As filed
with the Securities and Exchange Commission on January 30, 2009
Registration
No. 333-_
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
WEST
BANCORPORATION, INC.
(Exact
name of registrant as specified in its charter)
Iowa
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42-1230603
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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1601
22nd
Street
West Des
Moines, Iowa 50266
515-222-2300
(Address,
including zip code, and telephone number, including area code, of registrant's
principal executive offices)
Douglas
R. Gulling, EVP & CFO
West
Bancorporation, Inc.
1601
22nd
Street
West Des
Moines, Iowa 50266
(515)
222-2300
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Wade R.
Hauser III
Ahlers
& Cooney, P.C.
100 Court
Avenue, Suite 600
Des
Moines, Iowa 50309
(515)
243-7611
Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of the Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. ¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
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 thereto 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:
Large accelerated filer ¨
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Accelerated filer x
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Non-accelerated filer ¨
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Smaller reporting company ¨
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(Do not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title of each class of securities
to be registered
|
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Amount to be
registered
|
|
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Proposed maximum
offering price per
unit
|
|
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Proposed maximum
aggregate offering
price
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|
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Amount of
registration fee
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Fixed
Rate Cumulative Perpetual Preferred
Stock, Series A, $0.01 par value per share
|
|
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36,000 |
|
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$ |
1,000 |
(1) |
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$ |
36,000,000 |
|
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$ |
1,414.80 |
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Warrant
to Purchase Common Stock, no par value per share, and underlying shares of
Common Stock (2)
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|
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474,100 |
(2) |
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$ |
11.39 |
(3) |
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$ |
5,399,999 |
(3) |
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$ |
212.22 |
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Total:
|
|
|
|
|
|
|
|
|
|
$ |
41,399,999 |
|
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$ |
1,627.02 |
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(1) Calculated
in accordance with Rule 457(a) and includes such additional number of shares of
Fixed Rate Cumulative Perpetual Preferred Stock, Series A, of a currently
indeterminable amount, as may from time to time become issuable by reason of
stock splits, stock dividends or similar transactions.
(2) In
addition to the Fixed Rate Cumulative Perpetual Preferred Stock, Series A, there
are being registered hereunder (a) a warrant for the purchase of 474,100 shares
of Common Stock, no par value, with an initial exercise price of $11.39 per
share, (b) the 474,100 shares of Common Stock issuable upon exercise of such
warrant and (c) such additional number of shares of Common Stock, of a currently
indeterminable amount, as may from time to time become issuable by reason of
stock splits, stock dividends and certain anti-dilution provisions set forth in
such warrant, which shares of Common Stock are registered hereunder pursuant to
Rule 416.
(3) Calculated
in accordance with Rule 457(i) with respect to the per share exercise price of
the warrant of $11.39.
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.
This
information in this prospectus is not complete and may be
changed. The selling security holders may not sell these securities
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
PROSPECTUS
Subject
to Completion
Dated
January 30, 2009
36,000
Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A
Warrant
to Purchase 474,100 Shares of Common Stock
474,100
Shares of Common Stock
WEST
BANCORPORATION, INC.
This
prospectus relates to the potential resale from time to time by selling security
holders of some or all of the shares of our Fixed Rate Cumulative Perpetual
Preferred Stock, Series A (the "Preferred Stock"), a warrant (the "Warrant") to
purchase 474,100 shares of our Common Stock, no par value per share (the "Common
Stock"), and any shares of Common Stock issuable from time to time upon exercise
of the Warrant. In this prospectus, we refer to the shares of Preferred Stock,
the Warrant and the shares of Common Stock issuable upon exercise of the
Warrant, collectively, as the "Securities." The Preferred Stock and the Warrant
were originally issued by us pursuant to the Letter Agreement dated December 31,
2008, and the related Securities Purchase Agreement - Standard Terms, between us
and the United States Department of the Treasury (the "UST") in a transaction
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act").
The UST
and its successors, including transferees (the "Selling Security Holders"), may
offer the Securities from time to time directly or through underwriters,
broker-dealers or agents and in one or more public or private transactions and
at fixed prices, prevailing market prices, at prices related to prevailing
market prices or at negotiated prices. If the Securities are sold through
underwriters, broker-dealers or agents, the Selling Security Holders will be
responsible for underwriting discounts or commissions or agents'
commissions.
We will
not receive any proceeds from the sale of Securities by the Selling Security
Holders.
The
Preferred Stock is not listed on an exchange, and, unless requested by the UST,
we do not intend to list the Preferred Stock on any exchange.
Our
Common Stock is listed on the Nasdaq Global Select Market under the symbol
"WTBA." On January 28, 2009, the closing price of our Common Stock
was $9.89 per share. You are urged to obtain current market
quotations of the Common Stock.
Investing
in our Securities involves a high degree of risk. See "Risk Factors" beginning
on page 5.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
principal executive offices of West Bancorporation, Inc. are located at 1601
22nd
Street, West Des Moines, Iowa, 50266, and the telephone number is (515)
222-2300.
The date
of this prospectus is _____________, 2009.
Table
of Contents
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Page
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ABOUT
THIS PROSPECTUS
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3
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WHERE
YOU CAN FIND MORE INFORMATION AND INCORPORATION BY
REFERENCE
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3
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FORWARD-LOOKING
STATEMENTS
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4
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RISK
FACTORS
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5
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WEST
BANCORPORATION, INC.
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8
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USE
OF PROCEEDS
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8
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RATIO
OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
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8
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DESCRIPTION
OF FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES
A
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9
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DESCRIPTION
OF WARRANT TO PURCHASE COMMON STOCK
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13
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DESCRIPTION
OF COMMON STOCK
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15
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SELLING
SECURITY HOLDERS
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18
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PLAN
OF DISTRIBUTION
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19
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LEGAL
MATTERS
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20
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EXPERTS
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20
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ABOUT
THIS PROSPECTUS
This prospectus is part of a
registration statement we filed with the Securities and Exchange Commission (the
"SEC") using a "shelf” registration process. Under this shelf
registration process, the Selling Security Holders may, from time to time, offer
and sell the Securities described in this prospectus in one or more
offerings.
This prospectus provides you with a
general description of the Securities. We may provide a prospectus supplement
that will contain specific information about the terms of a particular offering
by the Selling Security Holders. Such prospectus supplement may also add, update
or change information contained in this prospectus. If there is any
inconsistency between the information in the prospectus and the applicable
prospectus supplement, you should rely on the information in the prospectus
supplement. You should read this prospectus and, if applicable, any prospectus
supplement together with the additional information described under the heading
"Where You Can Find More Information and Incorporation by
Reference."
The registration statement that
contains this prospectus, including the exhibits to the registration statement,
contains additional information about us and the Securities offered under this
prospectus. You can find the registration statement at the SEC's website or at
the SEC office mentioned under the heading "Where You Can Find More Information
and Incorporation by Reference."
Unless the context otherwise indicates,
the terms "West Bancorporation, Inc." “West Bancorporation,” "Company," "we,"
"our," or "us" mean West Bancorporation, Inc. and its subsidiaries.
WHERE
YOU CAN FIND MORE INFORMATION AND INCORPORATION BY REFERENCE
We file annual, quarterly and current
reports and proxy statements and other information with the SEC. Our SEC filings
are available over the Internet in the investor relations section of our website
at http://www.westbankiowa.com or at the SEC's website at http://www.sec.gov.
You may also read and copy any document we file at the SEC's public reference
room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for more information on the SEC's public reference
room. Information contained on our website is not a part of this
prospectus.
For further information about us and
the Securities offered under this prospectus, you should refer to our
registration statement and its exhibits. This prospectus summarizes material
provisions of contracts and other documents that we refer you to. Because the
prospectus may not contain all the information that you may find important, you
should review the full text of these documents.
We "incorporate by reference" into this
prospectus the information we file with the SEC, which means that we can
disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus.
Some information contained in this prospectus updates the information
incorporated by reference, and information that we file subsequently with the
SEC will automatically update this prospectus. In other words, in the case of a
conflict or inconsistency between information set forth in this prospectus
and/or information incorporated by reference into this prospectus, you should
rely on the information contained in the document that was filed later. We
incorporate by reference the following documents (excluding any portions of such
documents that have been "furnished" but not "filed" for purposes of the
Securities Exchange Act of 1934, as amended, which we refer to as the "Exchange
Act"):
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·
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Our
annual report on Form 10-K for the year ended December 31,
2007;
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·
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Our
quarterly reports on Form 10-Q for the quarterly periods ended March 31,
2008, June 30, 2008, and September 30,
2008;
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·
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Our
current reports on Form 8-K dated January 17, 2008, April 17, 2008, April
18, 2008, May 6, 2008, May
23, 2008, July 17, 2008, July 31, 2008, August 19, 2008, September 4,
2008, September 18, 2008 (2), October
16, 2008, October 24, 2008, October 30, 2008, December 8, 2008, December
24, 2008, December 31, 2008,
January 9, 2009, and January 22, 2009;
and
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·
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The description of our Common
Stock incorporated by reference in our registration statement on Form 10,
filed March 11, 2002, pursuant to Section 12 of the Exchange Act,
including any amendment or report filed
with the SEC for the purpose of updating this
description.
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We also incorporate by reference
reports we file in the future under Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act (excluding any portions of any such documents that are "furnished"
but not "filed" for purposes of the Exchange Act), including reports filed after
the date of the initial filing of the registration statement and before the
effectiveness of the registration statement, until we sell all of the securities
offered by this prospectus or terminate this offering.
You may request a copy of any of the
documents referred to above, at no cost, by contacting us in writing or by
telephone at:
Secretary
West
Bancorporation, Inc.
1601
22nd
Street
West Des
Moines, Iowa 50266
Phone:
(515) 222-2300
You should rely only on the information
incorporated by reference or presented in this prospectus or the applicable
prospectus supplement. We have not authorized anyone else to provide you with
different information. You should not assume that the information in this
prospectus or the applicable prospectus supplement is accurate as of any date
other than the dates on the front of those documents.
FORWARD-LOOKING
STATEMENTS
Statements included or incorporated by
reference in this prospectus and, if applicable, any prospectus supplements that
are not historical are "forward-looking" statements within the meaning of the
Private Securities Litigation Reform Act of 1995. The forward-looking statements
include: (1) statements made in our annual report on Form 10-K for the year
ended December 31, 2007, and in our quarterly reports on Form 10-Q for the
quarters ended March 31, 2008, June 30, 2008, September 30, 2008, and other
filings we file or furnish to the SEC, including, without limitation, statements
with respect to the Company’s growth and acquisition strategies, new products
and services, and future financial performance, including earnings and dividends
per share, return on average assets, return on average equity, efficiency ratio
and capital ratios. Forward-looking statements also include statements regarding
the intent, belief or current expectation of West Bancorporation, Inc. and its
officers. Forward-looking statements include statements preceded by,
followed by or that include forward-looking terminology such as "may," "should,"
"believes," "expects," "intends," "anticipates," "estimates," or
similar references or references to estimates or predictions. Such
forward-looking statements are based upon certain underlying assumptions, risks
and uncertainties. Because of the possibility of change in the
underlying assumptions, actual results could differ materially from these
forward-looking statements. Risks and uncertainties that may affect
future results include: interest rate risk; competitive pressures;
pricing pressures on loans and deposits; changes in credit and other risks posed
by our loan and investment portfolios, including declines in commercial or
residential real estate values or changes in the allowance for loan losses
dictated by new market conditions or regulatory requirements; actions of bank
and non-bank competitors; changes in local and national economic conditions;
changes in regulatory requirements, including actions of the SEC, the Federal
Reserve Board or the Federal Deposit Insurance Corporation; customers’
acceptance of West Bancorporation, Inc.’s products and services; and the
possibility that the terms of the U.S. Treasury Department’s Capital Purchase
Program could change.
All forward-looking statements included
or incorporated by reference in this prospectus and the applicable prospectus
supplement are based on information available to us as of the date of this
prospectus or the applicable prospectus supplement. We do not undertake to
revise or update any forward-looking statements that may be made by or on behalf
of us in this prospectus, any prospectus supplement or otherwise. Our actual
results may differ materially from those contained in the forward-looking
statements identified above. Factors which may cause such a material difference
to occur include, but are not limited to, the risk factors described
below.
RISK
FACTORS
An investment in our Securities
involves significant risks. You should carefully consider the risks and
uncertainties and the risk factors set forth below.
West Bancorporation’s business is
conducted through its two wholly-owned subsidiaries, West Bank and WB Capital
Management Inc. The greatest risks for investment in our Securities
involve West Bank because it comprises over ninety percent of our operations and
assets. West Bank is subject to all the general risks that confront
community banks. In addition, West Bank and West Bancorporation are
subject to the following particular risks.
Our
loan portfolio.
The
largest component of West Bank’s income is interest received on
loans. West Bank’s loan portfolio includes a significant amount of
commercial real estate loans, commercial lines of credit, commercial term loans,
and construction or land development loans. West Bank’s typical
commercial borrower is a small or medium-sized privately-owned Iowa business
person or entity. Our commercial loans typically have greater credit
risks than residential mortgage or consumer loans because they often have larger
balances and repayment usually depends on the borrowers’ successful business
operations. Commercial loans also involve some additional risk
because they generally are not fully repaid over the loan period and thus
usually require refinancing or a large payoff at maturity. When the
general economy turns downward, which is currently the case, commercial
borrowers may not be able to repay their loans and the value of their assets,
which are usually pledged as collateral, may decrease rapidly and
significantly. Also, when credit markets tighten due to adverse
developments in specific markets or the general economy, opportunities for
refinancing may become more expensive or non-available, resulting in loan
defaults. The current economic conditions in West Bank’s market areas
are putting considerable negative pressure on our existing loan customers and
are limiting our ability to find attractive new loan customers.
Our
real estate loans expose us to increased credit risks.
A substantial portion of our loan
portfolio consists of real estate-related loans, including real estate
development, construction, and residential and commercial mortgage
loans. Consequently, real estate-related credit risks are a
significant concern for us. The adverse consequences from real
estate-related credit risks tend to be cyclical and are often driven by national
economic developments that are not controllable or entirely foreseeable by us or
our borrowers. General difficulties in our real estate markets have
recently contributed to increases in our non-performing loans, charge-offs, and
decreases in our income. Although we believe that the real estate
markets in which we make loans are not as depressed as some in the country, we
believe that real estate-related credit risks continue to be significant in our
markets.
Our
accounting policies and methods are the basis of how we report our financial
condition and results of operations, and they may require management to make
estimates about matters that are inherently uncertain.
Our accounting policies and methods are
fundamental to how we record and report our financial condition and results of
operations. Our management must exercise judgment in selecting and
applying many of these accounting policies and methods in order to ensure that
they comply with generally accepted accounting principles and reflect
management's judgment as to the most appropriate manner in which to record and
report our financial condition and results of operations. In some cases,
management must select the accounting policy or method to apply from two or more
alternatives, any of which might be reasonable under the circumstances yet might
result in us reporting different amounts than would have been reported under a
different alternative.
We have identified two accounting
policies as being "critical" to the presentation of our financial condition and
results of operations because they require management to make particularly
subjective and complex judgments about matters that are inherently uncertain and
because of the likelihood that materially different amounts would be reported
under different conditions or using different assumptions. These
critical accounting policies relate to: (1) the allowance for loan losses and
(2) determining the fair value of investment securities held for
sale. Because of the inherent uncertainty of these estimates, no
assurance can be given that application of alternative policies or methods might
not result in the reporting of different amounts of allowance for loan loss,
fair value of securities held for sale, and net income.
Various
factors may cause our allowance for loan losses to increase.
Our allowance for loan losses
represents management's estimate of probable losses inherent in our loan
portfolio. Management evaluates the allowance each quarter to determine that it
is adequate to absorb these inherent losses. This evaluation is
supported by a methodology that identifies estimated losses based on assessments
of individual problem loans and historical loss patterns. In
addition, general factors unique to each measurement date are also considered,
including economic conditions in certain geographic or industry segments of the
loan portfolio, economic trends, risk profile, and portfolio
composition. The determination of the appropriate level of the
allowance for loan losses is highly subjective and requires management to make
significant estimates of current credit risks and future trends, all of which
may undergo material changes in a short period of time. Changes in
economic conditions affecting borrowers, new information regarding existing
loans, identification of additional problem loans, and other factors, many of
which are outside of our control, may require an increase in the allowance for
loan losses. Determining the appropriate loan loss allowance is more
difficult during periods of significant economic downturn. Any
increase in the allowance for loan losses will result in a decrease in net
income and capital, and could have a material adverse effect on our financial
condition and results of operations.
If
all or a significant portion of the unrealized losses in our portfolio of
investment securities were determined to be other-than-temporarily impaired, we
would recognize a material charge to our earnings and our capital ratios would
be adversely impacted.
We analyze our investment securities
quarterly to determine whether, in the opinion of management, the value of any
of the securities is other than temporarily impaired. To the extent
that any portion of the unrealized losses in our portfolio of investment
securities is determined to be other than temporarily impaired, we will
recognize a charge to our earnings in the quarter during which such
determination is made and our capital ratios will be adversely
impacted. Generally, a fixed income security is determined to be
other than temporarily impaired when it appears unlikely that we will receive
all of the principal and interest due in accordance with the original terms of
the investment.
Our
past acquisitions pose ongoing risks for our business.
We purchased two investment advisory
firms that we merged to create WB Capital Management Inc. We may not
achieve the benefits we sought in the acquisitions, or, if achieved, those
benefits may be achieved later than we anticipated. Failure to
achieve anticipated benefits from either acquisition could result in increased
costs and lower revenues than expected of the combined company. In
addition, if the financial performance associated with the acquisitions fall
short of expectations, or if the valuations of investment advisory firms decline
significantly, impairment charges associated with the goodwill or other
intangible assets recorded as parts of the acquisitions may be
required.
There
can be no assurance that recently enacted legislation will help stabilize the
U.S. economy.
The Emergency Economic Stabilization
Act of 2008 ("EESA") was recently signed into law in response to the financial
crises affecting the banking system and financial markets and going concern
threats to investment banks and other financial institutions. The UST
has implemented a Capital Purchase Program (the "CPP") under EESA through which
it has purchased preferred stock in participating financial institutions,
including $36,000,000 of our Preferred Stock on December 31,
2008. There can be no assurance, however, as to the actual impact
that EESA, including the CPP, will have on the financial markets or on us. The
failure of these programs to help stabilize the financial markets and a
continuation or worsening of current financial market and general economic
conditions could materially and adversely affect our business, financial
condition, results of operations, access to credit, or the trading price of our
Common Stock.
Our
participation in the CPP may impact earnings and Common Stock
dividends.
The annual cash dividend that must be
paid on the Preferred Stock we sold to the UST through the CPP is $1,800,000
through 2013 and $3,240,000 thereafter. Our challenge is to use the
$36,000,000 capital infusion to generate earnings greater than the costs of the
Preferred Stock. All of the Preferred Stock dividends must be paid
before any Common Stock dividends may be paid. If we do not earn a
profit on the proceeds from the Preferred Stock sale, our net income and
dividends paid to Common Stock shareholders could be negatively
affected.
Our
participation in the CPP restricts our ability to increase dividends on our
Common Stock, undertake stock repurchase programs, and compensate our key
executives.
The terms of the CPP restrict our
ability to increase dividends on our Common Stock above $0.16 per share, redeem
Treasury’s investment without receiving high-quality replacement capital,
undertake stock repurchase programs, and pay executive
compensation. Additional restrictions may be imposed on the CPP by
the UST or Congress at a later date, and any such restrictions may apply to us
retroactively. These restrictions may have a material adverse effect
on our operations, revenue and financial condition, our ability to pay
dividends, or our ability to attract and retain executive talent.
There
can be no assurance that our shareholders will continue to receive dividends at
the current rate.
Our shareholders are only entitled to
receive the dividends declared by our board of directors. The primary
source of money to pay our dividends comes from the dividends paid by West
Bank. The bank’s earnings declined during the last
year. Our board of directors recently reduced the next quarterly
dividend to be paid on our Common Stock from $0.16 per share to $0.08 per
share. Although we have historically declared cash dividends on our
Common Stock, there can be no assurance that we will maintain dividends at any
particular rate. Any further reduction of, or the elimination of, our
Common Stock dividend might adversely affect our stock price.
Substantial
sales or dilution of our equity may adversely affect the market price of our
Common Stock.
In connection with the CPP stock sale,
we sold a Warrant to the UST representing the right to purchase 474,100 shares
of our Common Stock. If the Warrant is exercised, the newly issued
Common Stock would dilute the ownership interests of our existing
shareholders. Our Common Stock is also relatively thinly
traded. The market price of our Common Stock might fall if the number
of shares of our Common Stock for sale at any particular time substantially
increases due to the UST exercising its Warrant and selling our Common
Stock.
Our
stock has historically traded at high multiples of earnings compared to our
peers.
When compared to many of our peers, our
stock has historically traded at a high price to earnings
multiple. This circumstance may be related to the market’s evaluation
of our historic performance. However, if our stock started to trade
at the average multiple of our peer companies, our stock could decline in
price.
The
loss of the services of any of our senior executive officers could cause our
business to suffer.
West Bancorporation and its
subsidiaries are relatively small companies and have overlapping senior
management. Our continued success depends to a significant extent
upon the continued services of a relative few individuals, who generally do not
have substantial backup. The loss of services of any of our senior
executive officers could cause our business to suffer, at least in the short
term. In addition, our success depends in significant part upon our
senior management's ability to develop and implement our business
strategies.
We
are subject to liquidity risks.
We maintain liquidity primarily through
customer deposits and other short-term funding sources. If economic
influences change so that we do not have access to short-term credit or our
depositors withdraw a substantial amount of their funds for other uses, West
Bank might experience liquidity issues. Our efforts to monitor and
manage liquidity risk may not be successful or sufficient to deal with dramatic
or unanticipated reductions in our liquidity. In such events, our
cost of funds may increase, thereby reducing our net interest revenue, or we may
need to sell a portion of our investment portfolio, which, depending upon market
conditions, could result in our realizing a loss.
The
market for banking and financial services in our market areas is highly
competitive, which could adversely affect our financial condition and results of
operations.
We operate in highly competitive
markets. The West Des Moines metropolitan market area in particular
has attracted many new financial institutions within the last several
years. Customer loyalty can be influenced by a competitor's new
products, especially offerings that provide cost savings to the
customer. Some of our competitors may also be better able to attract
customers because they provide products and services over a larger geographic
area than we serve.
Federal
and state regulation could increase our costs or have other negative effects on
us.
Our companies are regulated financial
institutions. Financial institution regulation is designed primarily
to protect consumers, depositors, and the banking system as a whole, not
shareholders. Congress, the Iowa legislature, and federal and state
regulatory agencies continually are reviewing and changing financial institution
laws, regulations, and policies. The recent unprecedented failures of
financial firms, credit market disruptions, and investor losses have caused many
to call for increased financial institution regulation. Changes to
statutes, regulations, or regulatory policies, including changes in
interpretation or implementation of statutes, regulations or policies, could
affect us in significant, unpredictable ways.
WEST
BANCORPORATION, INC.
West Bancorporation, Inc. (the
“Company” or “Holding Company”) is an Iowa corporation and financial holding
company registered under the Bank Holding Company Act of 1956, as amended by the
Gramm-Leach-Bliley Act of 1999. The Company owns 100 percent of the
stock of one state-chartered banking subsidiary, West Bank, and one registered
investment advisory firm, WB Capital Management Inc. (“WB Capital”), as
described below. West Bank’s operations are conducted primarily
within the Des Moines and Iowa City, Iowa, metropolitan areas in
Iowa. WB Capital’s operations are conducted primarily in Des Moines
and Coralville, Iowa, metropolitan areas, but it also has clients throughout the
United States. The Company does not engage in any material business
activities apart from ownership of its banking and investment advisory
subsidiaries. The principal executive offices of the Company are
located at 1601 22nd Street,
West Des Moines, Iowa, 50266, and its telephone number is (515)
222-2300. The Company’s website address is www.westbankiowa.com.
The Company was organized and
incorporated on May 22, 1984, under the laws of the State of Iowa, to serve as a
holding company for its principal banking subsidiary, West Bank, whose main
office is located in West Des Moines, Iowa. For the year ended
December 31, 2007, West Bank generated approximately 92 percent of the Company’s
total revenue.
West Bank’s lending activities consist
primarily of short-term and medium-term commercial and real estate loans,
business operating loans and lines of credit, equipment loans, vehicle loans,
personal loans and lines of credit, home improvement loans, and conventional and
secondary market mortgage loan originations. West Bank also offers a
variety of demand, savings and time deposits, merchant credit card processing,
safe deposit boxes, wire transfers, debit cards, direct deposit of payroll and
social security checks, automated teller machine access, trust services, and
correspondent bank services.
WB Capital was formed on October 1,
2003, and is a registered investment advisor. WB Capital provides
investment portfolio management services to individuals, retirement plans,
corporations, foundations, endowments, and public entities.
USE
OF PROCEEDS
We will not receive any proceeds from
any sale of the securities by the Selling Security Holders.
RATIO
OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
The following table reflects our ratios
of earnings to fixed charges for the nine-month period ended September 30,
2008, and for each of the years in the five-year period ended December 31,
2007.
For purposes of computing these ratios,
earnings represent income before income taxes and fixed
charges. Fixed charges, excluding interest on deposits, include
interest (other than on deposits), whether expensed or capitalized, and an
appropriate portion of rentals (generally one-third) deemed representative of
the interest factor. Fixed charges, including interest on deposit,
consist of the foregoing items plus interest on deposits.
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For the Nine Months Ended
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For the Years Ended
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September 30,
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December 31
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2008
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2007
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2006
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2005
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2004
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2003
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Ratio
of earnings to fixed charges, excluding interest on deposits
(1)
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1.77 |
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2.93 |
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3.94 |
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4.10 |
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5.14 |
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5.62 |
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Ratio
of earnings to fixed charges, including interest on deposits
(1)
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1.26 |
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1.62 |
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1.69 |
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2.16 |
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2.98 |
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3.29 |
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(1)
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Dividends
on the Preferred Stock are paid quarterly in arrears, with the first
quarterly dividend payable to holders of Preferred Stock on February 15,
2009. Because no dividends have been paid by us on the
Preferred Stock for the periods presented, the ratio of earnings to
combined fixed charges and preferred stock dividends is not different from
the ratio of earnings to fixed charges presented
above.
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DESCRIPTION
OF FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A
The following is a description of the
material terms of the Fixed Rate Cumulative Perpetual Preferred Stock, Series A
(the "Preferred Stock"), that may be resold by the Selling Security Holders.
This summary does not purport to be complete in all respects. This description
is subject to and qualified in its entirety by reference to our Restated
Articles of Incorporation, including the Articles of Amendment with respect to
the Preferred Stock, copies of which have been filed with the SEC and are also
available upon request from us.
General
Under our Restated Articles of
Incorporation, as amended, we have authority to issue up to 50,000,000 shares of
preferred stock, $0.01 par value per share. Of such number of shares of
preferred stock, 36,000 shares have been designated as Preferred Stock, all of
which shares of Preferred Stock were issued to the UST in a transaction exempt
from the registration requirements of the Securities Act. The issued and
outstanding shares of Preferred Stock are validly issued, fully paid and
non-assessable. Holders of Preferred Stock are not entitled to any
preemptive rights.
Dividends
Payable on Shares of Preferred Stock
The Preferred Stock will pay cumulative
compounding dividends quarterly in arrears of 5% per year until the fifth
anniversary of the issuance of the Preferred Stock, and 9% thereafter. The
dividend payment dates will be February 15, May 15, August 15 and November 15
beginning with the first dividend payment date to occur at least 20 calendar
days after the issuance of the Preferred Stock. The Preferred Stock was issued
to the UST on December 31, 2008. Accordingly, the first dividend payment date
will be February 15, 2009.
Dividends payable during any dividend
period are computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable with respect to the Preferred Stock are payable to
holders of record of shares of Preferred Stock on the date that is 15 calendar
days immediately preceding the applicable dividend payment date or such other
record date as our board of directors or any duly authorized committee of our
board of directors determines, so long as such record date is not more than 60
nor less than 10 days prior to the applicable dividend payment
date.
If our board of directors determines
not to pay any dividend or a full dividend with respect to the Preferred Stock,
we are required to provide written notice to the holders of shares of Preferred
Stock prior to the applicable dividend payment date.
We are subject to various regulatory
policies and requirements relating to the payment of dividends, including
requirements to maintain adequate capital above regulatory minimums. The Board
of Governors of the Federal Reserve System, or the Federal Reserve Board, is
authorized to determine, under certain circumstances relating to the financial
condition of a bank holding company, such as us, that the payment of dividends
would be an unsafe or unsound practice and to prohibit payment thereof. In
addition, we are subject to provisions of the Iowa Business Corporation Act (the
"IBCA") relating to the payment of dividends.
Priority
of Dividends
With
respect to the payment of dividends and the amounts to be paid upon liquidation,
the Preferred Stock will rank:
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senior
to our Common Stock and all other equity securities designated as ranking
junior to the Preferred Stock; and
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at
least equally with all other equity securities designated as ranking on a
parity with the Preferred Stock with respect to the payment of dividends
and distribution of assets upon any liquidation, dissolution or winding-up
of West Bancorporation, Inc.
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So long
as any shares of Preferred Stock remain outstanding, unless all accrued and
unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on our Common Stock or any other class or series of Company
stock ranking junior to the Preferred Stock, which we refer to as "junior
stock," other than a dividend payable solely in shares of our Common Stock, or
any class or series of Company stock that does not expressly rank junior or
senior to the Preferred Stock, which we refer to as "parity
stock." We and our subsidiaries also may not purchase, redeem or
otherwise acquire for consideration any shares of our Common Stock or junior
stock unless we have paid in full all accrued dividends on the Preferred Stock
for all prior dividend periods, other than:
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purchases,
redemptions or other acquisitions of our Common Stock or other junior
stock in connection with the administration of our employee benefit plans
in the ordinary course of business pursuant to a publicly announced
repurchase plan and consistent with past practice up to the increase in
diluted shares outstanding resulting from the grant, vesting or exercise
of equity-based compensation;
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purchases
or other acquisitions by broker-dealer subsidiaries of West
Bancorporation, Inc. solely for the purpose of market-making,
stabilization or customer facilitation transactions in junior stock or
parity stock in the ordinary course of its
business;
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purchases
or other acquisitions by broker-dealer subsidiaries of West
Bancorporation, Inc. for resale pursuant to an offering by West
Bancorporation, Inc. of our stock that is underwritten by the related
broker-dealer subsidiary;
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any
dividends or distributions of rights or junior stock in connection with
any shareholders' rights plan or repurchases of rights pursuant to any
shareholders' rights plan;
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acquisition
of record ownership of junior stock or parity stock for the beneficial
ownership of any other person who is not West Bancorporation, Inc. or a
subsidiary of West Bancorporation, Inc., including as trustee or
custodian; and
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the
exchange or conversion of junior stock for or into other junior stock or
of parity stock for or into other parity stock or junior stock but only to
the extent that such acquisition is required pursuant to binding
contractual agreements entered into before December 31, 2008, or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for Common Stock.
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We have agreed with the UST that if we
repurchase shares of Preferred Stock from a holder other than the UST, we must
offer to repurchase a ratable portion of the Preferred Stock then held by the
UST on the same terms.
On any dividend payment date for which
full dividends are not paid, or declared and funds set aside therefore, on the
Preferred Stock and any other parity stock, all dividends paid or declared for
payment on that dividend payment date (or, with respect to parity stock with a
different dividend payment date, on the applicable dividend date therefore
falling within the dividend period and related to the dividend payment date for
the Preferred Stock), with respect to the Preferred Stock and any other parity
stock shall be declared ratably among the holders of any such shares who have
the right to receive dividends, in proportion to the respective amounts of the
undeclared and unpaid dividends relating to the dividend period.
Subject to the foregoing, such
dividends (payable in cash, stock or otherwise) as may be determined by our
board of directors (or a duly authorized committee of our board of directors)
may be declared and paid on our Common Stock and any other stock ranking equally
with or junior to the Preferred Stock from time to time out of any funds legally
available for such payment, and the Preferred Stock will not be entitled to
participate in any such dividend. However, we have agreed with the UST that
prior to the earlier of December 31, 2011 and the date on which the Preferred
Stock has been redeemed in full or transferred by the UST, we must obtain the
consent of the UST to declare or pay dividends on our Common Stock, other
than quarterly cash dividends in an amount not more than our last quarterly cash
dividend per share declared prior to October 14, 2008 ($0.16 per
share).
Redemption
The Preferred Stock may not be redeemed
prior to February 15, 2012, unless we have received aggregate gross proceeds
from one or more Qualified Equity Offerings (as defined below) of at least
$9,000,000, which equals 25% of the aggregate liquidation amount of the
Preferred Stock on the date of issuance. In such a case, we may redeem the
Preferred Stock, subject to the approval of the Federal Reserve Board, in whole
or in part, upon notice as described below, up to a maximum amount equal to the
aggregate net cash proceeds received by us from such Qualified Equity
Offerings. A "Qualified Equity Offering" is a sale and issuance for
cash by us, to persons other than West Bancorporation, Inc. or its subsidiaries
after December 31, 2008, of shares of perpetual preferred stock, Common Stock or
a combination thereof, that in each case qualify as tier 1 capital of West
Bancorporation, Inc. at the time of issuance under the applicable risk-based
capital guidelines of the Federal Reserve Board. Qualified Equity Offerings do
not include issuances made in connection with acquisitions, issuances of trust
preferred securities and issuances of Common Stock and/or perpetual preferred
stock made pursuant to agreements or arrangements entered into, or pursuant to
financing plans that were publicly announced, on or prior to October 13,
2008.
After February 15, 2012, the Preferred
Stock may be redeemed at any time, subject to the approval of the Federal
Reserve Board, in whole or in part, subject to notice as described
below.
In any redemption, the redemption price
is an amount equal to the per share liquidation amount plus accrued and unpaid
dividends to but excluding the date of redemption.
The Preferred Stock will not be subject
to any mandatory redemption, sinking fund or similar provisions. Holders of
shares of Preferred Stock have no right to require the redemption or repurchase
of the Preferred Stock.
If fewer than all of the outstanding
shares of Preferred Stock are to be redeemed, the shares to be redeemed will be
selected either pro rata from the holders of record of shares of Preferred Stock
in proportion to the number of shares held by those holders or in such other
manner as our board of directors or a committee thereof may determine to be fair
and equitable.
We will mail notice of any redemption
of Preferred Stock by first class mail, postage prepaid, addressed to the
holders of record of the shares of Preferred Stock to be redeemed at their
respective last addresses appearing on our books. This mailing will be at least
30 days and not more than 60 days before the date fixed for
redemption. Any notice mailed or otherwise given as described in this
paragraph will be conclusively presumed to have been duly given, whether or not
the holder receives the notice, and failure duly to give the notice by mail or
otherwise, or any defect in the notice or in the mailing or provision of the
notice, to any holder of Preferred Stock designated for redemption will not
affect the redemption of any other Preferred Stock. Each notice of
redemption will set forth the applicable redemption date, the redemption price,
the place where shares of Preferred Stock are to be redeemed, and the number of
shares of Preferred Stock to be redeemed (and, if less than all shares of
Preferred Stock held by the applicable holder, the number of shares to be
redeemed from the holder).
Shares of Preferred Stock that are
redeemed, repurchased or otherwise acquired by us will revert to authorized but
unissued shares of our preferred stock.
Liquidation
Rights
In the event that we voluntarily or
involuntarily liquidate, dissolve or wind up our affairs, holders of Preferred
Stock will be entitled to receive an amount per share, referred to as the total
liquidation amount, equal to the fixed liquidation preference of $1,000 per
share, plus any accrued and unpaid dividends, whether or not declared, to the
date of payment. Holders of the Preferred Stock will be entitled to receive the
total liquidation amount out of our assets that are available for distribution
to shareholders, after payment or provision for payment of our debts and other
liabilities but before any distribution of assets is made to holders of our
Common Stock or any other shares ranking, as to that distribution, junior to the
Preferred Stock.
If our assets are not sufficient to pay
the total liquidation amount in full to all holders of Preferred Stock and all
holders of any shares ranking, as to that distribution, equally with the
Preferred Stock, the amounts paid to the holders of Preferred Stock and such
other stock will be paid pro rata in accordance with the respective total
liquidation amount for those holders. If the total liquidation amount per share
of Preferred Stock has been paid in full to all holders of Preferred Stock and
such other stock, the holders of our Common Stock and any other shares ranking,
as to such distribution, junior to the Preferred Stock will be entitled to
receive all of our remaining assets according to their respective rights and
preferences.
For purposes of the liquidation rights,
neither the sale, conveyance, exchange or transfer of all or substantially all
of our property and assets, nor the consolidation or merger by us with or into
any other corporation or by another corporation with or into us, will constitute
a liquidation, dissolution or winding-up of our affairs.
Voting
Rights
Except as indicated below or otherwise
required by law, the holders of Preferred Stock will not have any voting
rights.
Election of Two
Directors upon Non-Payment of Dividends. If the dividends on the
Preferred Stock have not been paid for an aggregate of six quarterly dividend
periods or more (whether or not consecutive), the authorized number of directors
then constituting our board of directors will be increased by two. Holders of
Preferred Stock, together with the holders of any outstanding parity stock with
like voting rights, referred to as voting parity stock, voting as a single
class, will be entitled to elect the two additional members of our board of
directors, referred to as the preferred stock directors, at the next annual
meeting (or at a special meeting called for the purpose of electing the
preferred stock directors prior to the next annual meeting) and at each
subsequent annual meeting until all accrued and unpaid dividends on the
Preferred Stock for all past dividend periods have been paid in full. The
election of any preferred stock director is subject to the qualification that
the election would not cause us to violate the corporate governance requirement
of the Nasdaq Global Select Market (or any other exchange on which our
securities may be listed) that listed companies must have a majority of
independent directors.
Upon the termination of the right of
the holders of Preferred Stock and voting parity stock to vote for preferred
stock directors, as described above, the preferred stock directors will
immediately cease to be qualified as directors, their term of office will
terminate immediately and the number of authorized directors of West
Bancorporation, Inc. will be reduced by two. The holders of a majority of shares
of Preferred Stock and voting parity stock, voting as a class, may remove any
preferred stock director, with or without cause, and the holders of a majority
of the shares of Preferred Stock and voting parity stock, voting as a class, may
fill any vacancy created by the removal of a preferred stock director. If the
office of a preferred stock director becomes vacant for any other reason, the
remaining preferred stock director may choose a successor to fill such vacancy
for the remainder of the unexpired term.
Other Voting
Rights. So long as any
shares of Preferred Stock are outstanding, in addition to any other vote or
consent of shareholders required by law or by our Restated Articles of
Incorporation, the vote or consent of the holders of at least 66 2/3% of the
shares of Preferred Stock at the time outstanding, voting separately as a single
class, given in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
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any
amendment or alteration of our Restated Articles of Incorporation, as
amended, to authorize or create or increase the authorized amount of, or
any issuance of, any shares of, or any securities convertible into or
exchangeable or exercisable for shares of, any class or series of capital
stock ranking senior to the Preferred Stock with respect to payment of
dividends and/or distribution of assets on any liquidation, dissolution or
winding up of West Bancorporation,
Inc.;
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any
amendment, alteration or repeal of any provision of our Restated Articles
of Incorporation so as to adversely affect the rights, preferences,
privileges or voting powers of the Preferred Stock;
or
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any
consummation of a binding share exchange or reclassification involving the
Preferred Stock or of a merger or consolidation of West Bancorporation,
Inc. with another entity, unless the shares of Preferred Stock remain
outstanding following any such transaction or, if West Bancorporation,
Inc. is not the surviving entity, are converted into or exchanged for
preference securities and such remaining outstanding shares of Preferred
Stock or preference securities have rights, references, privileges and
voting powers that are not materially less favorable than the rights,
preferences, privileges or voting powers of the Preferred Stock, taken as
a whole.
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To the extent of the voting rights of
the Preferred Stock, each holder of Preferred Stock will have one vote for each
$1,000 of liquidation preference to which such holder's shares of Preferred
Stock are entitled.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding shares of Preferred
Stock have been redeemed or called for redemption upon proper notice and
sufficient funds have been set aside by us for the benefit of the holders of
Preferred Stock to effect the redemption.
DESCRIPTION
OF WARRANT TO PURCHASE COMMON STOCK
The following is a description of the
material terms of the Warrant (the "Warrant") that may be resold by the Selling
Security holders. This summary does not purport to be complete in all respects.
This description is subject to and qualified in its entirety by reference to the
Warrant, a copy of which has been filed with the SEC and is also available upon
request from us.
Shares
of Common Stock Subject to the Warrant
The Warrant is initially exercisable
for 474,100 shares of our Common Stock. If we complete one or more Qualified
Equity Offerings on or prior to December 31, 2009, that result in our receipt of
aggregate gross cash proceeds of not less than $36,000,000.00, which is equal to
100% of the aggregate liquidation preference of the Preferred Stock, the number
of shares of Common Stock underlying the Warrant then held by the UST will be
reduced by 50% to 237,050 shares. The number of shares subject to the Warrant is
subject to further adjustments in the circumstances described below under the
heading "Adjustments to the Warrant."
Exercise
of the Warrant
The initial exercise price of the
Warrant is $11.39 per share of Common Stock for which the Warrant may be
exercised. The Warrant may be exercised at any time on or before December 31,
2018, by surrender of the Warrant and a completed notice of exercise attached as
an annex to the Warrant and the payment of the exercise price for the shares of
Common Stock for which the Warrant is being exercised. The exercise
price may be paid either by the withholding by us of such number of shares of
Common Stock issuable upon exercise of the Warrant equal to the value of the
aggregate exercise price of the Warrant determined by reference to the market
price of our Common Stock on the trading day on which the Warrant is exercised
or, if agreed to by us and the Warrant holder, by the payment of cash equal to
the aggregate exercise price. The exercise price applicable to the
Warrant is subject to further adjustments described below under the heading
“Adjustments to the Warrant.”
Upon exercise of the Warrant, we will,
as soon as practicable, issue and deliver to the holder of the Warrant the
shares of Common Stock that are issued upon exercise. We will not issue
fractional shares upon any exercise of the Warrant. Instead, the holder of the
Warrant will be entitled to a cash payment equal to the market price of our
Common Stock on the last day preceding the exercise of the Warrant (less the
pro-rated exercise price of the Warrant) for any fractional shares that would
have otherwise been issuable upon exercise of the Warrant. We will at all times
reserve the aggregate number of shares of our Common Stock for which the Warrant
may be exercised. We have listed the shares of Common Stock issuable upon
exercise of the Warrant with the Nasdaq Global Select Market. The
holder of the Warrant will be required to pay any tax or governmental charge
that may be imposed in connection with
transferring the underlying shares of Common Stock in connection with the
exercise of the Warrant.
Rights
as a Shareholder
The holder of the Warrant will have
none of the rights or privileges that the holders of our Common Stock enjoy,
including any voting rights, until (and then only to the extent) the Warrant has
been exercised.
Transferability
The UST may not transfer a portion of
the Warrant with respect to more than 237,050 shares of Common Stock until the
earlier of the date on which West Bancorporation, Inc. has received aggregate
gross proceeds from a qualified equity offering of at least $36,000,000 and
December 31, 2009. The Warrant, and all rights under the Warrant, are otherwise
transferable.
Adjustments
to the Warrant
Adjustments in
Connection with Stock Splits, Subdivisions, Reclassifications and
Combinations. The number of
shares for which the Warrant may be exercised and the exercise price applicable
to the Warrant will be proportionately adjusted in the event we pay dividends or
make distributions in Common Stock or subdivide, combine or reclassify
outstanding shares of Common Stock.
Anti-dilution
Adjustment. Until the earlier
of December 31, 2011 and the date the UST no longer holds the Warrant (and other
than in certain permitted transactions described below), if we issue any shares
of Common Stock (or securities convertible or exercisable into Common Stock) for
less than 90% of the market price of the Common Stock on the last trading day
prior to pricing such shares, then the number of shares of Common Stock issuable
upon exercise of the Warrant and the exercise price will be adjusted. Permitted
transactions include issuances:
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as
consideration for or to fund the acquisition of businesses and/or related
assets;
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in
connection with employee benefit plans and compensation related
arrangements in the ordinary course and consistent with past practice
approved by our board of directors;
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in
connection with public or broadly marketed offerings and sales of Common
Stock or convertible securities for cash conducted by us or our affiliates
pursuant to registration under the Securities Act or Rule 144A thereunder
on a basis consistent with capital-raising transactions by comparable
financial institutions;
and
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in
connection with the exercise of preemptive rights on terms existing as of
December 31, 2008.
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Other
Distributions. If we declare any
dividends or distributions other than our regular quarterly cash dividend not in
excess of $0.16 per share, then the number of shares of Common Stock issuable
upon exercise of the Warrant and the exercise price of the Warrant will be
adjusted.
Certain
Repurchases. If we effect a pro rata repurchase of Common
Stock, then the number of shares of Common Stock issuable upon exercise of the
Warrant and the exercise price will be adjusted.
Business
Combinations. In the event of a merger, consolidation or similar
transaction involving West Bancorporation, Inc. and requiring approval by its
shareholders, the Warrant holder's right to receive shares of Common Stock upon
exercise of the Warrant shall be converted into the right to exercise the
Warrant for the consideration that would have been payable to the holder of the
Warrant with respect to the shares of Common Stock for which the Warrant may be
exercised, as if the Warrant had been exercised prior to such merger,
consolidation or similar transaction.
DESCRIPTION
OF COMMON STOCK
We have summarized the material terms
and provisions of the Common Stock in this section. We have also filed our
Restated Articles of Incorporation and Bylaws, as amended, with the SEC. You
should read our Restated Articles of Incorporation and our Bylaws for additional
information before you buy any securities which may be exercised for Common
Stock.
General
Authorized and
Outstanding Shares. As of the date of this
prospectus, our authorized Common Stock was 50,000,000 shares, of which
17,403,882 shares were issued and outstanding. Shares of our Common
Stock issuable upon exercise of the Warrant, will be validly issued, fully paid
and non-assessable.
Voting
Rights. The holders of our Common Stock are entitled to one vote per
share on all matters to be voted on by shareholders. The holders of
Common Stock are not entitled to cumulative voting rights. The IBCA requires a
plurality of all votes cast at a meeting at which a quorum is present to elect
directors. For most other shareholder votes, the IBCA and our Bylaws provide
that an action is approved if the votes cast in favor of the action exceed the
votes cast opposing the action at a meeting at which a quorum is present, unless
our Restated Articles of Incorporation, our Bylaws or the IBCA provide
otherwise.
Dividends.
Holders of our Common Stock are entitled to receive dividends when, as and if
declared by our board of directors out of funds legally available for payment of
dividends, subject to any preferential rights of any outstanding preferred
stock, including the Preferred Stock.
Liquidation.
In the event of our liquidation or dissolution, the holders of our Common Stock
will be entitled to share ratably in all assets remaining for distribution to
shareholders, subject to any preferential rights of any outstanding preferred
stock, including the Preferred Stock.
Other
Rights. Except as set forth in any written agreement between us and any
shareholder, holders of our Common Stock have no preemptive or other
subscription rights, and the shares of Common Stock are not subject to further
calls or assessment by us. There are no conversion rights or sinking fund
provisions applicable to the shares of our Common Stock.
Listing.
The outstanding shares of our Common Stock are listed on the Nasdaq Global
Select Market under the symbol "WTBA." The transfer agent for our Common Stock
is Illinois Stock Transfer Company.
Iowa
Law and Certain Articles and Bylaws Provisions; Anti-Takeover
Measures
Certain provisions of our Restated
Articles of Incorporation and our Bylaws and the IBCA may delay or make more
difficult acquisitions or changes of control of West Bancorporation, Inc. not
approved by our board of directors. These provisions may also make it more
difficult for third parties to replace our current management without the
concurrence of our board of directors. In addition, Federal Reserve Board
approval is required for certain acquisitions of our Common Stock or other
voting stock. All of these provisions could have the effect of discouraging
third parties from making proposals that shareholders may otherwise consider to
be in their best interests, including tender offers or attempts that might allow
shareholders to receive premiums over the market price of Common
Stock.
Size of Board of
Directors and Special Meetings. Our Bylaws
provide that our board of directors will consist of not less than five or more
than fifteen directors, the number of which may be established within such
limits by the affirmative vote of a majority of our board of
directors. Special meetings of our shareholders may be called by any
two members of our board of directors or our president or upon the demand, in
accordance with the procedures set forth in the Bylaws, of the holders of record
of shares representing at least 50% of the votes entitled to be cast on any
issue proposed to be considered at the proposed special meeting. These
provisions may have the effect of making it difficult for a potential acquirer
to gain control of our board of directors.
Filling Vacancies
on Board of Directors. Our Bylaws provide that any newly
created directorship resulting from an increase in the number of directors and
any other vacancy on our board of directors, however caused, shall be filled by
the affirmative vote of a majority of the remaining directors, at any regular or
special meeting of the board of directors called for that purpose at which a
quorum is present. Any director so elected to fill any vacancy in our
board of directors, including a vacancy created by an increase in the number of
directors, shall hold office until the next annual meeting of our shareholders
and until his or her successor shall be elected. Notwithstanding the foregoing,
whenever the holders of any one or more series of preferred stock issued shall
have the right, voting separately by series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorship shall be governed by the terms
of the Restated Articles of Incorporation.
Authorized and
Unissued Stock. Our board of directors has the right to cause
us to issue authorized and unissued shares of Common Stock and preferred stock
from time to time, without shareholder approval, but subject to the rules of the
Nasdaq Global Select Market. These additional shares may be used for
a variety of corporate purposes, including future offerings to raise additional
capital or to facilitate corporate acquisitions. The board of
directors’ power to approve the issuance of preferred stock could, depending on
the terms of such stock, either impede or facilitate the completion of a merger,
tender offer or other takeover attempt. Similarly, the board of directors'
existing ability to issue additional shares of our Common Stock could, depending
upon the circumstances of their issue, either impede or facilitate the
completion of a merger, tender offer or other takeover attempt, and thereby
protect the continuity of our management and possibly deprive the shareholders
of opportunities to sell their shares of Common Stock at higher than prevailing
market prices. For example, the issuance of new shares might impede a business
combination if they were issued in connection with a rights plan or if the terms
of those shares include series voting rights which would enable the holder to
block business combinations. Alternatively, the issuance of new shares might
facilitate a business combination if those shares have general voting rights
sufficient to cause an applicable percentage vote requirement to be
satisfied.
Other
Constituencies. Under Section 490.1108A of the IBCA, in
determining what he or she believes to be in the best interests of West
Bancorporation, Inc. when considering an acquisition, merger or similar
proposal, a director may, in addition to considering the effects of any action
on shareholders, consider the effects of the action on employees, suppliers,
creditors, customers, the communities in which we operate as well as “long-term
[and] short-term interests of the corporation and its shareholders, including
the possibility that those interests may be best served by the continued
independence of the corporation." The IBCA also provides that
"[c]onsideration of any or all of the community interest factors is not a
violation of the business judgment rule or of any duty of the director to the
shareholders, or a group of shareholders, even if the director reasonably
determines that a community interest factor or factors outweigh the financial or
other benefits to the corporation or a shareholder or group of
shareholders." This provision may have anti-takeover effects in
situations where the interests of our stakeholders, other than shareholders,
conflict with the short-term maximization of shareholder value.
Iowa
Anti-Takeover Statutes. Section 490.624A authorizes
an Iowa corporation to issue stock rights or options in connection with a
defense against a hostile acquisition. Such defense is commonly
called a "Shareholder Rights Plan." Iowa law specifically allows the
corporation to issue stock rights or options with
restrictions. Generally, a Shareholder Rights Plan allows a
corporation to issue stock rights or options on favorable terms upon the
consummation of a merger or similar transaction. The rights or
options are issued to outstanding stockholders and may be cancelled or redeemed
by the board of directors for a nominal sum. If not cancelled or
redeemed, those rights or options can make a takeover unduly
expensive. Consequently, a Shareholder Rights Plan has the effect of
encouraging an acquirer to negotiate with our board of directors on a potential
sale.
Section 490.1110 of the IBCA, which
governs business combinations, prohibits an Iowa corporation whose shares are
publicly traded, from engaging in a “business combination” with an
“interested shareholder” for a period of three years after the date of the
transaction in which the person became an interested shareholder, unless (1) the
board of directors approved the business combination or the transaction prior to
the date on which the person became an interested shareholder; (2) the
interested shareholder acquired more than 85% of the corporation’s outstanding
stock in the transaction which resulted in the shareholder becoming an
interested shareholder; or (3) is approved by the board of directors and
shareholders holding at least 66 2/3% of
voting stock not owned by the interested shareholder. For purposes of
the Iowa business combination statute, a “business combination” includes (a) a
merger or share exchange; (b) a sale, lease, exchange, mortgage, pledge,
transfer or other disposition of assets equal to at least 10% of the aggregate
market value of the assets or outstanding stock of the corporation; (c) the
issuance of stock or rights to purchase stock, unless the stock was issued or
transferred pursuant to the exercise of warrants, rights or options made
proportionately to all shareholders; (d) other enumerated transactions involving
an interested shareholder if the effect is to increase the proportionate share
of the outstanding stockholder; and (e) receipt by the interested shareholder of
the benefits of a loan , advance, guarantee, pledge or other financial
assistance provided by or through the corporation or subsidiary, unless the
benefit is received proportionately by all shareholders. Under the
Iowa business combination statute, an “interested shareholder” is a person who
beneficially owns 10% of the voting power of the outstanding voting stock of the
corporation, or who is an affiliate or associate of the corporation and
beneficially owed 10% of the voting power of the then outstanding voting stock
within three years prior to the date in question.
Federal Law
Restrictions. The
Change in Bank Control Act of 1978 prohibits a person or group of persons from
acquiring "control" of a bank holding company, such as West Bancorporation,
Inc., unless:
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the
Federal Reserve Board has been given 60 days' prior written notice of the
proposed acquisition, and
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within
that time period, the Federal Reserve Board has not issued a notice
disapproving the proposed acquisition or extending for an additional 30
days the period during which such a disapproval may be issued or unless
the acquisition otherwise requires Federal Reserve Board approval. An
acquisition may be made before expiration of the disapproval period if the
Federal Reserve Board issues written notice that it intends not to
disapprove the action. It is generally assumed that the acquisition of
more than 10% of a class of voting stock of a bank holding company with
publicly held securities, such as West Bancorporation, Inc., would
constitute the acquisition of
control.
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In addition, any "company" would be
required to obtain Federal Reserve Board approval before acquiring 25% or more
of our outstanding voting stock. If the acquirer is a bank holding company, this
approval is required before acquiring 5% of our outstanding Common Stock.
Obtaining "control" over West Bancorporation, Inc. would also require Federal
Reserve Board prior approval. "Control" generally means:
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the
ownership or control of 25% or more of any class of voting securities of a
bank holding company;
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the
ability to elect a majority of the bank holding company's directors;
or
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the ability otherwise to exercise
a controlling influence over the bank holding company's management and
policies.
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SELLING
SECURITY HOLDERS
On December 31, 2008, we issued the
Securities covered by this prospectus to the UST, which is the initial Selling
Security Holder under this prospectus, in a transaction exempt from the
registration requirements of the Securities Act. The UST, or its successors,
including transferees, may from time to time offer and sell, pursuant to this
prospectus or a supplement to this prospectus, any or all of the Securities they
own. The Securities to be offered under this prospectus for the account of the
Selling Security Holders are:
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36,000
shares of Preferred Stock, representing beneficial ownership of 100% of
the shares of Preferred Stock outstanding on the date of this
prospectus;
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a
Warrant to purchase 474,100 shares of our Common Stock, representing
beneficial ownership of pproximately
2.7% of our Common Stock as of the date of this prospectus;
and
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·
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474,100
shares of our Common Stock issuable upon exercise of the Warrant, which
shares, if issued, would represent ownership of approximately 2.7% of our
Common Stock as of the date of this
prospectus.
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Beneficial ownership is determined in
accordance with the rules of the SEC and includes voting or investment power
with respect to the securities. To our knowledge, the UST has sole voting and
investment power with respect to the Securities, subject to restrictions on
exercise of voting rights on the shares of Common Stock issuable upon exercise
of the Warrant described under “Description of Warrant to Purchase Common
Stock.”
For purposes of this prospectus, we
have assumed that, after completion of the offering, none of the Securities
covered by this prospectus will be held by the Selling Security
Holders. However, we do not know when or in what amounts the Selling
Security Holders may offer the Securities for sale. The Selling Security Holders
might not sell any or all of the Securities offered by this prospectus. Because
the Selling Security Holders may offer all or some of the Securities pursuant to
this offering, and because currently no sale of any of the Securities is subject
to any agreements, arrangements or understandings, we cannot estimate the number
of the Securities that will be held by the Selling Security Holders after
completion of the offering.
Other than with respect to the
acquisition of the Securities, the UST has not had a material relationship with
us.
Information about the Selling Security
Holders may change over time and changed information will be set forth in
supplements to this prospectus if and when necessary.
PLAN
OF DISTRIBUTION
The Selling Security Holders and their
successors, including their transferees, may sell the Securities directly to
purchasers or through underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions from the
Selling Security Holders or the purchasers of the Securities. These discounts,
concessions or commissions as to any particular underwriter, broker-dealer or
agent may be in excess of those customary in the types of transactions
involved.
The Securities may be sold in one or
more transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale or at negotiated prices.
These sales may be effected in transactions, which may involve block
transactions:
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on
any national securities exchange or quotation service on which the
Preferred Stock or the Common Stock may be listed or quoted at the time of
sale, including, as of the date of this prospectus, Nasdaq Global Select
Market in the case of the Common
Stock;
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in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
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through
the writing of options, whether the options are listed on an options
exchange or otherwise.
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In addition, any securities that
qualify for sale pursuant to Rule 144 under the Securities Act may be sold under
Rule 144 rather than pursuant to this prospectus.
In connection with the sale of the
Securities or otherwise, the Selling Security Holders may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of the
Common Stock issuable upon exercise of the Warrant in the course of hedging the
positions they assume. The Selling Security Holders may also sell short the
Common Stock issuable upon exercise of the Warrant and deliver Common Stock to
close out short positions, or loan or pledge the Preferred Stock or the Common
Stock issuable upon exercise of the Warrant to broker-dealers that in turn may
sell these Securities.
The aggregate proceeds to the Selling
Security Holders from the sale of the Securities will be the purchase price of
the Securities less discounts and commissions, if any.
In effecting sales, broker-dealers or
agents engaged by the Selling Security Holders may arrange for other
broker-dealers to participate. Broker-dealers or agents may receive commissions,
discounts or concessions from the Selling Security Holders in amounts to be
negotiated immediately prior to the sale.
In offering the Securities covered by
this prospectus, the Selling Security Holders and any broker-dealers who execute
sales for the Selling Security Holders may be deemed to be "underwriters" within
the meaning of Section 2(a)(l1) of the Securities Act in connection with such
sales. Any profits realized by the Selling Security Holders and the compensation
of any broker-dealer may be deemed to be underwriting discounts and commissions.
Selling Security Holders who are "underwriters" within the meaning of Section
2(a)(l1) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act and may be subject to certain statutory and
regulatory liabilities, including liabilities imposed pursuant to Sections 11,
12 and 17 of the Securities Act and Rule 10b-5 under the Exchange
Act.
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.
At the time a particular offer of
Securities is made, if required, a prospectus supplement will set forth the
number and type of securities being offered and the terms of the offering,
including the name of any underwriter, dealer or agent, the purchase price paid
by any underwriter, any discount, commission and other item constituting
compensation, any discount, commission or concession allowed or re-allowed or
paid to any dealer, and the proposed selling price to the public.
We do not intend to apply for listing
of the Preferred Stock on any securities exchange or for inclusion of the
Preferred Stock in any automated quotation system unless requested by the UST.
No assurance can be given as to the liquidity of the trading market, if any, for
the Preferred Stock.
We have agreed to indemnify the Selling
Security Holders against certain liabilities, including certain liabilities
under the Securities Act. We have also agreed, among other things, to bear
substantially all expenses (other than underwriting discounts and selling
commissions) in connection with the registration and sale of the Securities
covered by this prospectus.
LEGAL
MATTERS
The validity of the warrant and common
stock offered hereby has been passed upon for us by Ahlers & Cooney, P.C.,
Des Moines, Iowa.
EXPERTS
The consolidated financial statements
incorporated in this prospectus by reference from West Bancorporation Inc.'s
Annual Report on Form 10-K for the year ended December 31, 2007, and the
effectiveness of West Bancorporation Inc.’s internal
control over financial reporting, have been audited by McGladrey & Pullen,
LLP, an independent registered public accounting firm, as stated in their
reports, which are incorporated herein by reference. Such financial statements
have been so incorporated in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuances and Distribution.
The following table sets forth those
expenses to be incurred by West Bancorporation, Inc. in connection with the
issuance and distribution of the Securities being registered, other than
underwriting discounts and commissions and expenses incurred by the Selling
Security Holders for brokerage, accounting, tax or legal services or any other
expenses incurred by the Selling Security Holders in disposing of the shares.
All of the amounts shown are estimates except the SEC registration
fee.
SEC
registration fees
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$ |
1,627 |
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Legal
fees and expenses
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35,000 |
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Accounting
fees and expenses
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5,000 |
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Miscellaneous
expenses
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1,000 |
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Total
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$ |
42,627 |
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Item
15. Indemnification of Directors and Officers.
Indemnification: Limitation of
Liability. The Restated Articles of Incorporation provide that
each person who is a party or threatened to be made a party to actions by reason
of the fact that the person is a director or officer of the corporation to be
indemnified and held harmless by the corporation to the fullest extent
authorized by the IBCA. The Restated Articles of Incorporation permit
the corporation to provide indemnification against all expenses, liability and
loss (including attorney’s fees, judgments, fines and amounts paid or to be paid
in settlement), reasonably incurred by the director or officer.
Section
490.852 of the IBCA requires a corporation to indemnify a director to the extent
that he or she has been “wholly successful on the merits or otherwise” in the
defense of any proceeding to which the director was a party because the director
is or was a director of the corporation for reasonable
expenses. Section 490.851 of the IBCA governs "permissive
indemnification" of corporate directors and officers. It generally
authorizes indemnification if the director acted: (1) in good faith
and (2) if the conduct was in the individual’s "official capacity" with the
corporation it must have been with the reasonable belief that the actions were
in the best interests of the corporation. If the action was not in
the "official capacity" with the corporation, the director must have reason to
believe that the conduct was "at least not opposed to the best interests of the
corporation." As far as criminal proceedings, the director or officer
must have had "no reasonable cause to believe [his] conduct was
unlawful.”
The
Restated Articles of Incorporation also provide that a director of the
corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of a fiduciary duty as a director,
except for liability (1) for breach of the director’s duty of loyalty to the
corporation or its shareholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) for a
transaction from which the director derives an improper personal benefit or (4)
for unlawful distributions under the IBCA.
As
permitted by the Restated Articles of Incorporation, the corporation has
purchased a directors’ and officers’ liability insurance policy that insures all
directors and officers, among other things, against certain liabilities that may
arise under the Securities Act.
Item
16. Exhibits.
3.1
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Restated
Articles of Incorporation, incorporated by reference to West
Bancorporation, Inc.’s Form 10 filed March 11,
2002.
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3.2
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Articles
of Amendment to the Restated Articles of Incorporation filed with the Iowa
Secretary of State on December 24, 2008, incorporated by reference to West
Bancorporation, Inc.’s Current Report on Form 8-K filed December 31,
2008.
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3.3
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Articles
of Amendment to the Restated Articles of Incorporation filed with the Iowa
Secretary of State on December 24, 2008, designating the terms of Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, incorporated by
reference to West Bancorporation, Inc.’s Current Report on Form 8-K filed
December 31, 2008.
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4.1
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Bylaws
as amended through October 17, 2007.
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4.2
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Warrant
for Purchase of Shares of Common Stock, incorporated by reference to West
Bancorporation, Inc.’s Current Report on Form 8-K filed December 31,
2008.
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4.3
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Letter
Agreement, dated December 31 2008, between the Company and the UST, which
includes the Securities Purchase Agreement attached thereto, with respect
to the issuance and sale of the Preferred Stock and the Warrant,
incorporated by reference to West Bancorporation Inc.'s Current Report on
Form 8-K filed December 31, 2008.
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5.1
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Opinion
of Ahlers & Cooney, P.C.
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12.1
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Computation
of Ratios of Earnings to Fixed Charges and Preferred
Dividends.
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23.1
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Consent
of McGladrey & Pullen, LLP.
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23.2
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Consent
of Ahlers & Cooney P.C. (included in Exhibit 5.1)
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24.1
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Powers
of Attorney of directors of West Bancorporation,
Inc.
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Item
17. Undertakings.
a.
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The
undersigned registrant hereby
undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
and
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(iii)
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To include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration
statement;
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provided, however, that
paragraphs (a)(l)(i), (a)(l)(ii) and (a)(l)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
(2)
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That,
for the purposes of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(3)
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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.
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(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
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(i)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
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(ii)
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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)(l)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act
of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the
offering of such securities at that time shal1 be deemed to be the initial
bona fide offering thereof. Provided,
however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration
statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
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(5)
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That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of
securities, the undersigned registrant undertakes that in a primary
offering of the 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:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
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(6)
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That,
for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed
to be the initial bona fide offering
thereof.
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b.
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Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the 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 City of West
Des Moines, State of Iowa, on January 30, 2009.
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WEST
BANCORPORATION, INC.
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(Registrant)
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By:
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/s/ Thomas E. Stanberry
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Thomas
E. Stanberry, Chairman, President,
and
Chief Executive
Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated:
January
30, 2009
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By: /s/ Thomas E. Stanberry |
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Thomas
E. Stanberry
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Chairman,
Director, President, and
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Chief
Executive Officer
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(Principal
Executive Officer)
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January
30, 2009
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By: /s/ Douglas R. Gulling |
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Douglas
R. Gulling
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Executive
Vice President and Chief Financial Officer
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(Principal
Financial Officer and Principal Accounting
Officer)
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DIRECTORS:
Frank W.
Berlin, Wendy L. Carlson, Orville E. Crowley, George D. Milligan, Robert G.
Pulver, Jack G. Wahlig, and Connie Wimer.
By:
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/s/ Thomas E. Stanberry
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Date: January
30, 2009
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Thomas E. Stanberry,
As Attorney-in-Fact*
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*Pursuant
to authority granted by powers of attorney, copies of which are filed
herewith.
Exhibit
Index
3.1
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Restated
Articles of Incorporation, incorporated by reference to West
Bancorporation, Inc.’s Form 10 filed March 11, 2002.
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3.2
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Articles
of Amendment to the Restated Articles of Incorporation filed with the Iowa
Secretary of State on December 24, 2008, incorporated by reference to West
Bancorporation, Inc.’s Current Report on Form 8-K filed December 31,
2008.
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3.3
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Articles
of Amendment to the Restated Articles of Incorporation filed with the Iowa
Secretary of State on December 24, 2008, designating the terms of Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, incorporated by
reference to West Bancorporation, Inc.’s Current Report on Form 8-K filed
December 31, 2008.
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4.1
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Bylaws
as amended through October 17, 2007.
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4.2
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Warrant
for Purchase of Shares of Common Stock, incorporated by reference to West
Bancorporation, Inc.’s Current Report on Form 8-K filed December 31,
2008.
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4.3
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Letter
Agreement, dated December 31, 2008, between the Company and the UST, which
includes the Securities Purchase Agreement attached thereto, with respect
to the issuance and sale of the Preferred Stock and the Warrant,
incorporated by reference to West Bancorporation Inc.'s Current Report on
Form 8-K filed December 31, 2008.
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5.1
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Opinion
of Ahlers & Cooney, P.C.
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12.1
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Computation
of Ratios of Earnings to Fixed Charges and Preferred
Dividends.
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23.1
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Consent
of McGladrey & Pullen, LLP.
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23.2
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Consent
of Ahlers & Cooney P.C. (included in Exhibit 5.1)
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24.1
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Powers
of Attorney of directors of West Bancorporation,
Inc.
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