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EXHIBIT 10.5
STOCK PURCHASE WARRANT
Gulf Coast Bancorp, Inc.
COMMON STOCK
($.01 Par Value)
Dated December___, 1997
FIELD (7) Shares
--------- Void After December___, 2007
This certifies that, for value received, FIELD(2) FIELD (3) FIELD (4)
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his/her successors and assigns, is entitled, upon the due exercise hereof at
any time during the period commencing on __________, 1997 and terminating at
5:00 p.m. E.D.T. on ________ __, 2007, to purchase FIELD (7) shares of Common
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Stock, par value $.01 per share, of Gulf Coast Bancorp, Inc. (hereinafter
called the "Company"), such number of shares being subject to adjustment upon
the occurrence of the contingencies set forth in this Warrant. The purchase
price, payable upon the exercise of this Warrant, shall be $10.00 per share
(hereinafter referred to as the "Exercise Price"), subject to adjustment upon
the occurrence of the contingencies set forth in this Warrant. This Warrant is
granted in consideration of the Organizers' efforts in organizing the Company
and Gulf Coast Community Bank, N.A. (the "Bank"), the Company's sole
subsidiary, and the attendant personal financial risks they have undertaken.
Shares issuable upon exercise of this Warrant are hereinafter referred to as
the "Warrant Shares."
Upon delivery of this Warrant with the subscription form annexed
hereto, duly executed, together with payment of the Exercise Price of the shares
of Common Stock thereby purchased (which payment may be made by collected
funds), at the offices of the Company or at such other address as the Company
may designate by notice in writing to the registered holder hereof, the
registered holder of this Warrant shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased.
This Warrant is subject to the following terms and conditions:
1. Vesting Period.
This Warrant shall vest in increments of twenty-five percent (25%)
commencing upon the date of this Warrant and on each anniversary date
thereof such that on the third anniversary, the Warrant is fully
vested.
2. Exercise of Warrant.
This Warrant, to the extent vested as provided in Section 1 herein, may
be exercised during the period commencing on ___________, 1997 and
ending at 5:00 p.m. E.D.T. on ___________, 2007, in whole at any time
or in part from time to time, but not as to a fractional share of
Common Stock. In case of any partial exercise of this Warrant, the
Company shall execute and deliver a new Warrant of like tenor and date
for the balance of the shares of Common Stock purchasable hereunder.
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3. Restrictions on Transferability.
This warrant shall not be transferable by an Organizer otherwise than
by will or by the laws of descent and distribution.
4. Adjustment of Exercise Price and Number of Shares Purchasable
Hereunder.
The Exercise Price and the number of Warrant Shares purchasable upon
the exercise of the Warrant are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 4.
(a) In case the Company shall at any time after the date of this
Agreement
i) declare a dividend on the Common Stock payable in
shares of its capital stock (whether shares of Common
Stock or of capital stock of any other class),
ii) subdivide the outstanding Common Stock,
iii) combine the outstanding Common Stock into a smaller
number of shares,
iv) issue any shares of its capital stock in a
reclassification of the Common Stock (including any
such reclassification in connection with a
consolidation or merger in which the Company is the
continuing corporation), or
v) engage in any other recapitalization,
the Exercise Price in effect at the time of the record date
for such dividend or of the effective date of such
subdivision, combination, reclassification or
recapitalization, shall be proportionately adjusted so that
the holder of the Warrant exercised after such time shall be
entitled to receive the aggregate number and kind of shares of
capital stock which, if such Warrant had been exercised
immediately prior to such date, he would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination, reclassification or
recapitalization. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the making of
a distribution to all holders of Common Stock (including any
such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of
evidence of indebtedness or assets (other than cash dividends
or cash distributions payable out of consolidated earnings or
earned surplus or dividends payable in Common Stock) or
subscription rights or warrants, the Exercise Price to be in
effect
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after such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record date
by a fraction, of which
i) the numerator shall be the current market price per
share of Common Stock (as defined in Section 4(c)),
on such record date, less the fair market value (as
determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so
to be distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and
of which
ii) the denominator shall be such current market price
per share of Common Stock. Such adjustment shall be
made successively whenever such a record date is
fixed; and in the event that such distribution is not
so made, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in
effect if such record date had not been fixed, but
such subsequent adjustment shall not affect the
number of Warrant Shares issued upon any exercise of
the Warrant prior to the date such adjustment is
made.
(c) For the purpose of any computation under Section 4 (b) the
current market price per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices
for the 30 consecutive trading days immediately preceding the
date of determination. The closing price for each day shall be
the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and
asked prices regular way, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading, or if the Common Stock is not listed or admitted to
trading on any national securities exchange, the average of
the highest reported bid and lowest reported asked prices as
furnished by the National Association of Securities Dealers
("NASD") or similar organization if the NASD is no longer
reporting such information, or, if not so available, the fair
market price as determined by the Board of Directors of the
Company.
(d) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at
least one cent ($.01) in such price; provided, however, that
any adjustments which by reason of this Section 4(d) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 4 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an adjustment
made pursuant to Section 4(a) the holder of the Warrant
thereafter exercised shall become entitled to receive any
shares of capital stock of the Company other than shares of
Common Stock, thereafter the number of such other shares so
receivable upon exercise of the Warrant shall be subject to
adjustment from time to time in a manner and on terms
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as nearly equivalent as practicable to the provisions with
respect to the Common Stock purchasable pursuant to this
Warrant.
(f) Upon each adjustment of the Exercise Price as a result of the
calculations made in Section 4(a) or (b), the Warrant
outstanding immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the
adjusted Exercise Price, that number of Warrant Shares
(calculated to the nearest hundredth) obtained by
i) multiplying the number of Warrant Shares purchasable
upon exercise of the Warrant immediately prior to
such adjustment of the number of Warrant Shares by
the Exercise Price in effect immediately prior to
such adjustment of the Exercise Price and
ii) dividing the product so obtained by the Exercise
Price in effect immediately after such adjustment of
the Exercise Price.
(g) In case of any capital reorganization of the Company, or of
any reclassification of the Common Stock (other than a change
in par value, or from par value to no par value, or from no
par value to par value, or as a result of subdivision or
combination), or in case of the consolidation of the Company
with or the merger of the Company with any other corporation
or association (other than a consolidation or merger in which
i) the Company is the continuing corporation and
ii) the holders of the Company's Common Stock immediately
prior to such merger or consolidation continue as
holders of Common Stock after such merger or
consolidation)
or of the sale of the properties and assets of the Company, as
or substantially as, an entirety to any other corporation or
association, the Warrant shall after such reorganization,
reclassification, consolidation, merger or sale be
exercisable, upon the terms and conditions specified in this
Agreement, for the number of shares of stock or other
securities or property to which a holder of the number of
Warrant Shares purchasable (at the time of such
reorganization, reclassification, consolidation, merger or
sale) upon exercise of such Warrant would have been entitled
upon such reorganization, reclassification, consolidation,
merger or sale; and in any such case, if necessary, the
provisions set forth in this Section 4 with respect to the
rights and interests thereafter of the holder of the Warrant
shall be appropriately adjusted so as to be applicable, as
nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the exercise
of the Warrant. The subdivision or combination of shares of
Common Stock at any time outstanding into a greater or lesser
number of shares shall not be deemed to be a reclassification
of the Common Stock for the purposes of this
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Section 4(g). The Company shall not affect any such
consolidation, merger or sale, unless prior to or
simultaneously with the consummation thereof the successor
corporation or association (if other than the Company)
resulting from such consolidation or merger or the entity
purchasing such assets or other appropriate entity shall
assume, by written instrument executed and delivered to the
Company, the obligation to deliver to the holder of the
Warrant such shares of stock, securities or assets, as in
accordance with the foregoing provisions, such holder may be
entitled to purchase and the other obligations under this
Agreement.
5. Fractional Shares.
Notwithstanding an adjustment pursuant to Section 4(f) in the number of
Warrant Shares purchasable upon the exercise of the Warrant, the
Company shall not be required to issue fractions of Warrant Shares upon
exercise of the Warrant or to distribute certificates which evidence
fractional Warrant Shares. In lieu of fractional Warrant Shares, there
shall be paid to the holder of the Warrant at the time such Warrant is
exercised as herein provided an amount in cash equal to the same
fraction of the current market value of a share of Common Stock. For
purposes of this Section 5, the current market value of a share of
Common Stock shall be the price as determined pursuant to the second
sentence of Section 4(c) for the trading day immediately prior to the
date of such exercise, if applicable.
6. Charges, Taxes and Expenses.
The issuance of certificates of shares of Common Stock upon any
exercise of this Warrant shall be made without charge to the holder
hereof for any tax or other expense in respect to the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company.
7. Covenants of Issuer.
The Company covenants and agrees that all shares which may be issued
upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such
issue). The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized and reserved a sufficient
number of shares of Common Stock to provide for the exercise in full of
the rights represented by this Warrant. The Company will provide to, or
make available to, as the case may be, the holder of this Warrant the
same information, reports and notices as it shall provide to, or make
available to, the holders of its Common Stock. The Company will not, by
amendment of its Articles of Incorporation or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other
voluntary act or deed, avoid or seek to avoid the performance or
observance of any of the covenants, stipulations or conditions to be
performed or observed by the Company, but will
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at all times in good faith, assist, insofar as it is reasonably able,
in the carrying out of the provisions of this Warrant in order to
protect the rights of the holder of this Warrant against dilution.
Without limiting the generality of the foregoing, the Company agrees
that it will not establish or increase the par value of the shares of
Common Stock which are at the time issuable upon exercise of this
Warrant above the then prevailing Exercise Price hereunder and that
before taking any action which would cause an adjustment reducing the
Exercise Price hereunder below the then par value of the shares of
Common Stock issuable upon exercise hereof, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of such Common Stock at the Exercise Price as so
adjusted.
8. Holder's Rights.
No holder of this Warrant, as such, shall be entitled to vote or
receive dividends or be deemed to be a shareholder of the Company for
any purpose, nor shall anything contained in this Warrant be construed
to confer upon the holder of this Warrant, as such, any rights as a
shareholder of the Company or any right to vote, give or withhold
consent to any corporate action, receive notice of meetings, receive
dividends, or subscription rights, or otherwise.
9. Call Provisions.
In the event that either the Company or any subsidiary bank receives a
supervisory order from any applicable regulatory body with supervisory
authority to issue such orders to increase the capitalization of either
the Company or any subsidiary bank and no provision to alleviate this
condition is otherwise available to the Company or any subsidiary bank,
then the Company's Board of Directors will be empowered to call on each
of the Warrant holders to exercise his or her Warrants (to the extent
vested as provided in Section 1 herein) at the Exercise Price. The
holder of the Warrants will have twenty (20) business days in which to
deliver this Warrant with the subscription form annexed hereto, duly
executed, together with payment of the Exercise Price of the shares of
Common Stock thereby purchased. In the event the holder of the Warrant
does not exercise his or her vested Warrants, either in whole or in
part, then such vested Warrants (or portion thereof), shall terminate
and become null and void.
10. Registration of Warrant Shares.
Organizer acknowledges and understands that the Warrant Shares are not
registered under the Securities Act of 1933, as amended ("Federal Act")
or under any state securities law.
Nothing contained in this Warrant shall be construed to obligate the
Company to, or to grant any right to the holder of this Warrant to,
cause the Company to file any Registration Statement; or, if any such
Registration Statement is filed, to prepare any additional prospectus,
to file any amendment to the Registration Statement, or to continue
said
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Registration Statement in effect.
If at any time during which this Warrant is exercisable according to
its terms there is no effective Registration Statement on file with the
Securities and Exchange Commission covering the shares then acquirable
hereunder, the offer and sale of the Warrant Shares to the holder of
this Warrant must be exempt from the registration requirements of the
Federal Act, and such state securities laws as shall be applicable. The
Company may condition such exercise upon its receipt of such
representations, factual assurances and legal opinions as it shall deem
necessary to determine and document the availability of any such
exemption and may further condition such exercise upon such
undertakings by the holder hereof or such restriction upon the
transferability of the shares to be acquired hereunder as it shall
determine to be necessary to effectuate and protect the claim to any
such exemption.
11. Notices.
If there shall be any adjustment as provided above in Section 4, or if
securities or property other than shares of Common Stock of the Company
shall become purchasable in lieu of shares of such Common Stock upon
exercise of this Warrant, the Company shall forthwith cause written
notice thereof to be sent by registered mail, postage prepaid, to the
registered holder of this Warrant at the address of such holder shown
on the books of the Company, which notice shall be accompanied by an
explanation prepared by independent public accountants (which may be
the Company's independent public accountants) setting forth in
reasonable detail the facts requiring any such adjustment and the
Exercise Price and number of shares purchasable after such adjustment,
or the kind and amount of any such securities or property so
purchasable upon the exercise of this Warrant, as the case may be. At
the request of the holder and upon surrender of this Warrant, the
Company shall reissue this Warrant in a form conforming to such
adjustments.
12. Reissuance of Warrant upon Partial Exercise.
In the event this Warrant is exercised in part, the Company shall cause
to be issued to the exercising Holder to the extent this Warrant is
exercised in part, a new Warrant or Warrants representing the Warrant
Shares as to which this Warrant has not been exercised.
13. Dissolution or Liquidation.
In the event of any proposed dissolution or total liquidation of the
Company, other than in connection with a consolidation, merger or sale
of all, or substantially all, of its property, assets, business and
goodwill as an entirety, the Company shall forthwith cause written
notice hereof to be sent by registered mail, postage prepaid, to the
registered holder of this Warrant at the address of such holder shown
on the books of the Company. Such notice shall be given not later than
30 days prior to any record date fixed for the purpose of determining
shareholders entitled to participate in any liquidating distribution.
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14. Lost, Stolen, Mutilated, or Destroyed Warrants.
If this Warrant shall become lost, stolen, mutilated, or destroyed, the
Company shall, on such terms as to indemnity or otherwise as it may in
its discretion impose, 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 an original contractual obligation of
the Company, whether or not the allegedly lost, stolen, mutilated, or
destroyed warrant shall be at any time enforceable by anyone.
15. Applicable Law.
The validity, interpretation, and performance of this Warrant shall be
governed by the laws of the State of Florida.
16. Successors and Assigns.
This Warrant and the rights evidenced hereby shall inure to the benefit
of and be binding upon the successors and assigns of the Company, and
the Holder hereof.
17. Headings.
Headings of the paragraphs in this Warrant are for convenience and
reference only and shall not, for any purpose, be deemed a part of this
Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officers and its corporate seal to be affixed hereto.
Dated: December __, 1997
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GULF COAST BANCORP, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman & CEO
ATTEST:
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▇▇▇▇ ▇. ▇▇▇▇, President & Secretary
(CORPORATE SEAL)
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EXHIBIT A
[Subscription form to be executed upon exercise of Warrant]
The undersigned, registered holder of the within Warrant, hereby
(1) subscribes for __________ shares which the undersigned is
entitled to purchase under the terms of the within Warrant,
(2) makes the Exercise Price payment therefor called for by the
within Warrant, and
(3) directs that the shares issuable upon exercise of said Warrant
be issued as follows:
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(Name)
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(Address)
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(Signature)
Dated:
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