HOME FEDERAL HOLDINGS CORPORATION SUBSCRIBER WARRANT AGREEMENT
EXHIBIT
10.8
This Subscriber Warrant Agreement (“Agreement”) is executed as of this day of
, 20___, by Home Federal Holdings Corporation, a Georgia corporation
(“Company”), in favor of the person whose name appears on the signature page hereof (the
“Initial Holder”), in accordance with the terms and subject to the conditions set forth in
this Agreement.
WHEREAS, in recognition of the financial risks undertaken by the Initial Holder, as one of the
original shareholders of the Company, the Company desires to grant to him/her warrants to purchase
shares of common stock of the Company (each, a “Warrant” and, collectively, the
“Warrants”) equal to one warrant for each five shares purchased in the initial offering of
common stock of the Company.
NOW, THEREFORE, in consideration of the foregoing and the agreements hereinafter set forth,
the receipt and sufficiency of which are hereby acknowledged, the Company and, by acceptance of a
Warrant, the Initial Holder (as defined herein) agree as follows:
1. Grant of Warrants. Subject to the terms, restrictions, limitations and conditions stated
in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company hereby
grants to Initial Holder the number of Warrants set forth on the signature page hereof. Each
Warrant initially shall be exercisable for one fully paid and nonassessable share of common stock,
par value $.01 per share, of the Company (“Share”), subject to adjustment as provided in
Section 11 of this Agreement. The Initial Holder and all subsequent registered holders of the
Warrants (each, a “Holder” and, collectively, the “Holders”) shall have the rights
and obligations set forth in this Agreement.
2. Warrant Certificates. Each Warrant shall be evidenced by a warrant certificate, which
shall be substantially in the form attached to this Agreement as Exhibit A (“Warrant
Certificate”). Each Warrant Certificate shall have such marks of identification or designation
and such legends or endorsements thereon as the Company deems appropriate, so long as they are not
inconsistent with the provisions of this Agreement, or as are required to comply with any
applicable law, rule or regulation applicable to the Company or the Shares. The Warrant
Certificates shall be executed on behalf of the Company by the manual, facsimile or imprinted
signature of its Chairman of the Board, its President or any vice president and shall be attested
by the manual, facsimile or imprinted signature its Secretary or any Assistant Secretary.
3. Term of Warrants.
(a) The term for the exercise of the Warrants shall begin at 9:00 a.m., Oakwood,
Georgia, time on the date that Home Federal Bank, N.A., the Company’s wholly-owned
subsidiary (the “Bank”) opens for business (the “Issue Date”). The term for
the exercise of the Warrants shall expire at 5:00 p.m., Oakwood, Georgia time on the earlier
to occur of (i) the third anniversary of the Issue Date, or (ii) the date provided in
Section 3(b) of this Agreement (the “Expiration Time”).
(b) Notwithstanding any provision of this Agreement or any Warrant Certificate to the
contrary, the Warrants shall expire, to the extent not exercised, within 45 days following
the receipt of notice from the Bank’s state or primary federal regulator
(“Regulator”) that (i) the Bank has not maintained its minimum capital requirements
(as determined by the Regulator); and (ii) the Regulator is requiring exercise or forfeiture
of warrants. Upon receipt of such notice from the Regulator, the Company shall promptly
notify each Holder that he/she must exercise the Warrants granted to him/her prior to the
end of the 45-day period or such earlier period as may be specified by the Regulator or
forfeit such Warrant(s). In case of forfeiture, no Holder shall have any cause of action, of
any kind or nature, against the Company, the Bank or any of their respective officers or
directors with respect to the forfeiture. In addition, the Company shall not be liable to
any Holder due to the failure or inability of the Company to provide adequate notice to
Holder.
4. Exercise of Warrants. The purchase price per Share to be paid by a Holder for Shares
subject to the Warrants shall be $12.50, subject to adjustment as set forth in Section 11 of this
Agreement (the “Exercise Price”). A Holder may exercise Warrants evidenced by a Warrant
Certificate in whole or in part at any time prior to the Expiration Time by delivering to the
secretary of the Company (i) the Warrant Certificate; (ii) a written notice to the Company
specifying the number of Shares with respect to which Warrants are being exercised; and (iii) a
check for the full amount of the aggregate Exercise Price of the Shares being acquired.
5. Delivery of Shares; Partial Exercise. Upon receipt of the items set forth in Section 4,
and subject to the terms of this Agreement, the Company shall promptly deliver to, and register in
the name of, the Holder a certificate or certificates representing the number of Shares acquired by
exercise of a Warrant. In the event of a partial exercise of Warrant(s), a new Warrant Certificate
evidencing the number of Shares that remain subject to the Warrant shall be issued by the Company
to such Holder or to his duly authorized assigns.
6. Registration of Transfer and Exchange.
(a) The Company shall keep, or cause to be kept, at its principal place of business or
at such other location designated by the Company, a register in which, subject to such
reasonable regulations as the Company may prescribe, the registrar and transfer agent (the
“Securities Registrar”) shall register the Warrant Certificates and the transfers
thereof as provided herein (“Securities Register”). The initial Securities
Registrar shall be the Secretary of the Company.
(b) Upon surrender for registration of transfer of any Warrant Certificate, the Company
shall issue and deliver to the Holder, or his duly authorized assigns, one or more new
Warrant Certificates of like tenor and in like aggregate amount.
(c) At the option of the Holder, Warrant Certificates may be exchanged for other
Warrant Certificates of like tenor and in like aggregate amount upon surrender of the
Warrant Certificates to be exchanged. Upon such surrender, the Company shall issue and
deliver to the Holder or his duly authorized assigns, one or more new Warrant Certificates
of like tenor and in like aggregate amount.
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(d) Every Warrant Certificate surrendered for registration of transfer or exchange
shall be accompanied (if so required by the Company or the Securities Registrar) by a
written instrument or instruments of transfer, in form satisfactory to the Company or the
Securities Registrar, duly executed by the registered Holder or by such Holder’s duly
authorized attorney in writing.
7. Replacement of Warrant Certificates.
(a) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of a Warrant Certificate and, in the case of loss, theft or
destruction, upon delivery of an indemnity agreement (with or without a bond, in the
discretion of the Company, reasonably satisfactory to the Company), the Company shall issue
and deliver to the Holder or his duly authorized assigns, one or more new Warrant
Certificates of like tenor and in like aggregate amount.
(b) All Warrants shall be held and owned under the express condition that the
provisions of this Section 7 are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Warrant Certificates and shall preclude (to the extent
lawful) all other rights and remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
(c) Upon the issuance of any new Warrant Certificate under this Section 7, the Company
may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Company and its agents and counsel) connected therewith.
(d) Every new Warrant Certificate issued pursuant to this Section 7 shall constitute an
additional contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued hereunder.
8. Persons Deemed Holders. Prior to the due presentment of a Warrant Certificate for
registration of transfer or exchange, the Company, any Securities Registrar and any other agent of
the Company may treat the person in whose name such Warrant Certificate is registered in the
Securities Register as the sole Holder of such Warrant Certificate and of the Warrant represented
by such Warrant Certificate for all purposes whatsoever, and shall not be bound to
recognize any equitable or other claim to or interest in such Warrant Certificate or in the Warrant
represented by such Warrant Certificate on the part of any person and shall be unaffected by any
notice to the contrary.
9. Cancellation. All Warrant Certificates surrendered for the purpose of exercise, exchange
or registration of transfer shall be cancelled by the Securities Registrar, and no Warrant
Certificates shall be issued in lieu thereof, except as expressly permitted by the provisions of
this Agreement.
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10. Fractional Shares. The Company shall not be required to issue Warrant Certificates
exercisable for fractional Shares or to issue fractional Shares upon the exercise of Warrants.
11. Stock Dividends, Splits, Etc.
(a) If, prior to the Expiration Time, the Company shall subdivide its outstanding
Shares into a greater number of Shares, or declare and pay a dividend of its Shares payable
in additional Shares, the Exercise Price, as then in effect, shall be proportionately
reduced, and the Company shall proportionately increase the number of Shares then subject to
exercise under this Warrant (and not previously exercised.)
(b) If, prior to the Expiration Time, the Company shall combine its outstanding Shares
into a lesser number of Shares, the Exercise Price, as then in effect, shall be
proportionately increased, and the Company shall proportionately reduce the number of Shares
then subject to exercise under this Warrant (and not previously exercised.)
12. Reorganization, Reclassifications, Consolidation or Merger. If, prior to the Expiration
Time, there shall be a reorganization or reclassification of the Shares (other than as provided in
Section 11 of this Agreement), or any consolidation or merger of the Company with another entity,
the Holder shall be entitled to receive, during the remainder of the term of this Agreement and
upon payment of the Exercise Price, the number of shares of stock or other securities or property
of the Company or of the successor entity (or its parent company) resulting from such consolidation
or merger, as the case may be, to which a holder of Shares, deliverable upon the exercise of a
Warrant, would have been entitled upon such reorganization, reclassification, consolidation or
merger; and, in any case, the Company shall make appropriate adjustments (as determined by the
board of directors of the Company in its sole discretion) in the application of the provisions with
respect to the rights and interests of the Holders so that the provisions set forth in this
Agreement (including the adjustment to the Exercise Price and the number of Shares issuable upon
exercise of the Warrants) shall be applicable, as nearly as may be practicable, to any shares or
other property thereafter deliverable upon the exercise of this Warrant.
13. Certificate as to Adjustments; Issuance of New Warrant Certificates. Within thirty
(30) days following any adjustment provided for in Section 11 or 12 of this Agreement, the Company
shall give written notice of the adjustment to the Holder as provided in Section 14(a) of this
Agreement. The notice shall state the Exercise Price as adjusted and the increased or decreased
number of shares purchasable upon the exercise of the Warrant(s) and shall set forth in
reasonable detail the method of calculation for each. Notwithstanding anything to the contrary set
forth herein or in the Warrant Certificates, the Company may, at its option, issue new Warrant
Certificates evidencing the Warrants, in such form as may be approved by the Company, to reflect
any adjustment or change in the Exercise Price and the number or kind of stock or other securities
or property purchasable upon exercise of the Warrants.
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14. Miscellaneous.
(a) Any notice or other communication required or permitted to be made hereunder shall
be in writing, duly signed by the party giving such notice or communication and shall be
deemed delivered and effective when given personally or mailed by first-class registered or
certified mail, postage prepaid as follows (or at such other address for a party as shall be
specified by like notice): (i) if given to the Company, at its principal place of business;
and (ii) if given to the Holder, at the address set forth for the Holder on the books and
records of the Company. A notice given to the Company by the Holder with respect to the
exercise of a Warrant shall not be effective until received by the Company.
(b) The Company shall, at all times, reserve and keep available out of its authorized
and unissued Shares or out of any Shares held in treasury that number of Shares that will
from time to time be sufficient to permit the exercise in full of all outstanding Warrants.
The Company shall take all such action as may be necessary to ensure that all Shares
delivered upon exercise of any Warrants shall, at the time of delivery of the Warrant
Certificates for such Shares, be duly authorized, validly issued, fully paid and
nonassessable.
(c) The Company shall pay when due and payable any and all federal and state transfer
taxes and charges (other any applicable income taxes) that may be payable in respect of the
issuance and delivery of Warrant Certificates or of certificates for Shares receivable upon
the exercise of any Warrants; provided, however, that the Company shall not be required to
pay any tax that may be payable in respect of the issuance and delivery (i) of any Warrant
Certificate or stock certificate registered in a name other than that of the Holder of the
Warrant Certificate that has been surrendered, or (ii) of any Warrant Certificate under
Section 7.
(d) No Holder, in his capacity as such, shall be entitled to vote or receive dividends
or shall be deemed from any other purpose the holder of the Shares or other securities which
may at any time be issuable upon the exercise of such Warrant. Nothing contained herein or
in any Warrant Certificate shall be construed to confer upon any Holder, in his capacity as
such, any of the rights of a shareholder of the Company, including any right to vote for the
election of directors or upon any matter submitted to shareholders of the Company at any
meeting thereof, to give or withhold consent to any corporation action, or to receive
notices of meeting or other actions affecting shareholders.
(e) The Holder, by accepting a Warrant Certificate, accepts and agrees to the terms of
this Agreement. The terms of this Agreement shall be binding upon the Company and the Holder
and his/her respective heirs, successors, representatives and
permitted assigns. Nothing expressed or referred to herein is intended or will be construed
to give any person other than the Company or the Holder any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provision herein contained, it being
the intention of the Company and the Holder that this Agreement, the assumption of
obligations and statements of responsibilities hereunder, and all other
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conditions and
provisions hereof are for the sole benefit of the Company and the Holder and for the benefit
of no other person.
(f) This Agreement constitutes the full understanding of the Company and the Holder, a
complete allocation of risks between them and a complete and exclusive statement of the
terms and conditions of their agreement relating to the subject matter hereof and supersedes
any and all prior agreements, whether written or oral, that may exist between the Company
and the Holder with respect thereto. Except as otherwise specifically provided in this
Agreement, no conditions, usage of trade, course of dealing or performance, understanding or
agreement purporting to modify, vary, explain or supplement the terms or conditions of this
Agreement will be binding unless hereafter or contemporaneously herewith made in writing and
signed by the party to be bound, and no modification will be effected by the acknowledgment
or acceptance of documents containing terms or conditions at variance with or in addition to
those set forth in this Agreement.
(g) This Agreement shall terminate upon the earlier of (i) the Expiration Time, or
(ii) the close of business on the date on which all Warrants shall have been exercised.
(h) THIS AGREEMENT, EACH WARRANT AND EACH WARRANT CERTIFICATE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS. IN THE EVENT
OF A DISPUTE INVOLVING THIS AGREEMENT, THE PARTIES IRREVOCABLY AGREE THAT VENUE FOR SUCH
DISPUTE SHALL LIE EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION IN HALL COUNTY, GEORGIA.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized
officer as of the date first above written.
Number of Warrants:
| INITIAL HOLDER: | HOME FEDERAL HOLDINGS CORPORATION | ||||||
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EXHIBIT A
FORM OF SUBSCRIBER WARRANT CERTIFICATE
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE RESTRICTIONS
SPECIFIED IN THAT CERTAIN SUBSCRIBER WARRANT AGREEMENT DATED AS OF
, 20
,
BY HOME FEDERAL HOLDINGS CORPORATION, A GEORGIA CORPORATION (“COMPANY”), IN FAVOR OF THE
PERSONS LISTED ON EXHIBIT A THERETO, AS THE SAME MAY BE AMENDED FROM TIME TO TIME (THE
“AGREEMENT”). A COPY OF THE FORM OF THE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY DURING NORMAL BUSINESS HOURS. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE
AGREEMENT.
| No. W- | Number of Warrants: |
HOME FEDERAL HOLDINGS CORPORATION
SUBSCRIBER WARRANT CERTIFICATE
SUBSCRIBER WARRANT CERTIFICATE
This Subscriber Warrant Certificate certifies that
, or registered
assigns, is the registered holder of a warrant to purchase the number of fully-paid and
non-assessable shares of common stock, $.01 par value of the Company (“Shares”) set forth
above, at the exercise price, subject to adjustment in certain events (“Exercise Price”),
of $10.00 per share (“Warrant”).
The Warrant evidenced by this Warrant Certificate is part of a duly authorized issue of
Warrants issued pursuant to the Agreement, which is hereby incorporated by reference in and made a
part of this instrument and is hereby referred to for a description of the rights, limitation of
rights, obligations, duties and immunities thereunder of the Company and the Holder. All terms
used, but not otherwise defined, in this Warrant Certificate shall have the meanings assigned to
them in the Agreement. If any provision of this Warrant Certificate conflicts with a provision of
the Agreement, the provision of the Agreement shall supercede.
This Warrant may not be exercised after 5:00 p.m., Oakwood, Georgia, time on the earlier to
occur of (i) the third anniversary of the date that Home Federal Bank, NA, the Company’s
wholly-owned subsidiary (the “Bank”) opens for business, or (ii) the date provided in
Section 3(b) of the Agreement (the “Expiration Time”).
The Holder may exercise the Warrant evidenced by this Warrant Certificate in whole or in part
at any time prior to the Expiration Time by delivering to the Secretary of the Company (i) this
Warrant Certificate; (ii) a written notice to the Company specifying the number of Shares with
respect to which Warrants are being exercised; and (iii) a check for the full amount of the
aggregate Exercise Price of the Shares being acquired.
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Upon receipt of the items set forth above, and subject to the terms of the Agreement, the
Company shall promptly deliver to, and register in the name of, the Holder a certificate or
certificates representing the number of Shares acquired by exercise of this Warrant. In the event
of a partial exercise of this Warrant, a new Warrant Certificate evidencing the number of Shares
that remain subject to this Warrant shall be issued by the Company to such Holder or to his duly
authorized assigns.
The Agreement provides that upon the occurrence of certain events the Exercise Price and the
type and/or number of the Company’s securities issuable thereupon may, subject to certain
conditions, be adjusted. In such event, the Company may, at its option, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number and/or type of
securities issuable upon the exercise of the Warrants.
Upon surrender for registration of transfer of this Warrant Certificate, subject to the terms
of the Agreement, the Company shall issue and deliver to the Holder or his duly authorized assigns,
one or more new Warrant Certificates of like tenor and in like aggregate amount.
Prior to the due presentment of this Warrant Certificate for registration of transfer or
exchange, the Company, any Securities Registrar and any other agent of the Company may treat the
person in whose name this Warrant Certificate is registered in the Securities Register as the sole
Holder of this Warrant Certificate and of the Warrant represented by this Warrant Certificate for
all purposes whatsoever, and shall not be bound to recognize any equitable or other claim to or
interest in this Warrant Certificate or in the Warrant represented by this Warrant Certificate on
the part of any person and shall be unaffected by any notice to the contrary.
The Holder, in his capacity as such, shall not be entitled to vote or receive dividends or
shall be deemed from any other purpose the holder of the Shares or other securities which may at
any time be issuable upon the exercise of this Warrant. Nothing contained in this Warrant
Certificate shall be construed to confer upon the Holder, in his capacity as such, any of the
rights of a shareholder of the Company, including any right to vote for the election of directors
or upon any matter submitted to shareholders of the Company at any meeting thereof, to give or
withhold consent to any corporation action, or to receive notices of meeting or other actions
affecting shareholders.
Any notice or other communication required or permitted to be made by the Holder to the
Company shall be in writing, duly signed by the Holder and shall be deemed delivered and effective
when given personally or mailed by first-class registered or certified mail, postage prepaid to the
Company, at its principal place of business (or such other address as designated in writing to the
Holder by the Company). A notice given to the Company by a Holder with respect to the exercise of
this Warrant shall not be effective until received by the Company.
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IN WITNESS WHEREOF, the Company has caused this Subscriber Warrant Certificate to be duly
executed under its corporate seal.
Dated as of the day of , 20 .
| HOME FEDERAL HOLDINGS CORPORATION a Georgia corporation |
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