1
EXHIBIT 4.3
DATED: ___________, 1999
No. _____
____________ Shares
CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK, $.01 PAR VALUE
This is to certify that, for value received, _________________
("Holder" or "Warrant Holder"), or its or his successors, is entitled, upon the
due exercise hereof at any time, subject to Section 3 hereof, during the period
commencing on the date on which Citizens National Bank of Southwest Florida
(the "Bank") opens for business (the "Commencement Date") and terminating at
5:00 p.m., Naples, Florida local time, on the tenth anniversary of the
Commencement Date, unless earlier terminated as provided in Section 2 hereunder
(the "Termination Date"), to purchase _____ shares (subject to adjustment as
provided herein) of the $.01 par value Common Stock of Citizens Bancshares of
Southwest Florida, Inc. (the "Company") at a price per share as specified in
Section 2 of this Warrant and to exercise the other rights, powers and
privileges hereinafter provided, all on the terms and subject to the conditions
specified herein.
Section 1. Certain Definitions. Unless the context otherwise
requires, the following terms as used in this Warrant shall have the following
meanings:
(a) "Average Market Value" shall mean the average of the
Closing Prices for the Common Stock for the five trading
days immediately preceding the date of determination.
(b) "Bank" shall mean Citizens National Bank of Southwest
Florida, a national banking association (in organization)
and a wholly-owned subsidiary of the Company.
(c) "Closing Price" shall mean:
(i) if the primary market for the Common Stock is a national
securities exchange, the NASDAQ Stock Market, or other
market or quotation system in which last sale
transactions are reported on a contemporaneous basis, the
last reported sales price, regular way, of such security
on such exchange or in such quotation system for such
trading day, or, if there shall not have been a sale on
such exchange or reported through such system on such
trading day, the closing or last bid quotations therefor
on such exchange or quotation system on such trading day;
(ii) if the primary market for the Common Stock is not a
national securities exchange or quotation system in which
last sale transactions are contemporaneously reported,
the last bid quotation in the over-the-counter market on
such trading day as reported by the National Association
of Securities Dealers through NASDAQ, its automated
system for reporting quotations, or its successor or such
other generally accepted source of publicly reported bid
quotations as the Company may reasonably designate; or
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 2
(iii) if the Closing Price cannot be ascertained by any of the
methods set forth in the immediately preceding paragraphs
(i) and (ii), such Closing Price shall be deemed to be
the amount equal to a quotient determined by dividing the
Fair Market Value by the number of shares (including any
fractional shares) of Common Stock then outstanding.
(d) "Commencement Date" shall mean the date that the Bank opens for
business.
(e) "Common Stock" shall mean the Company's $.01 par value common
stock, any security into which such common stock shall have
been changed or any security resulting from reclassification
of such common stock.
(f) "Company" shall mean Citizens Bancshares of Southwest Florida,
Inc., a Florida corporation, and its successors and assigns.
(g) "Exercise Date" shall mean the date on which the Company shall
have received from the Holder all deliveries required by
Section 3 of this Warrant.
(h) "Exercise Price" shall mean the price per share of Common Stock
specified in Section 2 hereof, as the same shall be adjusted
from time to time pursuant to the provisions of this Warrant.
(i) "Fair Market Value" shall mean the price, as determined by a
written appraisal prepared by an appraiser acceptable to the
Company, that would be paid by the most likely hypothetical
buyer in a single transaction, for 100% of the equity capital
of the Company on a going-concern basis. The Company shall pay
for the cost of any such appraisal.
(i) "Initial Public Offering" shall mean the initial public
offering of Common Stock by the Company, pursuant to an
effective registration statement on Form SB-2 filed with the
United States Securities and Exchange Commission under the
Securities Act of 1933, as amended, which initial public
offering is anticipated to occur and close no later than June
1, 2000.
Section 2. Exercise Price; Termination. Subject to the adjustments
provided for in this Warrant, the exercise price per share (the "Exercise
Price") shall be equal to $10.00. In the event that the Company does not close
the Initial Public Offering on or before 5:00 p.m., Atlanta, Georgia local
time, on June 1, 2000, then this Warrant and the rights hereunder shall
immediately terminate, shall become null and void and shall be of no further
force or effect.
Section 3. Exercise of Warrant. The Holder of this Warrant may, at
any time on or after the Commencement Date but prior to the Termination Date,
exercise this Warrant in whole at any time or in part from time to time for the
number of shares which such Xxxxxx is then entitled to purchase hereunder.
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 3
The Holder may exercise its rights under this Warrant only as follows:
(i) no part of the Warrant may be exercised prior to the
Commencement Date;
(ii) beginning on the Commencement Date, this Warrant may be
exercised with respect to a maximum of 20% of the shares of
Common Stock subject to this Warrant;
(iii) beginning on the first anniversary of the Commencement Date,
this Warrant may be exercised with respect to an additional 20%
of the shares of Common Stock subject to this Warrant;
(iv) beginning on the second anniversary of the Commencement Date,
this Warrant may be exercised with respect to an additional 20%
of the shares of Common Stock subject to this Warrant;
(v) beginning on the third anniversary of the Commencement Date,
this Warrant may be exercised with respect to an additional 20%
of the shares of Common Stock subject to this Warrant; and
(vi) beginning on the fourth anniversary of the Commencement Date,
this Warrant may be exercised with respect to an additional 20%
of the shares of Common Stock subject to this Warrant.
The Holder may exercise this Warrant, in whole or in part, by
delivering to the Company at its offices maintained pursuant to Section 4 for
such purpose (i) a written notice of such Xxxxxx's election to exercise this
Warrant, which notice shall specify the number of shares to be purchased, (ii)
this Warrant, and (iii) a sum equal to the Exercise Price therefor in cash
(U.S. dollars) or by certified or cashier's check.
Such notice may be in the form of an election to subscribe attached
hereto. Upon delivery thereof, the Company shall, as promptly as practicable
and in any event within ten business days thereafter, cause to be executed and
delivered to such Holder a certificate or certificates representing the
aggregate number of shares of Common Stock issuable upon such exercise.
The certificate or certificates for shares of Common Stock so
delivered shall be in such denominations as may be specified in said notice and
shall be registered in the name of such Holder or such other name or names as
shall be designated in said notice. Such certificate or certificates shall be
deemed to have been issued and the person designated to be named in such
certificate shall be deemed to have become a holder of record of such shares,
and to have become entitled, to the extent permitted by law, to the right to
vote such shares or to consent or receive notice as a stockholder, as of the
Exercise Date. If this Warrant shall have been exercised only in part, the
Company shall, at the time of delivery of said certificate or certificates,
deliver to such Holder a new warrant dated the date it is issued, evidencing
the rights of such Holder to purchase the remaining shares of Common Stock
issuable pursuant to this Warrant, which new
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 4
warrant shall in all other respects be identical with this Warrant, or, at the
request of such Holder, appropriate notation may be made on this Warrant and
the Warrant returned to such Holder.
The Company shall pay all expenses, transfer taxes and other charges
payable in connection with the preparation, issuance and delivery of stock
certificates under this Section 3, except that, in the event such stock
certificates are to be registered in a name or names other than the name of the
Holder, funds sufficient to pay all stock transfer and any other applicable
taxes payable upon the issuance of such certificates shall be paid by the
Holder not later than the Exercise Date.
Section 4. Warrant Registration. At all times while any portion of
this Warrant remains outstanding and exercisable the Company shall keep and
maintain at its principal offices a register in which the ownership and any
exchange of this Warrant shall be recorded. The Company shall not at any time,
except upon the dissolution, liquidation or winding up of the Company, close
such register so as to result in the prevention or delay of the proper exercise
of this Warrant.
Section 5. Transferability. This Warrant and all rights hereunder
shall not be transferable by the Holder except by operation of law. The Company
may deem and treat the registered Holder as the absolute owner of this Warrant
for all purposes and shall not be affected by any notice to the contrary.
Section 6. Exchange. This Warrant is exchangeable, upon the
surrender hereof by the Holder at the offices of the Company, for a new warrant
or warrants, in such denominations as Holder shall designate at the time of
surrender for exchange, of like tenor and date, representing in the aggregate
the right to subscribe for and purchase the number of shares which may be
subscribed for and purchased hereunder, each of such new warrants to represent
the right to subscribe for and purchase not less than 1,000 shares of Common
Stock (except to the extent necessary to reflect the balance of the number of
shares purchasable hereunder).
Section 7. Representations and Covenants of Issuer.
(a) The Company hereby represents to the Holder as follows:
(i) The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State
of Florida.
(ii) The Company has the corporate power and authority to
execute and deliver this Warrant and to perform the terms
hereof, including the issuance of shares of Common Stock
issuable upon exercise hereof. The Company has taken all
action necessary to authorize the execution, delivery and
performance of this Warrant and the issuance of the
shares of Common Stock issuable upon exercise hereof.
This Warrant has been duly authorized and executed by the
Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the
Company in accordance with its
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 5
terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or
limiting creditors' rights generally.
(b) The Company covenants and agrees that all shares of Common
Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be fully paid and nonassessable and free
from all taxes, liens and charges (other than taxes in
respect of any transfer occurring contemporaneously with such
issuance).
Section 8. Adjustments to Exercise Price and Number of Shares
Purchasable. The Exercise Price and number of shares of Common Stock
purchasable pursuant to this Warrant shall be subject to adjustment from time
to time as follows:
(a) In the event the Company shall at any time exchange, as a
whole, by subdivision or combination in any manner or by the
making of a stock dividend, the number of shares of Common
Stock then outstanding into a different number of shares,
with or without par value, then thereafter the number of
shares of Common Stock which the Holder shall be entitled to
purchase pursuant to this Warrant (calculated immediately
prior to such change), shall be increased or decreased, as
the case may be, in direct proportion to the increase or
decrease in the number of shares of outstanding Common Stock
of the Company by reason of such change, and the Exercise
Price after such change shall, in the event of an increase in
the number of shares of Common Stock outstanding, be
proportionately reduced, and, in the event of a decrease in
the number of shares of Common Stock outstanding, be
proportionately increased.
(b) In the event of any reclassification or change of outstanding
shares of 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 a subdivision, combination or stock
dividend as provided for in Section 8(a)), or in the event of
any consolidation of the Company with, or merger of the
Company into, another corporation, or in the event of any
sale of all or substantially all of the property, assets,
business and goodwill of the Company, the Company, or such
successor or purchasing corporation, as the case may be,
shall provide that the Holder of this Warrant shall
thereafter be entitled to purchase, by exercise of this
Warrant, the kind and amount of shares of stock and other
securities and property receivable upon such
reclassification, change, consolidation, merger or sale by a
holder of the number of shares of Common Stock which this
Warrant entitles the Holder to purchase immediately prior to
such reclassification, change, consolidation, merger or sale.
Any such successor corporation thereafter shall be
substituted for the Company for purposes of this Warrant.
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 6
Section 9. Holder's Rights. Except as otherwise expressly set forth
herein, this Warrant shall not entitle the Holder to any rights of a
stockholder of the Company, except that if the Company, during the period in
which this Warrant is exercisable, declares a dividend upon the Common Stock
payable otherwise than in cash out of earnings or earned surplus (computed in
accordance with generally accepted accounting principles) or otherwise than in
Common Stock or securities convertible into Common Stock, then the Holder, upon
exercise of this Warrant, shall receive the number of shares of Common Stock
purchasable upon such exercise and, in addition and without further payment,
the cash, stock or other securities or property which the Holder would have
received by way of dividends or other distribution if, continuously since the
date hereof, such Holder (a) had been the record holder of the number of shares
of Common Stock then being purchased, and (b) had retained all such cash, stock
and other securities (other than Common Stock or securities convertible into
Common Stock) and/or other property payable in respect of such Common Stock or
in respect of any stock or securities paid as dividends and originating
directly or indirectly from such Common Stock.
Section 10. Notices. If there shall be any adjustment as provided in
Section 8 hereof, or if securities or property other than shares of Common
Stock of the Company shall become purchasable in lieu of shares of 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 setting forth in
reasonable detail the basis for the Holder's becoming entitled to purchase such
shares and the number of shares which may be purchased and the exercise price
thereof, or the facts requiring any such adjustment and the exercise price and
number of shares purchasable subsequent to 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.
Section 11. Cash in Lieu of Fractional Shares. The Company shall not
be required to issue fractional shares upon the exercise of this Warrant. If,
by reason of any change made pursuant to Sections 8 or 9 hereof, the Holder of
this Warrant would be entitled, upon the exercise of any rights evidenced
hereby, to receive a fractional share, the Company shall, upon such exercise,
pay to the Holder an amount in cash equal to the Average Market Value of such
fractional interest, determined as of the Exercise Date.
Section 12. Forfeiture. If at any time while this Warrant is
outstanding, the Board of Governors of the Federal Reserve System makes a
formal capital call upon the Company or the Comptroller of the Currency makes a
formal capital call upon the Bank, the Holder will exercise this Warrant in
whole or in part as may be needed for additional required capital, or the
Warrant shall be forfeited. The number of shares of Common Stock as to which
the Warrant shall be exercised by each Holder to meet the capital call will be
calculated pro rata on the basis of the number of shares of Common Stock
subject to a Warrant held by each Holder. The exercise price for shares of
Common Stock purchased upon such exercise will be equal to the greater of the
Exercise Price determined pursuant to Section 2 hereof and the then-current
book value per
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 7
share of Common Stock of the Company. Any portion of this Warrant not required
to be exercised under the terms of any such capital call may be exercised under
the original terms of this Warrant.
Section 13. 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 reasonable
discretion impose upon the registered Holder hereof (as shown on the register
of Warrants maintained by the Company), issue a new warrant of like
denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or
destroyed.
Section 14. Limitation of Liability. No provision hereof, in the
absence of affirmative action by the Holder hereof to purchase shares of Common
Stock, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of such Holder for the purchase price of the
shares or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
Section 15. Applicable Law. The validity, interpretation, and
performance of this Warrant shall be governed by the laws of the State of
Florida.
Section 16. Successors and Assigns. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company and the Holder hereof.
Section 17. Headings. Headings of the paragraphs in this Warrant are
for convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
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CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
STOCK PURCHASE WARRANT
DATED ___________, 1999
Page 8
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
this ___ day of ________, 1999, by its duly authorized officers.
CITIZENS BANCSHARES OF SOUTHWEST FLORIDA, INC.
By:
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Name:
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Title:
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ATTEST:
By:
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Name:
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Title:
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9
EXHIBIT A
[Subscription Form to Be Executed Upon Exercise of Warrant]
The undersigned registered holder or permitted assignee of such
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 full cash 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)
Signature
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Dated
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NOTICE: The signature on this subscription form must correspond with the name
as written upon the face of the within Warrant in every particular, without
alteration or enlargement, or any change whatsoever, and must be guaranteed by
a bank, other than a savings bank or trust company, or by a firm having
membership on a registered national securities exchange.
