WARRANT TO PURCHASE COMMON STOCK
OF
SUPERIOR BANCORP,
a Delaware corporation
Void after September 15,
2018
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND NEITHER THESE SECURITIES NOR ANY
INTEREST THEREIN MAY BE TRANSFERRED, HYPOTHECATED OR OTHERWISE
DISPOSED OF WITHOUT (I) REGISTRATION UNDER THAT ACT OR
(II) AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
This certifies
that for value received DURDEN ENTERPRISES, LLC
(“Holder”) is entitled, subject to the terms set forth
below, at any time before 5:00 p.m., Birmingham, Alabama time on
September 15, 2013, to purchase from SUPERIOR BANCORP, a Delaware
corporation (the “Company”), up to one million shares
of the common stock of the Company (“Common Stock”) at
the price per share equal to the greater of (i) $7.00 or
(ii) the average closing price per share of the Common Stock
on NASDAQ for the ten trading days immediately preceding the
closing of the Purchase of Superior Bank’s Subordinated
Note(s) due September 15, 2018 pursuant to that certain
“Agreement to Purchase Subordinated Notes” dated
September 17, 2008 (the “Purchase Price”), upon
surrender of this Warrant at the principal office of the Company
referred to below, with the subscription form attached hereto (the
“Subscription Form”) duly executed, and simultaneous
payment therefor in the manner specified in Section 1 hereof.
The Purchase Price and the number of shares of Common Stock
purchasable hereunder (the “Warrant Shares”) are
subject to adjustment as provided in Section 3 of this
Warrant.
As used herein,
(i) “Exercise Date” shall mean the particular date (or
dates) on which this Warrant is exercised, (ii) “Issue
Date” shall mean September 17, 2008, (iii)
“Warrant” shall include this Warrant and any warrant
delivered in substitution or exchange therefor as provided herein
and (iv) “Warrant Shares” shall mean any shares of
Common Stock acquired by Holder upon exercise of this
Warrant.
(a) This
Warrant may be exercised, in whole or in part, at any time or from
time to time, on any business day, for all or any part of the
number of shares of Common Stock called for hereby, by surrendering
it at the principal office of the Company, 17 North Twentieth
Street, Birmingham, AL 35203, together with a completed and
executed Subscription Form, together with delivery of a certified
or cashier’s check in an amount equal to (i) the number
of shares of Common Stock being purchased, multiplied by
(ii) the Purchase Price. Notwithstanding the foregoing, in the
event of the closing of the Company’s sale or transfer of all
or substantially all of its assets, or the closing of the
acquisition of the Company by another entity by means of merger,
consolidation or other transaction or series of related
transactions, resulting in the exchange of the outstanding shares
of the Company’s capital stock such that the stockholders
of
1
the Company
prior to such transaction own, directly or indirectly, less the 50%
of the voting power of the surviving entity (an
“Acquisition”), this Warrant shall, on the date of such
event, no longer be exercisable and become null and void. In the
event of a proposed transaction of the kind described above, the
Company shall notify the holder of the Warrant at least fifteen
(15) days prior to the consummation of such event or
transaction.
(b) This
Warrant may be exercised for less than the full number of shares as
of the Exercise Date. Upon such partial exercise, this Warrant
shall be surrendered, and a new Warrant of the same tenor and for
the purchase of the Warrant Shares not purchased upon such exercise
shall be issued to Holder by the Company.
(c) A Warrant
shall be deemed to have been exercised immediately prior to the
close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of such shares of record as of the close of
business on such date. As soon as practicable on or after such
date, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the
number of full shares of Common Stock issuable upon such exercise,
together with cash, in lieu of any fraction of a share, equal to
such fraction of the current fair market value of one full share,
which shall be the closing price of the Common Stock on the
Exercise Date.
2.
Payment of Taxes . All shares of Common Stock issued upon
the exercise of a Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other
governmental charges that may be imposed in respect of the issue or
delivery thereof, other than any tax or other charge imposed in
connection with any transfer involved in the issue of any
certificate for shares of Common Stock in any name other than that
of the registered Holder of the Warrant surrendered in connection
with the purchase of such shares, and in such case the Company
shall not be required to issue or deliver any stock certificate
until such tax or other charge has been paid or it has been
established to the Company’s satisfaction that no tax or
other charge is due.
(a)
Adjustment for Dividends in Other Stock, Property;
Reclassifications. In case at any time or from time to time
after the Issue Date the holders of Common Stock (or any shares of
stock or other securities at the time receivable upon the exercise
of this Warrant) shall have received, or, on or after the record
date fixed for the determination of eligible stockholders (a
“Record Date”), shall have become entitled to receive,
without payment therefor, (1) other or additional stock or
other securities or property (including cash) by way of dividend,
or (2) other or additional stock or other securities or
property by way of stock-split, spin-off, reclassification,
combination of shares or similar corporate rearrangement (other
than additional shares of Common Stock of the Company issued as a
stock dividend or stock-split, which events shall be covered by the
terms of Section 3(b) or 3(c) hereof), then and in each such case
Holder, upon the exercise hereof as provided in Section 1,
shall be entitled to receive the amount of stock and other
securities and property which such Holder would have received if,
upon the Record Date such Holder had been the holder of the number
of shares of Common Stock called for on the face
2
hereof and had
thereafter, during t
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