EXHIBIT A
[Face of Warrant]
NO. DB-WRT- _______________ ______________ Warrants
CUSIP _________________ To Purchase One Share
Of Common Stock Each
DISCOVERY BANK
ORGANIZED UNDER THE LAWS OF THE STATE OF CALIFORNIA
THIS CERTIFIES THAT, for value received,
the registered holder hereof or registered assigns (the "Holder"), is entitled
to purchase from Discovery Bank, a California banking corporation (the "Bank"),
at the purchase price of $15.00 per share upon issuance through December 31,
2006 (the "Warrant Price"), one share of the Bank's Common Stock, no par value
(the "Common Stock"), for each Warrant comprising the aggregate number of
Warrants set forth above. The number of shares purchasable upon exercise of this
Warrant and the Warrant Price per share shall be subject to adjustment from time
to time as set forth herein. This Warrant shall expire at 5:00 p.m. Pacific Time
on December 31, 2006 (the "Expiration Date"), unless extended by the Bank,
subject to regulatory approval.
This Warrant is one of a duly authorized issue of up to 55,000 Warrants
evidencing the right to purchase an aggregate of up to 55,000 shares of Common
Stock and is issued in connection with the Bank's public offering consisting of
up to 220,000 shares of Common Stock and one Warrant for every four shares of
Common Stock purchased. The shares of Common Stock to be issued upon the
exercise of Warrants are referred to herein as "Warrant Shares." The offer and
sale of the Warrants and the Warrant Shares has been made pursuant to a Permit
issued by the California Department of Financial Institutions.
1. Exercise Period and Expiration Date. The Warrants are exercisable
from issuance until the Expiration Date (the "Exercise Period"), unless
extended. This Warrant shall expire in its entirety and no longer be exercisable
at 5:00 p.m., Pacific Time, on the Expiration Date, unless extended. The Bank
shall use its best efforts to qualify or register the Warrant Shares under the
laws of the states in which the Holders reside and under applicable federal
securities laws where no exemption from such registration or qualification is
available.
2. Exercise of Warrants. This Warrant may be exercised at the office of
the Warrant Agent maintained for that purpose in Glendale, California, upon
presentation and surrender hereof, with the Warrant Exercise Form on the reverse
side hereof duly completed and signed, and upon payment of the Warrant Price (as
adjusted in accordance with the provisions of Section 9 hereof), for the number
of Warrant Shares in respect of which such Warrant is then exercised. Payment of
the aggregate Warrant Price shall be made in cash in United States dollars, by
certified or official bank check payable in United States dollars to the order
of the Bank, or by any combination thereof.
The Bank shall not be required to issue fractional Warrant Shares on the
exercise of Warrants. When Warrants shall be presented for exercise in full at
the same time by the same Holder, the number of full Warrant Shares which shall
be issuable upon the exercise thereof shall be computed on the basis of the
aggregate number of Warrant Shares purchasable by such Holder on exercise of the
Warrants so presented. If any fraction of a Warrant Share would be issuable on
the exercise of any Warrants in full, the Bank shall pay an amount in cash equal
to the then current market price per Warrant Share multiplied by such fraction.
When Warrants shall be presented for exercise as to a specified portion, only
full Warrant Shares shall be issuable and a new Warrant shall be issuable
evidencing the remaining Warrant or Warrants.
Upon such surrender of Warrants and payment of the Warrant Price as
aforesaid, the Bank or its Warrant Agent
shall issue and cause to be delivered with all reasonable dispatch to or upon
the written order of the Holder and in such name or names as the Holder may
designate, a certificate or certificates for the number of full Warrant Shares
so purchased upon the exercise of such Warrants, together with cash, as provided
above in this Section 2, in respect of any fractional Warrant Share otherwise
issuable upon such surrender. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to become a holder of record of such Warrant Shares as of the date of the
surrender of such Warrants and payment of the Warrant Price, as aforesaid;
provided, however, that if, at the date of surrender of such Warrants and
payment of the Warrant Price, the transfer books for the Warrant Shares or other
class of stock purchasable upon the exercise of such Warrants shall be closed,
the certificates for the Warrant Shares in respect of which such Warrants are
then exercised shall be issuable as of the date on which such books shall next
be opened (whether before or after the Expiration Date) and until such date the
Bank shall be under no duty to deliver any certificate for such Warrant Shares.
The purchase rights represented by the Warrants shall be exercisable, at the
election of the Holders thereof, either in full or from time to time in part
and, in the event that a Warrant is exercised in respect of less than all of the
Warrant Shares purchasable on such exercise at any time prior to the date of
expiration of the Warrants, a new Warrant evidencing the remaining Warrant or
Warrants will be issued. All Warrants surrendered in the exercise of the rights
thereby evidenced shall be cancelled by the Bank.
3. Exchange of Warrants. This Warrant may be exchanged without charge
for another Warrant(s) entitling the Holder thereof to purchase a like aggregate
number of Warrant Shares as the Warrant(s) surrendered then entitle such Holder
to purchase. Any Holder desiring to exchange a Warrant(s) shall make such
request in writing delivered to the Bank or its Warrant Agent and shall
surrender, properly endorsed, the Warrant(s) to be so exchanged. Thereupon, the
Bank or its Warrant Agent shall deliver to the person(s) entitled thereto new
Warrant(s) as so requested.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
WITNESS, the facsimile seal of the Bank and the facsimile signatures of
its duly authorized officers. This Warrant certificate is not valid until
countersigned by the Warrant Agent.
DISCOVERY BANK,
[SEAL] a California corporation
By:_______________________________
President
By:_______________________________
Secretary
Dated:____________________________
Countersigned:
U.S. STOCK TRANSFER CORPORATION
As Warrant Agent
By:_______________________________
Authorized Officer
[End Warrant Face]
[Reverse Side Of Warrant]
4. Transfer of Warrants. This Warrant shall be transferable only on the
books of the Bank maintained by the Warrant Agent upon delivery hereof, with the
Assignment of Warrant Form below duly endorsed with signatures properly
guaranteed by a commercial bank or securities brokerage firm, or accompanied by
proper evidence of succession, assignment or authority to transfer. Upon any
registration of transfer, the Bank or its Warrant Agent shall deliver a new
Warrant or Warrants to the person(s) entitled thereto.
5. Payment of Taxes. The Bank will pay all documentary stamp taxes, if
any, attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants; provided, however, that the Bank shall not be required to pay any tax
or taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any Warrants or certificates for Warrant Shares in a
name other than that of the registered Holder of the Warrants, and in such case
the Bank shall not be required to issue or deliver any certificates for shares
of Common Stock or any Warrant until the person requesting the same has paid to
the Bank the amount of such tax or has established to the Bank's satisfaction
that such tax has been paid.
6. Mutilated or Missing Warrants. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Bank or its Warrant Agent may, at its
discretion issue, upon cancellation of the mutilated Warrant, or in lieu of and
in substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest; but only upon receipt of
evidence satisfactory to the Bank or its Warrant Agent of such loss, theft or
destruction of such Warrant and indemnity, if requested, also satisfactory to
the Bank or its Warrant Agent. An applicant for such a substitute Warrant shall
reimburse Bank and its Warrant Agent for all reasonable expenses and shall also
comply with such other reasonable regulations as the Bank or its Warrant Agent
may prescribe.
7. Reservation of Warrant Shares. The Bank shall at all times, while
the Warrants are exercisable, keep reserved, out of its authorized Common Stock,
a number of shares of Common Stock sufficient to provide for the exercise of the
rights of purchase represented by the outstanding Warrants. Promptly after the
date of expiration of the Warrants, no shares shall be subject to reservation in
respect of such Warrants.
8. Cancellation of Warrants. The Bank or its Warrant Agent shall cancel
any Warrants surrendered for exchange, substitution, transfer or exercise in
whole or in part.
9. Adjustment of Warrant Price and Number of Warrant Shares. The number
and kind of securities purchasable upon the exercise of each Warrant and the
Warrant Price shall be subject to adjustments from time to time upon the
happening of certain events, as hereinafter defined:
9.1 Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price shall
be subject to adjustment as follows:
(a) In case the Bank shall: (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock; (ii)
subdivide its outstanding shares of Common Stock into a greater
number of shares; (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock; or (iv) issue
by reclassification of its shares of Common Stock or capital
reorganization other securities of the Bank, the number of Warrant
Shares purchasable upon exercise of each Warrant immediately prior
thereto shall be adjusted so that the Holder of each Warrant shall
be entitled to receive the kind and number of Warrant Shares or
other securities of the Bank which the Holder would have owned or
would have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Paragraph
(a) shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event.
(b) No adjustment in the number of Warrant Shares
purchasable hereunder shall be
required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of Warrant
Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this Paragraph (b)
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment(s). All calculations shall be
made to the nearest one hundredth (1/100) of a share.
(c) Whenever the number of Warrant Shares purchasable upon
the exercise of each Warrant is adjusted, as herein provided, each
Warrant Price payable upon exercise of each Warrant shall be
adjusted by multiplying the Warrant Price immediately prior to the
adjustment by a fraction, of which the numerator shall be the number
of Warrant Shares purchasable upon the exercise of each Warrant
immediately prior to the adjustment, and of which the denominator
shall be the number of Warrant Shares so purchasable immediately
thereafter. All calculations shall be made to the nearest whole
penny.
(d) For the purpose of this Subsection 9.1, the term "shares
of Common Stock" shall mean: (i) the class of stock designated as
the Common Stock of the Bank at the date of this Warrant; or (ii)
any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to
par value. In the event that at any time, as a result of an
adjustment made pursuant to Paragraph (a) above, the Holder shall
become entitled to purchase any shares of the Bank other than shares
of Common Stock, thereafter the number of such other shares so
purchasable upon exercise of each Warrant and the Warrant Price of
such shares shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Warrant Shares contained in
Paragraphs (a) through (c), inclusive, above, and the provisions of
Sections 1 and 2 and Subsections 9.2 through 9.4, inclusive, with
respect to the Warrant Shares, shall apply on like terms to any such
other shares.
9.2 Voluntary Adjustment by the Bank. The Bank may at its option,
at any time during the term of the Warrants, reduce the then current
Warrant Price to any amount deemed appropriate by the Board of Directors
of the Bank, subject to regulatory approval.
9.3 Notice of Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price of
such Warrant Shares are adjusted, as herein provided, the Bank shall cause
to be mailed by first class mail, postage prepaid, to each Holder, notice
of such adjustment or adjustments setting forth the number of Warrant
Shares purchasable upon the exercise of each Warrant and the Warrant Price
of such Warrant Shares after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Any failure by the Bank to
give notice to any Holder or any defect therein shall not affect the
validity of such adjustment or of the event resulting in the adjustment,
nor of the Holder's rights to such adjustment.
9.4 No Adjustment for Dividends or Distributions. Except as
provided in Subsections 9.1 and 9.6, no adjustment in respect of any
dividends or distributions shall be made during the term of a Warrant or
upon the exercise of a Warrant.
9.5 Rights Upon Consolidation, Merger, etc.
(a) In the case of any consolidation of the Bank with or
merger of the Bank into another corporation or in the case of any
sale or conveyance to another corporation of the property of the
Bank as an entirety or substantially as an entirety, such successor
or purchasing corporation may assume the obligations hereunder, and
may execute with the Bank an agreement that each Holder shall have
the right thereafter upon payment of the Warrant Price in effect
immediately prior to such transaction to purchase upon exercise of
each Warrant the kind and amount of shares and other securities and
property (including cash) which each Holder would have owned or
would have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Warrant been
exercised immediately prior to such action. The Bank shall mail by
first class mail, postage prepaid, to each Holder, notice of the
execution of any such agreement. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this
Section 9. The provisions of this Subsection 9.5 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
(b) In the event that such successor corporation does not
execute such an agreement with the Bank as provided in Paragraph
(a), then each Holder shall be entitled to exercise outstanding
Warrants, during a period of at least 30 days, which period shall
terminate at least 5 days prior to consummation of the
consolidation, merger, sale or conveyance, and thereby receive
consideration in the transaction on the same basis as other
previously outstanding shares of the same class as the Warrant
Shares acquired upon exercise. The Bank shall use its best efforts
to qualify or register the Warrant Shares issued pursuant to this
Paragraph (b) under the laws of the states in which the holders
reside and under applicable federal securities laws where no
exemption from registration or qualification is available. Warrants
not exercised in accordance with this Paragraph (b) before
consummation of the transaction will be canceled and become null and
void. The Bank shall mail by first class mail, postage prepaid, to
each Holder, at least 10 days prior to the first date on which the
Warrants shall become exercisable, notice of the proposed
transaction setting forth the first and last date on which the
Holder may exercise outstanding Warrants and a description of the
terms of this Warrant providing for cancellation of the Warrants in
the event that Warrants are not exercised by the prescribed date.
(c) The Bank's failure to give any notice required by this
Subsection 9.5 or any defect therein shall not affect the validity
of any such agreement, consolidation, merger, sale or conveyance of
property.
9.6 Rights Upon Liquidation. In case: (i) the Bank shall make any
distribution of its assets to holders of its shares of Common Stock as a
liquidation or partial liquidation dividend or by way of return of
capital, or other than as a dividend payable out of capital and unimpaired
surplus legally available for dividends under California law; or (ii) the
Bank shall liquidate, dissolve or wind up its affairs (other than in
connection with a consolidation, merger or sale of all or substantially
all of its property, assets, and business as an entirety), then the Bank
shall cause to be mailed to each Holder, by first class mail, postage
prepaid, at least 20 days prior to the applicable record date, a notice
stating the date on which such distribution, liquidation, dissolution or
winding up is expected to become effective, and the date on which it is
expected that holders of shares of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property or assets (including cash) deliverable upon such distribution,
liquidation, dissolution or winding up. The Bank's failure to give the
notice required by this Subsection 9.6 or any defect therein shall not
affect the validity of such distribution, liquidation, dissolution or
winding up.
9.7 Statement on Warrant. Irrespective of any adjustments in the
Warrant Price or the number or kind of shares purchasable upon the
exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are
stated in the Warrants initially issued.
10. No Rights as Stockholders. Nothing contained in this Warrant shall
be construed as conferring upon the Holder hereof or the Holder's transferees
the right to vote or to receive dividends or to consent to or to receive notice
as stockholders in respect of any meeting of stockholders for the election of
directors of the Bank or any other matter, or any rights whatsoever as
stockholders of the Bank.
11. Notices. Any notice pursuant to this Warrant by any Holder to the
Bank or by the Bank to the Holder, shall be in writing and shall be mailed first
class, postage prepaid, or delivered: (a) if to the Bank, at its Main Office at
1145 San Marino Drive, Suite 346, San Marcos, California 92069; or (b) if to the
Holder, at the Holder's respective address on the books of the Bank.
12. Applicable Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
13. Captions. The captions of the Sections and Subsections of this
Warrant have been inserted for convenience only and shall have no substantive
effect.
ASSIGNMENT OF WARRANT
(To be signed only upon assignment or transfer of Warrant)
To: DISCOVERY BANK Or to: U.S. STOCK TRANSFER CORPORATION
1145 San Marino Drive, Suite 346 1745 Gardena Avenue
San Marcos, California 92069 Glendale, California 91204
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
________________________________________________________________________________
________________________________________________________________________________
(Name and Address of Assignee Must be Printed or Typewritten)
________________________________________________________________________________
________________________________________________________________________________
the within Warrant, hereby irrevocably constituting and appointing _____________
Attorney to transfer said Warrant on the books of the Bank, with full power of
substitution in the premises.
Dated: ______________________________
_______________________________________________
Signature of Record Holder
_______________________________________________
Signature of Record Holder
NOTE: The above signatures(s) must correspond with the names(s) as written upon
the face of this Warrant in every particular, without alteration or enlargement
or any change whatsoever.
Signature(s) Guaranteed By:___________________________
WARRANT EXERCISE FORM
(To be signed only upon exercise of Warrant)
To: U.S. Stock Transfer Corporation
1745 Gardena Avenue
Glendale, California 91204
The undersigned hereby irrevocably elect(s) to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
_______________ shares of the Bank's Common Stock, and request(s) that
certificates for such shares be issued in the name of:
Please print name and address:
_______________________________________________
_______________________________________________
_______________________________________________
Please provide Social Security or Federal Tax I.D. No.:
_______________________________________________
and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Warrant for the balance remaining of the whole number of
shares purchasable under the within Warrant be registered in the name of the
undersigned Holder or assignee as indicated below and delivered to the address
stated below.
DATED: _____________________________
Address:
______________________________________
______________________________________
______________________________________
Signature of Record Holder or Assignee
______________________________________
Signature of Record Holder or Assignee
NOTE: The above signatures(s) must correspond with the name(s) as written upon
the face of this Warrant in every particular, without alteration or enlargement
or any change whatsoever, unless this Warrant has been assigned.
Signature(s) Guaranteed By:___________________________
EXHIBIT B
FEE SCHEDULE
Acceptance of appointment as Warrant Agent: $ 750.00
Maintain New Class of Warrants ($300 per month) Billed
monthly
Issuance of Warrant Certificates/account set up ($500 minimum) $3.50 each
Services and/or Out of Pocket Expenses not covered by the above
fees will be billed as performed or incurred.