enterprise_s3.htm
As filed with the U.S.
Securities and Exchange Commission on March 18, 2010
Registration No. 333-
________
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
ENTERPRISE FINANCIAL SERVICES
CORP
(Exact Name of Registrant
as Specified in its Charter)
| Delaware |
43-1706529 |
| (State or other jurisdiction of
incorporation or |
(I.R.S. Employer Identification
No.) |
| organization) |
|
____________________
150 North
Meramec
Clayton, Missouri 63105
(314) 725-5500
(Address, including zip code, and telephone
number, including area code, of Registrant’s principal executive offices)
____________________
Frank H.
Sanfilippo
Chief Financial Officer
Enterprise Financial Services
Corp
150 North Meramec
Clayton, Missouri 63105
(314) 725-5500
(Name, address, including zip
code, and telephone number, including area code, of agent for service for
Registrant)
____________________
with copies
to:
Phillip R. Stanton, Esq.
Greensfelder, Hemker & Gale, P.C.
10 South Broadway, Suite
2000
St. Louis, Missouri 63102
(314) 241-9090
____________________
Approximate date of
commencement of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ¨
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 the dividend or
interest reinvestment plans, check the following box. þ
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. ¨
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. ¨
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment hereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. ¨
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. ¨
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 accelerated filer,” “accelerated filer”
and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
| Large accelerated filer ¨ |
Accelerated filer þ |
| Non-accelerated filer ¨ |
Smaller reporting company ¨ |
| (Do not check if a smaller reporting
company) |
| CALCULATION OF REGISTRATION
FEE |
|
|
|
Proposed |
Proposed |
|
|
|
Amount to be |
Maximum
Offering |
Maximum
Aggregate |
Amount
of |
| Title of
Each Class of Securities to be Registered |
Registered |
Price Per Unit
(1) |
Offering Price
(1) |
Registration
Fee (1) |
| Common
Stock, $.01 par value per share |
1,752,700 |
$9.35 |
$16,387,745 |
$1,169 |
| (1) |
|
Estimated for the
sole purpose of computing the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933, as amended (“Rule 457(c)”). Pursuant to
Rule 457(c), the offering price and the registration fee are computed
based on the average of the high and low prices reported for the
registrant’s common stock traded on The Nasdaq Global Select Market on
March 12, 2010. |
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The information in this
preliminary prospectus is not complete and may be changed. The selling
stockholders may not sell any of these securities or accept your offer to buy
any of them until the registration statement filed with the SEC relating to
these securities has been declared effective by the SEC. This preliminary
prospectus is not an offer to sell these securities and the selling stockholders
are not soliciting an offer to buy these securities in any state or other
jurisdiction where such offer or sale is not permitted or legal.
SUBJECT TO COMPLETION DATED MARCH 18, 2010
PROSPECTUS
ENTERPRISE FINANCIAL SERVICES CORP
1,752,700 SHARES OF COMMON
STOCK
This prospectus relates to the potential resale of up to 1,752,700 shares
of our common stock, $.01 par value, that the selling stockholders named in this
prospectus may offer for sale from time to time. The registration of the shares
of our common stock does not necessarily mean that the selling stockholders will
offer or sell all or any of these securities. We will not receive any of the
proceeds form the sale of any shares of common stock by the selling
stockholders, but we will incur expenses in connection with the registration of
the securities.
On January 25, 2010, we completed the sale of an aggregate of 1,931,610
shares of our common stock in a private offering to accredited investors that
was conducted in compliance with Section 4(2) of, and Rule 506 of Regulation D
under, the Securities Act of 1933, as amended. This prospectus is part of a
registration statement that we have filed to satisfy our obligations under the
registration rights provided in the subscription agreements entered into with
the accredited investors. Under the terms of the subscription agreements, we
agreed to file the registration statement to permit the public resale of the
common stock purchased in the private offering and to use our reasonable best
efforts to keep the registration statement effective for an extended
period.
The initial selling stockholders and their respective successors,
including transferees, which we collectively refer to as the selling
stockholders, may offer the securities from time to time directly or through
underwriters, broker-dealers or agents and in one or more public or private
transactions and at fixed prices, prevailing market prices, at prices related to
prevailing market prices or at negotiated prices. If these securities are sold
through underwriters, broker-dealers or agents, the selling stockholders will be
responsible for underwriting discounts or commissions or agents’
commissions.
Our Common Stock is traded on the Nasdaq Global Select Market (“Nasdaq”)
under the trading symbol “EFSC.” The last reported sale price of the Common
Stock on March 12, 2010 was $9.28 per share. You are urged to obtain current
quotations of the common stock.
Investing in our securities involves
a high degree of risk. See “Risk Factors” beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
These securities are not savings accounts, deposits or other obligations
of our bank subsidiary, any non-bank subsidiary or any other bank and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the Board of
Governors of the Federal Reserve System or any other governmental
agency.
The date of this
prospectus is March 18, 2010.
TABLE OF
CONTENTS
|
|
Page |
| ABOUT THIS PROSPECTUS |
1 |
| WHERE YOU CAN FIND MORE INFORMATION |
1 |
| A WARNING ABOUT FORWARD-LOOKING
STATEMENTS |
2 |
| OUR COMPANY |
3 |
| RISK FACTORS |
3 |
| USE OF PROCEEDS |
3 |
| DESCRIPTION OF COMMON STOCK |
4 |
| SELLING STOCKHOLDERS |
7 |
| PLAN OF DISTRIBUTION |
10 |
| LEGAL MATTERS |
11 |
| EXPERTS |
11 |
ABOUT THIS PROSPECTUS
Enterprise Financial Services Corp, or EFSC, is a financial holding
company incorporated in the State of Delaware and headquartered in Clayton,
Missouri. In this prospectus, the “Company,” “we,” “our,” “ours,” and “us” refer
to Enterprise Financial Services Corp and its subsidiaries on a consolidated
basis, unless the context otherwise requires. References to “Enterprise Bank”
mean Enterprise Bank & Trust, a Missouri trust company with banking powers
which is our principal subsidiary.
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission, or the SEC, using a “shelf” registration
process for the continuous offering and sale of securities pursuant to Rule 415
of the Securities Act of 1933, as amended. Under this shelf registration
process, the selling stockholders may, from time to time, offer and sell, in one
or more offerings, the securities described in this prospectus. We will not
receive any proceeds from the resale by the selling stockholders of the offered
securities described in this prospectus.
We may also from time to time provide one or more prospectus supplements
containing specific information about the terms of a particular offering by the
selling stockholders. A prospectus supplement may add, update or change
information in this prospectus. If the information in this prospectus is
inconsistent with a prospectus supplement, you should rely on the information in
that prospectus supplement. You should carefully read both this prospectus and,
if applicable, any prospectus supplement, together with the additional
information described under the heading “Where You Can Find More Information.”
This prospectus and any accompanying prospectus supplement do not contain
all of the information included in the shelf registration statement. We have
omitted parts of the shelf registration statement in accordance with the rules
and regulations of the SEC. For further information, we refer you to the shelf
registration statement on Form S-3 of which this prospectus is a part, including
its exhibits. Statements contained in this prospectus and any accompanying
prospectus supplement about the provisions or contents of any agreement or other
document are not necessarily complete. If the SEC rules and regulations require
that an agreement or document be filed as an exhibit to the shelf registration
statement, please see that agreement or document for a complete description of
these matters. The registration statement may be read at the SEC website or at
the SEC office mentioned under the section of this prospectus titled “Where You
Can Find More Information.”
You should rely only on the information contained or incorporated by
reference in this prospectus and any prospectus supplement. We have not
authorized anyone to provide you with any other information. If you receive any
other information, you should not rely on it. No offer to sell these securities
is being made in any jurisdiction where the offer or sale is not permitted. You
should not assume that the information contained in this prospectus and, if
applicable, any prospectus supplement or any document incorporated by reference
in this prospectus or any prospectus supplement, is accurate as of any date
other than the date on the front cover of this prospectus or on the front cover
of the applicable prospectus supplement or documents or as specifically
indicated in the document. Our business, financial condition, results of
operations and prospects may have changed since that date.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy, at prescribed rates, any
documents we have filed with the SEC at its Public Reference Room located at 100
F Street, N.E., Washington DC 20549. You may obtain information on the operation
of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC
filings are also available to the public over the Internet at the SEC’s website
at http:/www.sec.gov. Copies of certain information filed by us
with the SEC are also available on our website at http://www.enterprisebank.com. However, the information on our website is
not a part of, and is not incorporated into, this prospectus.
The SEC’s rules allow us to “incorporate by reference” in this prospectus
certain information in the documents that we file with it, which means that we
can disclose important information to you by referring you to other documents
without restating that information in this prospectus. The information
incorporated by reference into this prospectus is considered to be a part of
this prospectus from the date we file that document. Any information filed by us
with the SEC after the date of this prospectus will automatically update and,
where applicable, supercede any information contained in this prospectus or
incorporated by reference in this prospectus.
1
In all cases, you should
rely on the later information over different information included in this
prospectus or incorporated by reference.
We incorporate by reference into this prospectus the documents listed
below and all future filings we make with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Securities and Exchange Act of 1934, as amended, on or after
the date of this prospectus and prior to the termination of the offering, except
to the extent that any information contained in such filings is deemed
“furnished” and not filed in accordance with SEC rules:
- Our Annual Report on Form 10-K for
the year ended December 31, 2009, filed on March 16, 2010.
- Definitive Proxy Statement for the
2010 meeting of stockholders, which will be filed with the SEC within 120 days of December 31, 2009.
- Our Current Reports on Form 8-K
filed on January 14, 2010, January 22, 2010, January 26, 2010, February 19, 2010, March 12, 2010, March 15,
2010 and March 17, 2010.
- The description of the common
stock of EFSC, which is contained in a registration statement filed on
Form S-1, by Registrant with the
Commission on October 24, 1996, registration number 333-14737, including all amendments and reports filed
for the purpose of updating such description.
- Certificate of Designation of EFSC
for Fixed Rate Cumulative Perpetual Preferred Stock, Series A, dated December 17, 2008 (incorporated herein
by reference to Exhibit 3.1 to EFSC’s Current Report on Form 8-K filed on December 23, 2008).
Each of these documents contains important information about our business
and our financial performance. You may request a copy of these filings, at no
cost, by writing or telephoning us at the following address:
Frank H.
Sanfilippo
Chief Financial Officer
Enterprise Financial Services
Corp
150 North Meramec
Clayton, Missouri 63105
(314) 725-5500
Any statement contained in a document incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus, or in
any other document filed later that is also incorporated in this prospectus by
reference, modifies or supersedes the statement. Any statement so modified or
superseded shall not be deemed to constitute a part of this prospectus except as
so modified or superseded. The information relating to us contained in this
prospectus should be read together with the information contained in any
prospectus supplement and in the documents incorporated in this prospectus and
any prospectus supplement by reference.
This prospectus is part of a registration statement we filed with the SEC
which incorporates exhibits. You should read the exhibits to the registration
statement carefully.
A WARNING ABOUT FORWARD-LOOKING
STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents
incorporated by reference contain or incorporate statements that are considered
“forward-looking statements” within the meaning of United States securities
laws. Forward-looking statements typically are identified with use of terms such
as “may,” “will,” “expect,” “anticipate,” “estimate,” “potential,” “could,” and
similar words, although some forward-looking statements are expressed
differently. Our ability to predict results or the actual effect of future plans
or strategies is inherently uncertain. You should be aware that the Company’s
actual results could differ materially from those contained in the
forward-looking statements due to a number of factors, including, but not
limited to: burdens imposed by federal and state regulation; changes in
accounting regulation or standards of banks; credit risk; exposure to general
and local economic conditions; risks associated with rapid increase or decrease
in prevailing interest rates; consolidation within the banking industry;
competition from banks and other financial institutions; our ability to attract
and retain relationship officers and other key personnel, and technological
developments; and other risks discussed in more detail in the section titled
“Risk Factors” below.
2
Readers are cautioned not to place undue
reliance on our forward-looking statements, which reflect management’s analysis
and expectations only as of the date of the statements. Forward-looking
statements speak only as of the date they are made and the Company does not
intend, and undertakes no obligation, to publicly revise or update
forward-looking statements after the date of this prospectus, whether as a
result of new information, future events or otherwise, except as required by
law. Any investor in the Company should also consider all risks and
uncertainties disclosed in our SEC filings described below under the section of
this prospectus titled “Where You Can Find More Information,” all of which are
accessible on the SEC’s website at http://www.sec.gov. You should understand
that it is not possible to predict or identify all risk factors. Consequently,
you should not consider such disclosures to be a complete discussion of all
potential risks or uncertainties.
OUR COMPANY
The following summary does not contain all of the information that may be
important to you or that you should consider before deciding to purchase the
securities, and is qualified in its entirety by the more detailed information
appearing elsewhere or incorporated by reference in this prospectus. You should
read the entire prospectus, especially the risks set forth under the section of
this prospectus titled “Risk Factors,” as well as the financial and other
information incorporated by reference in this prospectus, before making an
investment decision.
EFSC is a financial holding company
incorporated under the laws of the State of Delaware and serves as the holding
company for Enterprise Bank. Enterprise Bank conducts its banking operations
from four banking locations in the St. Louis metropolitan area, seven banking
locations in the Kansas City metropolitan area and a recently acquired banking
location in the Phoenix, Arizona metropolitan area. Enterprise Bank is subject
to supervision and regulation by the Missouri Division of Finance.
Our common stock is listed on the Nasdaq
Global Select Market under the symbol “EFSC.” For a discussion of risks and
uncertainties involved with an investment in our securities, see the section of
this prospectus titled “Risk Factors.”
Our principal executive offices are located at
150 N. Meramec, Clayton, Missouri 63105 and our telephone number is (314)
725-5500. Our website is http://www.enterprisebank.com.
RISK FACTORS
An investment in our securities involves a
high degree of risk. Before purchasing any of our securities, you should
carefully consider the risks described in the section “Risk Factors” contained
in our Annual Report on Form 10-K for the year ended December 31, 2009, which
has been filed with the SEC and incorporated herein by reference, and the other
information contained in this prospectus, any applicable prospectus supplement,
or otherwise incorporated by reference herein. Any of these risks could
materially adversely affect our business, financial condition, results of
operations, or ability to make distributions to our stockholders. Additional
risks and uncertainties not currently known to us or that we currently deem to
be immaterial may also materially and adversely affect us. In any such case, you
could lose all or a portion of your original investment.
USE OF PROCEEDS
We will not receive any proceeds from any sale
of the securities by the selling stockholders pursuant to this prospectus. The
selling stockholders will receive all such proceeds and will pay any
underwriting discounts and commissions and expenses incurred by the selling
stockholders for the brokerage, accounting, tax or legal services or any other
expenses incurred by the selling stockholders in disposing of the securities
covered by this prospectus. We will bear the costs, fees and expenses incurred
in effecting the registration of the securities covered by this prospectus,
including, without limitation, all registration and filing fees and fess and
expenses of our counsel and our accountants.
3
DESCRIPTION OF COMMON
STOCK
The following is a description of the material
features and rights of our common stock. This summary does not purport to be
exhaustive and may not contain all the information that is important to you.
Therefore, you should read our certificate of incorporation (as amended and
together with all certificates of designations) and bylaws which have been filed
with the SEC.
General
Under our certificate of incorporation, as
amended, the Company has authority, without further shareholder action, to
provide for the issuance of up to 30,000,000 shares of common stock, par value
of $.01 per share, and 5,000,000 shares of preferred stock, par value of $.01
per share. As of March 1, 2010, there were 35,000 shares of our preferred stock
issued and outstanding (all of which consisted of our Fixed Rate Cumulative
Perpetual Preferred Sock, Series A, liquidation preference amount $1,000 per
share (the “Series A Preferred Stock”), which was issued to the United States
Department of the Treasury on December 19, 2008 pursuant to the Treasury’s
Capital Purchase Program. Our outstanding shares of common stock are, and the
shares of common stock to be issued in this offering will be, validly issued,
fully paid and non-assessable. As of March 1, 2010, there were 14,851,609 shares
of our common stock outstanding, held by approximately 662 stockholders of
record. In addition, 803,735 shares of the EFSC’s common stock were reserved for
issuance upon the exercise of options that have been granted under our existing
stock option plans.
EFSC may amend its certificate of
incorporation from time to time to increase the number of authorized shares of
its common stock. Any such amendment would require the approval of the holders
of a majority of EFSC’s stock entitled to vote and, in certain circumstances
discussed in Voting Rights below, would also
require the vote or consent of holders of at least 66 2/3% of the Series A
Preferred Stock. EFSC’s common stock is listed on the Nasdaq Global Select
Market under the symbol “EFSC.”
Certain Restrictions on Capital Securities
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 financial 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 Delaware state laws relating to
the payment of dividends.
We depend on dividends, distributions and
other payments from our banking subsidiary, Enterprise Bank, to fund dividend
payments on our common and preferred stock. Missouri state banking laws and
regulations limit the amount of dividends or other capital distributions that
Enterprise Bank may pay generally based on current operating earnings and
regulatory capital requirements.
In addition, Enterprise Bank is also subject
to regulation and supervision by the Federal Deposit Insurance Corporation, or
FDIC. The FDIC has the authority, after notice and a hearing, to prevent a
depository institution under its jurisdiction from engaging in an unsafe or
unsound practice. Depending on the financial condition of the depository
institution, the payment of dividends could constitute an unsafe or unsound
practice. Under the Federal Deposit Insurance Corporation Improvement Act of
1991, a depository institution may not pay any dividend if payment would cause
it to become undercapitalized or if it already is undercapitalized. The federal
agencies have also issued policy statements that provide that bank holding
companies and insured banks should generally only pay dividends out of current
operating earnings.
Dividends
Generally speaking, holders of shares of our
common stock will be entitled to receive dividends, if and when they are
authorized and declared by the Company’s board of directors, out of assets that
the Company may legally use to pay dividends. However, the ability of the
Company to pay dividends on our common stock will be subject to the preferential
rights of any outstanding shares of our preferred stock. Under the terms of our
Series A Preferred Stock, we may not
increase the dividend paid on our common stock above $0.0525 per share per
quarter without the consent of the United States Department of the Treasury
until the earlier to occur of (i) December 19, 2011, (ii) the date on which all
Series A Preferred Stock is redeemed in whole, or (iii) the United States
Department of the Treasury has transferred all of the Series A Preferred Stock
to third parties. In addition, our ability to declare or pay dividends or
distributions on, or repurchase shares of our common stock, will be subject to
restrictions in the event we fail to declare and pay full dividends on our
Series A Preferred Stock (or set aside a sum sufficient for payment thereof).
4
Any future determination relating to dividend
policy will be made at the discretion of EFSC’s board of directors and will
depend on a number of factors, including, without limitation, our future
earnings, capital requirements, financial condition, future prospects and such
other factors as EFSC’s board of directors may deem relevant.
Voting Rights
Except as otherwise required by law and except
as provided by the terms of any other class or series of stock, holders of our
common stock have the exclusive power to vote on all matters presented to EFSC’s
stockholders, including the election of directors; provided, that holders of our
preferred stock may have the exclusive right to elect directors in certain
circumstances, including, without limitation, if we fail to make certain
dividend payments. Holders of our common stock are entitled to one vote per
share, provided that holders of our common stock have the right to cumulate
votes in the annual election of directors.
The terms of the Series A Preferred Stock
provide that we must obtain the approval of the holders of at least 66 2/3% of
the outstanding shares of the Series A Preferred Stock in order to effect or
validate:
- any amendment or alteration to our
certificate of incorporation or the certificate of designation for the Series
A Preferred Stock to authorize or create or increase the authorized amount of,
or issue, any shares of, or any securities convertible into or exchangeable or
exercisable for shares of, any class or series of stock ranking senior to the
Series A Preferred Stock with respect to either or both the payment of
dividends and/or the distribution of assets upon our liquidation, dissolution
or winding up;
- any amendment, alteration or
repeal of any provision to our certificate of incorporation or the certificate
of designation for the Series A Preferred Stock that would adversely affect
the rights, preferences, privileges or voting powers of holders of the Series
A Preferred Stock; and/or
- any merger, exchange or similar
transaction which would adversely affect the rights of holders of the Senior A
Preferred Stock.
Liquidation/Dissolution Rights
Generally speaking, the right of holders of
our common stock to receive proceeds from the liquidation or dissolution of EFSC
will be subordinate to the preferential rights of holders of any preferred stock
or other senior securities. In the event EFSC voluntarily or involuntarily
liquidates, dissolves or winds up its affairs, holders of our issued and
outstanding preferred stock, including, without limitation the Series A
Preferred Stock, will be entitled to receive an amount per share equal to a
fixed liquidation preference per share applicable to each series of preferred
stock, plus any accrued and unpaid dividends, whether or not declared, to the
date of payment. Holders of our preferred stock will be entitled to receive such
total liquidation amount out of EFSC’s assets that are available for
distribution to stockholders, after payment or provision for payment of EFSC’s
debts and other liabilities but before any distribution of assets is made to
holders of our common stock. Subject to these preferential rights of our
preferred stock and the preferential rights of any other class or series of
stock, holders of shares of our common stock are entitled to receive, in cash or
in kind, in proportion to their holdings, the assets that EFSC may legally use
to pay distributions after EFSC pays or makes adequate provision for all of
EFSC’s debts and liabilities if EFSC is liquidated, dissolved or its affairs are
wound up.
Other Rights
Holders of our common stock do not have
preemptive rights under the Delaware General Corporation Law, or EFSC’s
certificate of incorporation (as amended and together with all certificates of
designations) or bylaws. Shares of our common stock are not redeemable and have
no subscription or conversion rights.
5
Transfer Agent
The transfer agent and registrar for
the Common Stock is Computershare, Inc., in Canton, Massachusetts.
Restrictions on Ownership
The Bank Holding Company Act requires any
“bank holding company,” as defined in the Bank Holding Company Act, to obtain
the approval of the Federal Reserve Board prior to the acquisition of 5% or more
of our common stock. Any person, other than a bank holding company, is required
to obtain prior approval of the Federal Reserve Board to acquire 10% or more of
our common stock under the Change in Bank Control Act. Any holder of 25% or more
of our common stock, or a holder of 5% or more if such holder otherwise
exercises a “controlling influence” over us, is subject to regulation as a bank
holding company under the Bank Holding Company Act.
Certain Anti-takeover Effects
EFSC’s certificate of incorporation
(as amended and together with all certificates of designations) and bylaws
contain various protective provisions that would have the effect of impeding an
attempt to change or remove EFSC’s board of directors or to gain control of its
outstanding capital stock, as well as provisions that limit liability or provide
indemnification for directors and executive officers. These provisions are
discussed in more detail below.
- Authorized but Unissued
Stock. Authorized but
unissued shares of our common stock and our preferred stock are available for
future issuance without stockholder approval. These additional shares may be
utilized for a variety of corporate purposes, including future public
offerings to raise additional capital, corporate acquisitions and employee
benefit plans. The existence of authorized but unissued and unreserved common
stock and/or preferred stock may enable EFSC’s board of directors to issue
shares to persons friendly to current management, which could render more
difficult or discourage any attempt to obtain control of EFSC by means of a
proxy contest, tender offer, merger or otherwise, and thereby protect the
continuity of EFSC’s management.
- Limitations on Liability. EFSC’s certificate of incorporation (as
amended and together with all certificates of designations) contains a
provision which, subject to the exceptions described below, indemnifies EFSC’s
directors from individual liability to EFSC or its stockholders for monetary
damages for any breach of such director's fiduciary duty as a director. This
provision does not indemnify the director (i) for violating his or her duty of
loyalty to EFSC or its stockholders, (ii) for acts or omissions not in good
faith or involving intentional misconduct or a knowing violation of law, (iii)
for liability under Section 174 of the Delaware General Corporation Law
relating to unlawful dividends and distributions, or (iv) for any transaction
from which the director derived an improper personal benefit. In addition, the
bylaws of EFSC require EFSC to indemnify any person who was, is, or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of service by such person as a director or officer of EFSC. Such
directors and officers are entitled to be indemnified against judgments,
penalties, fines, settlements, and reasonable expenses (including attorneys'
fees) actually incurred by the director or officer in connection with the
proceeding, except that no payments may be made with respect to liability
which is not eliminated pursuant to the provision of EFSC’s certificate of
incorporation described in the preceding paragraph. Finally, EFSC’s board of
directors has the authority to extend to its employees and agents the same
indemnification rights held by officers and directors, subject to all the
accompanying conditions and obligations.
- Directors. EFSC’s bylaws provide that any or all of
EFSC’s directors may be removed from office with or without cause by the
affirmative vote of the holders of a majority of the shares then entitled to
vote at an election of directors, subject to applicable provisions of the
Delaware General Corporation Law.
- Special Meetings of
Stockholders. EFSC’s
bylaws provide that special meetings of stockholders may be called at any time
by the EFSC’s Chairman of the Board, President or board of directors acting
pursuant to a resolution adopted by a majority of EFSC’s board of directors.
Special meetings of stockholders may also be called upon the written request
of holders of at least fifty percent (50%) of all of the issued and
outstanding shares entitled to vote, provided that they shall make written
application to EFSC’s Secretary stating the time, place and purpose or
purposes of the special meeting.
6
SELLING STOCKHOLDERS
The shares of our common stock covered by this
prospectus are being offered by the selling stockholders listed in the table
below. EFSC completed the issuance and sale of an aggregate of 1,931,610 shares
of its common stock to accredited investors on January 25, 2010 in a private
placement that was conducted in compliance with Section 4(2) of, and Rule 506 of
Regulation D under, the Securities Act of 1933, as amended.
The selling stockholders may from time to time
offer and sell pursuant to this prospectus any or all of the common stock listed
below. When we refer to the “selling stockholders” in this prospectus, we mean
any of those persons listed in the table below, as well as the pledgees, donees,
assignees, transferees, successors and others who later hold any of the selling
stockholders’ interests. The table below sets forth (i) the name of each of the
selling stockholders, (ii) the nature of any position, office, or other material
relationship which the selling stockholder has had, within the past three years,
with us or with any of our affiliates, (iii) the number of shares of our common
stock currently owned by each of the selling stockholders, (iv) the number of
shares of our common stock that such selling stockholders may offer pursuant to
this prospectus and (v) the number of shares of such common stock to be owned by
such selling stockholders after completion of sales pursuant to the registration
statement. In accordance with the rules of the SEC, each of the selling
stockholders’ beneficial ownership includes:
- all shares the selling stockholder
actually owns beneficially of record;
- all shares over which the selling
stockholder has or shares voting or dispositive control (such as in the
capacity as a general partner of an investment fund); and
- all shares the selling stockholder
has the right to acquire within 60 days (such as upon exercise of options that
are currently vested or that are scheduled to vest within 60 days).
We do not know if the selling stockholders
will actually offer to sell shares pursuant to this prospectus, or the number of
shares of our common stock that the selling stockholders may determine to offer.
The selling stockholders may offer all, some or none of the shares of common
stock indicated below. Because the selling stockholders may offer all or some
portion of the shares, we have assumed below that all shares offered hereby will
have been sold by the selling stockholders upon termination of sales pursuant to
the registration statement of which this prospectus is a part.
Some or all of the selling stockholders may
have sold or transferred some or all of their shares of our common stock in
transactions exempt from the registration requirement of the Securities Act of
1933, as amended, since the date on which the information in the table was
provided to us. Information concerning the selling stockholders may also change
from time to time, and any changed information will be set forth in one or more
prospectus supplements or post-effective amendments, as may be
appropriate.
7
|
|
|
Number of Shares of |
|
|
|
|
|
|
|
|
|
|
Common Stock
Beneficially |
|
|
|
|
Number of Shares of |
|
|
|
Owned |
|
Number of Shares |
|
Common Stock
Beneficially |
|
|
|
as of March 1, 2010 |
|
of Common Stock |
|
Owned After
Resale |
| Name of Selling
Stockholder |
|
|
Number |
|
Percentage |
|
Offered Hereby (1) |
|
Number |
|
Percentage |
| Banc Fund VII L.P. |
|
326,062 |
|
2.2 |
|
|
103,762 |
|
|
222,300 |
|
1.5 |
| Banc Fund VIII L.P. |
|
319,490 |
|
2.2 |
|
|
311,284 |
|
|
8,206 |
|
* |
| Peter F. & Carol C. Benoist
(2) |
|
310,998 |
|
2.1 |
|
|
19,060 |
|
|
291,938 |
|
2.0 |
| Woodborne Partners, L.P. (3) |
|
310,000 |
|
2.1 |
|
|
310,000 |
|
|
-- |
|
-- |
| Banc Fund VI L.P. |
|
241,561 |
|
1.6 |
|
|
103,761 |
|
|
137,800 |
|
.9 |
| Robert E. Guest, Jr. (4) (5) |
|
207,957 |
|
1.4 |
|
|
18,541 |
|
|
189,416 |
|
1.3 |
| James J. Murphy (6) (7) |
|
185,678 |
|
1.3 |
|
|
30,902 |
|
|
154,776 |
|
1.0 |
| Linda M. Hanson (8) (9) |
|
118,327 |
|
.8 |
|
|
14,989 |
|
|
103,338 |
|
.7 |
| Stieven Financial Investors, L.P.
(10) |
|
108,950 |
|
.7 |
|
|
108,950 |
|
|
-- |
|
-- |
| Lewis A. Levey (11) (12) |
|
100,967 |
|
.7 |
|
|
18,541 |
|
|
82,426 |
|
.6 |
| Deerhill Pond Investment Partners
LP |
|
96,000 |
|
.6 |
|
|
96,000 |
|
|
-- |
|
-- |
| Birch M. Mullins (13) (14) |
|
85,394 |
|
.6 |
|
|
19,060 |
|
|
66,334 |
|
.4 |
| Stephen P. Marsh (15) (16) |
|
83,620 |
|
.6 |
|
|
18,541 |
|
|
65,079 |
|
.4 |
| Frank H. Sanfilippo (17) (18) |
|
83,502 |
|
.6 |
|
|
12,360 |
|
|
71,142 |
|
.5 |
| EB Capital, LLC (19) |
|
77,821 |
|
.5 |
|
|
77,821 |
|
|
-- |
|
-- |
| Peter S. Frane (20) |
|
75,521 |
|
.5 |
|
|
20,000 |
|
|
55,521 |
|
.4 |
| John J. Gloss |
|
62,533 |
|
.4 |
|
|
20,000 |
|
|
42,533 |
|
.3 |
| John L. Ying (21) |
|
51,800 |
|
.3 |
|
|
20,000 |
|
|
31,800 |
|
.2 |
| Joseph P. Conran (22) |
|
46,000 |
|
.3 |
|
|
40,000 |
|
|
6,000 |
|
* |
| Steven L. Finerty and Linda M. Finerty JTWROS |
|
41,655 |
|
.3 |
|
|
19,455 |
|
|
22,200 |
|
.1 |
| Thomas M. Carney |
|
38,910 |
|
.3 |
|
|
38,910 |
|
|
-- |
|
-- |
| Missouri Investment Management, L.P. |
|
36,700 |
|
.2 |
|
|
20,000 |
|
|
16,700 |
|
.1 |
| Sandra A. Van Trease (23) (24) |
|
34,752 |
|
.2 |
|
|
18,542 |
|
|
16,210 |
|
.1 |
| John E. Brauch, Jr. (25) |
|
34,172 |
|
.2 |
|
|
12,971 |
|
|
21,201 |
|
.1 |
| Barry H. Beracha (26) |
|
30,000 |
|
.2 |
|
|
30,000 |
|
|
-- |
|
-- |
| William H. Downey (27) |
|
28,592 |
|
.2 |
|
|
12,360 |
|
|
16,232 |
|
.1 |
| Rudy D. Beck |
|
26,455 |
|
.2 |
|
|
19,455 |
|
|
7,000 |
|
* |
| Mary Pat Blake |
|
26,155 |
|
.2 |
|
|
19,455 |
|
|
6,700 |
|
-- |
| Eugene Deutsch (28) |
|
25,940 |
|
.2 |
|
|
25,940 |
|
|
-- |
|
-- |
| George G. Hruza (29) |
|
23,955 |
|
.2 |
|
|
19,455 |
|
|
4,500 |
|
* |
| Wayne L. Smith (30) |
|
22,839 |
|
.2 |
|
|
19,455 |
|
|
3,384 |
|
* |
| Stieven Financial Offshore Investors, Ltd. (31) |
|
20,750 |
|
.1 |
|
|
20,750 |
|
|
-- |
|
-- |
| George H. Walker (32) |
|
20,000 |
|
.1 |
|
|
20,000 |
|
|
-- |
|
-- |
| Robert Michael Lawrence |
|
20,000 |
|
.1 |
|
|
20,000 |
|
|
-- |
|
-- |
| Jannis and Joseph Dittmeier
(33) |
|
16,220 |
|
.1 |
|
|
16,220 |
|
|
-- |
|
-- |
| Norman Saale (34) |
|
14,523 |
|
.1 |
|
|
10,242 |
|
|
4,281 |
|
* |
| The Donald H. Bennett & J. Lavonne
Bennett Trust |
|
12,970 |
|
* |
|
|
12,970 |
|
|
-- |
|
-- |
| Trust FBO Harry L. Franc, III under Will of |
|
|
|
|
|
|
|
|
|
|
|
|
| Harry L. Franc dated 3/28/76
(35) |
|
12,556 |
|
* |
|
|
12,556 |
|
|
-- |
|
-- |
| Norma Saale (36) |
|
10,602 |
|
* |
|
|
10,242 |
|
|
360 |
|
* |
| Trust FBO Harry L. Franc, III under Will of |
|
|
|
|
|
|
|
|
|
|
|
|
| Ruth G. Franc dated 1/21/83
(37) |
|
1,900 |
|
* |
|
|
1,900 |
|
|
-- |
|
-- |
| Harry L. Franc, III |
|
5,000 |
|
* |
|
|
5,000 |
|
|
-- |
|
-- |
| The Blake Foundation (38) |
|
3,250 |
|
* |
|
|
3,250 |
|
|
-- |
|
-- |
| Total |
|
3,400,077 |
|
22.9 |
|
|
1,752,700 |
|
|
1,647,377 |
|
11.1 |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| * |
|
Less than
0.1%
|
|
|
|
|
| (1) |
|
No selling
stockholders are obligated to sell any shares of our common stock. This
table assumes sale of all shares of our common stock offered
hereby. |
| |
| (2) |
|
Peter F. Benoist
is a member of the board of directors and the President & Chief
Executive Officer of Enterprise Financial Services Corp. |
| |
| (3) |
|
Clayton
Management, LLC, as general partner, has voting and dispositive control
over the shares of common stock held by Woodborne Partners,
L.P. |
| |
| (4) |
|
The shares of
common stock being registered hereby are held by Robert E. Guest Revocable
Trust, dated March 3, 2010, and any amendments thereto. |
| |
| (5) |
|
Robert E. Guest
is a member of the Board of directors of Enterprise Financial Services
Corp. |
| |
| (6) |
|
The shares being
registered hereby are held by James J. Murphy Jr. Revocable Living Trust
U/A dated 6/14/2005. |
| |
| (7) |
|
James J. Murphy
is chairman of the board of directors of Enterprise Financial Services
Corp. |
8
| (8) |
|
The
shares being registered hereby are held by Linda M. Hanson IRA
Rollover. |
| |
| (9) |
|
Linda
M. Hanson is the President, Kansas City Region, Enterprise Bank &
Trust. |
| |
| (10) |
|
Stieven Capital Advisors, L.P., as investment manager, has voting
and dispositive control over the shares of common stock held by Stieven
Financial Investors, L.P. |
| |
| (11) |
|
The
shares of common stock being registered hereby are held by Lewis A. Levey
Revocable Trust Dated 12/15/95, as amended. |
| |
| (12) |
|
Lewis
A. Levey is a member of the board of directors of Enterprise Financial
Services Corp. |
| |
| (13) |
|
The
shares being registered hereby are held by Birch M. Mullins Living Trust
dated July 17, 1995 and any amendments thereto. |
| |
| (14) |
|
Birch
M. Mullins is a member of the board of directors of Enterprise Financial
Services Corp. |
| |
| (15) |
|
The
shares of common stock being registered hereby are held by Stephen P.
Marsh Revocable Living Trust. |
| |
| (16) |
|
Stephen P. Marsh is an Executive Vice President of Enterprise
Financial Services Corp and the Chairman & Chief Executive Officer of
Enterprise Bank & Trust. |
| |
| (17) |
|
Frank
H. Sanfilippo is the Executive Vice President & Chief Financial
Officer of Enterprise Financial Services Corp. |
| |
| (18) |
|
The
shares of common stock being registered hereby are held by The Francis H.
Sanfilippo IRA Rollover. |
| |
| (19) |
|
Orville J. Middendorf, as manager, has voting and dispositive
control over the shares of common stock held by EB Capital,
LLC. |
| |
| (20) |
|
The
shares being registered hereby are held by Peter S. Frane Trust U/T/A
3/07/05. |
| |
| (21) |
|
The
shares of common stock being registered hereby are held by John Ying
Revocable Trust dated 04/06/1998. |
| |
| (22) |
|
The
shares being registered hereby are held by Joseph P. Conran
IRA. |
| |
| (23) |
|
The
shares being registered hereby are held by Sandra A. Van Trease Revocable
Trust dated 7/27/00, as may be amended. |
| |
| (24) |
|
Sandra
A. Van Trease is a member of the board of directors of Enterprise
Financial Services Corp. |
| |
| (25) |
|
The
shares of common stock being registered hereby are held by John E Brauch
Jr Revocable Living Trust dated 3/1/95. |
| |
| (26) |
|
The
shares of common stock being registered hereby are held by Barry H.
Berecha Revocable Trust. |
| |
| (27) |
|
William H. Downey is a member of the board of directors of
Enterprise Financial Services Corp. |
| |
| (28) |
|
The
shares of common stock being registered hereby are held by Eugene Deutsch
Revocable Living U/A DTD 1/18/1990. |
| |
| (29) |
|
The
shares of common stock being registered hereby are held by Hruza Revocable
Trust U/A 7/31/2009. |
9
| (30) |
|
The
shares of common stock being registered hereby are held by Wayne L. Smith
II Revocable Trust UA DTD 3/12/96. |
| |
| (31) |
|
Stieven Capital Advisors, L.P., as investment manager, has voting
and dispositive control over the shares of common stock held by Stieven
Financial Offshore Investors, Ltd. |
| |
| (32) |
|
The
shares of common stock being registered hereby are held by George H.
Walker, III Revocable Trust. |
| |
| (33) |
|
The
shares being registered hereby are held by Jannis M. Dittmeier Revocable
Trust Dtd. January 26, 1995. |
| |
| (34) |
|
The
shares of common stock being registered hereby are held by Norman Saale
Revocable Trust, Dated October 28, 1990. |
| |
| (35) |
|
Enterprise Bank & Trust and Harry L. Franc, as co-trustees,
have voting and dispositive control over the shares of common stock held
by Trust FBO Harry L. Franc, III under Will of Harry L. Franc dated
3/28/76. |
| |
| (36) |
|
The
shares of common stock being registered hereby are held by Norma Saale
Revocable Trust, Dated October 28, 1990. |
| |
| (37) |
|
Enterprise Bank & Trust and Harry L. Franc, as co-trustees,
have voting and dispositive control over the shares of common stock held
by Trust FBO Harry L. Franc, III under Will of Ruther G. Franc dated
1/21/83. |
| |
| (38) |
|
Mary
Pat Blake, as director, has voting and dispositive control over the shares
of common stock held by The Blake
Foundation. |
PLAN OF DISTRIBUTION
The selling stockholders may, from time to
time, sell shares of common stock on the Nasdaq or in privately negotiated
transactions. These sales may be at fixed prices, at prevailing market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. Each of the selling stockholders will act independently of us
in making decisions regarding the timing, manner and size of each
sale.
The selling stockholders may sell
the shares of common stock by one or more of the following methods:
- ordinary brokerage transactions
and transactions in which the broker-dealer solicits
purchasers;
- block trades, as referenced above,
in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
- purchases by a broker-dealer as
principal and resale by the broker-dealer for its account;
- an exchange distribution in
accordance with the rules of the applicable exchange;
- settlement of short sales entered
into after the date of this prospectus;
- broker-dealer may agree with the
selling stockholders to sell a specified number of such shares at a stipulated price per
share;
- through the writing of options on
the shares;
- private sales or private
transactions; or
- a combination of any of these
methods of sale or any other legally available means, whether or not described in this prospectus.
10
The selling stockholders may also
sell shares under Rule 144 under the Securities Act of 1933, as amended, if
available, rather than pursuant to this prospectus. The selling stockholders
shall have the sole and absolute discretion not to accept any purchase offer or
make any sale of shares if it deems the purchase price to be unsatisfactory at
any particular time.
In connection with the sale of shares of
common stock, the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions only to the extent permitted by
the Securities Act of 1933, as amended, and any applicable securities laws of
any state of the United States. These broker-dealers may in turn engage in short
sales of the shares of common stock and deliver shares of common stock to close
our such short positions, or loan or pledge shares of common stock to
broker-dealers that may in turn sell such securities. The selling stockholders
may pledge or grant a security interest in some or all of the shares of common
stock that it owns and, if it defaults in the performance of its secured
obligations, the pledgees or secured parties may offer and sell the shares of
common stock from time to time pursuant to this prospectus. The selling
stockholders may also transfer and donate shares of common stock in other
circumstances, in which case the transferees, donees, pledgees or other
successors in interest will be the selling stockholders for purposes of this
prospectus.
The selling stockholders may decide
not to sell all or a portion of the common stock offered by it pursuant to this
prospectus. In addition, the selling stockholders may transfer, devise or give
the common stock by other means not described in this prospectus. Any common
stock covered by this prospectus that qualifies or sale pursuant to Rule 144,
Rule 144A or Regulation S of the Securities Act of 1933, as amended, may be sold
under Rule 144, Rule 144A or Regulation S rather than pursuant to this
prospectus.
The selling stockholders and any other
person(s) participating in the distribution of the common stock will be subject
to the Securities and Exchange Act of 1934, as amended. The rules thereof
include, without limitation, Regulation M, which may limit the timing of
purchases and sales of any of the common stock by the selling stockholders and
any such other person(s). In addition, Regulation M may restrict the ability of
any person engaged in the distribution of the common stock to engage in
market-making activities with respect to the particular common stock being
distributed for a period of up to five business days prior to the commencement
of such distribution. This may affect the marketability of the common stock and
the ability to engage in market-making activities with respect to the common
stock.
The selling stockholders are responsible for
all costs and expenses incurred by them in connection with the sale of shares of
common stock, including any underwriting, brokerage or transactions fees as well
as all legal fees of counsel retained by such selling stockholders with respect
to the registration and sale of the shares of common stock. We will bear the
costs, fees and expenses incurred in effecting the registration of the
securities covered by this prospectus, including, without limitation, all
registration and filing fees and fess and expenses of our counsel and our
accountants. We will also make copies of this prospectus available to the
selling underwriters, dealers or agents for the purpose of satisfying the
prospectus delivery requirements of the Securities Act of 1933, as amended,
which may include delivery through the facilities of the Nasdaq pursuant to Rule
153 under the Securities Act of 1933, as amended.
In order to comply with the securities laws of
certain states, if applicable, the securities must be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states the securities may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
LEGAL MATTERS
The validity of our common stock offered
hereby will be passed upon for us by Greensfelder, Hemker & Gale, P.C.
Joseph D. Lehrer, an attorney with Greensfelder, Hemker & Gale, P.C., holds
11,043 shares of our common stock.
EXPERTS
Our consolidated financial statements as of
December 31, 2009 and 2008, and for each of the years in the three-year period
ended December 31, 2009, and management’s assessment of internal control over
financial reporting as of December 31, 2009, have been incorporated by reference
herein and in the registration statement in reliance upon the reports of KPMG
LLP, an independent registered public accounting firm, as stated in their
reports, which are incorporated by reference herein, and upon the authority of
said firm as an expert in accounting and auditing.
The audit report dated March 12, 2010 contains
an explanatory paragraph that states that the Company restated the 2008 and 2007
consolidated financial statements to correct a misstatement.
11
PART II
INFORMATION NOT REQUIRED IN THE
PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various
expenses to be incurred in connection with the sale and distribution of the
securities to which this registration statement relates. The Company is not
responsible for underwriting discounts, selling commissions and or stock
transfer taxes incurred by the selling stockholders. All amounts shown are
estimates except the SEC registration fee.
| SEC Registration fee |
$ |
1,169.00 |
| Legal fees and expenses |
$ |
95,000.00 |
| Accounting fees and expenses |
$ |
5,000.00 |
| Miscellaneous expenses |
$ |
6,000.00 |
|
Total Expenses |
$ |
107,169.00 |
Item 15. Indemnification of Directors and Officers.
EFSC is a Delaware corporation. Section 102 of
the Delaware General Corporation Law, or DGCL, as amended, allows a corporation
to eliminate the personal liability of directors of a corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except where the director breached the duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in violation of the
DGCL or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other
things, that EFSC may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding other than an action by or in the right of EFSC, by reason of
the fact that the person is or was a director, officer, agent or employee of
EFSC, or is or was serving at EFSC’s request as a director, officer, agent or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys’ fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if such person acting in good
faith and in a manner he or she reasonably believed to be in the best interests,
or not opposed to the best interests, of EFSC, and with respect to any criminal
action or proceeding had no reasonable cause to believe his or her conduct was
unlawful. The power to indemnify applies to actions brought by or in the right
of EFSC as well, but only to the extent of defense expenses, reasonably incurred
and not to any satisfaction of judgment or settlement of the claim itself, and
with the further limitation that in such actions no indemnification shall be
made in the event of any adjudication of liability to EFSC, unless the court
believes that in light of all the circumstances indemnification should apply.
Furthermore, under the DGCL, if such person is successfully on the merits or
otherwise in the defense of any action referred to above, or in the defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
Section 174 of the DGCL provides, among other
things, that a director, who willfully or negligently approves an unlawful
payment of dividends or an unlawful purchase or redemption of stock, may be held
liable for such actions. A director who was either absent when the unlawful
actions were approved or dissented at the time, may avoid liability by causing
his or her dissent to such actions to be entered in the books containing minutes
of the meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful
acts.
As permitted by the DGCL, EFSC’s certificate
of incorporation (as amended and together with all certificates of designations)
includes a provision to eliminate the personal liability of its directors for
monetary damages for breach or alleged breach of their fiduciary duties as
directors, subject to limited exceptions. The certificate of incorporation (as
amended and together with all certificates of designations) also provides that
every person who is or was our director, officer, employee or agent or is or was
a director, officer, trustee, employee or agent of any other enterprise, serving
as such at EFSC’s request, shall be indemnified to the fullest extent permitted
by law for all expenses and liabilities in connection with any proceeding
involving such person in this capacity.
12
Item 16. Exhibits
See the Exhibit Index immediately
following the signature page of this prospectus, which is hereby incorporated
herein by reference.
Item 17. Undertakings
A. Rule 415 Offering
The undersigned
registrant hereby undertakes:
(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, as amended;
(ii)
to reflect in the prospectus any facts or events arising after the effective
date of this 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 this registration statement. Notwithstanding the
foregoing, any increase or decrease in the 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 SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
to include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended, that are incorporated by
reference in this registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of this registration
statement.
(2) That, for the purposes of determining any
liability under the Securities Act of 1933, as amended, each 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 the time
shall be deemed to be the initial bona fide offering
thereof.
(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) Intentionally omitted.
(5) That, for the purpose of determining
liability under the Securities Act of 1933, as amended, to any
purchaser:
(i)
each prospectus filed by a 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
(ii)
each 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)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933, as amended, 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 shall 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.
13
(6) That, for the purpose of determining
liability of a registrant under the Securities Act of 1933, as amended, to any
purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in
a primary offering of securities of the undersigned registrant pursuant to this
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:
(i)
any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii)
any 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;
(iii)
the 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
(iv)
any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
B. Filings Incorporating Subsequent Exchange Act Documents By
Reference
The undersigned registrant undertakes that,
for purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the registrant’s annual report pursuant to Section 13(a)
or 15(d) of the Exchange Act of 1934, as amended (and, where applicable, each
filing of any employee benefit plan’s annual report pursuant to Section 15(d) of
the Exchange Act), that is incorporated by reference in this registration
statements 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.
H. Request for Acceleration of Effective Date of Filing of Registration
Statement on Form S-3
Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
indemnification provisions described herein, 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 of 1933, as amended, 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 of 1933, as amended, and will be
governed by the final adjudication of such issue.
14
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant 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 statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the State of Missouri, on March 18,
2010.
|
|
ENTERPRISE
FINANCIAL SERVICES CORP |
|
|
|
|
|
|
|
By: |
|
/s/ Frank H.
Sanfilippo |
|
|
|
|
Frank H. Sanfilippo |
|
|
|
|
Chief Financial Officer |
Pursuant to the
requirements of the Securities Act of 1934, this registration statement has been
signed by the following persons in the capacities indicated on the 18th of
March, 2010.
| Signatures |
|
Title |
| /s/ Peter F.
Benoist* |
|
|
| Peter F. Benoist |
|
President and Chief Executive Officer and Director |
| |
|
|
| /s/ James J. Murphy,
Jr.* |
|
|
| James J. Murphy, Jr. |
|
Chairman of the Board of Directors |
| |
|
|
| /s/ Michael A.
DeCola* |
|
|
| Michael A. DeCola |
|
Director |
| |
|
|
| /s/ William H.
Downey* |
|
|
| William H. Downey |
|
Director |
| |
|
|
| Robert E. Guest,
Jr.* |
|
|
| Robert E. Guest, Jr. |
|
Director |
| |
|
|
| /s/ Lewis A.
Levey* |
|
|
| Lewis A. Levey |
|
Director |
| |
|
|
| /s/ Birch M.
Mullins* |
|
|
| Birch M. Mullins |
|
Director |
| |
|
|
| /s/ Brenda D.
Newberry* |
|
|
| Brenda D. Newberry |
|
Director |
| |
|
|
| /s/ Sandra A. Van
Trease* |
|
|
| Sandra A. Van Trease |
|
Director |
| |
|
|
| /s/ Henry D.
Warshaw* |
|
|
| Henry D. Warshaw |
|
Director |
| |
|
|
| /s/ John S. Eulich
* |
|
|
| John S. Eulich |
|
Director |
| |
|
|
| /s/ John M.
Tracy* |
|
|
| John M. Tracy |
|
Director |
| |
|
|
| *Signed by Power of Attorney. |
|
|
15
EXHIBIT INDEX
| Exhibit |
|
|
| No. |
|
Description |
| 4.1 |
|
Certificate of
Designations (incorporated herein by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed on December 23,
2008).
|
|
|
|
|
| 4.2 |
|
Form of
Subscription Agreement (incorporated herein by reference to Exhibit 99.1
to Registrant’s Current Report on Form 8-K filed on January 14,
2010.
|
|
|
|
|
| 4.3 |
|
Form of
Subscription Agreement (incorporated herein by reference to Exhibit 99.1
to Registrant’s Current Report on Form 8-K filed on January 26,
2010.
|
|
|
|
|
| 5.1 |
|
Opinion of
Greensfelder, Hemker & Gale, P.C.
|
|
|
|
|
| 23.1 |
|
Consent of KPMG
LLP.
|
|
|
|
|
| 23.2 |
|
Consent of
Greensfelder, Hemker & Gale, P.C. (included in Exhibit
5.1).
|
|
|
|
|
| 24.1 |
|
Power of
Attorney of certain officers and directors of
Registrant.
|
16