Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - UNITED COMMUNITY BANKS INC | t67624_8k.htm |
| EX-4.2 - EXHIBIT 4.2 - UNITED COMMUNITY BANKS INC | ex4-2.htm |
| EX-1.2 - EXHIBIT 1.2 - UNITED COMMUNITY BANKS INC | ex1-2.htm |
| EX-1.1 - EXHIBIT 1.1 - UNITED COMMUNITY BANKS INC | ex1-1.htm |
| EX-4.1 - EXHIBIT 4.1 - UNITED COMMUNITY BANKS INC | ex4-1.htm |
| EX-99.1 - EXHIBIT 99.1 - UNITED COMMUNITY BANKS INC | ex99-1.htm |
Exhibit
1.3
EXECUTION COPY
WARRANTS
TO PURCHASE
SHARES
OF COMMON STOCK
OF
UNITED COMMUNITY BANKS, INC.
United
Community Banks, Inc., a Georgia corporation (together with its successors, the
“Company”), for
value received, hereby certifies that Fletcher International, Ltd., a company
domiciled in Bermuda (together with its successors, “Fletcher” and
Fletcher or any Person to whom Fletcher sells, exchanges, transfers, assigns,
gives, pledges, encumbers, hypothecates, alienates or distributes, whether
directly or indirectly, this Certificate or any right or interest herein or with
respect hereto, the “Holder”), is entitled
to purchase from the Company up to the Warrant Amount (as defined below) of duly
authorized, validly issued, fully paid and nonassessable shares of the Company’s
Common Stock Equivalent Junior Preferred Stock, par value $1.00 per share, (the
“Common Stock
Equivalent Junior Preferred Stock”), at the then-prevailing Warrant Price
(as defined below) at any time or from time to time during the Warrant Term (as
defined below), all subject to the terms, conditions and adjustments set forth
below in this warrant certificate (this “Certificate”) and in
the Securities Purchase Agreement, dated as of April 1, 2010, between the
Company and Fletcher (as it may be amended from time to time, the “Agreement”). All
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Agreement.
|
1.
|
Warrants.
|
The
warrants represented hereby (the “Warrants”) have been
issued pursuant to the Agreement, and are subject to the terms and conditions
thereof. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings set forth in the Agreement. A copy of
the Agreement may be obtained at no cost by the Holder upon written request to
the Secretary of the Company at the principal executive offices of the
Company.
1.1 General; Warrant Price;
Warrant Term.
(a) The
Warrants entitle the Holder to purchase newly-issued shares of Common Stock
Equivalent Junior Preferred Stock in accordance with Section 1.5 hereof and
Section 6 of the Agreement. The warrant amount shall (i) equal
Fifteen Million Dollars ($15,000,000) on the date hereof, (ii) be increased by
$0.15 for each $1.00 of assets purchased pursuant to the Asset Purchase and Sale
Agreement (as defined in the Agreement) up to a total increase of Fifteen
Million Dollars ($15,000,000) and (iii) be increased on a dollar for dollar
basis by the aggregate dollar amount of the Series C convertible preferred
stock, par value $1.00 per share, of the Company (the “Preferred Stock”)
purchased under the Agreement in excess of Thirty Million Dollars
($30,000,000). The first Thirty Million Dollars ($30,000,000) of the
warrant amount shall be referred to herein as the “Initial Warrant
Amount”. The warrant amount in excess of the Initial Warrant
Amount shall be referred to herein as the “Additional Warrant
Amount”. The Additional Warrant Amount, together with the Initial Warrant
Amount, shall be referred to herein as the “Warrant
Amount”. The Warrant Amount shall be reduced by the aggregate
Warrant Price deemed paid at each Warrant Closing (as defined
below). The “Warrant Price” means
a price per one-hundredth (1/100th) of a share of Common Stock Equivalent Junior
Preferred Stock as of each Warrant Closing Date equal to (i) Four Dollars and
Twenty-Five Cents ($4.25) with respect to the Initial Warrant Amount and (ii)
Six Dollars and Two Cents ($6.02) with respect to the Additional Warrant Amount,
in each case subject to adjustment as set forth herein and in the
Agreement.
(b) The
Warrants may be exercised (in whole or in part) at any time or from time to time
during the Warrant Term. The “Warrant Term” shall
mean the period beginning on the date hereof and ending at 11:59 p.m. New York
City time on the ninth (9th)
anniversary of the Stockholder Consent Date (as defined in the
Agreement).
1.2 Manner of
Exercise.
(a) The
Warrants may be exercised by the Holder, in whole or in part, from time to time,
on any day during the Warrant Term, by delivery of a notice in substantially the
form attached to this Certificate (or a reasonable facsimile thereof) duly
executed by the Holder (a “Warrant Exercise
Notice”).
(b) The
Warrant Exercise Notice shall designate the aggregate Warrant Amount to be
exercised, the Warrant Price and the number of shares of Common Stock Equivalent
Junior Preferred Stock to be received upon such exercise. The closing
of each exercise (each a “Warrant Closing”)
shall take place (i) on the third (3rd)
Business Day after and excluding the date of the Warrant Exercise Notice or (ii)
on any other date upon which the exercising Holder and the Company mutually
agree (the “Warrant
Closing Date”).
1.3 Conditions to
Closing.
(a) Conditions Precedent to
Holder’s Obligation to Close. It shall be a condition to each
Holder’s obligation to close on each Warrant Closing Date that each of the
conditions set forth in Section 12 of the Agreement is satisfied, unless waived
by such Holder (which waiver may be made or not made in Holder’s sole
discretion, and any waiver shall apply solely to the Warrant Closing or Warrant
Closings specified by such Holder and shall not obligate such Holder to make or
not make any subsequent waiver).
(b) Conditions Precedent to
Company’s Obligation to Close. The obligations of the Company
hereunder are subject to the performance by the Holder of its obligations
hereunder and to the satisfaction (unless expressly waived in writing by the
Company) of the additional conditions set forth in Section 13 of the
Agreement.
(c) Agreement to Cause
Conditions to be Satisfied. The Company with respect to
Section 1.3(a) hereof and the Holder with respect to Section 1.3(b) hereof shall
each use commercially reasonable efforts to cause each of the foregoing
conditions to be satisfied at the earliest possible date.
2
(d) Withdrawal of
Notice. If the conditions set forth in Section 1.3(a) hereof
are not satisfied or waived prior to the second (2nd)
Business Day following and excluding the date of the Warrant Exercise Notice
(except for those conditions which by their terms can be satisfied only on the
Warrant Closing Date) or if the Company fails to perform its obligations on any
Warrant Closing Date (including but not limited to delivery of all shares of
Common Stock Equivalent Junior Preferred Stock issuable on such date) for any
reason other than the Holder’s failure to satisfy the conditions required by
Section 1.3(b) hereof, then in addition to all remedies available to the Holder
at law or in equity, such Holder may, at its sole option, and at any time,
withdraw the Warrant Exercise Notice by written notice to the Company regardless
of whether such condition has been satisfied or waived as of the withdrawal date
and, after such withdrawal, shall have no further obligations with respect to
such Warrant Exercise Notice and may submit a Warrant Exercise Notice on any
future date with respect to such Warrants and the Warrant Price for the amount
of such subsequent Warrant Exercise Notice equal to or less than the previously
withdrawn Warrant Exercise Notice shall be the lesser of (i) the Warrant Price
in the withdrawn Warrant Exercise Notice and (ii) the Warrant Price in effect as
of the subsequent Warrant Exercise Notice Date.
1.4 When Exercise
Effective.
Each
exercise of any Warrant shall be deemed to have been effected on the Warrant
Closing Date upon the deemed receipt of the relevant Warrant Price and the
Person (as defined in the Agreement) or Persons in whose name or names any
certificate or certificates representing the Common Stock Equivalent Junior
Preferred Stock shall be issuable upon such exercise as provided in Section 1.5
hereof shall be deemed to have become the holder(s) of record
thereof.
1.5 Delivery of Common Stock and
Payment.
(a) Subject
to Section 1.3 hereof and Section 6 of the Agreement, on a Warrant Closing Date,
the Company shall deliver an amount of duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock Equivalent Junior Preferred Stock
(the “Settlement
Stock”) equal to “X” where:
X = [(N x
D) – (N x P)] / P
N = the
number of one-hundredths (1/100ths) of a share of Common Stock Equivalent Junior
Preferred Stock equal to the Warrant Amount to be exercised pursuant to such
Warrant Exercise Notice divided by the Warrant Price with respect to such
Warrant Exercise Notice
D = Daily
Market Price (as defined in the Agreement) on the third (3rd)
Business Day before, and excluding, the date of the Warrant Exercise
Notice
P =
Warrant Price with respect to such Warrant Exercise Notice
3
(b) The
Company shall issue and deliver the Settlement Stock pursuant to Section 1.7
hereof on the relevant Warrant Closing Date. Upon receipt of the
Settlement Stock on the Warrant Closing Date, (i) that amount of Warrants as
specified for exercise in the Warrant Exercise Notice shall be deemed exercised
and (ii) that amount of cash that would have been paid by the Holder on the
relevant Warrant Closing Date if the Warrant Price specified in the Warrant
Exercise Notice were paid in cash shall be deemed paid by the Holder and
received by the Company.
(c) In
determining whether the limitations described in Section 6 of the Agreement have
been reached, computation shall be made based on the number of shares of
Settlement Stock actually issued on a Warrant Closing Date.
1.6 Adjustment to Warrant
Price. Notwithstanding anything herein to the contrary, if the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) the shares of
common stock, par value $1.00 per share, of the Company (“Common Stock”) and/or
Common Stock Equivalent Junior Preferred Stock into a greater number of shares,
then, after the date of record for effecting each such subdivision, all
measurements and references herein related to share prices (including the
Warrant Price) for such securities will be proportionately decreased and all
references to share numbers for such securities herein will be proportionately
increased.
1.7 Delivery of Common Stock and
Dividend Payment.
(a) On
the Warrant Closing Date, the Company at its expense (including payment by it of
any applicable issue taxes) shall cause to be issued in the name of and
delivered to the exercising Holder or as such Holder may direct, at the election
of such Holder:
(i) via
the Depository Trust Company’s Deposit and Withdrawal at Custodian (or DWAC)
system the number of duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock Equivalent Junior Preferred Stock to which
such Holder shall be entitled upon such exercise plus, in lieu of any fractional
share, other than fractional shares in increments of one hundredth (1/100th) of
a share, of Common Stock Equivalent Junior Preferred Stock to which such Holder
would otherwise be entitled, cash in an amount equal to the same fraction of the
Daily Market Price on the date of the Warrant Exercise Notice, and a certificate
from the Company stating the new Warrant Amount reflecting a reduction in each
of the dollar amounts in the definition of Warrant Amount, on a
dollar-for-dollar basis, for each dollar deemed paid; and
4
(ii) dividends
or other distributions declared on the Common Stock and Common Stock Equivalent
Junior Preferred Stock in an amount equal to the product of (x) the aggregate
amount of all per-share dividends or distributions other than the Ordinary Cash
Dividends paid on the Common Stock and Common Stock Equivalent Junior Preferred
Stock multiplied by (y) the gross number of one-hundredths (1/100th) of
a share of Common Stock Junior Equivalent Junior Preferred Stock that would have
been issuable on the relevant Warrant Closing Date if payment of the Warrant
Price specified in the Warrant Exercise Notice were paid in cash (the “Dividend
Payment”). To the extent that the Dividend Payment consists of
cash, the Company may pay such amount (a) by wire transfer of immediately
available funds to such Holder or (b) if the Daily Market Price on the date the
relevant Investment Notice is delivered is greater than the Warrant Price, by
delivering a number of shares of Common Stock Equivalent Junior Preferred Stock
equal to the cash portion of the Dividend Payment divided by the Warrant
Price. To the extent that the Dividend Payment consists of securities
or other non-cash property, the Company shall deliver such securities or other
non-cash property to such Holder; provided that if such
securities or other non-cash property would have a reduced value if delivery is
so delayed (for example only and not by way of limitation, a short-term right to
purchase securities), then proper provision shall be made to deliver to Holder
the sum of (i) the fair value of such securities or other non-cash property
measured as of the distribution date and (ii) the appreciation, if any, in value
of such securities through the date of delivery. For example only and
not by way of limitation, if the Company distributes a short-term right to
purchase securities to other equity holders, it shall deliver to Holder the
value Holder would have received had Holder exercised such right plus the
appreciation, if any, had Holder held the purchased securities through the date
on which such fair value is delivered to Holder. In the event that
Holder and the Company mutually agree that it would be impractical for the
Company to distribute identical securities or other non-cash property to Holder,
then Holder and the Company shall work together in good faith to determine a
fair and equivalently valued substitute therefor. “Ordinary Cash
Dividend” means all quarterly cash dividends out of capital surplus or
restated earnings legally available therefore (determined in accordance with
generally accepted accounting principles, consistently applied), in an amount
and frequency consistent with past practice.
1.8 Extension of Warrant
Term.
The Warrant Term shall be extended by
one (1) Business Day for each Business Day: (i) that the Registration Statement
(as defined in the Agreement) is not effective and available for the issuance of
any Preferred Stock and Warrants for a period of more than ninety (90) days in
the aggregate, whether continuous or non-continuous; or (ii) at any time after
the One Year Anniversary Date (as defined in the Agreement) but before the date
this is sixty (60) days before the expiration of the Investment Period (as
defined in the Agreement), occurring during the period (x) commencing on the
earlier of the day on which the Company restates or announces its intention to
restate any portion of the Company Financial Statements, and (y) ending on the
date on which the Company files quarterly or annual financial statements that
constitute a Restatement (as defined in the Agreement) on a Form 10-K, Form
10-Q, Form 8-K or any other filing with the SEC (and if the Company makes
multiple filings of a Restatement with the SEC, the last of such dates) (the
“Restatement Filing
Date”). If (i) the Company restates or announces its intention
to restate any portion of the Company Financial Statements (as defined in the
Agreement) less than sixty (60) days before the expiration of the Warrant Term,
(ii) the Company has restated or announced its intention to restate any portion
of the Company Financial Statements and the Restatement Filing Date is not at
least sixty (60) days before the expiration of the Warrant Term, or (iii) there
is any Registration Failure (as defined in the Agreement) during the sixty (60)
days immediately preceding the expiration of the Warrant Term, the Warrant Term
shall be extended to a date that is at least sixty (60) days after the later of
the Restatement Filing Date or the remediation of the failure described in
clause (iii) of this Section 1.8.
5
|
2.
|
Reservation of
Shares.
|
For so
long as the Warrant Amount represented hereby has not been exercised in full,
the Company shall at all times prior to the end of the Warrant Term reserve and
keep available, free from pre-emptive
rights, out of its authorized but unissued capital stock, the number of shares
Common Stock Equivalent Junior Preferred Stock deliverable upon exercise of this
Certificate and, after the Company has obtained the approval of the Company
stockholders to increase the authorized number of shares of Common Stock, the
number of shares Common Stock deliverable upon conversion of such shares of
Common Stock Equivalent Junior Preferred Stock. In the event the
number of shares of Common Stock, Common Stock Equivalent Junior Preferred Stock
or other securities issued and issuable under this Certificate, the Agreement,
the Certificate of Rights and Preferences of the Series C Convertible Preferred
Stock and Certificate of Designation of Common Stock Equivalent Junior Preferred
Stock of the Company exceeds the authorized number of shares of Common Stock,
Common Stock Equivalent Junior Preferred Stock or other securities, the Company
shall promptly take all actions necessary to increase the authorized number of
shares of Common Stock, Common Stock Equivalent Junior Preferred Stock or other
securities.
|
3.
|
Report as to
Adjustments.
|
In each
case of any adjustment or readjustment of the Warrant Amount, the Warrant Term,
the Warrant Price or any other adjustment or readjustment pursuant to the terms
of the Agreement or this Certificate, or upon the written request at any time of
any Holder, the Company at its expense will promptly compute such adjustment or
readjustment (the “Company Calculation”)
in accordance with the terms of this Certificate and the Agreement and cause the
Company’s Chief Financial Officer to verify such computation and prepare a
report setting forth such adjustment or readjustment and showing in reasonable
detail the method of calculation thereof and the facts upon which such
adjustment or readjustment is based, including a statement of (i) the Warrant
Amount, (ii) the Warrant Term and (iii) the Warrant Price in effect immediately
prior to such adjustment or readjustment (as adjusted and readjusted, as
applicable). The Company will forthwith deliver a copy of each such
report to each Holder and will also keep copies of all such reports at its
principal office and will cause the same to be available for inspection at such
office during normal business hours by any Holder. The Holder may
dispute the Company Calculation by providing its computation of such adjustment
or readjustment (the “Holder Calculation”)
and requesting in writing that the Company’s independent certified public
accountants verify the Company Calculation. The Holder shall be
responsible for the costs and expenses of such accountants if the difference
between the computation of the adjustment or readjustment by such accountants
(the “Accountant
Calculation”) and the Holder Calculation is greater than the difference
between the Accountant Calculation and the Company Calculation, and otherwise
the Company shall bear such costs and expenses.
6
|
4.
|
Taxes.
|
The
Company shall pay all documentary stamp taxes (if any) attributable to the
issuance of Common Stock Equivalent Junior Preferred Stock upon each exercise of
the Warrants by the Holder; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the registration of any certificates for
Common Stock Equivalent Junior Preferred Stock in a name other than that of a
Holder upon each exercise of Warrants, and the Company shall not be required to
issue or deliver a Certificate evidencing Warrants or certificates for Common
Stock Equivalent Junior Preferred Stock unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the reasonable satisfaction of the Company
that such tax has been paid.
|
5.
|
Change of
Control.
|
5.1 Change of Control
Notice.
The Company shall deliver to the Holder
written notice (the “Change of Control
Notice”) of any proposed Change of Control (which notice shall specify
the expected effective date of such Change of Control) promptly following public
disclosure of such proposed Change of Control and in any event not later than
fifteen (15) Business Days prior to the expected effective date of the proposed
Change of Control. The Company shall not enter into an agreement with
any Acquiring Person that may result in a Change of Control unless such
agreement expressly requires the Acquiring Person to comply with the provisions
of this Warrant. Upon the mutual written agreement of the Holder and
the Company, on or before the consummation of such Change of Control, the
Company shall pay to the Holder an amount of cash equal to the fair market value
of the Warrant immediately prior to the Change of Control, to be determined by a
qualified valuation firm selected by the Holder and reasonably acceptable to the
Company, by such method as the Holder and the Company may reasonably
agree. For the avoidance of doubt, in the event that the Holder and
the Company agree to have the Company pay the fair market value of the Warrant
as determined above, the Warrant will be redeemed upon the Company making such
payment and no additional payment from the Company or the Holder shall be
required in connection with such redemption. In the event that the
Holder and the Company do not agree to have the Company pay the fair market
value of the Warrant as determined above, the Holder thereof shall, following
the occurrence of a Change of Control, automatically have equivalent rights
under this Certificate with respect to the Acquiring Person from and after the
effective date of the Change of Control, regardless of whether the Acquiring
Person expressly assumes the Company’s obligations and (i) all references to the
Company in this Certificate shall be references to the Acquiring Person, (ii)
all references to Common Stock and Common Stock Equivalent Junior Preferred
Stock in this Certificate shall be references to the securities for which the
Common Stock and Common Stock Equivalent Junior Preferred Stock are exchanged in
the Change of Control (or if none, the most widely-held class of voting
securities of the Acquiring Person), and (iii) if the Acquiring Person is an
entity other than the Company, all references to the Warrant Price in this
Certificate shall be references to the Stock Adjustment Measuring Price (as
defined below).
7
5.2 Contingent Warrant
Exercise.
Between the date a proposed Change of
Control is publicly disclosed or Change of Control Notice is delivered (or an
event shall have occurred that would, with or without the passage of time,
require the delivery of a Change of Control Notice) and the effective date of
the Change of Control, each Holder at its sole option shall continue to have the
right to submit to the Company a Warrant Exercise Notice in accordance with the
terms and conditions hereof. In addition, each Holder at its sole
option may elect to submit to the Company a special notice (a “Contingent Warrant Exercise
Notice”) to exercise all or part of its unexercised Warrants (including
any Warrants issued in connection with a Contingent Investment Notice (as
defined in the Agreement) under the Agreement) in connection with such Change of
Control; in which case, notwithstanding the provisions of Section 1.4
hereof:
(a) the
effectiveness of such contingent exercise shall be conditional upon the
effectiveness of the Change of Control;
(b) such
Holder shall have the right to deliver a notice to withdraw such Contingent
Warrant Exercise Notice until the effective date of such Change of
Control;
(c) all
references to Nasdaq in this Certificate shall be references to the principal
U.S. trading market (or if the securities of the Acquiring Person are traded on
a non-U.S. trading market, at the Holder’s election, the principal U.S. or
foreign trading market) for the securities for which the Common Stock and Common
Stock Equivalent Junior Preferred Stock are exchanged in the Change of Control
(or if none, the most widely held class of voting securities of the Acquiring
Person), and
(d) if
such Contingent Warrant Exercise Notice shall not have been withdrawn, then on
the effective date of such Change of Control, the Holder of such Warrants shall
receive the same consideration, in the form of cash, securities or other assets
(the “Acquisition
Consideration”) per share of Common Stock Equivalent Junior Preferred
Stock issuable to any other holder of shares of Common Stock in connection with
such Change of Control based upon the number of shares of Common Stock
Equivalent Junior Preferred Stock into which such Holder’s Warrants would be
exercisable if such Holder had exercised such Warrants on the Business Day
immediately preceding the date on which such Change of Control
occurs. Upon the effective date of such Change of Control, such
Holder’s Warrants tendered for exercise pursuant to a Warrant Exercise Notice or
Contingent Warrant Exercise Notice shall be fully exercised and shall no longer
permit such Holder to exercise such Warrants into Common Stock Equivalent Junior
Preferred Stock.
8
5.3 Definitions.
(a) “Acquiring Person” has
the meaning set forth in the Agreement.
(b) “Change of Control”
has the meaning set forth in the Agreement.
(c) “Stock Adjustment Measuring
Price” means each of (i) the Warrant Price applicable to the Initial
Warrant Amount and (ii) the Warrant Price applicable to the Additional Warrant
Amount shall be adjusted by multiplying such prices in effect immediately
preceding and excluding the date on which the Change of Control is consummated
by a fraction,
(i) the
numerator of which is the Daily Market Price of the securities for which Common
Stock is exchanged in the Change of Control (or if none, the most widely-held
class of voting securities of the Acquiring Person) determined as of the
Business Day immediately preceding and excluding the date on which the Change of
Control is consummated; and
(ii) the
denominator of which is the Daily Market Price of the Common Stock of the
Company determined as of the Business Day immediately preceding and excluding
the date on which the Change of Control is consummated.
|
6.
|
Non-Circumvention.
|
The
Company hereby covenants and agrees that the Company will not, by amendment of
its articles of incorporation, bylaws or through any reorganization, transfer of
assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale
of securities, or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, and will at all
times in good faith carry out all the provisions of this Warrant and take all
action as may be required to protect the rights of the
Holder. Without limiting the generality of the foregoing, the Company
(i) shall not increase the par value of any shares of Common Stock Equivalent
Junior Preferred Stock receivable upon the exercise of this Warrant above the
Warrant Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock Equivalent Junior Preferred
Stock upon the exercise of this Warrant, and (iii) shall, so long as the
Warrants represented by this Certificate are outstanding, take all action
necessary to reserve and keep available out of its authorized and unissued
shares of Common Stock Equivalent Junior Preferred Stock, solely for the purpose
of effecting the exercise of the Warrants represented by this Certificate, one
hundred percent (100%) of the number of shares of Common Stock Equivalent Junior
Preferred Stock issuable upon exercise of the Warrants represented by this
Certificate then outstanding (without regard to any limitations on
exercise).
|
7.
|
Lost or Stolen
Certificate.
|
In case
this Certificate shall be mutilated, lost, stolen or destroyed, the Company may
in its discretion issue in exchange and substitution for and upon cancellation
of the mutilated Certificate, or in lieu of and substitution for the Certificate
lost, stolen or destroyed, a new Certificate of like tenor, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft
or destruction of such Certificate. Applicants for a substitute
Certificate shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
9
|
8.
|
Transfer
Agent.
|
The
Company (and any successor) shall serve as agent for the Warrant under this
Warrant and shall at all times maintain a register of the holders of the
Warrant.
|
9.
|
Notices.
|
(a) All
notices and other communications under this Certificate shall be in writing and
shall be delivered by either a nationally recognized overnight courier, postage
prepaid, or transmitted by facsimile, in each case to the addresses as provided
below:
(i) If to the
Company:
United Community Banks,
Inc.
125 Highway 515
East
Blairsville,
Georgia 30512
Attention: Rex
S. Schuette
Telephone: (706)
745-2265
Facsimile: (706)
745-9046
(ii) If to a Holder,
at the address of such Holder as listed in the Stock Register, or to such other
address as the Holder shall have designated by notice similarly given to the
Transfer Agent.
(b) Any
such notice or communication shall be deemed received (i) when made, if by hand
delivery, and upon confirmation of receipt, if made by facsimile and in each
case if such notice is received on or before 11:59 p.m. New York City time,
otherwise, such notice shall be deemed to be received the following Business
Day, (ii) one (1) Business Day after being deposited with a next-day courier,
return receipt requested, postage prepaid or (iii) three (3) Business Days after
being sent by certified or registered mail, return receipt requested, postage
prepaid, in each case addressed as above (or to such other addresses as the
Company or a Holder may designate in writing from time to time).
(c) If
the Company does not agree and acknowledge the delivery of any Warrant Exercise
Notice under this Certificate, in each case by 11:59 p.m., New York City time,
on the Business Day following the date of delivery of such notice, such
non-response by the Company shall be deemed to be agreement and acknowledgment
by the Company with the terms of such notice.
10
|
10.
|
Construction.
|
For
purposes of this Certificate, except as otherwise expressly provided or unless
the context otherwise requires: (a) the terms defined in this
Certificate have the meanings assigned to them in this Certificate and include
the plural as well as the singular, and the use of any gender herein shall be
deemed to include the other gender and neuter gender of such term; (b)
accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with U.S. generally accepted accounting principles; (c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this Certificate,
unless the context shall otherwise require; (d) a reference to a Subsection
without further reference to a Section is a reference to such Subsection as
contained in the same Section in which the reference appears, and this rule
shall also apply to Paragraphs and other subdivisions; (e) the words “herein”,
“hereunder” and other words of similar import refer to this Certificate as a
whole and not to any particular provision; (f) the term “include” or “including”
shall mean without limitation; (g) the table of contents to this Certificate and
all section titles or captions contained in this Certificate or in any Exhibit
or Schedule hereto or referred to herein are for convenience only and shall not
be deemed a part of this Certificate and shall not affect the meaning or
interpretation of this Certificate; (h) any agreement, instrument or statute
defined or referred to herein means such agreement, instrument or statute as
amended, modified or supplemented from time to time, including (in the case of
agreements or instruments) by waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and references to all attachments
thereto and instruments incorporated therein; and (i) references to a Person are
also to its permitted successors and assigns and, in the case of an individual,
to his or her heirs and estate, as applicable.
|
11.
|
Severability of
Provisions.
|
If any
right, preference, or limitation of the Warrants set forth in this Certificate
(as such Certificate may be amended from time to time) is invalid, unlawful, or
incapable of being enforced by reason of any rule of law or public policy, all
other rights, preferences, and limitations set forth in this Certificate (as so
amended) which can be given effect without the invalid, unlawful or
unenforceable right, preference, or limitation will, nevertheless, remain in
full force and effect, and no right, preference, or limitation set forth in this
Certificate shall be deemed dependent upon any other such right, preference, or
limitation unless so expressed in this Certificate.
|
12.
|
Specific
Performance.
|
The
Holder and the Company stipulate that the remedies at law of the parties hereto
in the event of any default or threatened default by either party in the
performance of or compliance with any of the terms hereof are not and will not
be adequate and that, to the fullest extent permitted by law, such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
11
|
13.
|
Nonperformance.
|
If
the Company, at any time, shall fail to deliver the shares of Common Stock
Equivalent Junior Preferred Stock required to be delivered to the Holder
pursuant hereto for any reason other than the failure of any condition precedent
to the Company’s obligations hereunder or the failure by the Holder to comply
with its obligations hereunder, then the Company shall (without limitation to
the Holder’s other remedies at law or in equity): (i) indemnify and hold the
Holder harmless against any loss, claim or damage arising from or as a result of
such failure by the Company (regardless of whether any of the foregoing results
from a third-party claim or otherwise) and (ii) reimburse the Holder for all of
its reasonable out-of-pocket expenses (which includes fees and expenses of its
counsel) incurred by the Holder in connection herewith and the transactions
contemplated herein (regardless of whether any of the foregoing results from a
third-party claim or otherwise).
|
14.
|
Assignment.
|
The
Holder may, in its sole discretion, freely assign, pledge, hypothecate or
transfer all Warrants.
This
Certificate shall not be valid unless signed by the Company.
[Remainder
of Page Left Blank Intentionally]
12
IN
WITNESS WHEREOF, United Community Banks, Inc. has caused this Warrant to be
signed by its duly authorized officer.
Dated:
| UNITED COMMUNITY BANKS, INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
ATTEST:
Secretary