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Exhibit
4.1
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
324,074
Shares of Common Stock
of Enterprise Financial Services Corp
Issue Date: December 19, 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 30 th day after delivery of
the Original Warrantholder’s objection.
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" 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 therefor (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.
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" 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.
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"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.
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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.
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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
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