Exhibit 4.3
W-___
Newburgh, New York
ORGANIZER’S
WARRANT AGREEMENT TO PURCHASE
COMMON
STOCK
OF
EMPIRE STATE
BANK, NA
This is to certify that, FOR VALUE
RECEIVED, the undersigned (the “Holder”), in exchange
for the surrender of warrant No. ___ (the “Prior
Warrant”) to purchase ____ shares of the common stock of
Empire State Bank, N.A., a national banking association (the
“Bank”), is entitled to purchase, subject to the
provisions of this warrant (the “Warrant”), from ES
Bancshares, Inc. (the “Company”) ____________ shares of
the Company’s common stock, $.01 par value per share (the
“Stock”), at a price (the “Exercise Price”)
of $10.00 per share. The effective date of this Warrant and of the
surrender of the Prior Warrant shall be the date of completion of
the holding company reorganization (the
“Reorganization”) of the Bank pursuant to which the
Company shall become the holding company of the Bank. This Warrant
shall not be exercisable until the completion of the Reorganization
and, if the Reorganization shall be withdrawn or abandoned, this
Warrant shall be of no force or effect.
The number of shares of Stock to be
received and the Exercise Price to be paid therefor upon the
exercise of this Warrant are subject to adjustment as set forth in
Sections (e) and (k) below. The terms of this Warrant are intended
to be substantially identical to that of the Prior Warrant except
that the securities covered are the shares of the Stock of the
Company rather than the common stock of the Bank The shares of
Stock deliverable upon such exercise at any time are hereinafter
sometimes referred to as “Warrant Shares.”
(a) EXERCISE OF
WARRANT . This Warrant may
be exercised in whole or in part at any time from the date of the
completion of the Reorganization until 5:00 p.m., Newburgh, New
York time, June 28, 2009, or if such day is a day on which either
federal or state chartered banks located in Newburgh, New York are
authorized by law to close, then on the next succeeding day that
shall not be such a day. In order to exercise this Warrant, the
Holder shall deliver to the Company (i) the purchase form annexed
hereto (the “Purchase Form”), duly completed and
executed, (ii) payment of the Exercise Price for the Warrant Shares
with respect to which this Warrant is then being exercised, and
(iii) this Warrant. Upon receipt of the items specified in the
preceding sentence, the Company shall execute or cause to be
executed and deliver or cause to be delivered to the Holder a
certificate or certificates representing the aggregate number of
full Warrant Shares issuable upon such exercise, together with cash
in lieu of any fraction of a share, as hereinafter provided. The
stock certificate or certificates so delivered shall be in such
denomination or denominations as the Holder shall request and shall
be registered in the name of the Holder or, subject to the
restrictions on transfer set forth herein, such other name as shall
be designated in the notice. This Warrant shall be deemed to have
been exercised and such certificate or certificates shall be deemed
to have been issued, and the Holder or any other person so
designated shall be deemed to have become a holder of record of
such shares for all purposes, as of the date the notice, together
with the Exercise Price and this Warrant, are received by the
Company as described above. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of
the certificate or certificates representing Warrant Shares,
deliver to the Holder a new warrant evidencing the right of the
Holder to purchase the unpurchased Warrant Shares called for by
this Warrant, which new warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder,
appropriate notation may be made on this Warrant and the same
returned to the Holder. No Warrant Shares will be issued pursuant
to the exercise of this Warrant unless such issuance and such
exercise shall comply with all relevant provisions of law. As a
condition to the exercise of the Warrant, the Company may require
the Holder to make any representation and warranty to the Company
as may be required by any applicable law or regulation.
(b) RESERVATION
OF SHARES . The Company
shall at all times reserve for issuance and delivery upon exercise
of this Warrant such number of shares of its Stock as shall be
required for such issuance and delivery upon exercise hereof. All
such Warrant Shares shall, when issued in accordance with the terms
hereof, be validly issued, fully paid and
non-assessable.
(c) FRACTIONAL
SHARES . No fractional
shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. With respect to any fraction of a
share called for upon any exercise hereof, the Company shall pay to
the Holder an amount in cash equal to the current fair market value
of such fractional share as determined in good faith by the board
of directors of the Company.
( d) RIGHTS OF
HOLDER . The Holder shall not, solely by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at
law or equity, and the rights of the
