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EXHIBIT 10.5
FORM OF WARRANT AGREEMENT
THIS AGREEMENT is made and entered into as of this ____ day of
_____________, 19____, by and between COMMUNITY CAPITAL BANCSHARES, INC., a
Georgia corporation (the "Corporation"), and _________________________
(the "Warrant Holder").
W I T N E S S E T H
WHEREAS, the Warrant Holder has served as an organizer in the
formation of the Corporation and the formation and establishment of Albany Bank
& Trust, N.A. (the "Bank"), the wholly-owned subsidiary of the Corporation; and
WHEREAS, the Warrant Holder has purchased __________ shares of the
Corporation's common stock, $1.00 par value per share (the "Common Stock"), at
a price per share of $10.00 per share; and
WHEREAS, the Warrant Holder will provide services to the Corporation
as a director of the Corporation; and
WHEREAS, the Corporation, in recognition of the financial risk
undertaken by the Warrant Holder in organizing the Bank and the Company, desires
to provide the Warrant Holder with the right to acquire the lesser of the same
number of shares, as the Warrant Holder purchased in the initial stock offering
of the Corporation's Common Stock, including any additional shares purchased
specifically to attain the minimum subscription requirements of the initial
offering or 15,000 shares of the Corporation's Common Stock.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Warrant. Subject to the terms, restriction, limitations
and conditions stated herein, the Corporation hereby grants to the Warrant
Holder the right (the "Warrant") to purchase all or any part of an aggregate of
_______________ shares of the Common Stock, subject to adjustment in accordance
with Section 7 hereof.
2. Term.
(a). The term for the exercise of said Warrant begins at 9:00
a.m., Eastern Time, on the first anniversary of the date that the
Corporation first issues its common stock (the "Issue Date") and ends
at 5:00 p.m., Eastern Time, on the earlier of the tenth anniversary of
the issuance date or 90 days after the Warrant Holder ceases to serve
as a director of the Corporation (the "Expiration Time"). The Warrant
will vest at the rate of 20% per year beginning on the first
anniversary of the Issue Date. On each successive anniversary of the
Issue Date, an additional 20% of the Warrant shall vest. The vested
portion of the Warrant
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may be exercised in whole, or from time to time in
part, at any time prior to the Expiration Time.
(b) Notwithstanding any other provision of this Agreement, if
the Bank's capital falls below the minimum requirements as determined
by the primary federal regulator of the Corporation or the Bank (the
"Regulator"), the Regulator may direct the Corporation to require the
Warrant Holder to exercise or forfeit his or her Warrant. The
Corporation will notify the Warrant Holder within 45 days from the
date the Regulator notifies the Corporation in writing that the
Warrant Holder must exercise or forfeit this Warrant. The Corporation
will cancel the Warrant if not exercised within 21 days of the
Corporation's notification to the Warrant Holder. The Corporation
agrees to comply with any Regulator request that the Corporation
invoke its right to require the Warrant Holder to exercise or forfeit
his or her Warrant under the circumstances stated above.
3. Purchase Price. The price per share to be paid by the Warrant
Holder for the shares of Common Stock subject to this Warrant shall be $10.00,
subject to adjustment as set forth in Section 6 hereof (such price, as adjusted,
hereinafter called the "Purchase Price").
4. Exercise of Warrant. The Warrant may be exercised by the Warrant
Holder by delivery to the Corporation, at the address of the Corporation set
forth under Section 10(a) hereof or such other address as to which the
Corporation advises the Warrant Holder pursuant to Section 10(a) hereof, of the
following:
(a) Written notice of exercise specifying the number of
shares of Common Stock with respect to which the Warrant is being
exercised; and
(b) A cashier's or certified check payable to the Corporation
for the full amount of the aggregate Purchase Price for the number of
shares as to which the Warrant is being exercised.
5. Issuance of Shares. Upon receipt of the items set forth in
Section 4, and subject to the terms hereof, the Corporation shall cause to be
delivered to the Warrant Holder stock certificates for the number of shares
specified in the notice to exercise, such share or shares to be registered
under the name of the Warrant Holder. Notwithstanding the foregoing, the
Corporation shall not be required to issue or deliver any certificate for
shares of the Common Stock purchased upon exercise of the Warrant or any
portion thereof prior to the fulfillment of the following conditions:
(a) The admission of such shares for listing on all stock
exchanges on which the Common Stock is then listed;
(b) The completion of any registration or other qualification
of such shares which the Corporation shall deem necessary or
advisable under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or nay other
governmental regulatory body;
(c) The obtaining of any approval or other clearance from any
federal or state governmental agency or body, which the Corporation
shall determine to be necessary or advisable; or
(d) The lapse of such reasonable period of time following the
exercise of the Warrant as the Corporation from time to time may
establish for reasons of administrative convenience.
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The Corporation shall have no obligation to obtain the fulfillment of
these conditions; provided, however, the Warrant Holder shall have one full
calendar year after these conditions have been fulfilled to exercise his or her
warrants granted herein, notwithstanding any other provision herein.
6. Antidilution, Etc.
(a) If, prior to the Expiration Time, the Corporation shall
subdivide its outstanding shares of Common Stock into a greater
number of shares, or declare and pay a dividend of its Common Stock
payable in additional shares of its Common Stock, the Purchase Price
as then in effect shall be proportionately reduced, and the number of
shares of Common Stock then subject to exercise under the Warrant
(and not previously exercised) shall be proportionately increased.
(b) If, prior to the Expiration Time, the Corporation shall
combine its outstanding shares of the Common Stock into a smaller
number of shares, the Purchase Price, as then in effect, shall be
proportionately increased, and the number of shares of Common Stock
then subject to exercise under the Warrant (and not previously
exercised), shall be proportionately reduced.
7. Reorganization, Reclassification, Consolidation or Merger. If,
prior to the Expiration Time, there shall be any reorganization or
reclassification of the Common Stock (other than a subdivision or combination
of shares provided for in Section 6 hereof), or any consolidation or merger of
the Corporation with another entity, the Warrant Holder shall thereafter be
entitled to receive, during the term hereof and upon payment of the Purchase
Price, the number of shares of stock or other securities or property of the
Corporation 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 the
Common Stock, deliverable upon the exercise of this Warrant, would have been
entitled upon such reorganization, reclassification, consolidation or merger;
and in any case, appropriate adjustment (as determined by the Board of
Directors of the Corporation in its sole discretion) shall be made in the
application of the provisions herein set forth with respect to the rights and
interest thereafter of the Warrant Holder to the end that the provisions set
forth herein (including the adjustment of the Purchase Price and the number of
shares issuable upon the exercise of this Warrant) shall thereafter be
applicable, as near as may reasonably be practicable, in relation to any shares
or other property thereafter deliverable upon the exercise hereof.
8. Notice of Adjustments. Upon any adjustment provided for in
Section 6 or Section 7 hereof, the Corporation, within thirty (30) days
thereafter, shall give written notice thereof to the Warrant Holder at the
address set forth under Section 10(a) hereof or such other address as the
Warrant Holder may advise the Corporation pursuant to Section 10(a) hereof,
which notice shall state the Warrant Price as adjusted and the increased or
decreased number of shares purchasable upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation of each.
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9. Transfer and Assignment.
(a) This Warrant may not be assigned, transferred (except as
aforesaid), 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 this Warrant shall be
null and void and without legal effect.
(b) Shares of Common Stock acquired by exercise of the
Warrant granted hereby may not be transferred or sold unless the
transfer is exempt from further regulatory approval or otherwise
permissible under applicable law, including state and federal
securities laws, and will bear a legend to this effect.
10. Miscellaneous.
(a) All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, telegram or
facsimile transmission, or if mailed, by postage prepaid first class
mail, on the third business day after mailing, to the following
address (or at such other address as a party may notify the other
hereunder):
To the Corporation:
Community Capital Bancshares, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx, President
To the Warrant Holder:
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(b) The Corporation covenants that it has reserved and will
keep available, solely for the purpose of issue upon the exercise
hereof, a sufficient number of shares of Common Stock to permit the
exercise hereof in full.
(c) No holder of this Warrant, as such, shall be entitled to
vote or receive dividends with respect to the shares of Common Stock
subject hereto or be deemed to be a shareholder of the Corporation
for any purpose until such Common Stock has been issued.
(d) This Warrant may be amended only by an instrument in
writing executed by the party against whom enforcement of amendment
is sought.
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(e) This Warrant may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute
one and the same instrument.
(f) This Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
signed by its duly authorized officers and its corporate seal to be affixed
hereto, and the Warrant Holder has executed this Warrant under seal, all as of
the day and year first above written.
COMMUNITY CAPITAL BANCSHARES, INC.
By:
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Xxxxxx X. Xxx
President
WARRANT HOLDER
(SEAL)
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