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Exhibit 4.4
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
14,784.78478
Shares of Preferred Stock
of First Banks, Inc.
Issue Date: December 31, 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.
"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.
UST #446
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"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
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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
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