EXHIBIT 10.8
HOME FEDERAL HOLDINGS CORPORATION
SUBSCRIBER WARRANT AGREEMENT
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.
2
(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
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