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EXHIBIT 10.3
NEITHER THIS WARRANT NOR AND ANY WARRANT SHARES ACQUIRED FROM THE EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY SUCH WARRANT
SHARES MAY BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES AND BLUE
SKY LAWS OR EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT IS NONTRANSFERABLE
AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT AS
PERMITTED HEREIN.
STOCK PURCHASE WARRANT
THIS STOCK PURCHASE WARRANT (the "Warrant") is made and entered into
as of June 16, 1999 (the "Issuance Date"), by and between, TOWNE SERVICES,
INC., a Georgia corporation (the "Corporation"), and SYNOVUS FINANCIAL CORP., a
Georgia corporation (the "Warrantholder").
W I T N E S S E T H:
WHEREAS, the Corporation desires to grant the Warrantholder warrants
to purchase shares of the Corporation's Common Stock, no par value per share
(the "Common Stock"), upon the terms and conditions herein contained and
pursuant to the Stock Purchase Agreement of even date herewith between the
parties;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and of other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. GRANT OF WARRANT. Subject to the terms and conditions of this
Warrant, the Corporation hereby grants to the Warrantholder the right to
purchase 30,000 shares of Common Stock (the "Warrant Shares").
2. EXERCISE PRICE. The purchase price (the "Exercise Price") for
each Warrant Share initially shall be $9.08. The Exercise Price shall be
subject to adjustment as provided in Section 6 below.
3. EXERCISE OF WARRANT.
(a) To the extent that the Warrant has become and remains
exercisable it may be exercised by the Warrantholder delivering to the
Corporation a written notice of exercise signed by the Warrantholder, in
substantially the form attached hereto as EXHIBIT A (a "Notice of Exercise"),
together with, at the option of the Warrantholder: (i) a check payable to the
Corporation in the amount of the total purchase price for the Warrant Shares to
be purchased pursuant to the Notice of Exercise; (ii) shares of Common Stock or
other security convertible into Common Stock duly endorsed for transfer to the
Corporation and owned by the Warrantholder; (iii) by authorization to the
Corporation to withhold shares of Common Stock otherwise issuable upon exercise
of the Warrant; or (iv) any combinations of (i), (ii) and (iii) of this Section
3(a). In cases of exercise whereby the Warrantholder tenders Common Stock or
other stock to the Corporation or otherwise withholds Common Stock pursuant to
provisions (ii) or (iii) of this Section 3(a), the Fair Market Value (as
defined below) on the date of exercise of the Common Stock tendered to the
Corporation or authorized to be withheld upon exercise of the Warrant shall be
credited against the Exercise Price of the Common Stock for which a Notice of
Exercise has been provided
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(however, the Company shall not be obligated to issue any fractional shares or
to make any cash payments in consideration of any excess of the aggregate Fair
Market Value of shares transferred or withheld over the aggregate Exercise
Price).
(1) "Fair Market Value" on any date shall mean:
(i) the closing sales price of the Common
Stock, regular way, on such date on NASDAQ
or such other national securities exchange
or market having the greatest volume of
trading in the Common Stock during the
thirty-day period preceding the date the
value is to be determined or, if such
exchange was not open for trading on such
date, the next preceding date on which it
was open; (ii) if the Common Stock is not
traded on any national securities exchange,
the average of the closing high bid and low
asked prices of the Stock on the
over-the-counter market on the day such
value is to be determined, or in the
absence of closing bids on such day, the
closing bids on the next preceding day on
which there were bids; or (iii) if the
Common Stock also is not traded on the
over-the-counter market, the fair market
value as determined in good faith by the
Board of Directors (the "Board") or the
Executive Committee (the "Committee") of
the Corporation based on such relevant
facts as may be available to the Board or
Committee, which may include opinions of
independent experts, the price at which
recent sales have been made, the book value
of the Common Stock, and the Company's
current and future earnings.
(b) The Warrant shall not become exercisable with respect
to the Warrant Shares until 12 months following the anniversary of the Issuance
Date. Thereafter, this Warrant shall be exercisable, in whole or in part as set
forth herein, during the term of the Warrant.
(c) Within 30 days after the proper exercise of the
Warrant as herein provided, the Corporation shall deliver to the Warrantholder
a certificate or certificates for the Warrant Shares being issued in the name
of the Warrantholder and in such denominations as are requested by the
Warrantholder.
(d) The Corporation covenants and agrees that all Warrant
Shares which may be issued upon exercise of the Warrant shall, upon issuance
and payment therefor, be legally and validly issued and outstanding, fully paid
and nonassessable, and free from all liens, claims and encumbrances, except
restrictions imposed by applicable securities laws, the Corporation's Amended
and Restated Articles of Incorporation and this Warrant. The Corporation shall
at all times reserve and keep available for issuance upon the exercise of the
Warrant such number of authorized but unissued shares of Common Stock as will
be sufficient to permit the exercise in full of the Warrant.
4. TERM OF WARRANT. The term of the Warrant shall continue in
effect until the earlier of: (i) the date on which the Warrant has been
exercised; or (ii) June 30, 2004.
5. CONSENT TO TRANSFER. Unless the Corporation consents thereto
in writing, this Warrant and all rights hereunder are nontransferable and
nonassignable by the Warrantholder, other than transfers to the partners,
wholly-owned subsidiaries or other affiliates of such Warrantholder. Any
transfer or attempted transfer except pursuant to the preceding sentence shall
be null and void and of no effect whatsoever.
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6. ADJUSTMENTS.
(a) If, prior to the termination of the Warrant as
provided in Section 4(a) hereof:
(i) The number of outstanding shares of Common
Stock is increased by a stock split, stock dividend, or other similar
event, the Exercise Price shall be proportionately reduced and the
number of Warrant Shares that have not theretofore been purchased by
the Warrantholder shall be proportionately increased.
(ii) The number of outstanding shares of Common
Stock is decreased by a combination or reclassification of shares, or
other similar event, the Exercise Price shall be proportionately
increased and the number of Warrant Shares that have not theretofore
been purchased by the Warrantholder shall be proportionately reduced.
If any adjustment under this Section 6(a) would create a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded. In lieu of any fractional Warrant Share
to which the Warrantholder would otherwise be entitled, the Corporation shall
make a cash payment equal to the fair market value of such fractional Warrant
Share, as determined in good faith by the board of directors of the
Corporation.
(b) If, prior to the termination of the Warrant as
provided in Section 4(a) hereof, there shall be any merger, consolidation,
exchange of shares, recapitalization, reorganization, or other similar event,
as a result of which shares of Common Stock shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities of the Corporation or another entity, then the Warrantholder shall
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions specified in this Warrant and in lieu of the Warrant
Shares immediately theretofore purchasable and receivable upon the exercise of
the Warrant, such shares of stock and securities as may be issued or payable
with respect to or in exchange for the number of Warrant Shares immediately
theretofore purchasable and receivable upon the exercise of the Warrant had
such merger, consolidation, exchange of shares, recapitalization or
reorganization not taken place, and in any such case appropriate provisions
shall be made with respect to the rights and interests of the Warrantholder to
the end that the provisions hereof (including, without limitation, provisions
for adjustment of the Exercise Price and of the number of shares purchasable
upon the exercise of the Warrant) shall thereafter be applicable, as nearly as
may be practicable in relation to any shares of stock or securities thereafter
deliverable upon the exercise hereof. The foregoing notwithstanding, in the
event of a merger or consolidation in which the Corporation is not the
surviving entity, if the Corporation concludes that it will be unable to
satisfy the conditions of this subsection (b) without a material adverse effect
on the terms of such proposed transaction, then the Corporation shall have the
option, prior to or contemporaneously with the closing of such merger or
consolidation, to purchase the Warrant from the Warrantholder at its then fair
value, determined with regard to both the spread between the Exercise Price and
the value of the consideration to be received in the transaction and the
remaining term of the Warrant. The Corporation and the Warrantholder shall
agree on such fair value or, in the event they are unable to agree, shall
submit the question of fair value to an investment banking firm to be selected
by the Corporation, with the cost of such investment banking firm to be paid by
the Corporation.
7. INVESTMENT REPRESENTATION. The Warrantholder is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended (the "Act"). As a condition to the issuance of Warrant
Shares hereunder, the Warrantholder represents to the Corporation that the
Warrant Shares Warrantholder will acquire pursuant to such exercise are being
purchased for
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Warrantholder's own account for investment purposes only and not with a present
view to resale or a distribution thereof, unless the Warrantholder delivers to
the Corporation an opinion of counsel acceptable to the Corporation stating
that such a representation is not required under the Act, or any state
securities laws. The Warrantholder acknowledges that the Warrant Shares may be
"restricted securities" as defined in the Act and that such Warrant Shares may
not be able to be resold unless such resale is registered under the Act and
applicable state securities laws or unless an exemption is available. The
Warrantholder acknowledges that Warrantholder has no rights to cause the
registration of the Warrant Shares.
8. NO RIGHTS AS A SHAREHOLDER. The Warrantholder shall not have
any interest in or shareholder rights with respect to any shares of Common
Stock which are subject to the Warrant until such shares have been issued and
delivered to the Warrantholder in accordance with this Warrant.
9. TAXES. As a condition to the issuance of Warrant Shares
hereunder, the Corporation may withhold, or require the Warrantholder to pay or
reimburse the Corporation for, any taxes which the Corporation determines are
required to be withheld under federal, state or local law in connection with
the exercise of the Warrant.
10. HEIRS AND SUCCESSORS. This Warrant and all terms and
conditions hereof shall be binding upon the Corporation and its successors and
assigns and upon the Warrantholder and its successors and permitted assigns.
11. GOVERNING LAW. This Warrant shall be governed by, and
construed and enforced in accordance with, the laws of the State of Georgia
without regard to the principles of conflicts of laws.
12. NOTICES. All notices, requests and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given and received when delivered in person, when delivered by
overnight delivery service, or three business days after being mailed by
registered or certified mail, postage prepaid, return receipt requested, to the
following addresses (or to such other address as one party may from time to
time designate in writing to the other party hereto):
If to the Corporation: Towne Services, Inc.
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
Attn: Chief Financial Officer
If to the Warrantholder: Synovus Financial Corp.
901 Front Avenue, Suite 202
Columbus, GA 31901
Attn: President
13. ENTIRE AGREEMENT. This Warrant and the related Stock Purchase
Agreement and Amended and Restated Articles of Incorporation of the Corporation
in the form filed with the Secretary of State of the State of Georgia
(collectively, the "Related Documents") constitute the full and entire
agreement and understanding of the parties to this Warrant with respect to the
subjects hereof and thereof, and supersede all previous discussions and
agreements, if any, of the parties hereto. No party shall be liable for or
bound in any other manner by any representations, warranties, covenants or
agreements except as specifically set forth in this Warrant and the Related
Documents.
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14. SEVERABILITY. The provisions of this Warrant, and of each
separate section and subsection, are severable, and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any unenforceable provision to the
extent enforceable, shall nevertheless be binding and enforceable.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by its duly authorized officer, and the Warrantholder has executed
this Warrant, as of the Issuance Date.
TOWNE SERVICES, INC.
By: /s/ Henry M. Baroco
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Name: Henry M. Baroco
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Title: President/COO
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WARRANTHOLDER:
SYNOVUS FINANCIAL CORP.
By: /s/ Kathleen Moates
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Name: Kathleen Moates
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Title: Senior VP
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EXHIBIT A
NOTICE OF EXERCISE
[DATE]
Towne Services
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
Attn: Chief Financial Officer
Re: Exercise of Stock Purchase Warrant
Dear Sir:
The undersigned, _____________________, pursuant to that certain Stock
Purchase Warrant, dated as of June _____, 1999, by and between Towne Services,
Inc. (the "Corporation") and the undersigned (the "Warrant"), hereby exercises
the Warrant for ______________ Warrant Shares, subject to the terms and
conditions of the Warrant. Accompanying this Notice is: (i) a check in the
amount of $________________ payable to the Corporation; (ii) _______________
shares of the Company's Common Stock presently owned by the undersigned and
duly endorsed or accompanied by stock transfer powers, having an aggregate Fair
Market Value (as defined in the Warrant) as of the date hereof of
$________________; (iii) authorization to withhold ___________________ shares
of Common Stock otherwise issuable upon exercise of the Warrant (which
authorization is given pursuant to my signature below); or (iv) any
combinations of (i), (ii) and (iii) of this Notice of Exercise, such amounts or
withholdings being equal, in the aggregate, to the Exercise Price set forth in
Section 2 of the Warrant multiplied by the number of shares of Common Stock
being acquired hereby (in each instance subject to appropriate adjustment
pursuant to Section 6 of the Warrant).
Very truly yours,
SYNOVUS FINANCIAL CORP.
By:
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[Name]
[Title]
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