification or
reorganization in connection with a consolidation or merger or and sale of all
or substantially all of the Company's assets to any person), then the Exercise
Price, and the number and kind of shares receivable upon exercise, in effect at
the time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be proportionately adjusted
so that the holder of any Warrant exercised after such time shall be entitled to
receive the aggregate number and kind of shares which, if such Warrant had been
exercised immediately prior to such time, he would have owned upon such exercise
and been entitled to receive by virtue of such dividend, distribution,
subdivision, combination, reclassification, reorganization, consideration,
merger or sale.
3. VALID ISSUANCE OF COMMON STOCK. The Company possesses the full
authority and legal right to issue, sell, transfer, and assign this Warrant and
the Shares issuable pursuant to this Warrant. The issuance of this Warrant vests
in the holder the entire legal and beneficial interests in this Warrant, free
and clear of any liens, claims, and encumbrances and subject to no legal or
equitable restrictions of any kind except as described herein. The Shares that
are issuable upon exercise of this Warrant, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, and
non-assessable, and will be free of restrictions on transfer other than
restrictions under applicable state and federal securities.
4. RESTRICTIONS ON TRANSFERABILITY. The Warrants may not be
assigned or transferred by the Warrant Holder without the Company's prior
written consent and, if so requested by the Company, the delivery by the Warrant
Holder to the Company of an opinion of counsel in form and substance
satisfactory to the Company stating that such transfer or assignment is in
compliance with the Securities Act of 1933 and applicable state securities 4.
laws.
5. PERFORMANCE GUARANTEE. This Warrant is being issued to induce
the Warrant Holder to guarantee a $2,500,000 loan between the Company and The
Bankers Bank. If the Warrant Holder defaults in or otherwise fails to honor such
guaranty, this Warrant shall be forfeited. If this Warrant is exercised while
the guaranty is still in effect, the Company may elect to issue restricted stock
to the Warrant Holder and require the Warrant Holder to enter into a restriction
agreement providing that the shares issued thereby are subject to forfeiture if
the Warrant Holder defaults in or otherwise fails to honor its guaranty.
6. COVENANTS OF THE COMPANY. During the term of the Warrants, the
Company shall:
(a) at all times authorize, reserve and keep available, solely for
issuance upon exercise of this Warrant, sufficient shares of
common stock from time to time issuable upon exercise of this
Warrant;
(b) on receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft, or destruction, on delivery
of any indemnity agreement or bond reasonably satisfactory in
form and amount to the Company or, in the case of mutilation,
on surrender and cancellation of this Warrant, at its expense
execute and deliver, in lieu of this Warrant, a new Warrant of
like tenor; and
(c) on surrender for exchange of this Warrant or any Warrant
substituted therefor pursuant hereto, properly endorsed, to
the Company, at its expense, issue and deliver to or on the
order of the holder thereof a new Warrant or Warrants of like
tenor, in the name of such holder or as such holder (on
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof
for the issuances of the number of shares of common stock
issuable pursuant to the terms of the Warrant or Warrants so
surrendered.
7. NO DILUTION OR IMPAIRMENT. The Company shall not amend its
Articles of Incorporation or participate in any reorganization, transfer of
assets, consolidation, merger, dissolution, issuance or sale of securities or
any other voluntary action for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith assist in carrying
out all such action as may be reasonably necessary in order to protect the
exercise rights of the holder against improper dilution or other impairment.
8. AMENDMENT. Neither this Agreement nor the rights granted
hereunder may be amended, changed or waived except in writing signed by each
party hereto.
IN WITNESS WHEREOF, the Company has executed and the holder has
accepted this Stock Warrant Agreement as of the date and year first above
written.
XXXXX.XXX, INC.
By: /s/ Xxxxx X. Box
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President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx Xxxxx
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Secretary
WARRANT HOLDER:
By: /s/ Xxxxxxx X. Xxxxx
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Signature
Xxxxxxx X. Xxxxx
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Print Name
