As filed with the Securities and Exchange Commission on March 27, 20092, 2017
Registration No. 333- 157027
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WEST BANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
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WEST BANCORPORATION, INC. (Exact name of Registrant as specified in its charter) |
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| Iowa | 42-1230603 |
(State or other jurisdiction of | (I.R.S. Employer Identification No.) |
incorporation or organization) | (I.R.S. Employer Identification No.) |
1601 22nd22nd Street
West Des Moines, Iowa 50266
515-222-2300(515) 222-2300
(Address, including zip code, and telephone number, including area code, of registrant'sRegistrant's principal executive offices)
Douglas R. Gulling, EVP, Treasurer & CFO
West Bancorporation, Inc.
1601 22nd22nd Street
West Des Moines, Iowa 50266
(515) 222-2300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
CopiesCopy to:
Wade R. Hauser III
Ahlers & Cooney, P.C.
100 Court Avenue, Suite 600
Des Moines, Iowa 50309
(515) 243-7611
Donald L. Norman, Jr., Esq.
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
(312) 984-3100
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large“large accelerated filer," "accelerated filer"” “accelerated filer,” and "smaller“smaller reporting company"company” in Rule 12b-2 of the Exchange Act:Act (check one):
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Large accelerated filer ¨o | Accelerated filer x | |
Non-accelerated filer ¨ o |
Smaller reporting company ¨o | |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered | Amount to be registered (1) | Proposed maximum price per unit (1) | Proposed maximum aggregate offering price (1) | Amount of registration fee (1)(2) |
| Common Stock, no par value per share (3) | | | | |
| Preferred Stock, $0.01 par value per share (3) | | | | |
| Debt Securities (4) | | | | |
| Warrants (5) | | | | |
| Depositary Shares (6) | | | | |
| Subscription Rights (7) | | | | |
| Stock Purchase Contracts | | | | |
| Stock Purchase Units | | | | |
| Units | | | | |
| Total: | | | $75,000,000 | $0 |
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| (1) | Calculated in accordance with Rule 457(o) under the Securities Act of 1933. The proposed maximum offering price per security will be determined from time to time by the registrant in connection with the issuance of the securities registered by this registration statement. The proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee. In no event will the aggregate maximum offering price of all securities issued under this registration statement exceed $75,000,000. The amount registered is not specified as to each class of securities to be registered hereunder pursuant to General Instruction II.D. to Form S-3 under the Securities Act of 1933. |
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| (2) | Pursuant to Rule 415(a)(6) under the Securities Act of 1933, the $75,000,000 of securities registered pursuant to this registration statement includes $75,000,000 of unsold securities (collectively, the “Unsold Securities”) previously registered by the registrant on its Registration Statement on Form S-3 filed on March 7, 2014 and declared effective on March 20, 2014 (File No. 333-194392) (the "Prior Registration Statement"). In connection with the registration of the Unsold Securities, the registrant previously paid a registration fee of $3,483 for the registration of $30,000,000 of the Unsold Securities on its Registration Statement on Form S-3 filed on March 11, 2011 and declared effective on March 21, 2011 (File No. 333-172743) and $6,177 for the registration of an additional $45,000,000 of the Unsold Securities on the Prior Registration Statement. As of the date hereof, all of the Unsold Securities remain unsold. Accordingly, the “Amount of registration fee” above reflects no fee being due for the Unsold Securities. |
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| (3) | Shares of common stock or preferred stock may be issued in primary offerings, upon conversion of debt securities or preferred stock registered hereby or upon the exercise of warrants or subscription rights to purchase preferred stock or common stock. |
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| (4) | The debt securities to be offered hereunder will consist of one or more series of senior debt securities or subordinated debt securities, or any combination thereof, as more fully described herein. |
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| (5) | Warrants exercisable for common stock, preferred stock, depositary shares, debt securities or other securities. |
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| (6) | The depositary shares registered hereunder will be evidenced by depositary receipts issued pursuant to a deposit agreement. If the registrant elects to offer to the public fractional interests in shares of preferred stock, then depositary receipts will be distributed to those persons purchasing the fractional interests and the shares will be issued to the depositary under the deposit agreement. |
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| (7) | Subscription rights evidencing the right to purchase common stock, preferred stock, depositary shares, debt securities or other securities. |
The Registrantregistrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statementregistration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
ThisThe information in this prospectus is not complete and may be changed. The selling security holdersThese securities may not sell these securitiesbe sold until the registration statement containing this prospectus filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED MARCH 2, 2017
PROSPECTUS
Subject to Completion$75,000,000
Dated March 27, 2009
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| Common Stock |
| Preferred Stock |
| Debt Securities |
| Warrants |
| Depositary Shares |
| Subscription Rights |
| Stock Purchase Contracts |
| Stock Purchase Units |
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36,000 Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A
Warrant to Purchase 474,100 Shares of Common Stock
474,100 Shares of Common Stock
WEST BANCORPORATION, INC.
This prospectus relates toWest Bancorporation, Inc. (“we,” “us,” “our” or the potential resale“Company”) may offer and sell, from time to time, by selling security holders of some or all of the shares of our Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the "Preferred Stock"), a warrant (the "Warrant") to purchase 474,100 shares of our Common Stock, no par value per share (the "Common Stock"), and any shares of Common Stock issuable from time to time upon exercise of the Warrant. In this prospectus, we refer to the shares of Preferred Stock, the Warrant and the shares of Common Stock issuable upon exercise of the Warrant, collectively, as the "Securities." The Preferred Stock and the Warrant were originally issued by us pursuant to the Letter Agreement dated December 31, 2008, and the related Securities Purchase Agreement - Standard Terms, between us and the United States Department of the Treasury (the "UST") in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act").
The UST and its successors, including transferees (the "Selling Security Holders"), may offer the Securities from time to time directly or through underwriters, broker-dealers or agents and in one or more publicseries, and in any combination, the securities described in this prospectus. The aggregate offering price of the securities that we offer will not exceed $75,000,000.
This prospectus describes some of the general terms that may apply to these securities and the general manner in which we will offer them. Each time that we offer and sell securities using this prospectus, we will provide a supplement to this prospectus that contains specific information about the securities and their terms and the manner in which we will offer them for sale. The prospectus supplement also may add or private transactionsupdate information contained in this prospectus. You should carefully read this prospectus and at fixed prices, prevailing market prices, at prices relatedany supplement to prevailing market pricesthis prospectus, as well as any documents we have incorporated into this prospectus by reference, before you invest in any of these securities. References herein to “prospectus supplement” are deemed to refer to any pricing supplement or at negotiated prices. Iffree writing prospectus describing the Securities are soldspecific pricing or other terms of the applicable offering that we prepare and distribute.
We may offer and sell these securities through underwriters, broker-dealersdealers or agents, the Selling Security Holders will be responsible for underwriting discounts or commissionsdirectly to purchasers on a continuous or agents' commissions.
delayed basis. We will not receiveprovide the names of any proceeds fromsuch underwriters, dealers or agents used in connection with the sale of Securities byany of these securities, as well as any fees, commissions or discounts we may pay to such underwriters, dealers or agents in connection with the Selling Security Holders.sale of these securities, in the applicable prospectus supplement.
The Preferred Stock is not listed on an exchange, and, unless requested by the UST, we do not intend to list the Preferred Stock on any exchange.
Our Common Stockcommon stock is listed on the NasdaqNASDAQ Global Select Market under the symbol "WTBA."“WTBA”. On March 26, 2009 ,1, 2017, the closing price of our Common Stockcommon stock was $8.55$22.75 per share. You
These securities are urgednot bank deposits and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency, nor are they obligations of, or guaranteed by, a bank. This prospectus is not an offer to obtain current market quotations ofsell these securities, and it is not soliciting an offer to buy these securities, in any state or jurisdiction where the Common Stock.offer or sale is not permitted. Our principal executive offices are located at 1601 22nd Street, West Des Moines, Iowa 50266, and our telephone number is (515) 222-2300.
Investing in our Securitiessecurities involves a high degree of risk. See "Risk Factors" beginningrisks. You should refer to the section entitled “Risk Factors” on page 5.2 of this prospectus, as well as the risk factors included in the applicable prospectus supplement and certain of our periodic reports and other information that we file with the Securities and Exchange Commission, and carefully consider that information before buying our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The principal executive offices of West Bancorporation, Inc. are located at 1601 22nd Street, West Des Moines, Iowa, 50266, and the telephone number
This prospectus is (515) 222-2300.dated __________, 2017.
The date of this prospectus is March _____, 2009.
TABLE OF CONTENTS
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WHERE YOU CAN FIND MORE INFORMATION AND INCORPORATION BY REFERENCE | |
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FORWARD-LOOKING STATEMENTS | 4 |
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RISK FACTORS | 5 |
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WEST BANCORPORATION, INC. | 8 |
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USE | 9 |
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RATIO | 9 |
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SELLING SECURITY HOLDERS | 18 |
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PLAN | 19 |
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LEGAL MATTERS | 20 |
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EXPERTS | |
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An investment in our securities involves certain risks. Before making an investment decision, you should carefully read and consider the risk factors incorporated by reference in this prospectus, as the same may be updated from time to time by our future filings with the Securities and Exchange Commission, which we refer to as the SEC, as well as those contained in any applicable prospectus supplement. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment. This prospectus and documents incorporated by reference in this prospectus also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks faced by us.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the "SEC")SEC using a "shelf”“shelf” registration process. Under this shelf registration process, the Selling Security Holderswe may sell from time to time, offer and sellin one or more offerings, on a continuous or delayed basis, any combination of the Securitiessecurities described in this prospectus in one or more offerings.for an aggregate offering price of up to $75,000,000.
This prospectus provides you with a general description of the Securities. Wesecurities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of a particular offering by the Selling Security Holders.that offering. Such prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. If there is any inconsistency between the information in thethis prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement. You should read this prospectus (including the documents incorporated by reference) and ifthe applicable any prospectus supplement together with the additional information describedreferred to under the heading "Where“Where You Can Find More InformationInformation.”
You should rely only on the information contained or incorporated by reference in this prospectus or in any supplement to this prospectus. We have not authorized anyone to provide you with different information. We are not making an offer to sell or soliciting an offer to buy these securities in any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make the offer or solicitation. You should assume that the information contained or incorporated by reference in this prospectus or any prospectus supplement is accurate as of its date only.
Any of the securities described in this prospectus and Incorporation by Reference."in a prospectus supplement may be convertible or exchangeable into, or exercisable for, other securities that are described in this prospectus or will be described in a prospectus supplement, and may be issued separately, together or as part of a unit consisting of two or more securities, which may or may not be separate from one another. The securities offered hereby may include new or hybrid securities developed in the future that combine features of any of the securities described in this prospectus.
The registration statement that contains this prospectus, including the exhibits to the registration statement, also contains additional information about us and the Securitiessecurities offered under this prospectus. You can find the registration statement at the SEC'sSEC’s website or at the SEC office mentioned under the heading "Where“Where You Can Find More Information and Incorporation by Reference."Information.”
Unless the context otherwise indicates, the terms "West Bancorporation, Inc.," “West Bancorporation,” "Company," "we," "our," or "us" mean West Bancorporation, Inc. and its subsidiaries.SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
WHERE YOU CAN FIND MORE INFORMATION AND INCORPORATION BY REFERENCE
We file annual, quarterly and current reports and proxyCertain statements and other information with the SEC. Our SEC filings are available over the Internet in the Investor Relations section of our website at http://www.westbankiowa.com or at the SEC's website at http://www.sec.gov. You may also read and copy any document we file at the SEC's public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information on the SEC's public reference room. Information contained on our website is not a part of this prospectus.
For further information about us and the Securities offered under this prospectus, you should refer to our registration statement and its exhibits. This prospectus summarizes material provisions of contracts and other documents that we refer you to. Because the prospectus may not contain all the information that you may find important, you should review the full text of these documents.
We "incorporate by reference" into this prospectus the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. Some information contained in this prospectus updatesand the information incorporateddocuments we incorporate by reference and information that we file subsequently with the SEC will automatically update this prospectus. In other words, in the case of a conflict or inconsistency between information set forth in this prospectus, and/orother than purely historical information, incorporated by reference into this prospectus, you should rely onincluding estimates, projections, statements relating to the information contained inCompany's business plans, objectives and expected operating results, and the document that was filed later. We incorporate by referenceassumptions upon which those statements are based, are “forward-looking statements” within the following documents (excluding any portionsmeanings of such documents that have been "furnished" but not "filed" for purposesthe Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended which we refer to as the "Exchange Act"):
| · | Our annual report on Form 10-K for the year ended December 31, 200 8 ; |
| · | Our current reports on Form 8-K dated January 9, 2009, January 22, 2009, February 23, 2009; and |
| · | The description of our Common Stock incorporated by reference in our registration statement on Form 10, filed March 11, 2002, pursuant to Section 12 of the Exchange Act, including any amendment or report filed with the SEC for the purpose of updating this description.
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We also incorporate by reference reports we file in the future under Sections 13(a), 13(c), 14 and 15(d) of the(the Exchange Act (excluding any portions of any such documents that are "furnished" but not "filed" for purposes of the Exchange Act), including reports filed after the date of the initial filing of the registration statement and before the effectiveness of the registration statement, until we sell all of the securities offered by. Forward-looking statements may appear throughout this prospectus or terminate this offering.
You may request a copy of any of the documents referred to above, at no cost, by contacting us in writing or by telephone at:
Secretary
West Bancorporation, Inc.
1601 22nd Street
West Des Moines, Iowa 50266
Phone: (515) 222-2300
You should rely only on the information incorporated by reference or presented in this prospectus or the applicable prospectus supplement. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus or the applicable prospectus supplement is accurate as of any date other than the dates on the front of those documents.
FORWARD-LOOKING STATEMENTS
Statements included or incorporated by reference in this prospectus and, if applicable, any prospectus supplements that are not historical are "forward-looking" statements within the meaning of the Private Securities Litigation Reform Act of 1995. Theprospectus. These forward-looking statements include: statements made in our annual report on Form 10-K forare generally identified by the year ended December 31, 2008 , and in other filings we file or furnish to the SEC, including, without limitation, statements with respect to the Company’s growth and acquisition strategies, new products and services, and future financial performance, including earnings and dividends per share, return on average assets, return on average equity, efficiency ratio and capital ratios. Forward-looking statements also include statements regarding the intent, belief or current expectation of West Bancorporation, Inc. and its officers. Forward-looking statements include statements preceded by, followed by or that include forward-looking terminology such as "may," "should," "believes," "expects," "intends," "anticipates," "estimates,"words “believes,” “expects,” “intends,” “anticipates,” “projects,” “future,” “may,” “should,” “will,” “strategy,” “plan,” “opportunity,” “will be,” “will likely result,” “will continue” or similar references, or references to estimates, predictions or predictions.future events. Such forward-looking statements are based upon certain underlying assumptions, risks and uncertainties. Because of the possibility of changethat the underlying assumptions are incorrect or do not materialize as expected in the underlying assumptions,future, actual results could differ materially from these forward-looking statements. Risks and uncertainties that may affect future results include: interest rate risk; competitive pressures; pricing pressures on loans and deposits; changes in credit and other risks posed by ourthe Company's loan and investment portfolios, including declines in commercial or residential real estate values or changes in the allowance for loan losses dictated by new market conditions or regulatory requirements; actions of bank and non-banknonbank competitors; changes in local, national and nationalinternational economic conditions; changes in regulatory requirements, including actionslimitations and costs; changes in customers' acceptance of the SEC, the Federal Reserve Board or the Federal Deposit Insurance Corporation; customers’ acceptance of West Bancorporation, Inc.’sCompany's products and services; cyber-attacks; unexpected outcomes of existing or new litigation involving the Company; and any other risks described in the possibility that the terms“Risk Factors” sections of the U.S. Treasury Department’s Capital Purchase Program could change.
All forward-looking statements included or incorporated by reference in this prospectus, and the applicable prospectus supplement are based on information available to us as ofand other reports filed by the date of this prospectus orCompany with the applicable prospectus supplement. We do not undertakeSEC. The Company undertakes no obligation to revise or update anysuch forward-looking statements that may be made byto reflect current or on behalffuture events or circumstances after the date hereof or to reflect the occurrence of us in this prospectus, any prospectus supplement or otherwise. Our actual results may differ materially from those contained in the forward-looking statements identified above. Factors which may cause such a material difference to occur include, but are not limited to, the risk factors described below.unanticipated events.
RISK FACTORS
An investment in our Securities involves significant risks. You should carefully consider the risks and uncertainties and the risk factors set forth below.
West Bancorporation’s business is conducted through its two wholly-owned subsidiaries, West Bank and WB Capital Management Inc. The greatest risks for investment in our Securities involve West Bank because it comprises over ninety percent of our operations and assets. West Bank is subject to all the general risks that confront community banks. In addition, West Bank and West Bancorporation are subject to the following particular risks.
Our loan portfolio.
The largest component of West Bank’s income is interest received on loans. West Bank’s loan portfolio includes a significant amount of commercial real estate loans, commercial lines of credit, commercial term loans, and construction or land development loans. West Bank’s typical commercial borrower is a small- or medium-sized privately-owned Iowa business person or entity. Our commercial loans typically have greater credit risks than residential mortgage or consumer loans because they often have larger balances, and repayment usually depends on the borrowers’ successful business operations. Commercial loans also involve some additional risk because they generally are not fully repaid over the loan period and thus usually require refinancing or a large payoff at maturity. When the general economy turns downward, which is currently the case, commercial borrowers may not be able to repay their loans and the value of their assets, which are usually pledged as collateral, may decrease rapidly and significantly. Also, when credit markets tighten due to adverse developments in specific markets or the general economy, opportunities for refinancing may become more expensive or unavailable , resulting in loan defaults. The current economic conditions in West Bank’s market areas are exerting considerable negative pressure on our existing loan customers and are limiting our ability to find attractive new loan customers.
Our real estate loans expose us to increased credit risks.
A substantial portion of our loan portfolio consists of real estate-related loans, including real estate development, construction, and residential and commercial mortgage loans. Consequently, real estate-related credit risks are a significant concern for us. The adverse consequences from real estate-related credit risks tend to be cyclical and are often driven by national economic developments that are not controllable or entirely foreseeable by us or our borrowers. General difficulties in our real estate markets have recently contributed to increases in our non-performing loans, charge-offs, and decreases in our income. Although we believe that the real estate markets in which we make loans are not as depressed as some in the country, we believe that real estate-related credit risks continue to be significant in our markets.
Our accounting policies and methods are the basis of how we report our financial condition and results of operations, and they may require management to make estimates about matters that are inherently uncertain.
Our accounting policies and methods are fundamental to how we record and report our financial condition and results of operations. Our management must exercise judgment in selecting and applying many of these accounting policies and methods in order to ensure that they comply with generally accepted accounting principles and reflect management's judgment as to the most appropriate manner in which to record and report our financial condition and results of operations. In some cases, management must select the accounting policy or method to apply from two or more alternatives, any of which might be reasonable under the circumstances yet might result in us reporting different amounts than would have been reported under a different alternative.
We have identified three accounting policies as being "critical" to the presentation of our financial condition and results of operations because they require management to make particularly subjective and complex judgments about matters that are inherently uncertain and because of the likelihood that materially different amounts would be reported under different conditions or using different assumptions. These critical accounting policies relate to: (1) the allowance for loan losses; (2) determining the fair value of investment securities available for sale; and (3) the valuation of goodwill . Because of the inherent uncertainty of these estimates, no assurance can be given that application of alternative policies or methods might not result in the reporting of different amounts of allowance for loan loss, fair value of securities available for sale, goodwill , and net income.
Various factors may cause our allowance for loan losses to increase.
Our allowance for loan losses represents management's estimate of probable losses inherent in our loan portfolio. Management evaluates the allowance each quarter to determine that it is adequate to absorb these inherent losses. This evaluation is supported by a methodology that identifies estimated losses based on assessments of individual problem loans and historical loss patterns. In addition, general factors unique to each measurement date are considered, including economic conditions in certain geographic or industry segments of the loan portfolio, economic trends, risk profile, and portfolio composition. The determination of the appropriate level of the allowance for loan losses is highly subjective and requires management to make significant estimates of current credit risks and future trends, all of which may undergo material changes in a short period of time. Changes in economic conditions affecting borrowers, new information regarding existing loans, identification of additional problem loans, and other factors, many of which are not within our control, may require an increase in the allowance for loan losses. Determining the appropriate loan loss allowance is more difficult during periods of significant economic downturn. Any increase in the allowance for loan losses will result in a decrease in net income and capital, and could have a material adverse effect on our financial condition and results of operations.
If all or a significant portion of the unrealized losses in our portfolio of investment securities were determined to be other-than-temporarily impaired, we would recognize a material charge to our earnings and our capital ratios would be adversely impacted.
We analyze our investment securities quarterly to determine whether, in the opinion of management, the value of any of the securities is other-than-temporarily impaired. To the extent that any portion of the unrealized losses in our portfolio of investment securities is determined to be other-than-temporarily impaired, we will recognize a charge to our earnings in the quarter during which such determination is made and our capital ratios will be adversely impacted. Generally, a fixed income security is determined to be other-than-temporarily impaired when it appears unlikely that we will receive all of the principal and interest due in accordance with the original terms of the investment.
Our past acquisitions pose ongoing risks for our business.
We purchased two investment advisory firms that we merged to create WB Capital Management Inc. We may not achieve the benefits we sought in the acquisitions, or, if achieved, those benefits may be achieved later than we anticipated. Failure to achieve anticipated benefits from either acquisition could result in increased costs and lower revenues than expected of the combined company. In addition, if the financial performance associated with the acquisitions fall short of expectations, or if the valuations of investment advisory firms decline significantly, impairment charges associated with the goodwill or other intangible assets recorded as parts of the acquisitions may be required.
There can be no assurance that recently enacted legislation will help stabilize the U.S. economy.
The Emergency Economic Stabilization Act of 2008 ("EESA") was recently signed into law in response to the financial crises affecting the banking system and financial markets and going concern threats to investment banks and other financial institutions. The UST has implemented a Capital Purchase Program (the "CPP") under EESA through which it has purchased preferred stock in participating financial institutions, including $36,000,000 of our Preferred Stock on December 31, 2008. In addition, the American Recovery and Reinvestment Act of 2009 (“ARRA”) became effective on February 17, 2009. That law is an unprecedented attempt to stimulate the national economy . There can be no assurance, however, as to the actual impact that these acts will have on the financial markets, the general economy, or companies . The failure of these programs to help stabilize the financial markets and a continuation or worsening of current financial market and general economic conditions could materially and adversely affect our business, financial condition, results of operations, access to credit, or the trading price of our Common Stock.
Our participation in the CPP may impact earnings and Common Stock dividends.
The annual cash dividend that must be paid on the Preferred Stock we sold to the UST through the CPP is $1,800,000 through 2013 and $3,240,000 thereafter. Our challenge is to use the $36,000,000 capital infusion to generate earnings greater than the costs of the Preferred Stock. All of the Preferred Stock dividends must be paid before any Common Stock dividends may be paid. If we do not earn a profit on the proceeds from the Preferred Stock sale, our net income and dividends paid to Common Stock shareholders could be negatively affected.
Our participation in the CPP restricts our ability to increase dividends on our Common Stock, undertake stock repurchase programs, and compensate our key executives.
The terms of the CPP restrict our ability to increase dividends on our Common Stock above $0.16 per share, undertake stock repurchase programs, and pay certain executive compensation. Additional restrictions may be imposed on the CPP by the UST or Congress at a later date, and any such restrictions may apply to us retroactively. These restrictions may have a material adverse effect on our operations, revenue and financial condition, our ability to pay dividends, or our ability to attract and retain executive talent.
There can be no assurance that our shareholders will continue to receive dividends at the current rate.
Our shareholders are only entitled to receive the dividends declared by our board of directors. The primary source of money to pay our dividends comes from the dividends paid by West Bank. The bank’s earnings declined during the last year. In January 2009 , our board of directors reduced the quarterly dividend paid on our Common Stock from $0.16 per share to $0.08 per share. Although we have historically declared cash dividends on our Common Stock, there can be no assurance that we will maintain dividends at any particular rate. Any further reduction of, or the elimination of, our Common Stock dividend might adversely affect our stock price.
Substantial sales or dilution of our equity may adversely affect the market price of our Common Stock.
In connection with the CPP stock sale, we sold a Warrant to the UST representing the right to purchase 474,100 shares of our Common Stock. If the Warrant is exercised, the newly issued Common Stock would dilute the ownership interests of our existing shareholders. Our Common Stock is also relatively thinly traded. The market price of our Common Stock might fall if the number of shares of our Common Stock for sale at any particular time substantially increases due to the UST exercising its Warrant and selling our Common Stock.
The loss of the services of any of our senior executive officers could cause our business to suffer.
West Bancorporation and its subsidiaries are relatively small companies and have overlapping senior management. Our continued success depends to a significant extent upon the continued services of a relative few individuals, who generally do not have substantial backup. The loss of services of any of our senior executive officers could cause our business to suffer, at least in the short term. In addition, our success depends in significant part upon our senior management's ability to develop and implement our business strategies.
We are subject to liquidity risks.
We maintain liquidity primarily through customer deposits and other short-term funding sources. If economic influences change so that we do not have access to short-term credit, or our depositors withdraw a substantial amount of their funds for other uses, West Bank might experience liquidity issues. Our efforts to monitor and manage liquidity risk may not be successful or sufficient to deal with dramatic or unanticipated reductions in our liquidity. In such events, our cost of funds may increase, thereby reducing our net interest revenue, or we may need to sell a portion of our investment portfolio, which, depending upon market conditions, could result in our realizing a loss.
The market for banking and financial services in our market areas is highly competitive, which could adversely affect our financial condition and results of operations.
We operate in highly competitive markets. The West Des Moines metropolitan market area in particular has attracted many new financial institutions within the last several years. Customer loyalty can be influenced by a competitor's new products, especially offerings that provide cost savings to the customer. Some of our competitors may also be better able to attract customers because they provide products and services over a larger geographic area than we serve.
Federal and state regulation could increase our costs or have other negative effects on us.
Our companies are regulated financial institutions. Financial institution regulation is designed primarily to protect consumers, depositors, and the banking system as a whole, not shareholders. Congress, the Iowa legislature, and federal and state regulatory agencies continually are reviewing and changing financial institution laws, regulations, and policies. The recent unprecedented failures of financial firms, credit market disruptions, and investor losses have caused many to call for increased financial institution regulation. Changes to statutes, regulations, or regulatory policies, including changes in interpretation or implementation of statutes, regulations or policies, could affect us in significant, unpredictable ways.
WEST BANCORPORATION, INC.
West Bancorporation, Inc. (the “Company”) isWe are an Iowa corporation and a financial holding company registered under the Bank Holding Company Act of 1956, as amended by the Gramm-Leach-Bliley Act of 1999.amended. The Company owns 100 percent of the stock of one state-chartered banking subsidiary,was formed in 1984 to own West Des Moines State Bank, an Iowa chartered bank headquartered in West Des Moines, Iowa, which is now known as West Bank. West Bank is a business-focused community bank that was organized in 1893. At December 31, 2016, we had assets of $1.9 billion, deposits of $1.5 billion and one registered investment advisory firm, WB Capital Management Inc. (“WB Capital”), as described below. shareholders’ equity of $165.4 million.
West Bank’s operations are conductedBank provides full-service community banking and trust services to customers located primarily withinin the Des Moines and Iowa City, Iowa and the Rochester, Minnesota metropolitan areasareas. West Bank has eight offices in Iowa. WB Capital’s operations are conducted primarily inthe Des Moines andmetropolitan area, one office in Iowa City, Iowa, one office in Coralville, Iowa, metropolitan areas, but it also has clients throughout the United States. The Company does not engageand one office in any material business activities apart from ownership of its banking and investment advisory subsidiaries. The principal executive offices of the Company are located at 1601 22nd Street, West Des Moines, Iowa, 50266, and its telephone number is (515) 222-2300. The Company’s website address is www.westbankiowa.com .
The Company was organized and incorporated on May 22, 1984, under the laws of the State of Iowa, to serve as a holding company for its principal banking subsidiary, West Bank, whose main office is located in West Des Moines, Iowa. For the year ended December 31, 2008 , West Bank generated over 90 percent of the Company’s total revenue.
Rochester, Minnesota. West Bank offers all basic types of credit to its customers, including commercial, real estate and consumer loans. West Bank also originates residential mortgages that are primarily soldoffers trust services typically found in a commercial bank with trust powers, including the secondary real estate market.administration of estates, conservatorships, personal trusts and agency accounts. In addition, West Bank offers a full range of deposit services, that are typically available in most financial institutions including demand,checking, savings, money market accounts and time certificates of deposits; trust services;deposit.
Our principal executive office is located at 1601 22nd Street, West Des Moines, Iowa 50266, and correspondent bank services to other community banks.our telephone number is (515) 222-2300.
Additional information about us is included in our filings with the SEC, which are incorporated by reference into this prospectus. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus.
WB Capital was formed on October 1, 2003, and is a registered investment advisor. WB Capital provides investment portfolio management services to individuals, retirement plans, corporations, foundations, endowments, and public entities.
USE OF PROCEEDS
WeUnless the applicable prospectus supplement states otherwise, we will notuse the net proceeds we receive any proceeds from anythe sale of the securities offered hereby for general corporate purposes, which may include, among other things, investments in or advances to our subsidiary, working capital, capital expenditures, stock repurchases, debt repayment or the financing of possible acquisitions. The prospectus supplement relating to a particular offering of securities by us will identify the Selling Security Holders.particular use of proceeds for that offering. Until we use the net proceeds from an offering, we may place the net proceeds in temporary investments or hold the net proceeds in deposit accounts at West Bank.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
The following table reflectssets forth our ratiosratio of earnings to fixed charges for eachthe periods indicated. We did not pay any preferred stock dividends during the periods presented because no shares of our preferred stock were outstanding during such periods. Consequently, the years inratio of earnings to fixed charges and preferred stock dividends for these periods were the five-year period ended December 31, 2008 .
same as the ratios of earnings to fixed charges. For purposes of computing these ratios,calculating the ratio of earnings represent incometo fixed charges, earnings consist of earnings before income taxes plus interest and fixed charges.rent expense. Fixed charges excludingconsist of interest expense and rent expense. “Fixed charges including interest on deposits” consists of all interest expense on deposits includeand other debt and the amortization of debt issuance costs. The calculation of interest (other than on deposits), whether expensed or capitalized, and an appropriate portion of rentals (generally one-third) deemedincluded in operating lease rental expense is representative of the interest factor. Fixed charges, including interest on deposits , consist offactor attributable to the foregoing items plus interest on deposits.lease payment.
|
| | | | | | | | | | |
| | Year Ended December 31, |
| | 2016 | 2015 | 2014 | 2013 | 2012 |
| Ratio of earnings to fixed charges: | | | | | |
| Including Interest on Deposits | 4.97 |
| 5.78 |
| 4.95 |
| 4.16 |
| 3.28 |
|
| Excluding Interest on Deposits | 7.70 |
| 8.16 |
| 7.15 |
| 6.71 |
| 5.17 |
|
| | | For the Years Ended | |
| | | December 31 | |
| | | 2008 | | | 2007 | | | 2006 | | | 2005 | | | 2004 | |
| | | | | | | | | | | | | | | | |
| Ratio of earnings to fixed charges, excluding interest on deposits (1) | | | 1.89 | | | | 2.93 | | | | 3.94 | | | | 4.10 | | | | 5.14 | |
| | | | | | | | | | | | | | | | | | | | | |
| Ratio of earnings to fixed charges, including interest on deposits (1) | | | 1.29 | | | | 1.62 | | | | 1.69 | | | | 2.16 | | | | 2.98 | |
(1) | Dividends on the Preferred Stock are paid quarterly in arrears, with the first quarterly dividend paid to holders of Preferred Stock on February 15, 2009. Because no dividends were paid by us on the Preferred Stock for the periods presented, the ratio of earnings to combined fixed charges and preferred stock dividends was not different from the ratio of earnings to fixed charges presented above. |
DESCRIPTION OF FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES ASECURITIES WE MAY OFFER
This prospectus contains summary descriptions of the common stock, preferred stock, debt securities, warrants, depositary shares, subscription rights, stock purchase contracts, stock purchase units and units that we may offer and sell from time to time. When one or more of these securities are offered in the future, a prospectus supplement will explain the particular terms of the securities and the extent to which these general provisions may apply. These summary descriptions and any summary descriptions in the applicable prospectus supplement do not purport to be complete descriptions of the terms and conditions of each security and are qualified in their entirety by reference to our Restated Articles of Incorporation, as amended (our “Articles of Incorporation”), our Bylaws, as amended (our “Bylaws”), the Iowa Business Corporation Act and any other documents referenced in such summary descriptions and from which such summary descriptions are derived. If any particular terms of a security described in the applicable prospectus supplement differ from any of the terms described in this prospectus, then the terms described in this prospectus will be deemed superseded by the terms set forth in that prospectus supplement.
We may issue securities in book-entry form through one or more depositaries, such as The Depository Trust Company, Euroclear or Clearstream, named in the applicable prospectus supplement. Each sale of a security in book-entry form will settle in immediately available funds through the applicable depositary, unless otherwise stated. We will issue the securities in registered form, without coupons, although we may issue the securities in bearer form if so specified in the applicable prospectus supplement. If any securities are to be listed or quoted on a securities exchange or quotation system, the applicable prospectus supplement will say so.
DESCRIPTION OF CAPITAL STOCK
The following is a descriptionsummary of the material terms, limitations, voting powers and relative rights of the Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the "Preferred Stock"), that may be resoldour capital stock as contained in our Articles of Incorporation, which are incorporated by the Selling Security Holders.reference herein. This summary does not purport to be a complete description of the terms and conditions of our capital stock in all respects. This descriptionrespects and is subject to and qualified in its entirety by reference to our Restated Articles of Incorporation, includingour Bylaws, the ArticlesIowa Business Corporation Act and any other documents referenced in the summary descriptions and from which the summary descriptions are derived. Although we believe this summary covers the material terms and provisions of Amendment with respect to the Preferred Stock, copies of which have been filed with the SEC and are also available upon request from us.
General
Under our Restatedcapital stock set forth in our Articles of Incorporation, as amended, weit may not contain all of the information that is important to you.
Authorized Shares of Capital Stock
We have the authority to issue up to50,000,000 shares of common stock, no par value per share, and 50,000,000 shares of preferred stock, $0.01 par value per share. Of such numberAs of March 1, 2017, we had 16,137,999 shares of common stock and no shares of preferred stock 36,000 sharesissued and outstanding.
Common Stock
Dividend Rights. Holders of our common stock are entitled to receive any cash dividends that may be declared by our board of directors. We are subject to the limitations of the Iowa Business Corporation Act and various regulatory policies and requirements relating to the payment of dividends, including requirements to maintain adequate capital above regulatory minimums. Subject to these restrictions, the declaration and payment of future dividends to holders of our common stock will be at the discretion of our board of directors and will depend upon our earnings and financial condition, our capital requirements and those of our subsidiary, regulatory conditions and considerations and other factors as our board of directors may deem relevant. No cash dividends will be paid with respect to our common stock for any period unless dividends for the same period, and any accumulated but unpaid dividends, with respect to any outstanding series of our preferred stock having preferential rights with respect to dividends have been designated as Preferred Stock,paid.
Voting Rights. Each share of common stock entitles the holder thereof to one vote per share on all matters on which the holders of our common stock are entitled to vote. The common stock does not have cumulative voting rights.
Liquidation Rights. In the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, the holders of common stock are entitled to receive, pro rata, our assets which are legally available for distribution, after payment of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding.
Preemptive Rights. The holders of our common stock have no preemptive rights.
Miscellaneous. Shares of our common stock are not convertible into shares of Preferred Stock were issued to the UST in a transaction exempt from the registration requirementsany other class of the Securities Act.capital stock. The issued and outstanding shares of Preferred Stockour common stock are validly issued, fully paid and non-assessable. Holdersnonassessable.
Preferred Stock
General. We may issue up to 50,000,000 shares of Preferred Stock are not entitledpreferred stock, $0.01 per value per share, from time to time in one or more series. Our board of directors, without further approval of our shareholders, has the authority to fix the dividend rights and terms, conversion rights, voting rights, redemption rights and terms, liquidation preferences, sinking funds and any preemptive rights.
Dividends Payable on Sharesother rights, preferences, privileges and restrictions applicable to each series of Preferred Stockpreferred stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, adversely affect the voting power of the holders of our common stock.
The Preferred StockWe will pay cumulative compoundingdescribe the particular terms of any series of preferred stock being offered in the prospectus supplement relating to that series of preferred stock. Those terms may include:
the number of shares being offered;
the title and liquidation preference per share;
the purchase price;
the dividend rate or method for determining that rate;
the dates on which dividends quarterly in arrears of 5% per year until the fifth anniversary of the issuance of the Preferred Stock, and 9% thereafter. The dividend payment dates will be February 15, May 15, August 15,paid;
whether dividends will be cumulative or noncumulative and, November 15 beginning withif cumulative, the first dividend payment datedates from which dividends will begin to occur at least 20 calendar days after the issuance of the Preferred Stock. The Preferred Stock was issuedaccumulate;
any applicable redemption or sinking fund provisions;
any applicable conversion provisions;
whether we have elected to the UST on December 31, 2008. Accordingly, the first dividend payment date was February 17 , 2009.
Dividends payable during any dividend period are computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends payableoffer depositary shares with respect to the Preferred Stock are payablethat series of preferred stock; and
any additional dividend, liquidation and other rights and restrictions applicable to holdersthat series of record ofpreferred stock.
The shares of Preferred Stock on the date that is 15 calendar days immediately preceding thepreferred stock will, when issued against full payment of their purchase price, be fully paid and nonassessable.
Dividend Rights. If you purchase preferred stock being offered by use of this prospectus and an applicable dividend payment date or such other record dateprospectus supplement, you will be entitled to receive, when, as and if declared by our board of directors, dividends at the rates and on the dates set forth in the prospectus supplement. Dividend rates may be fixed, variable or both. The nature, amount, rates, timing and other details of dividend rights for a series of preferred stock will be described in the applicable prospectus supplement and will be payable in preference to, or in such relation to, the dividends payable on any duly authorized committeeother class or classes or series of our board of directors determines, so longstock, as such record date is not more than 60 nor less than 10 days prior todescribed in the applicable dividend payment date.
If our board of directors determines not to pay any dividend or a full dividend with respect to the Preferred Stock, we are required to provide written notice to the holders of shares of Preferred Stock prior to the applicable dividend payment date.
prospectus supplement. We are subject to various regulatory policies and requirements relating to the payment of dividends, including requirements to maintain adequate capital above regulatory minimums. The Board of Governors of the Federal Reserve System, or the Federal Reserve Board, is authorized to determine, under certain circumstances relating to the financial condition of a bank holding company, such as us, that the payment of dividends would be an unsafe or unsound practice and to prohibit payment thereof. In addition, we are subject to provisions of the Iowa Business Corporation Act (the "IBCA") relating to the payment of dividends.
Voting Rights. The voting rights of preferred stock of any series being offered will be described in the applicable prospectus supplement.
Priority of Dividends
With respect toLiquidation Rights.In the payment of dividends and the amounts to be paid upon liquidation, the Preferred Stock will rank:
| · | senior to our Common Stock and all other equity securities designated as ranking junior to the Preferred Stock; and |
| · | at least equally with all other equity securities designated as ranking on a parity with the Preferred Stock with respect to the payment of dividends and distribution of assets upon any liquidation, dissolution or winding-up of West Bancorporation, Inc. |
So long as any shares of Preferred Stock remain outstanding, unless all accrued and unpaid dividends for all prior dividend periods have been paidevent that we liquidate, dissolve or are contemporaneously declared and paid in full, no dividend whatsoever shall be paidwind-up our affairs, either voluntarily or declared on our Common Stock or any other class or series of Company stock ranking junior to the Preferred Stock, which we refer to as "junior stock," other than a dividend payable solely in sharesinvoluntarily, holders of our Common Stock, or any class or series of Companypreferred stock that does not expressly rank junior or senior to the Preferred Stock, which we refer to as "parity stock." We and our subsidiaries also may not purchase, redeem or otherwise acquire for consideration any shares of our Common Stock or junior stock unless we have paid in full all accrued dividends on the Preferred Stock for all prior dividend periods, other than:
| · | purchases, redemptions or other acquisitions of our Common Stock or other junior stock in connection with the administration of our employee benefit plans in the ordinary course of business pursuant to a publicly announced repurchase plan and consistent with past practice up to the increase in diluted shares outstanding resulting from the grant, vesting or exercise of equity-based compensation; |
| · | purchases or other acquisitions by broker-dealer subsidiaries of West Bancorporation, Inc. solely for the purpose of market-making, stabilization or customer facilitation transactions in junior stock or parity stock in the ordinary course of its business; |
| · | purchases or other acquisitions by broker-dealer subsidiaries of West Bancorporation, Inc. for resale pursuant to an offering by West Bancorporation, Inc. of our stock that is underwritten by the related broker-dealer subsidiary; |
| · | any dividends or distributions of rights or junior stock in connection with any shareholders' rights plan or repurchases of rights pursuant to any shareholders' rights plan; |
| · | acquisition of record ownership of junior stock or parity stock for the beneficial ownership of any other person who is not West Bancorporation, Inc. or a subsidiary of West Bancorporation, Inc., including as trustee or custodian; and |
| · | the exchange or conversion of junior stock for or into other junior stock or of parity stock for or into other parity stock or junior stock but only to the extent that such acquisition is required pursuant to binding contractual agreements entered into before December 31, 2008, or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for Common Stock. |
We have agreed with the UST that if we repurchase shares of Preferred Stock from a holder other than the UST, we must offer to repurchase a ratable portion of the Preferred Stock then held by the UST on the same terms.
On any dividend payment date for which full dividends are not paid, or declared and funds set aside therefore, on the Preferred Stock and any other parity stock, all dividends paid or declared for payment on that dividend payment date (or, with respect to parity stock with a different dividend payment date, on the applicable dividend date therefore falling within the dividend period and related to the dividend payment date for the Preferred Stock), with respect to the Preferred Stock and any other parity stock shall be declared ratably among the holders of any such shares who have the right to receive dividends, in proportion to the respective amounts of the undeclared and unpaid dividends relating to the dividend period.
Subject to the foregoing, such dividends (payable in cash, stock or otherwise) as may be determined by our board of directors (or a duly authorized committee of our board of directors) may be declared and paid on our Common Stock and any other stock ranking equally with or junior to the Preferred Stock from time to time out of any funds legally available for such payment, and the Preferred Stock will not be entitled to participatereceive liquidating distributions in any such dividend. However, we have agreed with the UST that prior to the earlier of December 31, 2011 and the date on which the Preferred Stock has been redeemedamount set forth in full or transferred by the UST, we must obtain the consent of the UST to declare or pay dividends on our Common Stock, other than quarterly cash dividends in an amount not more than our last quarterly cash dividend per share declared prior to October 14, 2008 ($0.16 per share).
Redemption
The Preferred Stock may not be redeemed prior to February 15, 2012, unless we have received aggregate gross proceeds from one or more Qualified Equity Offerings (as defined below) of at least $9,000,000, which equals 25% of the aggregate liquidation amount of the Preferred Stock on the date of issuance. In such a case, we may redeem the Preferred Stock, subject to the approval of the Federal Reserve Board, in whole or in part, upon notice as described below, up to a maximum amount equal to the aggregate net cash proceeds received by us from such Qualified Equity Offerings. A "Qualified Equity Offering" is a sale and issuance for cash by us, to persons other than West Bancorporation, Inc. or its subsidiaries after December 31, 2008, of shares of perpetual preferred stock, Common Stock or a combination thereof, that in each case qualify as tier 1 capital of West Bancorporation, Inc. at the time of issuance under the applicable risk-based capital guidelines of the Federal Reserve Board. Qualified Equity Offerings do not include issuances made in connection with acquisitions, issuances of trust preferred securities and issuances of Common Stock and/or perpetual preferred stock made pursuant to agreements or arrangements entered into, or pursuant to financing plans that were publicly announced, on or prior to October 13, 2008.
After February 15, 2012, the Preferred Stock may be redeemed at any time, subject to the approval of the Federal Reserve Board, in whole or in part, subject to notice as described below.
In any redemption, the redemption price is an amount equal to the per share liquidation amountprospectus supplement, plus accrued and unpaid dividends, to but excluding the dateif any, before we make any distribution of redemption.
The Preferred Stock will not be subjectassets to any mandatory redemption, sinking fund or similar provisions. Holders of shares of Preferred Stock have no right to require the redemption or repurchase of the Preferred Stock.
If fewer than all of the outstanding shares of Preferred Stock are to be redeemed, the shares to be redeemed will be selected either pro rata from the holders of recordour common stock or any junior preferred stock. If we fail to pay in full all amounts payable with respect to preferred stock being offered by us and any stock having the same rank as that series of sharespreferred stock, the holders of Preferred Stockthe preferred stock and of that other stock will share in any distribution of assets in proportion to the number of shares held by those holders or in such other manner as our board of directors or a committee thereof may determinefull respective preferential amounts to be fair and equitable.
We will mail notice of any redemption of Preferred Stock by first class mail, postage prepaid, addressed towhich they are entitled. After the holders of recordeach series of preferred stock and any stock having the shares of Preferred Stock to be redeemed at their respective last addresses appearing on our books. This mailing will be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice mailed or otherwise given as described in this paragraph will be conclusively presumed to have been duly given, whether or not the holder receives the notice, and failure duly to give the notice by mail or otherwise, or any defect in the notice or in the mailing or provision of the notice, to any holder of Preferred Stock designated for redemption will not affect the redemption of any other Preferred Stock. Each notice of redemption will set forth the applicable redemption date, the redemption price, the place where shares of Preferred Stock are to be redeemed, and the number of shares of Preferred Stock to be redeemed (and, if less than all shares of Preferred Stock held by the applicable holder, the number of shares to be redeemed from the holder).
The American Recovery and Reinvestment Act of 2009 (ARRA), in section 7001, effective February 17, 2009, allows us to redeem Preferred Stock as follows:
Subject to consultation with the appropriate Federal banking agency (as that term is defined in section 3 of the Federal Deposit Insurance Act), if any, the Secretary shall permit a TARP recipient to repay assistance previously provided under the TARP to such financial institution, without regard to whether the financial institution has replaced such funds from any other source or to any waiting period, and when such Preferred Stock is redeemed the Secretary shall liquidate warrants associated with such Preferred Stock at the current market price.
Shares of Preferred Stock that are redeemed, repurchased or otherwise acquired by us will revert to authorized but unissued shares of our preferred stock.
Liquidation Rights
In the event that we voluntarily or involuntarily liquidate, dissolve or wind up our affairs, holders of Preferred Stock will be entitled to receive an amount per share, referred tosame rank as the total liquidation amount, equal to the fixed liquidation preference of $1,000 per share, plus any accrued and unpaid dividends, whether or not declared, to the date of payment. Holders of the Preferred Stock will be entitled to receive the total liquidation amount out of our assets thatpreferred stock are available for distribution to shareholders, after payment or provision for payment of our debts and other liabilities but before any distribution of assets is made to holders of our Common Stock or any other shares ranking, as to that distribution, junior to the Preferred Stock.
If our assets are not sufficient to pay the total liquidation amount in full to all holders of Preferred Stock and all holders of any shares ranking, as to that distribution, equally with the Preferred Stock, the amounts paid to the holders of Preferred Stock and such other stock will be paid pro rata in accordance with the respective total liquidation amount for those holders. If the total liquidation amount per share of Preferred Stock has been paid in full, they will have no right or claim to all holders of Preferred Stock and such other stock, the holders of our Common Stock and any other shares ranking, as to such distribution, junior to the Preferred Stock will be entitled to receive all of our remaining assets according to their respective rightsassets. For any series of preferred stock being offered by this prospectus and preferences.
For purposes of the liquidation rights,an applicable prospectus supplement, neither the sale conveyance, exchange or transfer of all or substantially all of our property and assets,or business nor thea merger or consolidation or merger by us with or into any other corporation or by another corporation with or into us, will constitutebe considered a dissolution, liquidation dissolution or winding-up of our business or affairs.
Voting Rights
Except as indicated below or otherwise required by law, the holdersRedemption. The terms, if any, on which shares of Preferred Stock will not have any voting rights.
Electiona series of Two Directors upon Non-Payment of Dividends. If the dividends on the Preferred Stock have not been paid for an aggregate of six quarterly dividend periods or more (whether or not consecutive), the authorized number of directors then constituting our board of directorspreferred stock being offered may be redeemed will be increaseddescribed in the applicable prospectus supplement. The preferred stock of a series may be redeemed in such amount or amounts, and at such time or times, if any, as may be provided in respect of that particular series of preferred stock. Preferred stock may be redeemed by two. Holdersthe Company only to the extent legally permissible.
Conversion Rights.The applicable prospectus supplement will state the terms, if any, on which shares of Preferred Stock, together with the holdersa series of any outstanding paritypreferred stock with like voting rights, referred to as voting parity stock, voting as a single class, will be entitled to elect the two additional membersbeing offered are convertible into shares of our boardcommon stock or another series of directors, referred to as theour preferred stock directors, at the next annual meeting (or at a special meeting called for the purposestock.
Description of electing the preferred stock directors prior to the next annual meeting) and at each subsequent annual meeting until all accrued and unpaid dividends on the Preferred Stock for all past dividend periods have been paid in full. The electionCertain Provisions of any preferred stock director is subject to the qualification that the election would not cause us to violate the corporate governance requirement of the Nasdaq Global Select Market (or any other exchange on which our securities may be listed) that listed companies must have a majority of independent directors.
Upon the termination of the right of the holders of Preferred Stock and voting parity stock to vote for preferred stock directors, as described above, the preferred stock directors will immediately cease to be qualified as directors, their term of office will terminate immediately and the number of authorized directors of West Bancorporation, Inc. will be reduced by two. The holders of a majority of shares of Preferred Stock and voting parity stock, voting as a class, may remove any preferred stock director, with or without cause, and the holders of a majority of the shares of Preferred Stock and voting parity stock, voting as a class, may fill any vacancy created by the removal of a preferred stock director. If the office of a preferred stock director becomes vacant for any other reason, the remaining preferred stock director may choose a successor to fill such vacancy for the remainder of the unexpired term.
Other Voting Rights. So long as any shares of Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or by our RestatedOur Articles of Incorporation, the vote or consent of the holders of at least 66 2/3% of the shares of Preferred Stock at the time outstanding, voting separately as a single class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:Our Bylaws and Iowa Law
| · | any amendment or alteration of our Restated Articles of Incorporation, as amended, to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock ranking senior to the Preferred Stock with respect to payment of dividends and/or distribution of assets on any liquidation, dissolution or winding up of West Bancorporation, Inc.; |
| · | any amendment, alteration or repeal of any provision of our Restated Articles of Incorporation so as to adversely affect the rights, preferences, privileges or voting powers of the Preferred Stock; or |
| · | any consummation of a binding share exchange or reclassification involving the Preferred Stock or of a merger or consolidation of West Bancorporation, Inc. with another entity, unless the shares of Preferred Stock remain outstanding following any such transaction or, if West Bancorporation, Inc. is not the surviving entity, are converted into or exchanged for preference securities and such remaining outstanding shares of Preferred Stock or preference securities have rights, references, privileges and voting powers that are not materially less favorable than the rights, preferences, privileges or voting powers of the Preferred Stock, taken as a whole. |
To the extent of the voting rights of the Preferred Stock, each holder of Preferred Stock will have one vote for each $1,000 of liquidation preference to which such holder's shares of Preferred Stock are entitled.
The foregoing voting provisions will not apply if, at or prior to the time when the vote or consent would otherwise be required, all outstanding shares of Preferred Stock have been redeemed or called for redemption upon proper notice and sufficient funds have been set aside by us for the benefit of the holders of Preferred Stock to effect the redemption.
DESCRIPTION OF WARRANT TO PURCHASE COMMON STOCK
The following is a description of the material terms of the Warrant (the "Warrant") that may be resold by the Selling Security holders. This summary does not purport to be complete in all respects. This description is subject to and qualified in its entirety by reference to the Warrant, a copy of which has been filed with the SEC and is also available upon request from us.
Shares of Common Stock Subject to the Warrant
The Warrant is initially exercisable for 474,100 shares of our Common Stock. If we complete one or more Qualified Equity Offerings on or prior to December 31, 2009, that result in our receipt of aggregate gross cash proceeds of not less than $36,000,000.00, which is equal to 100% of the aggregate liquidation preference of the Preferred Stock, the number of shares of Common Stock underlying the Warrant then held by the UST will be reduced by 50% to 237,050 shares. The number of shares subject to the Warrant is subject to further adjustments in the circumstances described below under the heading "Adjustments to the Warrant."
Exercise of the Warrant
The initial exercise price of the Warrant is $11.39 per share of Common Stock for which the Warrant may be exercised. The Warrant may be exercised at any time on or before December 31, 2018, by surrender of the Warrant and a completed notice of exercise attached as an annex to the Warrant and the payment of the exercise price for the shares of Common Stock for which the Warrant is being exercised. The exercise price may be paid either by the withholding by us of such number of shares of Common Stock issuable upon exercise of the Warrant equal to the value of the aggregate exercise price of the Warrant determined by reference to the market price of our Common Stock on the trading day on which the Warrant is exercised or, if agreed to by us and the Warrant holder, by the payment of cash equal to the aggregate exercise price. The exercise price applicable to the Warrant is subject to further adjustments described below under the heading “Adjustments to the Warrant.”
Upon exercise of the Warrant, we will, as soon as practicable, issue and deliver to the holder of the Warrant the shares of Common Stock that are issued upon exercise. We will not issue fractional shares upon any exercise of the Warrant. Instead, the holder of the Warrant will be entitled to a cash payment equal to the market price of our Common Stock on the last day preceding the exercise of the Warrant (less the pro-rated exercise price of the Warrant) for any fractional shares that would have otherwise been issuable upon exercise of the Warrant. We will at all times reserve the aggregate number of shares of our Common Stock for which the Warrant may be exercised. We have listed the shares of Common Stock issuable upon exercise of the Warrant with the Nasdaq Global Select Market. The holder of the Warrant will be required to pay any tax or governmental charge that may be imposed in connection with transferring the underlying shares of Common Stock in connection with the exercise of the Warrant.
Rights as a Shareholder
The holder of the Warrant will have none of the rights or privileges that the holders of our Common Stock enjoy, including any voting rights, until (and then only to the extent) the Warrant has been exercised.
Transferability
The UST may not transfer a portion of the Warrant with respect to more than 237,050 shares of Common Stock until the earlier of the date on which West Bancorporation, Inc. has received aggregate gross proceeds from a qualified equity offering of at least $36,000,000 and December 31, 2009. The Warrant, and all rights under the Warrant, are otherwise transferable.
Adjustments to the Warrant
Adjustments in Connection with Stock Splits, Subdivisions, Reclassifications and Combinations. The
number of shares for which the Warrant may be exercised and the exercise price applicable to the Warrant will be proportionately adjusted in the event we pay dividends or make distributions in Common Stock or subdivide, combine or reclassify outstanding shares of Common Stock.
Anti-dilution Adjustment. Until the earlier of December 31, 2011 and the date the UST no longer holds the Warrant (and other than in certain permitted transactions described below), if we issue any shares of Common Stock (or securities convertible or exercisable into Common Stock) for less than 90% of the market price of the Common Stock on the last trading day prior to pricing such shares, then the number of shares of Common Stock issuable upon exercise of the Warrant and the exercise price will be adjusted. Permitted transactions include issuances:
| · | as consideration for or to fund the acquisition of businesses and/or related assets; |
| · | in connection with employee benefit plans and compensation related arrangements in the ordinary course and consistent with past practice approved by our board of directors; |
| · | in connection with public or broadly marketed offerings and sales of Common Stock or convertible securities for cash conducted by us or our affiliates pursuant to registration under the Securities Act or Rule 144A thereunder on a basis consistent with capital-raising transactions by comparable financial institutions; and |
| · | in connection with the exercise of preemptive rights on terms existing as of December 31, 2008. |
Other Distributions. If we declare any dividends or distributions other than our regular quarterly cash dividend not in excess of $0.16 per share, then the number of shares of Common Stock issuable upon exercise of the Warrant and the exercise price of the Warrant will be adjusted.
Certain Repurchases. If we effect a pro rata repurchase of Common Stock, then the number of shares of Common Stock issuable upon exercise of the Warrant and the exercise price will be adjusted.
Business Combinations. In the event of a merger, consolidation or similar transaction involving West Bancorporation, Inc. and requiring approval by its shareholders, the Warrant holder's right to receive shares of Common Stock upon exercise of the Warrant shall be converted into the right to exercise the Warrant for the consideration that would have been payable to the holder of the Warrant with respect to the shares of Common Stock for which the Warrant may be exercised, as if the Warrant had been exercised prior to such merger, consolidation or similar transaction.
DESCRIPTION OF COMMON STOCK
We have summarized the material terms and provisions of the Common Stock in this section. We have also filed our Restated Articles of Incorporation and Bylaws, as amended, with the SEC. You should read our Restated Articles of Incorporation and our Bylaws for additional information before you buy any securities which may be exercised for Common Stock.
General
Authorized and Outstanding Shares. As of the date of this prospectus, our authorized Common Stock was 50,000,000 shares, of which 17,403,882 shares were issued and outstanding. Shares of our Common Stock issuable upon exercise of the Warrant, will be validly issued, fully paid and non-assessable.
Voting Rights. The holders of our Common Stock are entitled to one vote per share on all matters to be voted on by shareholders. The holders of Common Stock are not entitled to cumulative voting rights. The IBCA requires a plurality of all votes cast at a meeting at which a quorum is present to elect directors. For most other shareholder votes, the IBCA and our Bylaws provide that an action is approved if the votes cast in favor of the action exceed the votes cast opposing the action at a meeting at which a quorum is present, unless our Restated Articles of Incorporation, our Bylaws or the IBCA provide otherwise.
Dividends. Holders of our Common Stock are entitled to receive dividends when, as and if declared by our board of directors out of funds legally available for payment of dividends, subject to any preferential rights of any outstanding preferred stock, including the Preferred Stock.
Liquidation. In the event of our liquidation or dissolution, the holders of our Common Stock will be entitled to share ratably in all assets remaining for distribution to shareholders, subject to any preferential rights of any outstanding preferred stock, including the Preferred Stock.
Other Rights. Except as set forth in any written agreement between us and any shareholder, holders of our Common Stock have no preemptive or other subscription rights, and the shares of Common Stock are not subject to further calls or assessment by us. There are no conversion rights or sinking fund provisions applicable to the shares of our Common Stock.
Listing. The outstanding shares of our Common Stock are listed on the Nasdaq Global Select Market under the symbol "WTBA." The transfer agent for our Common Stock is Illinois Stock Transfer Company.
Iowa Law and Certain Articles and Bylaws Provisions; Anti-Takeover Measures
Certain provisions of our Restated Articles of Incorporation and our Bylaws and the IBCA may delay or make more difficult acquisitions or changes of control of West Bancorporation, Inc. not approved by our board of directors. These provisions may also make it more difficult for third parties to replace our current management without the concurrence of our board of directors. In addition, Federal Reserve Board approval is required for certain acquisitions of our Common Stock or other voting stock. All of these provisions could have the effect of discouraging, third parties from making proposalsdelaying or preventing a change in control or an unsolicited acquisition proposal that shareholders may otherwisea shareholder might consider to be in their best interests,favorable, including tender offers or attemptsa proposal that might allow shareholders to receive premiumsresult in the payment of a premium over the then current market price of Common Stock.for the shares held by shareholders. These provisions are summarized in the following paragraphs.
SizeAuthorized Shares of BoardCapital Stock. Authorized but unissued shares of Directorscommon stock and Special Meetings. Our Bylaws providepreferred stock under our Articles of Incorporation could (within the limits imposed by applicable law and NASDAQ Global Select Market rules) be issued in one or more transactions that ourcould make a change of control of us more difficult, and therefore more unlikely. The additional authorized shares could be used to discourage persons from attempting to gain control of us by diluting the voting power of shares then outstanding or increasing the voting power of persons who would support the board of directors will consist of not less than fivein a potential takeover situation, including by preventing or more than fifteen directors, the number of which may be established within such limitsdelaying a proposed business combination that is opposed by the affirmative vote of a majority of our board of directors.directors although perceived to be desirable by some shareholders.
Limitations on Right to Call Special Meetings.Under our Bylaws, special meetings of our shareholders may be called by any two membersour President or a majority of our board of directors ordirectors. Our shareholders are entitled to request that our president orPresident convene a special meeting of shareholders only upon the demand, in accordance with the procedures set forth in the Bylaws, ofrequest by the holders of record of shares representing at least 50%50 percent of all the outstanding shares of the votesCompany entitled to be cast on any issue proposed to be consideredvote at the proposed special meeting. These provisions maycould have the effect of making it difficult for a potential acquirer to gain control of our board of directors.
Filling Vacancies on Board of Directors. Our Bylaws provide that any newly created directorship resulting from an increase indelaying until the number of directors and any other vacancy on our board of directors, however caused, shall be fillednext annual shareholders’ meeting shareholder actions which are favored by the affirmative voteholders of a majority of our outstanding voting securities.
Iowa Law. The Iowa Business Corporation Act contains an anti-takeover provision referred to as the remaining directors, at“business combinations with interested shareholders” provision. This provision prevents a corporation from engaging in any regular or special meetingbusiness combination with an “interested shareholder” (as defined in the Iowa Business Corporation Act) for a period of three years following the time that the shareholder became an interested shareholder, unless one of the following conditions applies: (i) prior to the time that the shareholder became an interested shareholder, the board of directors called forof the corporation approved either the business combination or the transaction that purposeresulted in the shareholder becoming an interested shareholder; (ii) upon consummation of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at which a quorumleast 85 percent of the voting stock of the corporation outstanding at the time the transaction commenced; or (iii) at or subsequent to the time the shareholder became an interested shareholder, the business combination is present. Any director so elected to fill any vacancy in ourapproved by the board of directors including a vacancy created by an increase in the number of directors, shall hold office until the next annual meeting of our shareholders and until his or her successor shall be elected. Notwithstanding the foregoing, whenever the holders of any one or more series of preferred stock issued shall have the right, voting separately by series, to elect directorsauthorized at an annual or special meeting of shareholders the election, term of office, filling of vacancies and other features of such directorship shall be governed by the termsaffirmative vote of at least 66 2/3 percent of the Restated Articles of Incorporation.outstanding voting stock that is not owned by the interested shareholder.
Authorized and Unissued Stock. Our board of directors has the right to cause us to issue authorized and unissued shares of Common Stock and preferred stock from time to time, without shareholder approval, but subject to the rules of the Nasdaq Global Select Market. These additional shares may be used for a variety of corporate purposes, including future offerings to raise additional capital or to facilitate corporate acquisitions. The board of directors’ power to approve the issuance of preferred stock could, depending on the terms of such stock, either impede or facilitate the completion of a merger, tender offer or other takeover attempt. Similarly, the board of directors' existing ability to issue additional shares of our Common Stock could, depending upon the circumstances of their issue, either impede or facilitate the completion of a merger, tender offer or other takeover attempt, and thereby protect the continuity of our management and possibly deprive the shareholders of opportunities to sell their shares of Common Stock at higher than prevailing market prices. For example, the issuance of new shares might impede a business combination if they were issued in connection with a rights plan or if the terms of those shares include series voting rights which would enable the holder to block business combinations. Alternatively, the issuance of new shares might facilitate a business combination if those shares have general voting rights sufficient to cause an applicable percentage vote requirement to be satisfied.
Other Constituencies. UnderMoreover, under Section 490.1108A of the IBCA,Iowa Business Corporation Act, in determining what he or she believes to be in the best interests of West Bancorporation, Inc.the Company when considering an acquisition, merger or similar proposal, a director may, in addition to considering the effects of any action on shareholders, consider the effects of the action on employees, suppliers, creditors, customers, and the communities in which we operate as well as “long-term [and] short-term interests of the corporation and its shareholders, including the possibility that those interests may be best served by the continued independence of the corporation."” The IBCAIowa Business Corporation Act also provides that "[“[c]onsideration of any or all of the community interest factors is not a violation of the business judgment rule or of any duty of the director to the shareholders, or a group of shareholders, even if the director reasonably determines that a community interest factor or factors outweigh the financial or other benefits to the corporation or a shareholder or group of shareholders."” This provision may have anti-takeover effects in situations where the interests of our stakeholders, other than shareholders, conflict with the short-term maximization of shareholder value.
In addition, the Iowa Anti-Takeover Statutes. Section 490.624A authorizesBusiness Corporation Act permits an Iowa corporation to issue stock rights or options in connection with a defense against a hostile acquisition. Such defense is commonly called a "Shareholder“Shareholder Rights Plan." Iowa law specifically allows the corporation to issue stock rights or options with restrictions.” Generally, a Shareholder Rights Plan allows a corporationcompany to issue stock rights or options on favorable terms upon the consummation of a merger or similar transaction. The rights or options are issued to outstanding stockholdersshareholders and may be cancelledcanceled or redeemed by the board of directors for a nominal sum. If not cancelledcanceled or redeemed, those rights or options can make a takeover unduly expensive. Consequently, a Shareholder Rights Plan has the effect of encouraging an acquirer to negotiate with our board of directors on a potential sale.
Section 490.1110 of the IBCA, which governs business combinations, prohibits an Iowa corporation whose shares are publicly traded, from engaging in a “business combination” with an “interested shareholder” for a period of three years after the date of the transaction in which the person became an interested shareholder, unless (1) the board of directors approved the business combination or the transaction prior to the date on which the person became an interested shareholder; (2) the interested shareholder acquired more than 85% of the corporation’s outstanding stock in the transaction which resulted in the shareholder becoming an interested shareholder; or (3) is approved by the board of directors and shareholders holding at least 66 2/3% of voting stock not owned by the interested shareholder. For purposes of the Iowa business combination statute, a “business combination” includes (a) a merger or share exchange; (b) a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets equal to at least 10% of the aggregate market value of the assets or outstanding stock of the corporation; (c) the issuance of stock or rights to purchase stock, unless the stock was issued or transferred pursuant to the exercise of warrants, rights or options made proportionately to all shareholders; (d) other enumerated transactions involving an interested shareholder if the effect is to increase the proportionate share of the outstanding stockholder; and (e) receipt by the interested shareholder of the benefits of a loan , advance, guarantee, pledge or other financial assistance provided by or through the corporation or subsidiary, unless the benefit is received proportionately by all shareholders. Under the Iowa business combination statute, an “interested shareholder” is a person who beneficially owns 10% of the voting power of the outstanding voting stock of the corporation, or who is an affiliate or associate of the corporation and beneficially owned 10% of the voting power of the then outstanding voting stock within three years prior to the date in question.
Federal Law RestrictionsRestrictions.. The Change in Bank Control Act of 1978 prohibits a person or group of persons from acquiring "control"“control” of a bank holding company, such as West Bancorporation, Inc.,the Company, unless:
the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”) has been given 60 days prior written notice of the proposed acquisition; and
| · | the Federal Reserve Board has been given 60 days' prior written notice of the proposed acquisition, and |
within that time period, the Federal Reserve Board has not issued a notice disapproving the proposed acquisition or extending for an additional 30 days the period during which such a disapproval may be issued or unless the acquisition otherwise requires Federal Reserve Board approval. An acquisition may be made before expiration of the disapproval period if the Federal Reserve Board issues written notice that it intends not to disapprove the action. It is generally assumed that the acquisition of more than 10 percent of a class of voting stock of a bank holding company with publicly held securities, such as the Company, would constitute the acquisition of control.
| · | within that time period, the Federal Reserve Board has not issued a notice disapproving the proposed acquisition or extending for an additional 30 days the period during which such a disapproval may be issued or unless the acquisition otherwise requires Federal Reserve Board approval. An acquisition may be made before expiration of the disapproval period if the Federal Reserve Board issues written notice that it intends not to disapprove the action. It is generally assumed that the acquisition of more than 10% of a class of voting stock of a bank holding company with publicly held securities, such as West Bancorporation, Inc., would constitute the acquisition of control. |
In addition, any "company"company would be required to obtain Federal Reserve Board approval before acquiring 25%25 percent or more of our outstanding voting stock. If the acquirer is a bank holding company, this approval is required before acquiring 5%5 percent of our outstanding Common Stock.common stock. Obtaining "control"“control” over West Bancorporation, Inc.the Company would also require Federal Reserve Board prior approval. "Control"“Control” generally means:
the ownership or control of 25 percent or more of any class of voting securities of a bank holding company;
the ability to elect a majority of the bank holding company’s directors; or
the ability otherwise to exercise a controlling influence over the bank holding company's management and policies.
| · | the ownership or control of 25% or more of any class of voting securities of a bank holding company; |
In evaluating an application for acquiring control over the Company, the Federal Reserve Board would consider a number of factors, including whether the acquisition would lessen competition, the financial and managerial resources of the applicant and the Company and the competence, experience, and integrity of the officers, shareholders, and directors of the applicant. Additionally, under the Bank Holding Company Act of 1956, as amended, an entity which acquires control of a bank holding company, such as the Company, would have its activities limited to those financial activities which are closely related to banking.DESCRIPTION OF DEBT SECURITIES
General
The debt securities that we may offer using this prospectus consist of notes, debentures or other evidences of indebtedness. Any debt securities that we offer and sell will be our direct obligations. Debt securities may be issued in one or more series. All debt securities of any one series need not be issued at the same time, and unless otherwise provided, a series of debt securities may be reopened, with the required consent of the holders of outstanding debt securities, for issuance of additional debt securities of that series or to establish additional terms of that series of debt securities (with such additional terms applicable only to unissued or additional debt securities of that series). The form of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part and is subject to any amendments or supplements that we may enter into with the trustee(s). The material terms of the indenture are summarized below and we refer you to the indenture for a detailed description of these material terms. Additional or different provisions that are applicable to a particular series of debt securities will, if material, be described in a prospectus supplement relating to the offering of debt securities of that series. These provisions may include, among other things and to the extent applicable, the following:
the title of the debt securities, including, as applicable, whether the debt securities will be issued as senior debt securities, senior subordinated debt securities or subordinated debt securities, and any subordination provisions particular to the series of debt securities;
any limit on the aggregate principal amount of the debt securities;
if other than 100 percent of the aggregate principal amount, the percentage of the aggregate principal amount at which we will sell the debt securities (i.e., original issuance discount);
the date or dates, whether fixed or extendable, on which the principal of the debt securities will be payable;
the rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, the date or dates from which any such interest will accrue, the interest payment dates on which we will pay any such interest, the basis upon which interest will be calculated if other than that of a 360-day year consisting of twelve 30-day months, and, in the case of registered securities, the record dates for the determination of holders to whom interest is payable;
any provisions relating to the issuance of the debt securities of the series at an original issue discount;
the place or places where the principal of, and interest on, the debt securities will be payable and, if applicable, where the debt securities may be surrendered for conversion or exchange;
whether we may, at our option, redeem the debt securities, and if so, the price or prices at which, the period or periods within which, and the terms and conditions upon which, we may redeem the debt securities, in whole or in part, pursuant to any sinking fund or otherwise;
if other than 100 percent of the aggregate principal amount thereof, the portion of the principal amount of the debt securities which will be payable upon declaration of acceleration of the maturity date thereof or provable in bankruptcy, or, if applicable, which is convertible or exchangeable;
| · | the ability to elect a majority of the bank holding company's directors; or |
any obligation we may have to redeem, purchase or repay the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities, and the price or prices at which, the currency in which and the period or periods within which, and the other terms and conditions upon which, the debt securities will be redeemed, purchased or repaid, in whole or in part, pursuant to any such obligation, and any provision for the remarketing of the debt securities;
whether the debt securities will be registered securities or unregistered securities or both, and the rights of the holders of the debt securities to exchange unregistered securities for registered securities, or vice-versa, and the circumstances under which any such exchanges, if permitted, may be made;
| · | the ability otherwise to exercise a controlling influence over the bank holding company's management and policies. |
the denominations, which may be in U.S. dollars or in any foreign currency, in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
whether the debt securities will be issued in the form of certificated debt securities, and if so, the form of the debt securities (or forms thereof if unregistered and registered securities are issuable in that series), including the legends required by law or as we deem necessary or appropriate, the form of any coupons or temporary global security which may be issued and the forms of any other certificates which may be required under the indenture or which we may require in connection with the offering, sale, delivery or exchange of the debt securities;
SELLING SECURITY HOLDERS
On December 31, 2008, we issuedif other than U.S. dollars, the Securities covered by this prospectuscurrency or currencies in which payments of principal, interest and other amounts payable with respect to the UST,debt securities will be denominated, payable, redeemable or repurchasable, as the case may be;
whether the debt securities may be issuable in tranches;
the obligations, if any, we may have to permit the conversion or exchange of the debt securities into common stock, preferred stock or other capital stock or property, or a combination thereof, and the terms and conditions upon which such conversion or exchange will be effected (including the conversion price or exchange ratio), and any limitations on the ownership or transferability of the securities or property into which the debt securities may be converted or exchanged;
any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the debt securities;
if the debt securities do not bear interest, the applicable dates required under the indenture for furnishing information to the trustee regarding the holders of the debt securities;
any deletions from, modifications of or additions to (i) the events of default with respect to the debt securities or (ii) the rights of the trustee or the holders of the debt securities in connection with events of default;
any deletions from, modifications of or additions to the covenants with respect to the debt securities;
if the amount of payments of principal of, and make-whole amount, if any, and interest on the debt securities may be determined with reference to an index, the manner in which such amount will be determined;
whether the debt securities will be issued in whole or in part in the global form of one or more debt securities and, if so, the depositary for such debt securities, the circumstances under which any such debt security may be exchanged for debt securities registered in the name of, and under which any transfer of debt securities may be registered in the name of, any person other than such depositary or its nominee, and any other provisions regarding such debt securities;
whether, under what circumstances and the currency in which, we will pay additional amounts on the debt securities to any holder of the debt securities who is not a U.S. person in respect of any tax, assessment or governmental charge and, if so, whether we will have the initial Selling Security Holder under this prospectus,option to redeem such debt securities rather than pay such additional amounts (and the terms of any such option);
whether the debt securities, in whole or specified parts, will be defeasible, and, if the securities may be defeased, in whole or in specified part, any provisions to permit a transaction exempt frompledge of obligations other than certain government obligations to satisfy the registration requirements of the Securities Act. indenture regarding defeasance of securities and, if other than by resolution of our board of directors, the manner in which any election to defease the debt securities will be evidenced;
whether the debt securities will be secured by any property, assets or other collateral and, if so, a general description of the collateral and the terms of any related security, pledge or other agreements;
the persons to whom any interest on the debt securities will be payable, if other than the registered holders thereof on the regular record date therefor;
the dates on which interest, if any, will be payable and the regular record dates for interest payment dates;
any restrictions, conditions or requirements for transfer of the debt securities; and
any other material terms or conditions upon which the debt securities will be issued.
Unless otherwise indicated in the applicable prospectus supplement, we will issue debt securities in fully registered form without coupons and in denominations of $1,000 and in integral multiples of $1,000, and interest will be computed on the basis of a 360-day year of twelve 30-day months. If any interest payment date or the maturity date falls on a day that is not a business day, then the payment will be made on the next business day without additional interest and with the same effect as if it were made on the originally scheduled date.
Unless otherwise indicated in the applicable prospectus supplement, the trustee will act as paying agent and registrar for the debt securities under the indenture. We may also act as paying agent under the indenture.
The UST,applicable prospectus supplement will contain a description of U.S. federal income tax consequences relating to the debt securities, to the extent applicable.
Covenants
The applicable prospectus supplement will describe any covenants, such as restrictive covenants restricting us or our subsidiary from incurring, issuing, assuming or guarantying any indebtedness or restricting us or our subsidiary from paying dividends or acquiring any of our or its successors,capital stock.
Consolidation, Merger and Transfer of Assets
The indenture permits a consolidation or merger between us and another entity and/or the sale, conveyance or lease by us of all or substantially all of our property and assets; provided, however, that:
the resulting or acquiring entity, if other than us, is organized and existing under the laws of a U.S. jurisdiction and assumes all of our responsibilities and liabilities under the indenture, including transferees,the payment of all amounts due on the debt securities and performance of the covenants in the indenture;
immediately after the transaction, and giving effect to the transaction, no event of default under the indenture exists; and
we have delivered to the trustee an officers’ certificate stating that the transaction and, if a supplemental indenture is required in connection with the transaction, the supplemental indenture, comply with the indenture and that all conditions precedent to the transaction contained in the indenture have been satisfied.
If we consolidate or merge with or into any other entity, or sell or lease all or substantially all of our assets in compliance with the terms and conditions of the indenture, the resulting or acquiring entity will be substituted for us in the indenture and the debt securities with the same effect as if it had been an original party to the indenture and the debt securities. As a result, such successor entity may exercise our rights and powers under the indenture and the debt securities, in our name, and, except in the case of a lease, we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Notwithstanding the foregoing, we may transfer all of our property and assets to another entity if, immediately after giving effect to the transfer, such entity is our wholly owned subsidiary. The term “wholly owned subsidiary” means any subsidiary in which we and/or our other wholly owned subsidiary owns all of the outstanding capital stock.
Modification and Waiver
Under the indenture, some of our rights and obligations and some of the rights of the holders of the debt securities may be modified or amended with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities affected by the modification or amendment. However, the following modifications and amendments will not be effective against any holder without its consent:
a change in the stated maturity date of any payment of principal or interest;
a reduction in the principal amount of, or interest on, any debt securities;
an alteration or impairment of any right to convert at the rate or upon the terms provided in the indenture;
a change in the currency in which any payment on the debt securities is payable;
an impairment of a holder’s right to sue us for the enforcement of payments due on the debt securities; or
a reduction in the percentage of outstanding debt securities required to consent to a modification or amendment of the indenture or required to consent to a waiver of compliance with certain provisions of the indenture or certain defaults under the indenture.
Under the indenture, the holders of not less than a majority in aggregate principal amount of the outstanding debt securities may, on behalf of all holders of the debt securities:
waive compliance by us with certain restrictive provisions of the indenture; and
waive any past default under the indenture in accordance with the applicable provisions of the indenture, except a default in the payment of the principal of, or interest on, any series of debt securities.
Finally, we and the indenture trustee may, from time to time, offeramend the indenture without the consent of holders of the debt securities for certain purposes, including but not limited to the following:
to evidence the succession of another entity to us or successive successions and sell, pursuant the assumption by such entity of our covenants, agreements and obligations under the indenture;
to thisadd additional events of default for the protection of the holders of debt securities;
to add covenants for the protection of the holders of debt securities; and
to make certain other administrative modifications which do not materially and adversely affect the interests of the holders of debt securities.
Events of Default
Unless we indicate otherwise in the applicable prospectus supplement, “event of default” under the indenture will mean, with respect to any series of debt securities, any of the following:
failure to pay interest on any debt security for 30 days after the payment is due;
failure to pay the principal of any debt security when due, either at maturity, upon redemption, by declaration or a supplementotherwise;
failure on our part to this prospectus,observe or perform any other covenant or agreement in the indenture that applies to the debt securities for 90 days after we have received written notice of the failure to perform in the manner specified in the indenture; and
certain events of bankruptcy, insolvency or reorganization.
If an event of default occurs and continues, the trustee or the holders of not less than 25 percent in aggregate principal amount of the outstanding debt securities of such series may declare the entire principal of all the debt securities to be due and payable immediately, except that, if the event of default is caused by certain events of bankruptcy, insolvency or reorganization, the entire principal of all of the Securities they own. debt securities of such series will become due and payable immediately without any act on the part of the trustee or holders of the debt securities. If such a declaration occurs, the holders of a majority of the aggregate principal amount of the outstanding debt securities of such series can, subject to conditions, rescind the declaration.
The Securitiesindenture requires us to furnish to the trustee, not less often than annually, a certificate from our principal executive officer, principal financial officer or principal accounting officer, as the case may be, as to such officer’s knowledge of our compliance with all conditions and covenants under the indenture. The trustee may withhold notice to the holders of debt securities of any default, except defaults in the payment of principal of, or interest on, any debt securities if the trustee in good faith determines that the withholding of notice is in the best interests of the holders. For purposes of this paragraph, “default” means any event which is, or after notice or lapse of time or both would become, an event of default under the indenture.
The trustee is not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any holders of debt securities, unless the holders offer the trustee satisfactory security or indemnity. If satisfactory security or indemnity is provided, then, subject to other rights of the trustee, the holders of a majority in aggregate principal amount of the outstanding debt securities may direct the time, method and place of:
conducting any proceeding for any remedy available to the trustee; or
exercising any trust or power conferred upon the trustee.
The holder of a debt security will have the right to begin any proceeding with respect to the indenture or for any remedy only if:
the holder has previously given the trustee written notice of a continuing event of default;
the holders of not less than a majority in aggregate principal amount of the outstanding debt securities have made a written request of, and offered reasonable indemnity to, the trustee to begin such proceeding;
the trustee has not started such proceeding within 60 days after receiving the request; and
no direction inconsistent with such written request has been given to the trustee under the indenture.
However, the holder of any debt security will have an absolute right to receive payment of principal of, and interest on, the debt security when due and to institute suit to enforce payment.
Satisfaction and Discharge; Defeasance
Satisfaction and Discharge of Indenture. Unless otherwise indicated in the applicable prospectus supplement, if at any time,
we have paid or caused to be offered under this prospectuspaid the principal of and interest on all the debt securities of any series, except for the account of the Selling Security Holders are:
| · | 36,000 shares of Preferred Stock, representing beneficial ownership of 100% of the shares of Preferred Stock outstanding on the date of this prospectus; |
| · | a Warrant to purchase 474,100 shares of our Common Stock, representing beneficial ownership of approximately 2.7% of our Common Stock as of the date of this prospectus; and
|
| · | 474,100 shares of our Common Stock issuable upon exercise of the Warrant, which shares, if issued, would represent ownership of approximately 2.7% of our Common Stock as of the date of this prospectus. |
Beneficial ownership is determineddebt securities which have been destroyed, lost or stolen and which have been replaced or paid in accordance with the rulesindenture, as and when the same has become due and payable;
we have delivered to the trustee for cancellation all debt securities of any series theretofore authenticated, except for debt securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in the indenture; or
all the debt securities of such series not theretofore delivered to the trustee for cancellation have become due and payable, or are by their terms are to become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee, in trust, sufficient money or government obligations, or a combination thereof, to pay the principal, any interest and any other sums due on the debt securities, on the dates the payments are due or become due under the indenture and the terms of the SEC and includes voting or investment powerdebt securities;
then the indenture shall cease to be of further effect with respect to the securities. Todebt securities of such series, except for (i) rights of registration of transfer and exchange, and our knowledge,right of optional redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen debt securities, (iii) rights of holders to receive payments of principal thereof and interest thereon upon the UST has sole votingoriginal stated due dates therefor (but not upon acceleration) and investment powerremaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of the trustee under the indenture, and (v) the rights of the holders of such series of debt securities as beneficiaries thereof with respect to the Securities,property so deposited with the trustee payable to all or any of them.
Defeasance and Covenant Defeasance. Unless otherwise indicated in the applicable prospectus supplement, we may elect with respect to any debt securities of any series either:
to defease and be discharged from all of our obligations with respect to such debt securities (“defeasance”), with certain exceptions described below; or
to be released from our obligations with respect to such debt securities under such covenants as may be specified in the applicable prospectus supplement, and any omission to comply with those obligations will not constitute a default or an event of default with respect to such debt securities (“covenant defeasance”).
We must comply with the following conditions before the defeasance or covenant defeasance can be effected:
we must irrevocably deposit with the indenture trustee or other qualifying trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the trustee, trust funds in trust solely for the benefit of the holders of such debt securities, sufficient money or government obligations, or a combination thereof, to pay the principal, any interest and any other sums on the due dates for those payments; and
we must deliver to the trustee an opinion of counsel to the effect that the holders of such debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or covenant defeasance, as the case may be, to be effected with respect to such debt securities and will be subject to restrictions on exercise of voting rightsfederal income tax on the shares of Common Stock issuable upon exercisesame amount, in the same manner and at the same times as would be the case if such defeasance or covenant defeasance, as the case may be, had not occurred.
In connection with defeasance, any irrevocable trust agreement contemplated by the indenture must include, among other things, provision for (i) payment of the Warrant described under “Descriptionprincipal of Warrant to Purchase Common Stock.”
For purposes of this prospectus, we have assumed that, after completionand interest on such debt securities, if any, appertaining thereto when due (by redemption, sinking fund payments or otherwise), (ii) the payment of the offering, noneexpenses of the trustee incurred or to be incurred in connection with carrying out such trust provisions, (iii) rights of registration, transfer, substitution and exchange of such debt securities in accordance with the terms stated in the indenture, and (iv) continuation of the rights, obligations and immunities of the trustee as against the holders of such debt securities as stated in the indenture.
The accompanying prospectus supplement may further describe any provisions permitting or restricting defeasance or covenant defeasance with respect to the debt securities of a particular series.
Global Securities covered
Unless otherwise indicated in the applicable prospectus supplement, each debt security offered by this prospectus will be heldissued in the form of one or more global debt securities representing all or part of that series of debt securities. This means that we will not issue certificates for that series of debt securities to the holders. Instead, a global debt security representing that series will be deposited with, or on behalf of, a securities depositary and registered in the name of the depositary or a nominee of the depositary. Any such depositary must be a clearing agency registered under the Exchange Act. We will describe the specific terms of the depositary arrangement with respect to a series of debt securities to be represented by a global security in the applicable prospectus supplement.
Notices
We will give notices to holders of the debt securities by mail at the addresses listed in the security register. In the case of notice in respect of unregistered securities or coupon securities, we may give notice by publication in a newspaper of general circulation in New York, New York.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York, except to the extent the Trust Indenture Act of 1939, as amended, is applicable.
Regarding the Trustee
General. We will enter into the indenture with a trustee that is qualified to act under the Trust Indenture Act and with any other trustees chosen by us and appointed in a supplemental indenture for a particular series of debt securities.
Resignation or Removal of Trustee.If the trustee has or acquires a conflicting interest within the meaning of the Trust Indenture Act, the trustee must either eliminate its conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and the indenture. Any resignation will require the appointment of a successor trustee under the indenture in accordance with the terms and conditions of the indenture.
The trustee may resign or be removed by us with respect to one or more series of debt securities and a successor trustee may be appointed to act with respect to any such series. The holders of a majority in aggregate principal amount of the debt securities of any series may remove the trustee with respect to the debt securities of such series.
Annual Trustee Report to Holders of Debt Securities. The trustee will be required to submit certain reports to the holders of the debt securities regarding, among other things, the trustee’s eligibility to serve as such, the priority of the trustee’s claims regarding advances made by it, and any action taken by the Selling Security Holders. However,trustee materially affecting the debt securities.
Certificates and Opinions to Be Furnished to Trustee. The indenture provides that, in addition to other certificates or opinions specifically required by other provisions of the indenture, every application by us for action by the trustee must be accompanied by a certificate from one or more of our officers and an opinion of counsel (who may be our counsel) stating that, in the opinion of the signers, all conditions precedent to such action have been complied with by us.
Certain Relationships in the Ordinary Course. From time to time, we do not know whenmay maintain deposit accounts and conduct other banking transactions with the trustee to be appointed under the indenture or its affiliates in what amounts the Selling Security Holdersordinary course of business.
DESCRIPTION OF WARRANTS
We may offerissue warrants for the Securitiespurchase of debt securities, preferred stock, common stock, other securities of the Company or any combination of the foregoing. Warrants may be issued alone or together with securities offered by any prospectus supplement and may be attached to, or separate from, those securities. The particular terms of any warrants will be described more specifically in the prospectus supplement relating to such warrants.
The prospectus supplement relating to any warrants we are offering will include specific terms relating to the offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant agreement for sale.provisions that may be important to you. The Selling Security Holders might not sell anyprospectus supplement will include some or all of the Securitiesfollowing information:
the title and specific designation of the warrants;
the aggregate number of warrants offered;
the amount of warrants outstanding, if any;
the designation, number and terms of the securities purchasable upon exercise of the warrants, and procedures that will result in the adjustment of those numbers;
the exercise price or prices of the warrants;
the dates or periods during which the warrants are exercisable;
the designation and terms of any securities with which the warrants are issued;
if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security will be separately transferable;
if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated;
any minimum or maximum amount of warrants that may be exercised at any one time;
the anti-dilution, redemption or call provisions of the warrants, if any;
if applicable, the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
any other material terms of the warrants.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up, or to exercise voting rights, if any.
DESCRIPTION OF DEPOSITARY SHARES
This following is a summary of the general terms of the deposit agreement to govern any depositary shares we may offer representing fractional interests in shares of our preferred stock, the depositary shares themselves and the related depositary receipts. This summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the relevant deposit agreement and depositary receipt with respect to the depositary shares relating to any particular series of preferred stock. A copy of the deposit agreement and form of depositary receipt relating to any depositary shares we issue will be filed with the SEC as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to a filing incorporated by reference in the registration statement. The specific terms of any depositary shares we may offer will be described in the applicable prospectus supplement. If so described in the applicable prospectus supplement, the terms of that series of depositary shares may differ from the general description of terms presented below.
General
We may offer fractional interests in shares of our preferred stock, rather than full shares of preferred stock, most likely in the event that our then authorized but yet undesignated shares of preferred stock is not sufficient to offer full shares of preferred stock. If we do, we will provide for the issuance by a depositary to the public of receipts for depositary shares, each of which will represent a fractional interest in a share of a particular series of preferred stock.
The shares of any series of preferred stock underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or trust company having its principal office in the U.S. and having a combined capital and surplus of such amount as may be set forth in the applicable prospectus supplement, which we refer to in this section as the depositary. We will name the depositary in the applicable prospectus supplement. Subject to the terms of the deposit agreement, each owner of a depositary share will have a fractional interest in all the rights and preferences of the preferred stock underlying the depositary share. Those rights include any dividend, voting, redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under the deposit agreement. If you purchase fractional interests in shares of the related series of preferred stock, you will receive depositary receipts as described in the applicable prospectus supplement.
Unless we specify otherwise in the applicable prospectus supplement, you will not be entitled to receive the whole shares of preferred stock underlying the depositary shares.
Dividend Rights
The depositary will distribute all cash dividends or other cash distributions in respect of the preferred stock underlying the depositary shares to each record holder of depositary shares based on the number of the depositary shares owned by that holder on the relevant record date. The depositary will distribute only that amount which can be distributed without attributing to any holder of depositary shares a fraction of one cent, and any balance not so distributed will be added to and treated as part of the next sum received by the depositary for distribution to record holders of depositary shares.
If there is a distribution other than in cash, the depositary will distribute property to the entitled record holders of depositary shares, unless the depositary determines that it is not feasible to make that distribution. In that case the depositary may, with our approval, adopt the method it deems equitable and practicable for making that distribution, including any sale of property and distribution of the net proceeds from this sale to the applicable holders.
The deposit agreement will also contain provisions relating to how any subscription or similar rights offered by us to holders of the preferred stock will be made available to the holders of depositary shares.
Voting Rights
When the depositary receives notice of any meeting at which the holders of the preferred stock may vote, the depositary will mail information about the meeting contained in the notice, and any accompanying proxy materials, to the record holders of the depositary shares relating to the preferred stock. Each record holder of such depositary shares on the record date, which will be the same date as the record date for the preferred stock, will be entitled to instruct the depositary as to how the preferred stock underlying the holder’s depositary shares should be voted.
Conversion or Exchange Rights
If any series of preferred stock underlying the depositary shares is subject to conversion or exchange, the applicable prospectus supplement will describe the rights or obligations of each record holder of depositary receipts to convert or exchange the depositary shares.
Redemption
If the series of the preferred stock underlying the depositary shares is subject to redemption, all or a part of the depositary shares will be redeemed from the redemption proceeds of that series of the preferred stock held by the depositary. The redemption price per depositary share will bear the same relationship to the redemption price per share of preferred stock that the depositary share bears to the underlying preferred stock. Whenever we redeem preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock redeemed. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as determined by the depositary.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will cease, except the right to receive money or other property that the holders of the depositary shares were entitled to receive upon the redemption. Payments will be made when holders surrender their depositary receipts to the depositary.
Taxation
Owners of depositary shares will be treated for U.S. federal income tax purposes as if they were owners of the preferred stock represented by the depositary shares. If necessary, the applicable prospectus supplement will provide a description of U.S. federal income tax consequences relating to the purchase and ownership of the depositary shares and the preferred stock represented by the depositary shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between us and the depositary at any time. However, certain amendments as specified in the applicable prospectus supplement will not be effective unless approved by the record holders of at least a majority of the depositary shares then-outstanding. A deposit agreement may be terminated by us or the depositary only if:
all outstanding depositary shares relating to the deposit agreement have been redeemed; or
there has been a final distribution on the preferred stock of the relevant series in connection with our liquidation, dissolution or winding up of our business and the distribution has been distributed to the holders of the related depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay associated charges of the depositary for the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary shares will pay transfer and other taxes and governmental charges and any other charges that are stated to be their responsibility in the deposit agreement.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us. We may also remove the depositary at any time. Resignations or removals will take effect when a successor depositary is appointed and it accepts the appointment.
DESCRIPTION OF SUBSCRIPTION RIGHTS
This following is a summary of the general terms of the subscription rights to purchase common stock or other securities that we may offer to shareholders using this prospectus. BecauseThis summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the Selling Security Holdersapplicable forms of subscription agent agreement and subscription certificate for a full understanding of all terms of any series of subscription rights.
Subscription rights may be issued independently or together with any other security and may or may not be transferable. As part of any subscription rights offering, we may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such subscription rights offering. If we issue subscription rights, they will be governed by a separate subscription agent agreement that we will sign with a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement. The rights agent will act solely as our agent and will not assume any obligation to any holders of subscription rights certificates or beneficial owners of subscription rights.
The prospectus supplement relating to any subscription rights we offer will describe the specific terms of the offering and the subscription rights, including the record date for shareholders entitled to the subscription rights distribution, the number of subscription rights issued and the number of shares of common stock or other securities that may be purchased upon exercise of the subscription rights, the exercise price of the subscription rights, the date on which the subscription rights will become effective and the date on which the subscription rights will expire, and any material U.S. federal income tax considerations.
In general, a subscription right entitles the holder to purchase for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are normally issued to shareholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue subscription rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
the record date for shareholders entitled to receive the subscription rights;
the number of shares of common stock or other securities that may be purchased upon exercise of each subscription right;
the exercise price of the subscription rights;
whether the subscription rights are transferable;
the period during which the subscription rights may be exercised and when they will expire;
the steps required to exercise the subscription rights;
whether the subscription rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments; and
whether we intend to sell the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement.
If fewer than all of the subscription rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement. After the close of business on the expiration date of a subscription rights offering, all unexercised subscription rights will become void.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and us to sell to the holders, a specified number of shares of our common stock at a future date or somedates, which we refer to in this prospectus as “Stock Purchase Contracts.” The price per share, and number of shares, of our common stock may be fixed at the time the Stock Purchase Contracts are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. The Stock Purchase Contracts may be issued separately or as a part of units consisting of a Stock Purchase Contract and our debt securities or debt obligations of third parties, including Treasury securities, securing the holders’ obligations to purchase the shares of our common stock under the Stock Purchase Contracts, which we refer to in this prospectus as “Stock Purchase Units.” The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. The Stock Purchase Contracts also may require us to make periodic payments to the holders of the Securities pursuantStock Purchase Units or vice-versa and such payments may be unsecured or prefunded on some basis.
The applicable prospectus supplement will describe the terms of any Stock Purchase Contracts or Stock Purchase Units. The description in the prospectus supplement will not necessarily be complete, and reference will be made to the Stock Purchase Contracts, and, if applicable, collateral or depositary arrangements, relating to the Stock Purchase Contracts or Stock Purchase Units. Material U.S. federal income tax considerations applicable to the Stock Purchase Units and the Stock Purchase Contracts will also be discussed in the applicable prospectus supplement.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more debt securities, shares of common stock, shares of preferred stock or warrants or any combination of such securities, including guarantees of any securities.
A prospectus supplement and any other offering materials relating to any units issued under the registration statement containing this offering,prospectus will specify the terms of the units, including:
the terms of the units and because currently no sale of any of the Securities is subject to any agreements, arrangements or understandings, we cannot estimatedebt securities, common stock, preferred stock, warrants and guarantees comprising the numberunits, including whether and under what circumstances the securities comprising the units may be traded separately;
a description of the Securities that will be held byterms of any unit agreement governing the Selling Security Holders after completionunits; and
a description of the offering.provisions for the payment, settlement, transfer or exchange of the units.
Other than with respect to the acquisition of the Securities, the UST has not had a material relationship with us.
Information about the Selling Security Holders may change over time and changed information will be set forth in supplements to this prospectus if and when necessary.
PLAN OF DISTRIBUTION
The Selling Security Holders and their successors, including their transferees,We may sell the Securities directlysecurities covered by this prospectus from time to purchasers or through underwriters, broker-dealers or agents, who may receive compensation intime at market prices prevailing at the formtime of discounts, concessions or commissions from the Selling Security Holders or the purchasers of the Securities. These discounts, concessions or commissions assale, at prices related to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved.
The Securities may be sold in one or more transactions at fixed prices, atsuch prevailing market prices at the time of sale, at negotiated prices or at fixed prices, which may change from time to time. We may sell the securities directly to one or more purchasers, through agents, to dealers, through underwriters, brokers or dealers, or through a combination of any of these sales methods or through any other method permitted by law (including in “at the market” equity offerings as defined in Rule 415 of the Securities Act). We reserve the right to accept or reject, in whole or in part, any proposed purchase of securities, whether the purchase is to be made directly or through agents.
Each time that we use this prospectus to sell our securities, we will also provide a prospectus supplement, if required, that contains the specific terms of the offering, including:
the name or names of the underwriters, dealers or agents, if any, and the types and amounts of securities underwritten or purchased by each of them;
the public offering price of the securities and the proceeds we will receive from the sale;
any over-allotment options under which underwriters may purchase additional securities from us;
any agency fees or underwriting discounts or other items constituting agents’ or underwriters’ compensation;
any discounts, commissions or concessions allowed or reallowed or paid to dealers; and
any securities exchange or market on which the securities may be listed.
Only underwriters that we have named in a prospectus supplement will be underwriters of the securities offered by that prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve block transactions:
| · | on any national securities exchange or quotation service on which the Preferred Stock or the Common Stock may be listed or quoted at the time of sale, including, as of the date of this prospectus, Nasdaq Global Select Market in the case of the Common Stock; |
| · | in transactions otherwise than on these exchanges or services or in the over-the-counter market; or |
| · | through the writing of options, whether the options are listed on an options exchange or otherwise. |
In addition, any securities that qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus.
In connection with the salesale. The obligations of the Securities or otherwise,underwriters to purchase the Selling Security Holders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Common Stock issuable upon exercise of the Warrant in the course of hedging the positions they assume. The Selling Security Holders may also sell short the Common Stock issuable upon exercise of the Warrant and deliver Common Stock to close out short positions, or loan or pledge the Preferred Stock or the Common Stock issuable upon exercise of the Warrant to broker-dealers that in turn may sell these Securities.
The aggregate proceeds to the Selling Security Holders from the sale of the Securities will be the purchase price of the Securities less discounts and commissions, if any.
In effecting sales, broker-dealers or agents engaged by the Selling Security Holders may arrange for other broker-dealers to participate. Broker-dealers or agents may receive commissions, discounts or concessions from the Selling Security Holders in amounts to be negotiated immediately prior to the sale.
In offering the Securities covered by this prospectus, the Selling Security Holders and any broker-dealers who execute sales for the Selling Security Holders may be deemed to be "underwriters" within the meaning of Section 2(a)(l1) of the Securities Act in connection with such sales. Any profits realized by the Selling Security Holders and the compensation of any broker-dealer may be deemed to be underwriting discounts and commissions. Selling Security Holders who are "underwriters" within the meaning of Section 2(a)(l1) of the Securities Actsecurities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery requirementscontracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the applicable prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than common stock or other outstanding securities, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may be subject to certain statutory and regulatory liabilities, including liabilities imposed pursuant to Sections 11, 12 and 17discontinue any market making at any time without notice. We cannot guarantee the liquidity of the Securities Acttrading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and Rule 10b-5penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
In order to comply withUnder the securities laws of certainsome states, ifto the extent applicable, the Securities mustsecurities may be sold in such jurisdictionsstates only through registered or licensed brokers or dealers. In addition, if our common stock is no longer listed on the NASDAQ Global Select Market or another national securities exchange, in certainsome states the Securitiessecurities may not be sold unless theysuch securities have been registered or qualified for sale in the applicablesuch state or an exemption from the registration or qualification requirement is available and is complied with.
At the time a particular offer of Securities is made, if required, a prospectus supplement will set forth the number and type of securities being offered and the terms of the offering, including the name of any underwriter, dealer or agent, the purchase price paid by any underwriter, any discount, commission and other item constituting compensation, any discount, commission or concession allowed or re-allowed or paid to any dealer, and the proposed selling price to the public.
We do not intend to apply for listing of the Preferred Stock on any securities exchange or for inclusion of the Preferred Stock in any automated quotation system unless requested by the UST. No assurance can be given as to the liquidity of the trading market, if any, for the Preferred Stock.
We have agreed to indemnify the Selling Security Holders against certain liabilities, including certain liabilities under the Securities Act. We have also agreed, among other things, to bear substantially all expenses (other than underwriting discounts and selling commissions) in connection with the registration and sale of the Securities covered by this prospectus.
LEGAL MATTERS
The validityCertain legal matters in connection with the offering of the warrant and common stock offered hereby has beensecurities made by this prospectus generally will be passed upon for us by Ahlers & Cooney, P.C., of Des Moines, Iowa. Certain other legal matters particular to any offering of debt securities made by this prospectus will be passed upon for us by Barack Ferrazzano Kirschbaum & Nagelberg LLP of Chicago, Illinois. If the securities are being distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified in the related prospectus supplement.
EXPERTS
The consolidated financial statements and management's assessment of the effectiveness of internal control over financial reporting (which is included in Management's Report on Internal Control Over Financial Reporting) incorporated in this prospectus by reference from West Bancorporation Inc.'sto the Annual Report on Form 10-K for the year ended December 31, 2008 , and the effectiveness of West Bancorporation Inc.’s internal control over financial reporting,2016, have been audited by McGladrey & Pullen,RSM US LLP, an independent registered public accounting firm, as stated in their reports which are incorporated by reference herein, by reference. Such financial statementsand have been so incorporated in reliance upon such reports and upon the reportsauthority of such firm given upon their authority as experts in accounting and auditing.
20WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-3 filed by us with the SEC under the Securities Act. As permitted by the SEC, this prospectus does not contain all the information in the registration statement filed with the SEC. For a more complete understanding of this offering, you should refer to the complete registration statement, including exhibits, on Form S-3 that may be obtained as described above. Statements contained in this prospectus about the contents of any contract or other document are not necessarily complete. If we have filed any contract or other document as an exhibit to the registration statement or any other document incorporated by reference in the registration statement, you should read the exhibit for a more complete understanding of the contract or other document or matter involved. Each statement regarding a contract or other document is qualified in its entirety by reference to the actual contract or other document.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information that we file with it into this prospectus, which means that we can disclose important information to you by referring you to other documents. The information incorporated by reference is an important part of this prospectus. We incorporate by reference the following documents and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of this offering (other than information “furnished” rather than “filed” and information that is modified or superseded by subsequently filed documents prior to the termination of this offering):
Our Annual Report on Form 10-K for the year ended December 31, 2016, filed with the SEC on March 1, 2017;
Our Current Report on Form 8-K filed with the SEC on January 26, 2017 (except the information furnished under Item 2.02 thereof); and
The description of our common stock set forth in Amendment No. 1 to our Registration Statement on Form 10 filed with the SEC on April 11, 2002, including all amendments and reports filed for the purpose of updating such description.
We will provide without charge, upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus and a copy of any or all other contracts or documents which are referred to in this prospectus. Requests should be directed to:
West Bancorporation, Inc.
Attention: Secretary
1601 22nd Street
West Des Moines, Iowa 50266
Telephone number: (515) 222-2300
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of IssuancesIssuance and Distribution.Distribution
The following table sets forth thosethe estimated expenses to be incurred by West Bancorporation, Inc. in connection with the issuance and distribution of the Securitiessecurities being registered, other than underwriting discounts and commissions and expenses incurred by the Selling Security Holders for brokerage, accounting, tax or legal services or any other expenses incurred by the Selling Security Holders in disposingregistered. We will pay all of the shares. All of the amounts shown are estimates except the SEC registration fee.these expenses.
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| | | |
| SEC registration Fee | $ | — |
|
| Trustee Fees | * |
|
| Printing Expenses | * |
|
| Rating Agency Fees | * |
|
| Legal Fees and Expenses | * |
|
| Accounting Fees and Expenses | * |
|
| Miscellaneous | * |
|
| Total | $ * |
|
| SEC registration fees | | $ | 1,627 | |
| Legal fees and expenses | | | 35,000 | |
| Accounting fees and expenses | | | 5,000 | |
| Miscellaneous expenses | | | 1,200 | |
| Total | | $ | 42,827 | |
* These fees are not presently known and cannot be estimated at this time, as they will be based upon, among other things, the amount and type of security being offered as well as the number of offerings.
Item 15. Indemnification of Directors and Officers.Officers
Iowa Law. Indemnification: Limitation of Liability. The Restated Articles of Incorporation provide that each person who is a party or threatened to be made a party to actions by reason ofUnder the fact that the person is a director or officer of the corporation to be indemnified and held harmless by the corporation to the fullest extent authorized by the IBCA. The Restated Articles of Incorporation permit the corporation to provide indemnification against all expenses, liability and loss (including attorney’s fees, judgments, fines and amounts paid or to be paid in settlement), reasonably incurred by the director or officer.
Section 490.852 of the IBCA requires a corporation toIowa Business Corporation Act, we must indemnify a director to the extent that he or she has been “whollywho was wholly successful, on the merits or otherwise”otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation forCompany against reasonable expenses. Section 490.851 ofexpenses incurred by the IBCA governs "permissive indemnification" of corporatedirector in connection with the proceeding. We may indemnify only those directors and officers. It generally authorizes indemnification ifofficers who have met the director acted: (1)relevant standard of conduct under the Iowa Business Corporation Act, which includes acting in good faith and (2) if the conduct was in the individual’s "official capacity" with the corporation it must have been with the reasonable belief that the actions were innot against the best interests of the corporation. If the action wasCompany. We may not indemnify a director or officer in connection with a proceeding by or in the "official capacity" withright of the corporation, the director must have reason to believe that the conduct was "at least not opposedCompany (except to the best interestsextent of the corporation." As far as criminal proceedings,reasonable expenses incurred by the director or officer must have had "no reasonable causein connection with the proceeding) or where the director or officer received a financial benefit to believe [his]which he or she was not entitled. Additionally, we may not indemnify an officer in connection with any proceeding for liability arising out of conduct was unlawful.”that constitutes an intentional infliction of harm on the Company or its shareholders, or an intentional violation of criminal law.
The RestatedArticles of Incorporation. Under our Articles of Incorporation, also providewe will indemnify, hold harmless and pay expenses to, any director or officer of the Company who was or is a party or is threatened to be made a party, to any suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the corporation shall not be personally liable toCompany or, while a director or officer of the corporationCompany, is or its shareholders for monetary damages for breachwas serving at the request of a fiduciary dutythe Company as a director, except forofficer, partner, trustee, administrator, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against all expenses, liability (1) for breach of the director’s duty of loyaltyand loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, to the corporationfullest extent authorized by the Iowa Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment). Such indemnification shall continue as to a person who has ceased to be such a director or officer and shall inure to the benefit of his or her heirs, executors and administrators.
The foregoing description of our Articles of Incorporation is qualified in its shareholders, (2) for acts or omissions not in good faith orentirety by reference to such document, which involve intentional misconduct or a knowing violation of law, (3) for a transaction from which the director derives an improper personal benefit or (4) for unlawful distributions under the IBCA.is listed as Exhibit 3.1 hereto.
Liability Insurance.As permitted by the Restatedour Articles of Incorporation, the corporation haswe have also purchased a directors’ and officers’ liability insurance policy that insures allto insure our directors and officers among other things, against certain liabilities.
Insofar as indemnification for liabilities that may arisearising under the Securities Act.Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits.Exhibits
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| Exhibit No. | Description |
| 1.1 | Form of Underwriting Agreement.* |
| 1.2 | Form of Placement Agreement.* |
| 3.1 | Restated ArticlesRestatement of Incorporation, incorporated by reference to West Bancorporation, Inc.’s Form 10 filed March 11, 2002. |
3.2 | Articles of Amendment to the Restated Articles of Incorporation of West Bancorporation, Inc. filed with the Iowa Secretary of State of the State of Iowa on December 24, 2008, incorporatedFebruary 16, 2017 (incorporated by reference to West Bancorporation, Inc.’s Current Report onExhibit 3.1 of the Company’s Form 8-K filed December 31, 2008. |
| |
3.3 | Articles of Amendment to the Restated Articles of Incorporation10-K filed with the Iowa SecretarySEC on March 1, 2017). |
| 3.2 | Bylaws of State on December 24, 2008, designating the terms of Fixed Rate Cumulative Perpetual Preferred Stock, Series A, incorporatedWest Bancorporation, Inc., as amended (incorporated by reference to West Bancorporation, Inc.’s Current ReportExhibit 4.1 of the Company’s Form S-3 (File No. 333-157027) filed with the SEC on Form 8-K filed December 31, 2008. |
| January 30, 2009). |
| 4.1 | Bylaws as amended through October 17, 2007. Form of Common Stock Certificate.* |
| |
| 4.2 | Warrant for PurchaseForm of SharesCertificate of Common Stock, incorporated by reference to West Bancorporation, Inc.’s Current Report on Form 8-K filed December 31, 2008. |
| Designations of Preferred Stock.* |
| 4.3 | Letter Agreement, dated December 31 2008, between the Company and the UST, which includes the Securities Purchase Agreement attached thereto, with respect to the issuance and saleForm of the Preferred Stock and the Warrant, incorporated by reference to West Bancorporation Inc.'s Current Report on Form 8-K filed December 31, 2008.Certificate.* |
| 4.4 | Form of Warrant and Warrant Certificate.* |
| 4.5 | Form of Indenture. |
| 4.6 | Form of Senior Debt Security.* |
| 4.7 | Form of Subordinated Debt Security.* |
| 4.8 | Form of Purchase Contract Agreement.* |
| 4.9 | Form of Depositary Agreement and Depositary Receipt.* |
| 4.10 | Form of Subscription Certificate.* |
| 4.11 | Form of Subscription Agent Agreement.* |
| 4.12 | Form of Unit Agreement and Unit Certificate.* |
| 5.1 | Opinion of Ahlers & Cooney, P.C. *(including consent). |
| 5.2 | Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP (including consent). |
| 12.1 | ComputationCalculation of RatiosRatio of Earnings to Fixed Charges and Preferred Dividends. ** |
| Charges. |
| 23.1 | Consent of McGladrey & Pullen,RSM US LLP. ** |
| |
| 23.2 | Consent of Ahlers & Cooney, P.C. (included in Exhibit 5.1). |
| 23.3 | Consent of Barack Ferrazzano Kirschbaum & Nagelberg LLP (included in Exhibit 5.2). |
| 24.1 | PowersPower of Attorney (included on the signature page to the registration statement). |
| 25.1 | Statement of directorsEligibility of West Bancorporation, Inc. Trustee on Form T-1 for the Senior Indenture and Subordinated Indenture.** |
* PreviouslyTo be filed either by amendment or as an exhibit to a report filed under the Exchange Act, and incorporated herein by reference.
** Filed herewithTo be filed separately pursuant to Section 305(b)(2) of the Trust indenture Act of 1939, if applicable.
Item 17. Undertakings.Undertakings
a. The undersigned registrant hereby undertakes:
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| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
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| (ii) | Toto reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the CommissionSEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20%20 percent change in the maximum aggregate offering price set forth in the "Calculation“Calculation of Registration Fee"Fee” table in the effective registration statement; and |
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| (iii) | Toto include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(l)(1)(i), (a)(l)(1)(ii) and (a)(l)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the CommissionSEC by the registrantsregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act, of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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| (2) | That, for the purposespurpose of determining any liability under the Securities Act, of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
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| (i) | Eacheach prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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| (ii) | Eacheach prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(1)(i), (vii), or (x) for the purpose of providing the information required by sectionSection 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shal1shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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| (5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of the securities of the undersigned registrant pursuant to thisthe registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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| (i) | Anyany preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
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| (ii) | Anyany free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
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| (iii) | Thethe portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
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| (iv) | Anyany other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
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| (6) | That, for purposes of determining any liability under the Securities Act, of 1933, each filing of the registrant'sregistrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan'splan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at thethat time shall be deemed to be the initial bona fide offering thereof. |
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| (7) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the indemnification provisions described in Item 15 above, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
b. | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Citycity of West Des Moines, Statestate of Iowa, on the 2nd day of March, 27 , 2009.
2017.
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| | |
| | WEST BANCORPORATION, INC. |
| | (Registrant) |
| | | |
| | By: | /s/ Thomas E. Stanberry |
| | | Thomas E. Stanberry, Chairman, President,
and
|
| March 2, 2017 | By: | /s/ David D. Nelson |
| | David D. Nelson |
| | Chief Executive Officer and President |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of David D. Nelson and Douglas R. Gulling his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, to sign on his or her behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this registration statement on Form S-3 (including any registration statement filed pursuant to Rule 462(b) under the Securities Act, and all amendments thereto) and to file the same, with all exhibits thereto and any other documents in connection therewith, with the SEC under the Securities Act, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as each might or could do in person, hereby ratifying and confirming each act that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, of 1933, this Amendment No. 1 to Registration Statementregistration statement has been signed below by the following persons in the capacities andindicated on the dates indicated:March 2, 2017.
March 27 , 2009 |
| By: | /s/ Thomas E. Stanberry |
| Signature | | Title |
| | Thomas E. Stanberry | |
| /s/ David R. Milligan | | Chairman of the Board |
| David R. Milligan | | |
| | Chairman, Director, President, and | |
| /s/ David D. Nelson | | President, Chief Executive Officer and Director |
| David D. Nelson | | (Principal Executive Officer) |
| | | |
March 27 , 2009 | By:
| /s/ Douglas R. Gulling |
| Douglas R. Gulling |
| | Executive Vice President, Treasurer and Chief Financial Officer |
| Douglas R. Gulling | | (Principal Financial Officer and Principal Accounting Officer) |
DIRECTORS:
Frank W. Berlin, Wendy L. Carlson, Orville E. Crowley, George D. Milligan, Robert G. Pulver, Jack G. Wahlig, and Connie Wimer.
By: | /s/ Thomas E. Stanberry | | Date: March 27 , 2009 |
| | Thomas E. Stanberry, As Attorney-in-Fact* | |
| /s/ Marie I. Roberts | | Senior Vice President, Controller and Chief Accounting Officer |
| Marie I. Roberts | | (Principal Accounting Officer) |
| | |
| /s/ Frank W. Berlin | | Director |
| Frank W. Berlin | | |
| | |
| /s/ Joyce A. Chapman | | Director |
| Joyce A. Chapman | | |
*Pursuant to authority granted by powers of attorney, copies of which |
| | |
| | |
| /s/ Steven K. Gaer | | Director |
| Steven K. Gaer | | |
| | |
| /s/ Michael J. Gerdin | | Director |
| Michael J. Gerdin | | |
| | |
| /s/ Kaye R. Lozier | | Director |
| Kaye R. Lozier | | |
| | |
| /s/ Sean P. McMurray | | Director |
| Sean P. McMurray | | |
| | |
| /s/ George D. Milligan | | Director |
| George D. Milligan | | |
| | |
| /s/ James W. Noyce | | Director |
| James W. Noyce | | |
| | |
| /s/ Robert G. Pulver | | Director |
| Robert G. Pulver | | |
| | |
| /s/ Lou Ann Sandburg | | Director |
| Lou Ann Sandburg | | |
| | |
| /s/ Philip Jason Worth | | Director |
| Philip Jason Worth | | |
EXHIBIT INDEX
The following exhibits are filed herewith.
Exhibit Indexherewith:
3.1 | Restated Articles of Incorporation, incorporated by reference to West Bancorporation, Inc.’s Form 10 filed March 11, 2002. |
| |
3.2Exhibit No. | ArticlesDescription |
| 1.1 | Form of Amendment toUnderwriting Agreement.* |
| 1.2 | Form of Placement Agreement.* |
| 3.1 | Restatement of the Restated Articles of Incorporation of West Bancorporation, Inc. filed with the Iowa Secretary of State of the State of Iowa on December 24, 2008, incorporatedFebruary 16, 2017 (incorporated by reference to West Bancorporation, Inc.’s Current Report onExhibit 3.1 of the Company’s Form 8-K filed December 31, 2008. |
| |
3.3 | Articles of Amendment to the Restated Articles of Incorporation10-K filed with the Iowa SecretarySEC on March 1, 2017). |
| 3.2 | Bylaws of State on December 24, 2008, designating the terms of Fixed Rate Cumulative Perpetual Preferred Stock, Series A, incorporatedWest Bancorporation, Inc., as amended (incorporated by reference to West Bancorporation, Inc.’s Current ReportExhibit 4.1 of the Company’s Form S-3 (File No. 333-157027) filed with the SEC on Form 8-K filed December 31, 2008. |
| January 30, 2009). |
| 4.1 | Bylaws as amended through October 17, 2007. Form of Common Stock Certificate.* |
| |
| 4.2 | Warrant for PurchaseForm of SharesCertificate of Common Stock, incorporated by reference to West Bancorporation, Inc.’s Current Report on Form 8-K filed December 31, 2008. |
| Designations of Preferred Stock.* |
| 4.3 | Letter Agreement, dated December 31, 2008, between the Company and the UST, which includes the Securities Purchase Agreement attached thereto, with respect to the issuance and saleForm of the Preferred Stock and the Warrant, incorporated by reference to West Bancorporation Inc.'s Current Report on Form 8-K filed December 31, 2008.Certificate.* |
| 4.4 | Form of Warrant and Warrant Certificate.* |
| 4.5 | Form of Indenture. |
| 4.6 | Form of Senior Debt Security.* |
| 4.7 | Form of Subordinated Debt Security.* |
| 4.8 | Form of Purchase Contract Agreement.* |
| 4.9 | Form of Depositary Agreement and Depositary Receipt.* |
| 4.10 | Form of Subscription Certificate.* |
| 4.11 | Form of Subscription Agent Agreement.* |
| 4.12 | Form of Unit Agreement and Unit Certificate.* |
| 5.1 | Opinion of Ahlers & Cooney, P.C. *(including consent). |
| 5.2 | Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP (including consent). |
| 12.1 | ComputationCalculation of RatiosRatio of Earnings to Fixed Charges and Preferred Dividends. ** |
| Charges. |
| 23.1 | Consent of McGladrey & Pullen,RSM US LLP. ** |
| |
| 23.2 | Consent of Ahlers & Cooney, P.C. (included in Exhibit 5.1). |
| 23.3 | Consent of Barack Ferrazzano Kirschbaum & Nagelberg LLP (included in Exhibit 5.2). |
| 24.1 | PowersPower of Attorney (included on the signature page to the registration statement). |
| 25.1 | Statement of directorsEligibility of West Bancorporation, Inc. Trustee on Form T-1 for the Senior Indenture and Subordinated Indenture.** |
* PreviouslyTo be filed by amendment or as an exhibit to a document to be incorporated by reference herein.
** Filed herewithTo be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, if applicable.