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
349.34935
Shares of Preferred
Stock
of Community Financial Shares,
Inc.
Issue Date: May 15,
2009
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.
“ 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.
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
payment of the Exercise Price are delivered to the Company in
accordance with
the terms of this Warrant, notwithstanding that
the stock transfer books of the Company may then be closed or
certificates representing such Shares may not be actually delivered
on such date. The Company will at all times reserve and keep
available, out of its authorized but unissued preferred stock,
solely for the purpose of providing for the exercise of this
Warrant, the aggregate number of shares of Preferred Stock then
issuable upon exercise of this Warrant at any time. The Company
will use reasonable best efforts to
