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EXHIBIT 4.3 WARRANT TO PURCHASE PREFERRED STOCK THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH
LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON
TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT
BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO
THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES
REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
WARRANT
to purchase
777.00777
Shares of Preferred Stock of Tri-County Financial Corporation
Issue Date: December 19, 2008
1. Definitions . Unless
the context otherwise requires, when used herein the following
terms shall have the meanings indicated.
" Board of Directors " means
the board of directors of the Company, including any duly
authorized committee thereof. "
business day " means any day except Saturday, Sunday and any
day on which banking institutions in the State of New York
generally are authorized or required by law or other governmental
actions to close. " Charter "
means, with respect to any Person, its certificate or articles of
incorporation, articles of association, or similar organizational
document. " Company " means
the Person whose name, corporate or other organizational form and
jurisdiction of organization is set forth in Item 1 of
Schedule A hereto. UST Sequence No. 75
" Exchange Act " means the
Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
" Exercise Price " means the
amount set forth in Item 2 of Schedule A hereto.
" Expiration Time " has the
meaning set forth in Section 3.
" Issue Date " means the date
set forth in Item 3 of Schedule A hereto.
" Liquidation Amount " means
the amount set forth in Item 4 of Schedule A hereto.
" Original Warrantholder "
means the United States Department of the Treasury. Any actions
specified to be taken by the Original Warrantholder hereunder may
only be taken by such Person and not by any other Warrantholder.
" Person " has the meaning
given to it in Section 3(a)(9) of the Exchange Act and as used
in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
" Preferred Stock " means the
series of perpetual preferred stock set forth in Item 5 of
Schedule A hereto. " Purchase
Agreement " means the Securities Purchase Agreement –
Standard Terms incorporated into the Letter Agreement, dated as of
the date set forth in Item 6 of Schedule A hereto, as
amended from time to time, between the Company and the United
States Department of the Treasury (the " Letter Agreement
"), including all annexes and schedules thereto.
" Regulatory Approvals " with
respect to the Warrantholder, means, to the extent applicable and
required to permit the Warrantholder to exercise this Warrant for
shares of Preferred Stock and to own such Preferred Stock without
the Warrantholder being in violation of applicable law, rule or
regulation, the receipt of any necessary approvals and
authorizations of, filings and registrations with, notifications
to, or expiration or termination of any applicable waiting period
under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder.
" SEC " means the U.S.
Securities and Exchange Commission. "
Securities Act " means the Securities Act of 1933, as
amended, or any successor statute, and the rules and regulations
promulgated thereunder. "
Shares " has the meaning set forth in Section 2.
" Warrantholder " has the
meaning set forth in Section 2.
" Warrant " means this
Warrant, issued pursuant to the Purchase Agreement. UST Sequence
No. 75
2
2. Number of Shares;
Exercise Price . This certifies that, for value received, the
United States Department of the Treasury or its permitted assigns
(the " Warrantholder ") is entitled, upon the terms and
subject to the conditions hereinafter set forth, to acquire from
the Company, in whole or in part, after the receipt of all
applicable Regulatory Approvals, if any, up to an aggregate of the
number of fully paid and nonassessable shares of Preferred Stock
set forth in Item 7 of Schedule A hereto (the "
Shares "), at a purchase price per share of Preferred Stock
equal to the Exercise Price. 3.
Exercise of Warrant; Term . Subject to Section 2, to
the extent permitted by applicable laws and regulations, the right
to purchase the Shares represented by this Warrant is exercisable,
in whole or in part by the Warrantholder, at any time or from time
to time after the execution and delivery of this Warrant by the
Company on the date hereof, but in no event later than 5:00 p.m.,
New York City time on the tenth anniversary of the Issue Date (the
" Expiration Time "), by (A) the surrender of this
Warrant and Notice of Exercise annexed hereto, duly completed and
executed on behalf of the Warrantholder, at the principal executive
office of the Company located at the address set forth in
Item 8 of Schedule A hereto (or such other office or
agency of the Company in the United States as it may designate by
notice in writing to the Warrantholder at the address of the
Warrantholder appearing on the books of the Company), and
(B) payment of the Exercise Price for the Shares thereby
purchased, by having the Company withhold, from the shares of
Preferred Stock that would otherwise be delivered to the
Warrantholder upon such exercise, shares of Preferred Stock
issuable upon exercise of the Warrant with an aggregate Liquidation
Amount equal in value to the aggregate Exercise Price as to which
this Warrant is so exercised.
If the
Warrantholder does not exercise this Warrant in its entirety, the
Warrantholder will be entitled to receive from the Company within a
reasonable time, and in any event not exceeding three business
days, a new warrant in substantially identical form for the
purchase of that number of Shares equal to the difference between
the number of Shares subject to this Warrant and the number of
Shares as to which this Warrant is so exercised. Notwithstanding
anything in this Warrant to the contrary, the Warrantholder hereby
acknowledges and agrees that its exercise of this Warrant for
Shares is subject to the condition that the Warrantholder will have
first received any applicable Regulatory Approvals.
4. Issuance of Shares;
Authorization . Certificates for Shares issued upon exercise of
this Warrant will be issued in such name or names as the
Warrantholder may designate and will be delivered to such named
Person or Persons within a reasonable time, not to exceed three
business days after the date on which this Warrant has been duly
exercised in accordance with the terms of this Warrant. The Company
hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued,
fully paid and nonassessable and free from all taxes, liens and
charges (other than liens or charges created by the Warrantholder,
income and franchise taxes incurred in connection with the exercise
of the Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as
of the close of business on the date on which this Warrant and
paymen
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