EXHIBIT 10.4
THE WARRANTS EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED OR SOLD IN RELIANCE
ON EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION
WHICH IS EXEMPT UNDER SUCH ACT AND STATE LAWS OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND STATE LAWS.
FIRST SOUTHERN BANCORP
STOCK WARRANT AGREEMENT
__________, 2001
Warrant Holder: No. of Shares:
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First Southern Bancorp (the "Company"), a Georgia
corporation and the holding company for First Southern National Bank (proposed)
(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,
representing one share of common stock of for every two shares of common stock
purchased by the Warrant Holder in the Company's initial public offering, in
consideration of the financial risk associated with Warrant Holder's investment
in the Company during its organizational stage and the time, expertise, and
continuing involvement of the Warrant Holder in the management of the Bank. Such
Warrants are granted on the following terms and conditions:
1. Exercise of Warrants. One-fifth of the shares (the "Shares") subject
to the Warrants granted in this Agreement shall vest on each of the first five
anniversaries of the date of the completion of the Company's initial public
offering (the "Completion Date"). Exercise of the Warrants is subject to the
following:
(a) Exercise Price. The exercise price (the "Exercise Price")
shall be $10.00 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 Completion Date, 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 Bank 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 Bank or the holder hereof, as applicable,
obtains any approval or other clearance which the Bank
determines to be necessary or advisable from the Federal
Reserve Board, the Office of the Comptroller of the Currency,
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
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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. Compliance with Securities Laws. This Agreement and the Warrants
represented hereby were issued in reliance on an exemption from registration
under the Securities Act of 1933 (the "Act") for financial institutions, and
other applicable exemptions under state securities laws. The Company's reliance
on such exemption is predicated in part on the Warrant Holder's representations
set forth herein. Warrant Holder understands that the Warrants and the Shares
issuable upon exercise of the Warrants may not be sold, transferred or otherwise
disposed of without registration under the Securities Act of 1933, or an
exemption therefrom, and that in the absence of an effective registration
statement covering such shares or an available exemption from registration under
the Securities Act, such Shares must be held indefinitely.
5. Restrictions on Transferability. This the Agreement and the Warrants
may not be assigned, transferred (except as provided above), pledged, or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation, or other disposition of these
Warrants contrary to the provisions hereof shall be without legal effect. The
Shares issuable on exercise of 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 laws.
6. Restrictive Legend. Each certificate for Shares issued upon exercise
of the Warrant shall bear a legend stating that they have not been registered
under the Securities Act of 1933 or any state securities laws and referring to
the restrictions on transferability and sale herein.
7. Mandatory Exercise; Termination.
(a) Warrant Holder shall exercise all of Warrant Holder's then
exercisable Warrants within 120 days of the date that Warrant
Holder ceases to serve the Company as an executive officer,
employee, or director, or the then exercisable Warrants shall
terminate. If applicable, Warrant Holder agrees to exercise
any Warrants that are not exercisable on the date in which
Warrant Holder ceases to serve the Company within 120 days of
the date that those Warrants become exercisable, or the then
exercisable Warrants shall terminate.
(b) The Company may be required to increase its capital to
meet capital requirements imposed by statute, rule,
regulation, or guideline. In order to achieve such capital
increase, the Regulatory Agencies may direct the Company to
require the Warrant Holders to either (i) exercise all or part
of their Warrants or (ii) allow the Warrants to be terminated.
If the Regulatory Agencies so direct the Company, then the
Warrant Holder must exercise or forfeit the Warrants as set
forth below.
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(c) When the Company is required to increase its capital as
described in subsection (b) above, the Company shall send a
notice (the "Notice") to the Warrant Holder (i) specifying the
number of Shares relating to the Warrants for which the
Warrants must be exercised (the "Number") (if less than all
shares relating to warrants held by all holders of warrants of
the Company under agreements substantially similar to this one
are required by the Company to be exercised or cancelled, the
Number for the Warrant Holder shall reflect a proportionate
allocation based on the number of Shares subject to this
Agreement as compared to the total number of shares subject to
warrants held by all such warrant holders as a group); (ii)
specifying the date prior to which the Warrants must be
totally or partially exercised, as the case may be (the
"Deadline"); (iii) specifying the Exercise Price for the
Shares to be purchased pursuant to the Warrants (such Exercise
Price not to be less than current book value per share); and
(iv) stating that the failure of the Warrant holder to
exercise the Warrants shall result in their automatic
termination.
(d) If the Warrant Holder does not exercise the Warrants
pursuant to the terms of the Notice, this Agreement shall be
automatically terminated on the Deadline, without further act
or action by the Warrant Holder or the Company, and the
Warrant Holder shall deliver this Agreement to the Company for
cancellation. If the Number is less than the total number of
Shares that are then subject to exercise under this Agreement,
the Company shall issue a new Stock Warrant Agreement in
compliance with Section 1(e) hereof.
8. 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.
9. No Dilution or Impairment. The Company shall not amend its
Certificate 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
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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.
10. 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.
FIRST SOUTHERN BANCORP
By:
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President
(CORPORATE SEAL)
Attest:
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Secretary
WARRANT HOLDER:
By:
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Signature
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Print Name
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