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Exhibit 4.1 FORM OF WARRANT TO PURCHASE COMMON 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 474,100 Shares of Common Stock
of West Bancorporation, Inc.
Issue Date: December 31, 2008
1. Definitions, Unless the context otherwise requires,
when used herein the following terms shall have the meanings
indicated. "Affiliate" has the meaning ascribed to it in the
Purchase Agreement. "Appraisal Procedure" means a procedure
whereby two independent appraisers, one chosen by the Company and
one by the Original Warrantholder, shall mutually agree upon the
determinations then the subject of appraisal. Each party shall
deliver a notice to the other appointing its appraiser within 15
days after the Appraisal Procedure is invoked. If within 30 days
after appointment of the two appraisers they are unable to agree
upon the amount in question, a third independent appraiser shall be
chosen within 10 days thereafter by the mutual consent of such
first two appraisers. The decision of the third appraiser so
appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be
appointed and the determination of one appraiser is disparate from
the middle determination by more than twice the amount by which the
other determination is disparate from the middle determination,
then the determination of such appraiser shall be excluded, the
remaining two determinations shall be averaged and such average
shall be binding and conclusive upon the Company and the Original
Warrantholder; otherwise, the average of all three determinations
shall be binding upon the Company and the Original Warrantholder.
The costs of conducting any Appraisal Procedure shall be borne by
the Company, "Board of Directors" means the board of
directors of the Company, including any duly authorized committee
thereof. "Business Combination" means a merger,
consolidation, statutory share exchange or similar transaction that
requires the approval of the Company's stockholders.
"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. "Capital Stock” means (A) with respect to any
Person that is a corporation or company, any and all shares,
interests, participations or other equivalents (however designated)
of capital or capital stock of such Person and (B) with respect to
any Person that is not a corporation or company, any and all
partnership or other equity interests of such Person.
"Charter" means, with respect to any Person, its
certificate or articles of incorporation, articles of association,
or similar organizational document. "Common Stock” has
the meaning ascribed to it in the Purchase Agreement.
"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. "Conversion" has the meaning
set forth in Section 13(B), "convertible securities" has the
meaning set forth in Section 13(B). "CPP" has the meaning ascribed
to it in the Purchase Agreement. "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.
"Fair Market Value" means, with respect to any security or
other property, the fair market value of such security or other
property as determined by the Board of Directors, acting in good
faith or, with respect to Section 14, as determined by the Original
Warrantholder acting in good faith. For so long as the Original
Warrantholder holds this Warrant or any portion thereof, it may
object in writing to the Board of Director's calculation of fair
market value within 10 days of receipt of written notice thereof,
If the Original Warrantholder and the Company are unable to agree
on fair market value during the 10-day period following the
delivery of the Original Warrantholder's objection, the Appraisal
Procedure may be invoked by either party to determine Fair Market
Value by delivering written notification thereof not later than the
30th day after delivery of the Original Warrantholder's objection.
"Governmental Entities" has the meaning ascribed to it in
the Purchase Agreement. "Initial Number" has the meaning set
forth in Section 13(B). "Issue Date” means the date
set forth in Item 3 of Schedule A hereto. "Market Price"
means, with respect to a particular security, on any given day, the
last reported sale price regular way or, in case no such reported
sale takes place on such day, the average of the last closing bid
and ask prices regular way, in either case on the principal
national securities exchange on which the applicable securities are
listed or admitted to trading, or if not listed or admitted to
trading on any national securities exchange, the average of the
closing bid and ask prices as furnished by two members of the
Financial Industry Regulatory Authority, Inc. selected from time to
time by the Company for that purpose. "Market Price" shall be
determined without reference to after hours or extended hours
trading. If such security is not listed and traded in a manner that
the quotations referred to above are available for the period
required hereunder, the Market Price per share of Common Stock
shall be deemed to be (i) in the event that any portion of the
Warrant is held by the Original Warrantholder, the fair market
value per share of such security as determined in good faith by the
Original Warrantholder or (ii) in all other circumstances, the fair
market value per share of such security as determined in good faith
by the Board of Directors in reliance on an opinion of a nationally
recognized independent investment banking corporation retained by
the Company for this purpose and certified in a resolution to the
Warrantholder. For the purposes of determining the Market Price of
the Common Stock on the "trading day" preceding, on or following
the occurrence of an event, (i) that trading day shall be deemed to
commence immediately after the regular scheduled closing time of
trading on the New York Stock Exchange or, if trading is closed at
an earlier time, such earlier time and (ii) that trading day shall
end at the next regular scheduled closing time, or if trading is
closed at an earlier time, such earlier time (for the avoidance of
doubt, and as an example, if the Market Price is to be determined
as of the last trading day preceding a specified event and the
closing time of trading on a particular day is 4:00 p.m. and the
specified event . occurs at 5:00 p.m. on that day, the Market Price
would be determined by reference to such 4:00 p.m. closing price).
"Ordinary Cash Dividends" means a regular quarterly cash
dividend on shares of Common Stock out of surplus or net profits
legally available therefore (determined in accordance with
generally accepted accounting principles in effect from time to
time), provided that Ordinary Cash Dividends shall not include any
cash dividends paid subsequent to the Issue Date to the extent the
aggregate per share dividends paid on the outstanding Common Stock
in any quarter exceed the amount set forth in Item 4 of Schedule A
hereto, as adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.
"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.
"Permitted Transactions" has the meaning set forth in Section
13(B). "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. "Per Share Fair Market Value"
has the meaning set forth in Section 13(C). "Preferred
Shares" means the perpetual preferred stock issued to the Original
Warrantholder on the Issue Date pursuant to the Purchase Agreement.
"Pro Rata Repurchases" means any purchase of shares of
Common Stock by the Company or any Affiliate thereof pursuant to
(A) any tender offer or exchange offer subject to Section 13(e) or
14(e) of the Exchange Act or Regulation 14E promulgated thereunder
or (B) any other offer available to substantially all holders of
Common Stock, in the case of both (A) or (B), whether for cash,
shares of Capital Stock of the Company, other securities of the
Company, evidences of indebtedness of the Company or any other
Person or any other property (including, without limitation, shares
of Capital Stock, other securities or evidences of indebtedness of
a subsidiary), or any combination thereof, effected while this
Warrant is outstanding. The "Effective Date" of a Pro Rata
Repurchase shall mean the date of acceptance of shares for purchase
or exchange by the Company under any tender or exchange offer which
is a Pro Rata Repurchase or the date of purchase with respect to
any Pro Rata Repurchase that is not a tender or exchange offer.
"Purchase Agreement" means the Securities Purchase Agreement
- Standard Terms incorporated into the Letter Agreement, dated as
of the date set forth in Item 5 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. "Qualified Equity Offering"
has the meaning ascribed to it in the Purchase Agreement.
"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 Common Stock and to own such
Common 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. "Trading day" means (A) if the
shares of Common Stock are not traded on any national or regional
securities exchange or association or over-the-counter market, a
business day or (B) if the shares of Common Stock are traded on any
national or regional securities exchange or association or
over-the-counter market, a business day on which such relevant
exchange or quotation system is scheduled to be open for business
and on which the shares of Common Stock (i) are not suspended from
trading on any national or regional securities exchange or
association or over-the-counter market for any period or periods
aggregating one half hour or longer; and (ii) have traded at least
once on the national or regional securities exchange or association
or over-the-counter market that is the primary market for the
trading of the shares of Common Stock.
"U.S. GAAP" means United States generally accepted
accounting principles. "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 Common Stock set forth in Item 6 of
Schedule A hereto, at a purchase price per share of Common Stock
equal to the Exercise Price. The number of shares of Common Stock
(the "Shares") and the Exercise Price are subject to adjustment as
provided herein, and all references to "Common Stock," "Shares" and
"Exercise Price" herein shall be deemed to include any such
adjustment or series of adjustments. 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 7 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:
(i) by having the Company withhold, from the shares of
Common Stock that would otherwise be delivered to the Warrantholder
upon such exercise, shares of Common stock issuable upon exercise
of the Warrant equal in value to the aggregate Exercise Price as to
which this Warrant is so exercised based on the Market Price of the
Common Stock on the trading day on which this Warrant is exercised
and the Notice of Exercise is delivered to the Company pursuant to
this Section 3, or
(ii) with the consent of both the Company and the Warrantholder, by
tendering in cash, by certified or cashier's check payable to the
order of the Company, or by wire transfer of immediately available
funds to an account designated by the Company. 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: Listing.
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
Common Stock, solely for the purpose of providing for the exercise
of this Warrant, the aggregate number of shares of Common Stock
then issuable upon exercise of this Warrant at any time. The
Company will (A) procure, at its sole expense, the listing of the
Shares issuable upon exercise of this Warrant at any time, subject
to issuance or notice of issuance, on all principal stock exchanges
on which the Common Stock is then listed or traded and (B) maintain
such listings of such Shares at all times after issuance. The
Company will use reasonable best efforts to ensure that the Shares
may be issued without violation of any applicable law or regulation
or of any requirement of any securities exchange on which the
Shares are listed or traded.
5. No Fractional Shares or Scrip. No fractional Shares
or scrip representing fractional Shares shall be issued upon any
exercise of this Warrant. In lieu of any fractional Share to which
the Warrantholder would otherwise be entitled, the Warrantholder
shall be entitled to receive a cash payment equal to the Market
Price of the Common Stock on the last trading day preceding the
date of exercise less the pro-rated Exercise Price for such
fractional share.
6. No Rights as Stockholders: Transfer Books. This
Warrant does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Company prior to the date of
exercise hereof. The Company will at no time close its transfer
books against transfer of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
7. Charges. Taxes and Expenses. Issuance of certificates
for Shares to the Warrantholder upon the exercise of this Warrant
shall be made without charge to the Warrantholder for any issue or
transfer tax or other incidental expense in respect of the issuance
of such certificates, all of which taxes and expenses shall be paid
by the Company. 8. Transfer/Assignment.
(A) Subject
to compliance with clause (B) of this Section 8, this Warrant and
all rights hereunder are transferable, in whole or in
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