SERIES [A/B] COMMON SHARE WARRANT PARK NATIONAL CORPORATION
EXHIBIT
4.1
SERIES
[A/B] COMMON SHARE WARRANT
PARK
NATIONAL CORPORATION
|
Warrant
Shares: _______
|
Initial
Exercise Date: December __,
2010
|
|
Warrant
Number: _________
|
THIS
SERIES [A/B] COMMON SHARE WARRANT (the “Warrant”) certifies
that, for value received, _____________ (the “Holder”) is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date hereof (the “Initial Exercise
Date”) and on or prior to the close of business on _________________1 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Park National
Corporation, an Ohio corporation (the “Company”), up to
______ Common Shares (the “Warrant
Shares”). The purchase price of one Common Share under this
Warrant shall be equal to the Exercise Price, as defined in Section
2(b).
Section
1. Definitions. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in
that certain Securities Purchase Agreement (the “Purchase Agreement”),
dated as of December __, 2010, between the Company and the Holder.
Section
2. Exercise.
(a) Exercise of
Warrant. Exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date
by: (i) delivery to the Company (or such other office or agency
of the Company as the Company may designate by notice in writing to the
registered Holder at the last address of the Holder appearing on the books of
the Company) of a duly executed facsimile copy of the Notice of Exercise form
annexed hereto; and (ii) within three (3) Trading Days after the date said
Notice of Exercise is delivered to the Company, payment to the Company of the
aggregate Exercise Price in respect of the Warrant Shares thereby purchased by
wire transfer or cashier’s check drawn on a United States bank or, if available,
pursuant to the cashless exercise procedure specified in Section 2(c)
below. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until
the Holder has purchased all of the Warrant Shares available hereunder and the
Warrant has been exercised in full, in which case, the Holder shall surrender
this Warrant to the Company for cancellation within three (3) Trading Days of
the date the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in purchases of
a portion of the total number of Warrant Shares available hereunder shall have
the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares
purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such
purchases. Absent manifest error, the records of the Company shall be
conclusive as to the number of Warrant Shares issuable upon exercise and binding
on the Company, the Holder and any assignee. The Company shall
deliver any objection to any Notice of Exercise form within two (2) Business
Days of receipt of such Notice of Exercise. In the event of any
dispute or discrepancy, the Company’s records shall govern. The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the
provisions of this Section 2(a), following the purchase of a portion of the
Warrant Shares hereunder, the number of Warrant Shares available for purchase
hereunder at any given time may be less than the amount stated on the face
hereof.
1 As to
the Series A Warrants, the six-month anniversary of the date of the
Purchase Agreement; and as to the Series B Warrants, the one-year
anniversary of the date of the Purchase Agreement.
(b) Exercise
Price. The exercise price per Common Share of the Common
Shares under this Warrant shall be $76.41 subject to adjustment
hereunder (the “Exercise
Price”).
(c) Cashless
Exercise. If at the time of exercise hereof both (i) there is
no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder
and (ii) all of the Warrant Shares are not then registered for resale by Holder
into the market at market prices from time to time on an effective registration
statement for use on a continuous basis (or the prospectus contained therein is
not available for use), then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall
be entitled to receive a certificate for the number of Warrant Shares equal to
the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A)
|
=
the VWAP on the Trading Day immediately preceding the date on which Holder
elects to exercise this Warrant by means of a “cashless exercise,” as set
forth in the applicable Notice of Exercise;
|
|
(B)
|
=
the Exercise Price of this Warrant, as adjusted hereunder;
and
|
|
(X)
|
=
the number of Warrant Shares that would be issuable upon exercise of this
Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless
exercise.
|
“VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(i) if the Common Shares are then listed or quoted on a Trading Market, the
daily volume weighted average price of the Common Shares for such date (or the
nearest preceding date) on the Trading Market on which the Common Shares are
then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time), (ii) if
the Common Shares are then quoted on the OTC Bulletin Board, the volume weighted
average price of the Common Shares for such date (or the nearest preceding date)
on the OTC Bulletin Board, (iii) if the Common Shares are not then listed
or quoted on a Trading Market or the OTC Bulletin Board and if prices for the
Common Shares are then reported in the “Pink Sheets” published by Pink OTC
Markets Inc. (or a similar organization or agency succeeding to its functions of
reporting prices), the most recent bid price per Common Share of the Common
Shares so reported, or (iv) in all other cases, the fair market value of a
Common Share as determined by an independent appraiser selected in good faith by
the Company and reasonably acceptable to the Holders of a majority in interest
of the Securities then outstanding, the fees and expenses of which shall be paid
by the Company.
2
(d) Mechanics of
Exercise.
i. Delivery of Certificates
Upon Exercise. Certificates for Common Shares purchased
hereunder shall be transmitted by the Transfer Agent to the Holder by crediting
the account of the Holder’s prime broker with The Depository Trust Company
through its Deposit Withdrawal Agent Commission (“DWAC”) system if the
Company is then a participant in such system and either (A) there is an
effective registration statement permitting the issuance of the Warrant Shares
to the Holder or (B) this Warrant is being exercised via cashless exercise,
and otherwise by physical delivery to the address specified by the Holder in the
Notice of Exercise by the date that is three (3) Trading Days after the latest
of (x) the delivery to the Company of the Notice of Exercise form and
receipt of the DWAC request from the Holder’s prime broker (if applicable), (y)
surrender of this Warrant (if required) and (z) payment of the aggregate
Exercise Price as set forth above (including by cashless exercise, if permitted)
(such date, the “Warrant Share Delivery
Date”). This Warrant shall be deemed to have been exercised on
the first date on which all of the foregoing specified in clauses (x), (y) and
(z) shall have been delivered to the Company. The Warrant Shares
shall be deemed to have been issued, and the Holder or any other Person so
designated to be named therein shall be deemed to have become a holder of record
of such Warrant Shares for all purposes, as of the date the Warrant has been
properly exercised, with payment to the Company of the Exercise Price (or by
cashless exercise, if permitted) and all taxes required to be paid by the
Holder, if any, pursuant to Section 2(d)(vi) prior to the issuance of such
Warrant Shares, having been paid.
ii. Delivery of New Warrants
Upon Exercise. If this Warrant shall have been exercised in
part, the Company shall, at the request of a Holder and upon surrender of this
Warrant certificate, at the time of delivery of the certificate or certificates
representing Warrant Shares, deliver to Holder a new Warrant evidencing the
rights of Holder to purchase the unpurchased Warrant Shares called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant.
3
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to
transmit to the Holder a certificate or the certificates representing the
Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date,
then, the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on
Failure to Timely Deliver Certificates Upon Exercise. In
addition to any other rights available to the Holder, if the Company fails to
cause the Transfer Agent to transmit to the Holder a certificate or the
certificates representing the Warrant Shares in the manner provided
by Section 2(d)(i) by the Warrant Share Delivery Date, and if after such
date the Holder is required by its broker to purchase (in an open market
transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
Common Shares to deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the
Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
Common Shares so purchased exceeds (y) the amount obtained by multiplying (1)
the number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue by (2) the price at which the
sell order giving rise to such purchase obligation was executed, and (B) at the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored (in which case
such exercise shall be deemed rescinded) or deliver to the Holder the number of
Common Shares that would have been issued had the Company timely complied with
its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Shares having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of Common Shares with an
aggregate sale price giving rise to such purchase obligation of $10,000, under
clause (A) of the immediately preceding sentence the Company shall be required
to pay the Holder $1,000. Notwithstanding the foregoing, the Company
shall not be required to make the payments set forth herein in the case of
uncertificated Warrant Shares if the Holder fails to timely file a request with
The Depository Trust Company to receive such uncertificated Warrant
Shares. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence reasonably satisfactory to the Company of the
amount of such loss. Nothing herein shall limit a ▇▇▇▇▇▇’s right to
pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing Common Shares upon exercise of the Warrant as required
pursuant to the terms hereof.
4
v. No Fractional Common Shares
or Scrip. No fractional Common Shares or scrip representing
fractional Common Shares shall be issued upon the exercise of this
Warrant. As to any fraction of a Common Share which the Holder would
otherwise be entitled to purchase upon such exercise, the Company shall, at its
election, either pay a cash adjustment in respect of such final fraction in an
amount equal to such fraction multiplied by the Exercise Price or round up to
the next whole Common Share.
vi. Charges, Taxes and
Expenses. Issuance of certificates for Warrant Shares shall be
made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be
issued in the name of the Holder or in such name or names as may be directed by
the Holder; provided, however, that in the
event certificates for Warrant Shares are to be issued in a name other than the
name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
vii. Closing of
Books. The Company will not close its shareholder books or
records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
5
(e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of this
Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving
effect to such issuance after exercise as set forth on the applicable Notice of
Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s
Affiliates), would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the
number of Common Shares beneficially owned by the Holder and its Affiliates
shall include the number of Common Shares issuable upon exercise of this Warrant
with respect to which such determination is being made, but shall exclude the
number of Common Shares which would be issuable upon (i) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned by the Holder
or any of its Affiliates and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without
limitation, any other Common Share Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its Affiliates. Except as set forth in the
preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such calculation
is in compliance with Section 13(d) of the Exchange Act and the Holder is solely
responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this
Section 2(e) applies, the determination of whether this Warrant is exercisable
(in relation to other securities owned by the Holder together with any
Affiliates) and of which portion of this Warrant is exercisable shall be in the
sole discretion of the Holder, and the submission of a Notice of Exercise shall
be deemed to be the Holder’s determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder together with
any Affiliates) and of which portion of this Warrant is exercisable, in each
case subject to the Beneficial Ownership Limitation, and the Company shall have
no obligation to verify or confirm the accuracy of such determination and shall
have no liability for exercises of the Warrant that are in noncompliance with
the Beneficial Ownership Limitation. In addition, a determination as
to any group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the
number of outstanding Common Shares, a Holder may rely on the number of
outstanding Common Shares as reflected in (A) the Company’s most recent periodic
or annual report filed with the Commission, as the case may be, (B) a more
recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of Common Shares
outstanding. Upon the written or oral request of a Holder, the
Company shall within two (2) Trading Days confirm orally and in writing to the
Holder the number of Common Shares then outstanding as established by (A), (B)
or (C) above, as applicable. In any case, the number of outstanding Common
Shares shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or its
Affiliates since the date as of which such number of outstanding Common Shares
was reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of Common
Shares outstanding immediately after giving effect to the issuance of Common
Shares issuable upon exercise of this Warrant. The Holder, upon not
less than 61 days’ prior notice to the Company, may increase or decrease the
Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 4.99% of the number of Common
Shares outstanding immediately after giving effect to the issuance of Common
Shares upon exercise of this Warrant held by the Holder and the provisions of
this Section 2(e) shall continue to apply. Any such increase or
decrease will not be effective until the 61st day
after such notice is delivered to the Company and shall only be effective with
respect to such Holder. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 2(e) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership
Limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this
Warrant. For the avoidance of doubt, no additional consideration,
cash or otherwise, will be payable by the Company or the Holder as a result of
any adjustment pursuant to this Section 2(e).
6
Section
3. Certain
Adjustments.
(a) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding:
(i) pays a share dividend or otherwise makes a distribution or distributions, in
each case payable in its Common Shares, to all holders of Common Shares (and not
to the Holders) (excluding, for avoidance of doubt, any Common Shares issued by
the Company upon exercise of this Warrant), (ii) subdivides outstanding Common
Shares into a larger number of Common Shares, or (iii) combines (including by
way of reverse stock split) outstanding Common Shares into a smaller number of
Common Shares, then in each case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of Common Shares (excluding
treasury shares, if any) outstanding at 5:00 p.m. (New York City time) on
the Trading Day immediately before such event, and of which the denominator
shall be the number of Common Shares that would be outstanding immediately
after, and solely as a result of, such event, and the number of Common Shares
issuable upon exercise of this Warrant shall be proportionately adjusted such
that the aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 3(a) shall
become effective immediately prior to 9:00 a.m. (New York City time) on the
Ex-Dividend Date for such dividend or distribution or the effective date of such
subdivision or combination, as the case may be. “Ex-Dividend Date”
means, when used with respect to any dividend, distribution or issuance, the
first date on which the Common Shares trade on the Trading Market, regular way,
without the right to receive the relevant dividend, distribution or
issuance.
(b) [RESERVED]
(c) [RESERVED]
(d) Pro Rata
Distributions. If the Company, at any time while this Warrant
is outstanding, shall distribute to all holders of Common Shares (and not to the
Holders) evidences of its indebtedness or assets (excluding (i) any
dividend or distribution of Common Shares (which shall be subject to
Section 3(a)), (ii) any issuance of rights or warrants to subscribe
for or purchase Common Shares, (iii) any dividend or distribution of cash
(which shall be subject to Section 3(e)), and (iv) any dividend or
distribution in connection with a Fundamental Transaction (which shall be
subject to Section 3(f)), then in each such case the Exercise Price shall
be adjusted by multiplying the Exercise Price in effect immediately prior to the
record date fixed for determination of shareholders entitled to receive such
distribution by a fraction, of which the numerator shall be the VWAP on the
Trading Date immediately preceding the Ex-Dividend Date for such distribution,
and of which the denominator shall be such VWAP less the fair market value, on
the Ex-Dividend Date for such distribution, of the portion of such assets or
evidence of indebtedness or the portion of such subscription or purchase rights,
in each case applicable to one Common Share as determined by the Board of
Directors in good faith. The adjustments shall be described in a
statement provided to the Holder, which shall set out the portion of assets or
evidences of indebtedness or the portion of such subscription or purchase
rights, in either case applicable to one outstanding Common
Share. Such adjustment shall become effective immediately prior to
9:00 a.m. (New York City time) on the Ex-Dividend Date for such
distribution.
7
(e) Cash
Dividends. If the Company, at any time while this Warrant is
outstanding, pays a dividend or otherwise makes a distribution or distributions,
in each case consisting exclusively of cash, to all holders of Common Shares
(and not to the Holders) (excluding (i) any dividend or distribution in
connection with a Fundamental Transaction (which shall be the subject of
Section 3(f)) and regular cash dividends to the extent that such dividends
do not exceed $0.94 per Common Share in any fiscal quarter (the “Dividend Threshold
Amount”), then the Exercise Price shall be multiplied by a fraction, of
which the numerator shall be the VWAP on the Trading Day immediately preceding
the Ex-Dividend Date for such distribution, and of which the denominator shall
be such VWAP less (i) in the case of a regularly scheduled quarterly
dividend, the amount in cash per Common Share of the distribution exceeding the
Dividend Threshold Amount or (ii) in the case of a dividend that is not a
regularly scheduled quarterly dividend, the amount in cash per Common Share of
the distribution. Such adjustment shall become effective immediately
prior to 9:00 a.m. (New York City time) on the Ex-Dividend Date for such
distribution.
(f) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the
Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person and the
Company is not the surviving corporation, (ii) the Company, directly or
indirectly, effects any sale, lease, license, assignment, transfer, conveyance
or other disposition of all or substantially all of its assets in one or a
series of related transactions, (iii) any, direct or indirect, purchase offer,
tender offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Shares are permitted to sell,
tender or exchange their Common Shares for other securities, cash or property
and has been accepted by the holders of 50% or more of the outstanding Common
Shares, (iv) the Company, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or recapitalization of
the Common Shares or any compulsory share exchange pursuant to which the Common
Shares are effectively converted into or exchanged for other securities, cash or
property, (v) the Company, directly or indirectly, in one or more related
transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding Common Shares (not including any
Common Shares held by the other Person or other Persons making or party to, or
associated or affiliated with the other Persons making or party to, such stock
or share purchase agreement or other business combination) (each a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder (without regard to any
limitation in Section 2(d) on the exercise of this Warrant), the number of
shares of common stock of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and any additional consideration
(the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by
a holder of the number of Common Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any
limitation in Section 2(d) on the exercise of this Warrant). For
purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one Common Share in
such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If
holders of Common Shares are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall be
given the same choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Fundamental
Transaction.
8
(g) Calculations. All
calculations under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a Common Share, as the case may be. For purposes of this
Section 3, the number of Common Shares deemed to be issued and outstanding as of
a given date shall be the sum of the number of Common Shares (excluding treasury
shares, if any) issued and outstanding.
(h) Notice to
Holder.
i. Adjustment to Exercise
Price. Whenever the Exercise Price is adjusted pursuant to any provision
of this Section 3, the Company shall promptly mail to the Holder a notice
setting forth the Exercise Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by
▇▇▇▇▇▇. If during the term in which this Warrant may be exercised by the
Holder (A) the Company shall declare a dividend (or any other distribution in
whatever form) on the Common Shares (other than a regular cash dividend that
does not exceed the Dividend Threshold Amount), (B) the Company shall declare a
special nonrecurring cash dividend on or a redemption of the Common Shares, (C)
the Company shall authorize the granting to all holders of the Common Shares
rights or warrants to subscribe for or purchase any shares of capital stock of
any class or of any rights, (D) the approval of any shareholders of the Company
shall be required in connection with any reclassification of the Common Shares,
any consolidation or merger to which the Company is a party, any sale or
transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Shares are converted into other
securities, cash or property, or (E) the Company shall authorize the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the
Company, then, in each case, the Company shall cause to be mailed to the Holder
at its last address as it shall appear upon the Warrant Register of the Company,
at least 20 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or
warrants, or if a record is not to be taken, the date as of which the holders of
the Common Shares of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange
is expected to become effective or close, and the date as of which it is
expected that holders of the Common Shares of record shall be entitled to
exchange their Common Shares for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share
exchange; provided that the failure to mail such notice or any defect therein or
in the mailing thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously disclose such information in compliance with applicable
securities laws. The Holder shall remain entitled to exercise this
Warrant during the period commencing on the date of such notice to the effective
date of the event triggering such notice except as may otherwise be expressly
set forth herein.
9
Section
4. Transfer of
Warrant.
(a) Transferability. Subject
to compliance with applicable securities laws, this Warrant and all rights
hereunder are transferable, in whole, upon surrender of this Warrant at the
principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees, as
applicable, and in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. The Warrant, if properly assigned in
accordance herewith, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
(b) New Warrants. This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall include
reference to the initial issuance date set forth on the first page of this
Warrant and shall be identical with this Warrant except as to the number of
Warrant Shares issuable pursuant thereto and the Warrant number.
(c) Warrant Register. The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual written notice to the
contrary.
10
(d) Understandings or
Arrangements. Such Holder is acquiring this Warrant as principal for its
own account and has no direct or indirect arrangement or understandings with any
other Persons to distribute or regarding the distribution of such Warrant (this
representation and warranty not limiting such Holder’s right to sell the Warrant
pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws.) Such Holder is acquiring this
Warrant hereunder in the ordinary course of its business.
Section
5. Miscellaneous.
(a) No Rights as Shareholder
Until Exercise. This Warrant does not entitle the Holder to
any voting rights, dividends or other rights as a shareholder of the Company
prior to the exercise hereof as set forth in Section 2(d)(i).
(b) Loss, Theft, Destruction or
Mutilation of Warrant. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any share certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and upon surrender and cancellation of
such Warrant or share certificate, if mutilated, the Company will make and
deliver a new Warrant or share certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or share certificate. Applicants for a
replacement Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable charges as
the Company may prescribe.
(c) Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not
be a Business Day, then, such action may be taken or such right may be exercised
on the next succeeding Business Day.
(d) Authorized Common
Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will
reserve from its Common Shares held in treasury a sufficient number of Common
Shares to provide for the issuance of the Warrant Shares upon the exercise of
any purchase rights under this Warrant. The Company further covenants
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing share certificates to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will
take all such reasonable action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of the Trading Market upon which the
Common Shares may be listed. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant and payment for such Warrant Shares in accordance herewith, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with
such issue).
11
Except
and to the extent as waived or consented to by the Holder, the Company shall not
by any action, including, without limitation, amending its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of ▇▇▇▇▇▇ as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase in
par value, (ii) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof, as may be,
necessary to enable the Company to perform its obligations under this
Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
(e) Jurisdiction. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be determined in accordance with the provisions of the
Purchase Agreement.
(f) Restrictions. The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, and the Holder does not utilize cashless exercise,
will have restrictions upon resale imposed by state and federal securities
laws.
(g) Nonwaiver and
Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of
such right or otherwise prejudice Holder’s rights, powers or
remedies. Without limiting any other provision of this Warrant or the
Purchase Agreement, if the Company willfully and knowingly fails to comply with
any provision of this Warrant, which results in any material damages to the
Holder, the Company shall pay to Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
12
(h) Notices. Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered in accordance with the notice
provisions of the Purchase Agreement.
(i) Limitation of
Liability. No provision hereof, in the absence of any
affirmative action by ▇▇▇▇▇▇ to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Common Shares
or as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
(j) Remedies. The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law
would be adequate.
(k) Successors and
Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of
and be binding upon the successors and permitted assigns of the Company and the
successors and permitted assigns of Holder. The provisions of this
Warrant are intended to be for the benefit of any Holder from time to time of
this Warrant and shall be enforceable by the Holder or holder of Warrant
Shares.
(l) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and Holders holding Warrants at least equal to
50% of the Warrant Shares issuable upon exercise of all then outstanding
Warrants.
(m) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Warrant.
(n) Headings. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature
Page Follows)
13
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date first above
indicated.
|
PARK
NATIONAL CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
14
NOTICE
OF EXERCISE
TO: PARK
NATIONAL CORPORATION
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
o in lawful money of the
United States; or
o [if permitted] the
cancellation of such number of Warrant Shares as is necessary, in accordance
with the formula set forth in Subsection 2(c), to exercise this Warrant with
respect to the maximum number of Warrant Shares purchasable pursuant to the
cashless exercise procedure set forth in Subsection 2(c).
(3) Please
issue a certificate or certificates representing said Warrant Shares in the name
of the undersigned or in such other name as is specified below:
|
|
The
Warrant Shares shall be delivered to the following DWAC Account
Number:
|
Account Number:
|
|
|
|
Account Name:
|
|
|
|
DTC Number
|
|
or by
physical delivery of a certificate to:
|
|
||
|
|
||
|
|
(4) The undersigned is an “accredited
investor” as defined in Regulation D promulgated under the Securities Act of
1933, as amended.
[SIGNATURE
OF HOLDER]
|
Name of Investing Entity:
|
|
Signature of Authorized Signatory of Investing Entity:
|
|
Name of Authorized Signatory:
|
|
Title of Authorized Signatory:
|
|
Date:
|
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute
this form
and supply required information.
Do not
use this form to exercise the Warrant.)
FOR VALUE
RECEIVED, all of the foregoing Warrant, or that portion of the foregoing Warrant
covering [________] Warrant Shares, and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________,
_______
|
Holder’s Signature:
|
_____________________________
|
|
Holder’s Address:
|
_____________________________
|
|
_____________________________
|
|
Signature Guaranteed:
|
__________________________________________________________ |
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in a fiduciary or
other representative capacity must file proper evidence of authority
to assign the foregoing Warrant.