Exhibit 4.4
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.
SWEETWATER FINANCIAL GROUP, INC.
STOCK WARRANT AGREEMENT
November 14, 2001
Warrant Holder: No. of Shares:
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Sweetwater Financial Group, Inc. (the "Company"), a Georgia corporation and
the holding company for Georgian Bank (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 for
every share 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-third of the shares (the "Shares") subject to
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the Warrants granted in this Agreement shall vest on each of the first three
anniversaries of the date of the Bank opened for business, which was November
14, 2001. (the "Completion Date"). Exercise of the Warrants is subject to the
following:
(a) Exercise Price. The exercise price (the "Exercise Price") shall be
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$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.
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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
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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
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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
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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
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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 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,
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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
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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
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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
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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
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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
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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.
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(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.
(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
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(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
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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
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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
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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.
SWEETWATER FINANCIAL GROUP INC.
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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