SHARES OF COMMON STOCK SUBSCRIPTION AGREEMENT
EXHIBIT 99.1
SHARES OF COMMON STOCK
THE SHARES OF OUR COMMON STOCK ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR
OTHER OBLIGATIONS OF OUR BANK SUBSIDIARY, AND NON-BANK SUBSIDIARY OR ANY OTHER
BANK AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION (“FDIC”) AND/OR ANY OTHER GOVERNMENTAL AGENCY, AND ARE SUBJECT TO INVESTMENT
RISK, INCLUDING, WITHOUT LIMITATION, THE POSSIBLE LOSS OF SOME OR ALL PRINCIPAL.
THE SECURITIES OFFERED HEREBY HAVE
NOT BEEN REGISTERED WITH OR APPROVED OR DISAPPROVED BY THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION, THE FDIC NOR BY THE SECURITIES REGULATORY
AUTHORITY OF ANY STATE, AND SUCH REGISTRATION IS NOT CONTEMPLATED. NEITHER THE
SEC NOR ANY STATE SECURITIES REGULATORY AUTHORITY WILL PASS UPON THE ACCURACY OR
ADEQUACY OF THE CONFIDENTIAL PRIVATE OFFERING MEMORANDUM (THE
“MEMORANDUM”). ANY REPRESENTATION TO THE CONTRARY IS
UNAUTHORIZED AND UNLAWFUL.
THE SHARES OF COMMON STOCK BEING SOLD
PURSUANT TO THIS OFFERING ARE “RESTRICTED SECURITIES” WITHIN THE MEANING OF RULE
144 PROMULGATED UNDER THE SECURITIES ACT (“RULE 144”) AND MAY NOT BE TRANSFERRED IN WHOLE OR IN
PART IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF
COUNSEL SATISFACTORY TO EFSC THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE,
AMONG OTHER RESTRICTIONS.
This Subscription Agreement, is made by and
between the person(s), corporation, partnership, trust or other entity set forth
on the signature page hereto (such party being hereinafter referred to as the
“Investor” and all such persons concurrently entering
into a Subscription Agreement being referred to as the “Investors”), and Enterprise Financial Services Corp, a
financial holding corporation incorporated in the State of Delaware (the
“Company”).
1. The Offering. The Company is offering to the Investor, in
a private placement offering (the
“Offering”), a minimum of 19,456 and a maximum of
518,806 shares of its common stock, par value $0.01 per share (the “Common Stock”) at the Share Price (as defined below). The
Company must receive and accept subscriptions for a minimum of 648,509 shares of
Common Stock (for $5,000,000) (the “Minimum Offering
Amount”) in order
for the Company to close the Offering. The Company will accept subscriptions for
an aggregate maximum of 1,945,525 shares of Common Stock (for $15,000,000) (the
“Maximum Offering
Amount”).
(a) Determination of Share
Price. The Share Price for
the shares of Common Stock being offered under the Offering is $_____ per share
(the “Share Price”).
(b) Term of Offering. The Offering will continue until January 22,
2010 (the “Offering Deadline”). If the Company receives subscriptions in
excess of the Minimum Offering Amount at any time prior to or on the Offering
Deadline, the Company may elect in its sole and absolute discretion to accept
some or all of such subscriptions and consummate an initial closing of the
Offering at any time prior to or on the Offering Deadline (an “Initial Closing”) with respect to all such accepted
subscriptions. In the event that the Company consummates an Initial Closing, the
Company may then elect in its sole and absolute discretion to (i) accept some or
all subscriptions that the Company receives prior to or on the Offering Deadline
(other than those subscriptions, if any, that the Company previously accepted at
the Initial Closing) and (ii) consummate a final closing of the Offering prior
to or on the Offering Deadline with respect to any such accepted subscriptions.
(c)
Minimum Subscription. The minimum subscription amount per Investor
is 19,456 shares of Common Stock (for $150,000), which minimum requirement
amount may be waived by the Company in its sole discretion upon request.
(d)
Maximum Subscription. The maximum subscription amount per Investor
is 518,806 shares of Common Stock (for $4,000,000), which maximum subscription
amount may be waived by the Company in its sole discretion upon request.
2. Subscription. The Investor hereby irrevocably subscribes
to purchase the number of shares of Common Stock indicated on the signature page
hereof in accordance with the terms and conditions of this Subscription
Agreement. The Investor agrees that, subject to applicable law, this
Subscription may not be revoked by the Investor. This subscription is subject to
acceptance in whole or in part by the Company. Notwithstanding anything to the
contrary set forth in this Subscription Agreement, the Company (i) will not
accept any subscriptions and close the Offering unless the Company receives
aggregate subscriptions in excess of the Minimum Offering Amount, (ii) will not
accept any subscriptions in excess of the Maximum Offering Amount and (iii) may
elect, in the Company’s sole and absolute discretion, to terminate the Offering
at any time without notice to the Investors. No acceptance of an Investor’s
subscription shall occur until the closing, if any, of this Offering with
respect to an Investor.
3. Tender and Subscription
Procedure.
(a) Tender of Subscription
Amount. The Investor
hereby tenders his, her or its payment of the entire subscription price for the
number of shares of Common Stock so purchased (the “Subscription Amount”) by check payable to “UMB Bank, N.A., as
escrow agent” and in the amount set forth on the signature page to this
Subscription Agreement. All subscriptions by Investors should be for whole
numbers of shares of Common Stock. The Company will not issue certificates for
fractional shares and will refund the portion of any Subscription Amount
representing a fractional share.
(b) Procedure. The Investor must deliver (i) a duly
executed copy of this Subscription Agreement, (ii) the signed and complete
Investor Questionnaire and (iii) the Subscription Amount, to the Company at
Enterprise Financial Services Corp, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer.
2
4. Acceptance of Offer. Upon receipt of a properly completed
Subscription Agreement and
Offeree Questionnaire included therein, the entire Subscription Amount will be
deposited in a non-interest bearing escrow account (the “Escrow Account”) with UMB Bank, N.A., as escrow agent
(“Escrow Agent”). After the Company receives subscriptions
for the Minimum Offering Amount (and the satisfaction of any other conditions
established by EFSC’s board of directors), the Company may elect in its sole and
absolute discretion to initiate consummation of the Offering and instruct the
Escrow Agent to release all or a portion of each accepted Investor’s
Subscription Amount to the Company without prior notice to such Investor. Each
accepted Investor will then be issued a corresponding number of shares of the
Common Stock based on the Share Price. The Company may allocate to the Investor
a smaller number of shares of Common Stock than has been subscribed for by the
Investor. In such event, the Subscription Amount of such Investor will be
adjusted accordingly and a portion of the Investors subscription payment will be
returned by the Company or the Escrow Agent. Each rejected Investor’s
Subscription Amount and any portion of an accepted Investor’s Subscription
Amount remaining in the Escrow Account after the Offering Deadline or upon any
termination of the Offering will be promptly returned to such Investor without
interest paid thereon and no shares of the Common Stock will be issued pursuant
to the Offering for such Subscription Amount or portion thereof. If the Company
entirely rejects an Investor’s subscription, as determined in the Company’s sole
and absolute discretion, including without limitation if the Company terminates
the Offering without accepting any subscriptions, then (i) such Investor’s
entire Subscription Amount will be returned, without interest, charge or
deduction, (ii) this Subscription Agreement will terminate with respect to such
Investor and the Company and (iii) all obligations of such Investor pursuant to
this Subscription Agreement will be null and void.
5. Accredited Investor Status. The Investor hereby certifies and represents
to the Company that such Investor is an “accredited investor” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended (the “Securities Act”) and that the information provided by the
Investor in the Investor Questionnaire is true, correct and complete in all
respects. The Investor agrees to deliver promptly such additional information or
documentation as may be requested by the Company in order to substantiate the
Investor’s status indicated above.
6. Representations, Warranties and Agreements of
the Investor. The Investor represents and warrants to
Company and agrees as follows:
(a) No Registration of Common Stock; Investment
Decision. EXCEPT TO THE
EXTENT SET FORTH IN SECTION 7 OF THIS SUBSCRIPTION AGREEMENT, THE INVESTOR
UNDERSTANDS THAT THE OFFER AND SALE OF THE COMMON STOCK WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OR UNDER THE SECURITIES LAWS OF ANY STATE ON THE BASIS
THAT THE SALE PROVIDED FOR IN THIS SUBSCRIPTION AGREEMENT AND THE ISSUANCE OF
THE COMMON STOCK HEREUNDER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT
PURSUANT TO SECTION 4(2) THEREOF OR REGULATION D THEREUNDER AND IN RELIANCE UPON
THE EXEMPTIONS FROM REGISTRATION SPECIFIED UNDER APPLICABLE STATE LAWS AND
REGULATIONS. IN GENERAL, SUCH EXEMPTIONS ARE AVAILABLE FOR SECURITIES
TRANSACTIONS INVOLVING A LIMITED NUMBER OF INVESTORS AND NOT INVOLVING A PUBLIC
OFFERING, PUBLIC SOLICITATION OR ADVERTISING OF ANY KIND. COMPLIANCE WITH THE
TERMS OF SUCH EXEMPTIONS MEANS THAT THE COMMON STOCK MAY BE OFFERED AND SOLD
ONLY TO INVESTORS WHO ARE PURCHASING FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TOWARD RESALE OR DISTRIBUTION.
3
IN MAKING AN INVESTMENT DECISION, THE INVESTOR
MUST RELY ON HIS, HER OR ITS OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE
OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SHARES OF COMMON STOCK
HAVE NOT BEEN RECOMMENDED BY THE FDIC OR ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY.
(b) Purchase for Own Account; Restriction on
Transfer. The Investor is
purchasing shares of the Common Stock solely for the Investor’s own account, for
investment purposes, and not with a view to, or for sale in connection with, any
distribution thereof, or with any present intention of selling or otherwise
transferring shares of the Common Stock. The Investor is aware that shares of
the Common Stock have not been registered with federal or state securities
regulatory agencies in reliance upon exemptions from registration requirements
under applicable federal and state laws. The Investor is further aware that
shares of the Common Stock are deemed “restricted securities” within the meaning
of Rule 144, and agrees that the shares of Common Stock purchased hereunder may
not be transferred in whole or in part in without registration or an exemption
from registration under the Securities Act, among other restrictions on
transfer.
The Investor agrees that he, she or it will
not sell, pledge, hypothecate, or otherwise transfer or dispose of the shares of
the Common Stock except pursuant to an effective registration statement under
the Securities Act, or unless the Investor submits an opinion of counsel
reasonably satisfactory to the Company and its counsel that an exemption from
registration exists thereunder, and in any event, any such sale, pledge,
hypothecation or other transfer must comply with the registration provisions of
the Securities Act and applicable state securities laws, or be exempt therefrom.
Because of such restrictions on the transferability of shares of the Common
Stock, the Investor acknowledges that the Investor may continue to bear the
economic risk of investment in shares of the Common Stock for an indefinite
period of time.
(c) Authority. The Investor has
full capacity, power and/or authority to enter into and perform the Investor’s
obligations under this Subscription Agreement.
(d) Information. The Investor has
read carefully and understands the Memorandum (and each of the exhibits thereto)
and has consulted with such of the Investor’s legal, business and/or financial
advisers as the Investor deems necessary with respect to the investment
contemplated hereby. The Investor believes he, she or it has received all the
information he, she or it considers necessary or appropriate for determining
whether to purchase shares of the Common Stock, including, without limitation,
the exhibits attached to the Memorandum and the other filings made by the
Company to satisfy the reporting requirements under the Securities and Exchange
Act of 1934, as amended (the “1934 Act”). The Investor has had the opportunity to
ask questions concerning the Company, the transaction and any changes from the
information and has not been refused in any request for information. The
Investor recognizes that the information is based on the information and belief
of management of the Company, and that the projections and predictions contained
therein may not materialize.
(e) Financial Means and
Sophistication. The
Investor understands that investment in the Company is a speculative undertaking
and that (i) he, she or it is experienced and sophisticated in investment
matters, including investments similar to an investment in the Company; (ii) he,
she or it has carefully considered and evaluated the risks and advantages of
investing in the Company; (iii) his, her or its commitments to all investments
of this nature bear a reasonable relation to his, her or its net worth and to
the amount of income which he, she or it expects to receive during the current
taxable year; (iv) he, she or it is in a financial position that is stable and
liquid such that an investment in shares of the Common Stock would not impair
his, her or its ability to meet reasonably foreseeable financial demands or
contingencies; (v) he, she or it has substantial experience in making investment
decisions of this type and is relying on his, her or its own tax and financial
advisor or an investor representative in making this investment decision; and
(vi) the objectives of the Company are compatible with his, her or its
investment objectives.
4
(f) Risk. THE INVESTOR
ACKNOWLEDGES THAT SHARES OF THE COMMON STOCK OFFERED BY THIS SUBSCRIPTION
AGREEMENT ARE SPECULATIVE IN NATURE AND INVOLVE A HIGH DEGREE OF RISK, AND THAT
HE, SHE OR IT HAS THE FINANCIAL MEANS AND SOPHISTICATION TO BEAR THE ECONOMIC
RISK ASSOCIATED WITH SUCH AN INVESTMENT. THE INVESTOR ACKNOWLEDGES THAT SHARES
OF THE COMMON STOCK SHOULD BE PURCHASED ONLY BY PERSONS WHO OR ENTITIES THAT CAN
AFFORD TO LOSE THEIR ENTIRE INVESTMENT AND THAT HE, SHE OR IT HAS CAREFULLY
EVALUATED THE RISKS OF HIS, HER OR ITS INVESTMENT IN THE COMPANY. THE COMPANY
OFFERS NO ASSURANCE OF ANY ECONOMIC BENEFIT.
The foregoing
representations and warranties by the Investor are true and accurate as of the
date set forth below and shall be true and accurate as of the date on which the
Investor’s subscription is accepted by the Company. If in any respect such
representations, warranties or information shall not be true and accurate at any
time prior to the sale of shares of the Common Stock to the Investor, the
undersigned will give written notice of such fact to the Company specifying
which representations, warranties or information are not true and accurate and
the reasons therefor.
7. Registration
Rights.
(a) Registration. Subject to the terms and
conditions of this Subscription Agreement, the Company covenants and agrees that
as promptly as practicable after the filing of its Annual Report on Form 10-K
for the year ended December 31, 2009 (and in any event no later than March 17,
2010) (the “Registration
Deadline”), the Company shall prepare and file with the SEC a shelf registration
on an appropriate form under Rule 415 under the Securities Act (a “Shelf Registration
Statement”) covering all Registrable Securities (or
otherwise designate an existing Shelf Registration Statement filed with the SEC
to cover the Registrable Securities), and, to the extent the Shelf Registration
Statement has not theretofore been declared effective or is not automatically
effective upon such filing, the Company shall use reasonable best efforts to
cause such Shelf Registration Statement to be declared or become effective.
Notwithstanding any other provision of this Section 7, if on the Registration
Deadline the Company is not eligible to file a registration statement on Form
S-3, then the Company shall have no obligation to file a Shelf Registration
Statement by the Registration Deadline and instead will, subject to the terms
and conditions of this Subscription Agreement, file, not later than June 30,
2010, a Shelf Registration Statement on any applicable form for which it is
eligible.
(b) Delay of
Registration. The Company shall not be required to effect a registration (including a
resale of Registrable Securities from an effective Shelf Registration Statement)
pursuant to Section 7(a): (A) with respect to securities that are not
Registrable Securities or (B) if the Company notifies the Investor and any other
any other holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred (each a “Holder” and collectively the “Holders”) that in the good faith judgment of the
Company’s board of directors, it would be materially detrimental to the Company
or its securityholders for such registration to be effected at such time, in
which event the Company shall have the right to defer such registration not
later than May 15, 2010.
5
(c) Expenses of
Registration. All Registration Expenses incurred in connection with any registration,
qualification or compliance hereunder shall be borne by the Company. All Selling
Expenses incurred in connection with any registrations hereunder shall be borne
by the holders of the securities so registered pro rata on the basis of the aggregate
offering or sale price of the securities so registered.
(d) Obligations of the
Company. The
Company shall use its reasonable best efforts, for so long as Registrable
Securities are outstanding, to take such actions as are under its control to not
become an ineligible issuer (as defined in Rule 405 under the Securities Act).
In addition, whenever required to effect the registration of any Registrable
Securities or facilitate the distribution of Registrable Securities pursuant to
an effective Shelf Registration Statement, the Company shall, as expeditiously
as reasonably practicable:
(i) Furnish to the
Holders such number of copies of the applicable registration statement and each
such amendment and supplement thereto (including in each case all exhibits) and
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned or to be distributed by them.
(ii) Notify each
Holder of Registrable Securities at any time when a prospectus relating thereto
is required to be delivered under the Securities Act of the happening of any
event as a result of which the applicable prospectus, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(iii) Give written
notice to the Holders:
(A) when any
registration statement filed pursuant to Section 7(a) or any amendment thereto
has been filed with the SEC (except for any amendment effected by the filing of
a document with the SEC pursuant to the ▇▇▇▇ ▇▇▇) and when such registration
statement or any post-effective amendment thereto has become effective;
(B) of any request by
the SEC for amendments or supplements to any registration statement or the
prospectus included therein or for additional information;
(C) of the issuance
by the SEC of any stop order suspending the effectiveness of any registration
statement or the initiation of any proceedings for that purpose;
(D) of the receipt by
the Company or its legal counsel of any notification with respect to the
suspension of the qualification of the Common Stock for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and
(E) of the happening
of any event that requires the Company to make changes in any effective
registration statement or the prospectus related to the registration statement
in order to make the statements therein not misleading (which notice shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made).
6
(iv) Use its
reasonable best efforts to prevent the issuance or obtain the withdrawal of any
order suspending the effectiveness of any registration statement referred to in
Section 7(d)(iii)(C) at the earliest practicable time.
(v) Upon the
occurrence of any event contemplated by Section 7(d)(ii) or 7(d)(iii)(E),
promptly prepare a post-effective amendment to such registration statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to the Holders, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. If the Company notifies the Holders in accordance
with Section 7(d)(iii)(E) to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Holders shall
suspend use of such prospectus and use their reasonable best efforts to return
to the Company all copies of such prospectus (at the Company’s expense) other
than permanent file copies then in such Holders’ possession.
(vi) Use reasonable
best efforts to procure the cooperation of the Company’s transfer agent in
settling any offering or sale of Registrable Securities, including with respect
to the transfer of physical stock certificates into book-entry form in
accordance with any procedures reasonably requested by the Holders.
(vii) Use reasonable
best efforts to cause all such shares of the Common Stock to be listed on the
Nasdaq Stock market.
(viii) Timely provide
to its security holders earning statements necessary to satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder.
(e) Suspension of
Sales.
Upon receipt of written notice from the Company that a registration statement,
prospectus or prospectus supplement contains or may contain an untrue statement
of a material fact or omits or may omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that circumstances exist that make inadvisable use of such registration
statement, prospectus or prospectus supplement, the Investor and each Holder of
Registrable Securities shall forthwith discontinue disposition of Registrable
Securities until the Investor and/or Holder has received copies of a
supplemented or amended prospectus or prospectus supplement, or until the
Investor and/or such Holder is advised in writing by the Company that the use of
the prospectus and, if applicable, prospectus supplement may be resumed, and, if
so directed by the Company, the Investor and/or such Holder shall deliver to the
Company (at the Company’s expense) all copies, other than permanent file copies
then in the Investor and/or such Holder’s possession, of the prospectus and, if
applicable, prospectus supplement covering such Registrable Securities current
at the time of receipt of such notice.
(f) Furnishing
Information.
(i) Neither the
Investor nor any Holder shall use any free writing prospectus (as defined in
Rule 405) in connection with the sale of Registrable Securities without the
prior written consent of the Company.
(ii) It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to Section 7(d) that Investor and/or the selling Holders, if any, shall
furnish to the Company such information regarding themselves, the Registrable
Securities held by them and the intended method of
disposition of such securities as shall be required to effect the registered
offering of their Registrable Securities.
7
(g) Indemnification.
(i) The Company
agrees to indemnify each Holder and, if a Holder is a person other than an
individual, such Holder’s officers, directors, employees, agents,
representatives and Affiliates, and each Person, if any, that controls a Holder
within the meaning of the Securities Act (each, an “Indemnitee”), against any and all
losses, claims, damages, actions, liabilities, costs and expenses (including
reasonable fees, expenses and disbursements of attorneys and other professionals
incurred in connection with investigating, defending, settling, compromising or
paying any such losses, claims, damages, actions, liabilities, costs and
expenses), whether joint or several (collectively, “Losses”), arising out of or based
upon any untrue statement or alleged untrue statement of material fact contained
in any registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto or any
documents incorporated therein by reference or contained in any free writing
prospectus (as such term is defined in Rule 405) prepared by the Company or
authorized by it in writing for use by such Holder (or any amendment or
supplement thereto); or any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, that the
Company shall not be liable to such Indemnitee in any such case to the extent
that any such Losses arise out of or are based upon (A) an untrue statement or
omission made in such registration statement, including any such preliminary
prospectus or final prospectus contained therein or any such amendments or
supplements thereto or contained in any free writing prospectus (as such term is
defined in Rule 405) prepared by the Company or authorized by it in writing for
use by such Holder (or any amendment or supplement thereto), in reliance upon
and in conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing to the
Company by such Indemnitee for use in connection with such registration
statement, including any such preliminary prospectus or final prospectus
contained therein or any such amendments or supplements thereto, or (B) offers
or sales effected by or on behalf of such Indemnitee “by means of (as defined in
Rule 159A) a “free writing prospectus” (as defined in Rule 405) that was not
authorized in writing by the Company.
(ii) If the
indemnification provided for in Section 7(g)(i) is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
Losses, then the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall to the full extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a result
of such Losses as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the violation(s) that resulted in such Losses, as well as any
other relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding anything to
the contrary set forth herein, no Indemnitee guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from the Company if the Company was not guilty
of such fraudulent misrepresentation.
8
(h) As used
in this Section 7, the following terms shall have the following respective
meanings:
(i) “Affiliate” means, with respect to any
person, any person directly or indirectly controlling, controlled by or under
common control with, such other person. For purposes of this definition,
“controlling” (including, with correlative
meanings, the terms “controlled
by” and “under common control
with”)
when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management and/or policies of
such person, whether through the ownership of voting securities by contract or
otherwise.
(ii) “Register” “registered” and “registration” shall refer to a
registration effected by preparing and (A) filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of effectiveness of such
registration statement or (B) filing a prospectus and/or prospectus supplement
in respect of an appropriate effective registration statement on Form S-3.
(iii) “Registrable
Securities” means the Common Stock; provided,
that, once issued, such securities will not be Registrable Securities when (1)
they are sold pursuant to an effective registration statement under the
Securities Act, (2) they shall have ceased to be outstanding or (3) they have
been sold in a private transaction in which the transferor’s rights under this
Agreement are not assigned to the transferee of the securities. No Registrable
Securities may be registered under more than one registration statement at any
one time.
(iv) “Registration
Expenses”
mean all expenses incurred by the Company in effecting any registration pursuant
to this Agreement (whether or not any registration or prospectus becomes
effective or final) or otherwise complying with its obligations under this
Section 7, including all registration, filing and listing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees and
expenses, expenses incurred in connection with any “road show”, the reasonable
fees and disbursements of Holders’ Counsel, and expenses of the Company’s
independent accountants in connection with any regular or special reviews or
audits incident to or required by any such registration, but shall not include
Selling Expenses.
(v) “Selling
Expenses” mean all discounts, selling commissions and stock transfer taxes
applicable to the sale of Registrable Securities and fees and disbursements of
counsel for any Holder (other than the fees and disbursements of Holders’
Counsel included in Registration Expenses).
(i) At any
time, any holder of Securities (including any Holder) may elect to forfeit its
rights set forth in this Section 7 from that date forward.
(j) Specific
Performance. The parties hereto acknowledge that there would be no adequate remedy
at law if the Company fails to perform any of its obligations under this Section
7 and that the Investor and the Holders from time to time may be irreparably
harmed by any such failure, and accordingly agree that the Investor and such
Holders, in addition to any other remedy to which they may be entitled at law or
in equity, to the fullest extent permitted and enforceable under applicable law
shall be entitled to compel specific performance of the obligations of the
Company under this Section 7 in accordance with the terms and conditions of this
Section 7.
9
8. Partial
Invalidity. In case any one or more of
the provisions contained in this Subscription Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the same shall not
affect any other provision of this Subscription Agreement.
9. Indemnification Relating to
this Subscription Agreement. The Investor agrees to
indemnify and hold harmless the Company and its directors, officers, members,
agents and advisors, from and against all Losses that each may incur
(individually and/or collectively, jointly and severally) by reason of (i) the
failure of the Investor to fulfill any of the terms or conditions of this
Subscription Agreement, (ii) any breach of or inaccuracy in any of the
representations, warranties and/or covenants made by the Investor in connection
with this Subscription Agreement, (iii) the disposition of shares of the Common
Stock by the Investor, contrary to such representations, warranties and/or
covenants and/or (iv) any action, suit or proceeding based upon the fact that
said representations, warranties and/or covenants were inaccurate or misleading
or otherwise cause for obtaining rescission, damages or redress from the
Company.
10. Survival of Agreements,
Representations and Warranties. All warranties,
representations, covenants, and agreements made in this Subscription Agreement
shall survive the execution and delivery of this Subscription Agreement and of
shares of the Common Stock. No warranty or representation other than those set
forth herein is relied upon by the Investor in making or performing this
Subscription Agreement. The Investor acknowledges that any feasibility study,
projection or forecast of the Company’s operations furnished to the Investor
constitutes mere suppositions based upon the assumptions shown therein and does
not constitute representations of facts by the Company or its promoters,
officers or directors.
11. Non-Transferability. This Subscription Agreement
is not transferable or assignable by the undersigned.
12. Joint
Ownership. If the undersigned is more than one person, the obligations of the
undersigned shall be joint and several and the representations and warranties
herein contained shall be deemed to be made by and be binding upon each such
person and his, her or its heirs, executors, administrators, successors and
assigns.
13. Binding
Effect.
All pronouns and any variation thereof used in this Subscription Agreement shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons referred to may require. This Subscription
Agreement, upon acceptance by the Company, shall be binding upon the heirs,
executors, administrators, successors and assigns of the undersigned.
14. Governing
Law.
Subject to the other provisions of this paragraph, any dispute or claim, and any
proceeding arising therefrom between the Investor and the Company shall be
governed in all respects by the laws of the State of Missouri without regard to
choice of law rules, including without limitation, the interpretation or
enforcement of this Subscription Agreement; provided, that the interpretation and
enforcement of the provisions of Section 14 of this Subscription Agreement shall
be governed by the United States Arbitration Act.
10
15. Dispute
Resolution. Any controversy or claim arising out of or relating to this
Subscription Agreement, or any breach hereof, shall be finally resolved by
binding arbitration to be conducted as follows:
(a) The
arbitration shall be conducted in St. Louis, Missouri in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, including
any rules regarding expedited procedures and emergency measures as applicable.
Process may be served in the manner in which notices may be given as provided in
this Subscription Agreement.
(b) One or
more arbitrators will be selected by agreement of the parties, or failing
agreement on the selection, the arbitrator(s) shall be selected in the manner
determined by the American Arbitration Association.
(c) The
jurisdiction of the arbitrator(s) and the arbitrability of any issue raised by
the parties shall be decided by the arbitrator(s) in the first instance. Any
award in such arbitration shall be in writing specifying the factual and legal
basis therefor and shall be final and binding upon the parties, absent manifest
error, and judgment upon the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction thereof located in St. Louis County, Missouri
or St. Louis, Missouri.
(d) At the
request of a party, the arbitrator(s) shall have the discretion to order
examination by deposition of witnesses to the extent the arbitrator deems such
additional discovery relevant and appropriate. Depositions shall be limited to a
maximum of six (6) per party and shall be held within thirty (30) days of the
making of a request. Additional depositions may be scheduled only with the
permission of the arbitrator(s) and for good cause shown. Each deposition shall
be limited to a maximum of one day’s duration. All objections are reserved for
the arbitration hearing except for objections based on privilege and proprietary
or confidential information.
(e) The
arbitrator(s) will have no authority to award punitive, consequential, special
or other damages not measured by the prevailing party’s actual damages, except
as may be expressly required by applicable statute.
(f) The
arbitrator(s) shall award to the prevailing party, if any, as determined by the
arbitrators, all of its costs and fees. “Costs and fees” shall mean all
reasonable pre-award expenses of the arbitration, including the arbitrators’
fees, administrative fees, travel expenses and court costs, expert witness fees,
consultant fees and reasonable attorneys’ fees.
16. Notices. All notices required or
permitted herein shall be in writing and shall be hand delivered, sent by a
nationally recognized overnight courier service, sent by facsimile or other
electronic communication or sent by registered or certified mail, return receipt
requested, postage prepaid to the address of the Investor or the Company, as
applicable, or to such other address as may be designated in writing from time
to time. All notices (except for notices concerning changes of address) given by
mail in the manner herein set forth shall be deemed given as of two (2) regular
business days after the date mailed, as evidenced by the postmark thereon.
Notices sent by facsimile shall be deemed given as of the date set forth on the
receipt or acknowledgement of transmission generated by the machine from which
the facsimile was sent indicating that the facsimile was sent in its entirety to
the addressee. Notices sent by e-mail shall be deemed given upon receipt by the
party giving notice of an acknowledgement or transmission report indicating that
such e-mail was sent in its entirety to the addressee’s email address. All other
notices (including without limitation, notices concerning changes of address)
shall be deemed given as of the date delivered to the recipient’s referenced
address.
11
17. Entire
Agreement. This Subscription Agreement and the Memorandum constitute the entire
agreement among the parties with respect to the subject matter hereof and may be
amended only by a writing executed by all parties.
18. No Waiver. No waiver of any breach or
condition of this Subscription Agreement shall be deemed to be a waiver of any
other conditions or subsequent breach whether of like or different nature.
19. Counterparts. This Subscription Agreement
may be executed in counterparts, each of which shall be deemed an original, and
all of which, taken together, shall constitute but one and the same instrument
which may be sufficiently evidenced by one counterpart.
20. Captions. The captions used herein
have been used for convenience only and are not intended to define, limit,
extend or describe the scope of this Subscription Agreement or any provisions of
this Subscription Agreement.
21. Enforcement. The undersigned agrees to
pay all costs incurred by the Company in enforcing the terms of this
Subscription Agreement, including, without limitation, court fees, arbitration
fees or costs, amounts paid in settlement, witness fees and fees and reasonable
fees of legal counsel, expert witnesses and other professionals), whether or not
arbitration or a law suit is instituted to enforce the terms of this
Subscription Agreement.
[The remainder of this page
is intentionally blank. The next page is the signature page.]
12
FULLY COMPLETE THE TABLE
BELOW:
| Cash Offering | ||
| Number of shares of the Common Stock:__________at $ _____per share (enter total in next column) | _______________ | |
| Total Purchase Price | ||
| ($150,000 minimum) | ||
| Make checks payable to “UMB Bank, N.A., as escrow agent” | ||
| Exact Name in which shares of the | |||||
| Common Stock are to be registered: | |||||
| Type of Ownership (Please | |||||
| check one): | o | Individual (one signature required) | |||
| o | Joint Tenants (indicate whether or not with right of survivorship) (both parties must sign in any event) | ||||
| o | Corporation (President must sign and Secretary must attest to President’s signature) | ||||
| o | Individual Retirement Account (Trustee must sign) | ||||
| o | Trust (Trustee must sign) | ||||
| o | Partnership / Limited Partnership (General Partner must sign) | ||||
| o | Limited Liability Company (Member or Manager must sign) | ||||
| o | Other (specify who has authority to sign and type of entity) | ||||
| ___________________ | |||||
| Address of registered owner: | |||
| Social Security Number or Taxpayer | |||
|
ID Number for each
Registered
|
|||
| Holder: | |||
| phone number: (_____) _______________________ | ||
| fax number: (_____) _________________________ | ||
| email address: ___________________________________ | ||
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the date set forth below.
[USE THIS SIGNATURE PAGE ONLY IF YOU ARE SUBSCRIBING AS AN
INDIVIDUAL]
THIS AGREEMENT CONTAINS A BINDING ARBITRATION
CLAUSE WHICH MAY BE ENFORCED BY THE PARTIES.
| If an individual Investor, complete and sign here: | |
| Dated:__________, 20__ | |
| Name of Individual (Please type or print) | |
| (Signature of Individual Investor) | |
| If more than one individual Investor, complete and sign here: | |
| Dated:__________, 20__ | |
| Name of Second Individual (Please type or print) | |
| (Signature of Second Individual Investor) | |
Acceptance of Subscription:
ENTERPRISE FINANCIAL SERVICES CORP
| By: | |||
| Name: | |||
| Title: |
Enterprise Financial Services Corp
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
| Date: |
Signature page for INDIVIDUAL SUBSCRIBERS
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the date set forth below.
[USE THIS SIGNATURE PAGE ONLY IF YOU ARE SUBSCRIBING AS AN ENTITY OR
TRUST]
THIS AGREEMENT CONTAINS A BINDING ARBITRATION
CLAUSE WHICH MAY BE ENFORCED BY THE PARTIES.
If Investor is an entity, complete
and sign here:
| (Name of Corporation, Trust, Partnership or other Entity) | |||
| By: | |||
| Name: | |||
| Title: | |||
| Date: | |||
Acceptance of Subscription:
ENTERPRISE FINANCIAL SERVICES CORP
| By: | |||
| Name: | |||
| Title: |
Enterprise Financial Services Corp
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
| Date: |
Signature page for SUBSCRIBERS THAT ARE ENTITIES OR
TRUSTS