Exhibit 4.4
WARRANT TO PURCHASE PREFERRED STOCK
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER AND
OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE
SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH
THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
WARRANT
to purchase
14,784.78478
Shares of Preferred Stock
of First Banks, Inc.
Issue Date: December 31, 2008
1. Definitions. Unless the context otherwise requires, when used herein
the following terms shall have the meanings indicated.
"Board of Directors" means the board of directors of the Company,
including any duly authorized committee thereof.
"business day" means any day except Saturday, Sunday and any day on which
banking institutions in the State of New York generally are authorized or
required by law or other governmental actions to close.
"Charter" means, with respect to any Person, its certificate or articles
of incorporation, articles of association, or similar organizational document.
"Company" means the Person whose name, corporate or other organizational
form and jurisdiction of organization is set forth in Item 1 of Schedule A
hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and regulations promulgated thereunder.
"Exercise Price" means the amount set forth in Item 2 of Schedule A
hereto.
"Expiration Time" has the meaning set forth in Section 3.
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"Issue Date" means the date set forth in Item 3 of Schedule A hereto.
"Liquidation Amount" means the amount set forth in Item 4 of Schedule A
hereto.
"Original Warrantholder" means the United States Department of the
Treasury. Any actions specified to be taken by the Original Warrantholder
hereunder may only be taken by such Person and not by any other Warrantholder.
"Person" has the meaning given to it in Section 3(a)(9) of the Exchange
Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
"Preferred Stock" means the series of perpetual preferred stock set forth
in Item 5 of Schedule A hereto.
"Purchase Agreement" means the Securities Purchase Agreement - Standard
Terms incorporated into the Letter Agreement, dated as of the date set forth in
Item 6 of Schedule A hereto, as amended from time to time, between the Company
and the United States Department of the Treasury (the "Letter Agreement"),
including all annexes and schedules thereto.
"Regulatory Approvals" with respect to the Warrantholder, means, to the
extent applicable and required to permit the Warrantholder to exercise this
Warrant for shares of Preferred Stock and to own such Preferred Stock without
the Warrantholder being in violation of applicable law, rule or regulation, the
receipt of any necessary approvals and authorizations of, filings and
registrations with, notifications to, or expiration or termination of any
applicable waiting period under, the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the rules and regulations thereunder.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations promulgated thereunder.
"Shares" has the meaning set forth in Section 2.
"Warrantholder" has the meaning set forth in Section 2.
"Warrant" means this Warrant, issued pursuant to the Purchase Agreement.
2. Number of Shares; Exercise Price. This certifies that, for value
received, the United States Department of the Treasury or its permitted assigns
(the "Warrantholder") is entitled, upon the terms and subject to the conditions
hereinafter set forth, to acquire from the Company, in whole or in part, after
the receipt of all applicable Regulatory Approvals, if any, up to an aggregate
of the number of fully paid and nonassessable shares of Preferred Stock set
forth in Item 7 of Schedule A hereto (the "Shares"), at a purchase price per
share of Preferred Stock equal to the Exercise Price.
3. Exercise of Warrant; Term. Subject to Section 2, to the extent
permitted by applicable laws and regulations, the right to purchase the Shares
represented by this Warrant is
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exercisable, in whole or in part by the Warrantholder, at any time or from time
to time after the execution and delivery of this Warrant by the Company on the
date hereof, but in no event later than 5:00 p.m., New York City time on the
tenth anniversary of the Issue Date (the "Expiration Time"), by (A) the
surrender of this Warrant and Notice of Exercise annexed hereto, duly completed
and executed on behalf of the Warrantholder, at the principal executive office
of the Company located at the address set forth in Item 8 of Schedule A hereto
(or such other office or agency of the Company in the United States as it may
designate by notice in writing to the Warrantholder at the address of the
Warrantholder appearing on the books of the Company), and (B) payment of the
Exercise Price for the Shares thereby purchased, by having the Company withhold,
from the shares of Preferred Stock that would otherwise be delivered to the
Warrantholder upon such exercise, shares of Preferred Stock issuable upon
exercise of the Warrant with an aggregate Liquidation Amount equal in value to
the aggregate Exercise Price as to which this Warrant is so exercised.
If the Warrantholder does not exercise this Warrant in its entirety,
the Warrantholder will be entitled to receive from the Company within a
reasonable time, and in any event not exceeding three business days, a new
warrant in substantially identical form for the purchase of that number of
Shares equal to the difference between the number of Shares subject to this
Warrant and the number of Shares as to which this Warrant is so exercised.
Notwithstanding anything in this Warrant to the contrary, the Warrantholder
hereby acknowledges and agrees that its exercise of this Warrant for Shares is
subject to the condition that the Warrantholder will have first received any
applicable Regulatory Approvals.
4. Issuance of Shares; Authorization. Certificates for Shares issued upon
exercise of this Warrant will be issued in such name or names as the
Warrantholder may designate and will be delivered to such named Person or
Persons within a reasonable time, not to exceed three business days after the
date on which this Warrant has been duly exercised in accordance with the terms
of this Warrant. The Company hereby represents and warrants that any Shares
issued upon the exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued, fully paid and
nonassessable and free from all taxes, liens and charges (other than liens or
charges created by the Warrantholder, income and franchise taxes incurred in
connection with the exercise of the Warrant or taxes in respect of any transfer
occurring contemporaneously therewith). The Company agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as of the close
of business on the date on which this Warrant and payment of the Exercise Price
are delivered to the Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may then be closed
or certificates representing such Shares may not be actually delivered on such
date. The Company will at all times reserve and keep available, out of its
authorized but unissued preferred stock, solely for the purpose of providing for
the exercise of this Warrant, the aggregate number of shares of Preferred Stock
then issuable upon exercise of this Warrant at any time. The Company will use
reasonable best efforts to ensure that the Shares may be issued without
violation of any applicable law or regulation or of any requirement of any
securities exchange on which the Shares are listed or traded.
5. No Rights as Stockholders; Transfer Books. This Warrant does not
entitle the Warrantholder to any voting rights or other rights as a stockholder
of the Company prior to the
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date of exercise hereof. The Company will at no time close its transfer books
against transfer of this Warrant in any manner which interferes with the timely
exercise of this Warrant.
6. Charges, Taxes and Expenses. Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made without charge to
the Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company.
7. Transfer/Assignment.
(A) Subject to compliance with clause (B) of this Section 7, this Warrant
and all rights hereunder are transferable, in whole or in part, upon the books
of the Company by the registered holder hereof in person or by duly authorized
attorney, and a new warrant shall be made and delivered by the Company, of the
same tenor and date as this Warrant but registered in the name of one or more
transferees, upon surrender of this Warrant, duly endorsed, to the office or
agency of the Company described in Section 3. All expenses (other than stock
transfer taxes) and other charges payable in connection with the preparation,
execution and delivery of the new warrants pursuant to this Section 7 shall be
paid by the Company.
(B) The transfer of the Warrant and the Shares issued upon exercise of the
Warrant are subject to the restrictions set forth in Section 4.4 of the Purchase
Agreement. If and for so long as required by the Purchase Agreement, this
Warrant shall contain the legends as set forth in Section 4.2(a) of the Purchase
Agreement.
8. Exchange and Registry of Warrant. This Warrant is exchangeable, upon
the surrender hereof by the Warrantholder to the Company, for a new warrant or
warrants of like tenor and representing the right to purchase the same aggregate
number of Shares. The Company shall maintain a registry showing the name and
address of the Warrantholder as the registered holder of this Warrant. This
Warrant may be surrendered for exchange or exercise in accordance with its
terms, at the office of the Company, and the Company shall be entitled to rely
in all respects, prior to written notice to the contrary, upon such registry.
9. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of a bond, indemnity or security reasonably
satisfactory to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company shall make and deliver,
in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and representing the right to purchase the same aggregate number of
Shares as provided for in such lost, stolen, destroyed or mutilated Warrant.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall not be a business day, then such action may be taken or such right
may be exercised on the next succeeding day that is a business day.
11. Rule 144 Information. The Company covenants that it will use its
reasonable best efforts to timely file all reports and other documents required
to be filed by it under the
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Securities Act and the Exchange Act and the rules and regulations promulgated by
the SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of any Warrantholder, make publicly available such
information as necessary to permit sales pursuant to Rule 144 under the
Securities Act), and it will use reasonable best efforts to take such further
action as any Warrantholder may reasonably request, in each case to the extent
required from time to time to enable such holder to, if permitted by the terms
of this Warrant and the Purchase Agreement, sell this Warrant without
registration under the Securities Act within the limitation of the exemptions
provided by (A) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (B) any successor rule or regulation hereafter adopted by
the SEC. Upon the written request of any Warrantholder, the Company will deliver
to such Warrantholder a written statement that it has complied with such
requirements.
12. Adjustments and Other Rights. For so long as the Original
Warrantholder holds this Warrant or any portion thereof, if any event occurs
that, in the good faith judgment of the Board of Directors of the Company, would
require adjustment of the Exercise Price or number of Shares into which this
Warrant is exercisable in order to fairly and adequately protect the purchase
rights of the Warrants in accordance with the essential intent and principles of
the Purchase Agreement and this Warrant, then the Board of Directors shall make
such adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board of Directors, to protect such purchase rights as
aforesaid.
Whenever the Exercise Price or the number of Shares into which this
Warrant is exercisable shall be adjusted as provided in this Section 12, the
Company shall forthwith file at the principal office of the Company a statement
showing in reasonable detail the facts requiring such adjustment and the
Exercise Price that shall be in effect and the number of Shares into which this
Warrant shall be exercisable after such adjustment, and the Company shall also
cause a copy of such statement to be sent by mail, first class postage prepaid,
to each Warrantholder at the address appearing in the Company's records.
13. No Impairment. The Company will not, by amendment of its Charter or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in taking
of all such action as may be necessary or appropriate in order to protect the
rights of the Warrantholder.
14. Governing Law. This Warrant will be governed by and construed in
accordance with the federal law of the United States if and to the extent such
law is applicable, and otherwise in accordance with the laws of the State of New
York applicable to contracts made and to be performed entirely within such
State. Each of the Company and the Warrantholder agrees (a) to submit to the
exclusive jurisdiction and venue of the United States District Court for the
District of Columbia for any civil action, suit or proceeding arising out of or
relating to this Warrant or the transactions contemplated hereby, and (b) that
notice may be served upon the Company at the address in Section 17 below and
upon the Warrantholder at the address for the Warrantholder set forth in the
registry maintained by the Company pursuant to Section 8 hereof. To the extent
permitted by applicable law, each of the Company and the Warrantholder hereby
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unconditionally waives trial by jury in any civil legal action or proceeding
relating to the Warrant or the transactions contemplated hereby or thereby.
15. Binding Effect. This Warrant shall be binding upon any successors or
assigns of the Company.
16. Amendments. This Warrant may be amended and the observance of any term
of this Warrant may be waived only with the written consent of the Company and
the Warrantholder.
17. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other will be in writing and will be deemed
to have been duly given (a) on the date of delivery if delivered personally, or
by facsimile, upon confirmation of receipt, or (b) on the second business day
following the date of dispatch if delivered by a recognized next day courier
service. All notices hereunder shall be delivered as set forth in Item 9 of
Schedule A hereto, or pursuant to such other instructions as may be designated
in writing by the party to receive such notice.
18. Entire Agreement. This Warrant, the forms attached hereto and Schedule
A hereto (the terms of which are incorporated by reference herein), and the
Letter Agreement (including all documents incorporated therein), contain the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or undertakings with
respect thereto.
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Notice of Exercise
Date: _________
TO: First Banks, Inc.
RE: Election to Purchase Preferred Stock
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby agrees to subscribe for and purchase the number of shares of the
Preferred Stock set forth below covered by such Warrant. The undersigned, in
accordance with Section 3 of the Warrant, hereby agrees to pay the aggregate
Exercise Price for such shares of Preferred Stock in the manner set forth in
Section 3(B) of the Warrant. A new warrant evidencing the remaining shares of
Preferred Stock covered by such Warrant, but not yet subscribed for and
purchased, if any, should be issued in the name set forth below.
Number of Shares of Preferred Stock _______________________
Aggregate Exercise Price: __________________________
Holder:__________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by a duly authorized officer.
Dated: December 31, 2008
FIRST BANKS, INC.
/s/ Terrance M. McCarthy
By:_________________________________________
Name: Terrance M. McCarthy
Title: Chief Executive Officer and President
Attest:
/s/ Peter D. Wimmer
By:_________________________________________
Name: Peter D. Wimmer
Title: Senior Vice President, General
Counsel and Corporate Secretary
[Signature Page to Warrant]
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SCHEDULE A
Item 1
Name: First Banks, Inc.
Corporate or other organizational form: Corporation
Jurisdiction of organization: Missouri
Item 2
Exercise Price: $1.00
Item 3
Issue Date: December 31, 2008
Item 4
Liquidation Amount: $1,000
Item 5
Series of Perpetual Preferred Stock: Fixed Rate Cumulative Perpetual Preferred
Stock, Series D
Item 6
Date of Letter Agreement between the Company and the United States Department of
the Treasury: December 31, 2008
Item 7
Number of shares of Preferred Stock: 14,784.78478
Item 8
Company's address: 135 N. Meramec, Suite 410, Clayton, Missouri 63105
Item 9
Notice information: Peter D. Wimmer
135 N. Meramec, Suite 410
Clayton, MO 63105
(314) 854-4614
Peter.wimmer@fbol.com
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