Exhibit 10.4





Exhibit 10.4




SECURITIES PURCHASE AGREEMENT




This Securities Purchase Agreement (this “Agreement”) is dated as of October 27, 2009,
between Park National Corporation, an Ohio corporation (the “Company”), and each purchaser
identified on the signature pages hereto (each, including its successors and assigns, a
“Purchaser” and collectively, the “Purchasers”).



WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an
effective registration statement under the Securities Act of 1933, as amended (the “Securities
Act”), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally
and not jointly, desires to purchase from the Company, securities of the Company as more fully
described in this Agreement.



NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which are hereby acknowledged,
the Company and each Purchaser agree as follows:



ARTICLE I.

DEFINITIONS




1.1  Definitions. In addition to the terms defined elsewhere in this Agreement, for
all purposes of this Agreement, the following terms have the meanings set forth in this Section
1.1:




“Affiliate” means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a Person as
such terms are used in and construed under Rule 405 under the Securities Act.




“Board of Directors” means the board of directors of the Company.




“Business Day” means any day except any Saturday, any Sunday, any day which is
a federal legal holiday in the United States or any day on which banking institutions in the
State of Ohio, the State of Kentucky, the State of Alabama, the State of Florida or the
State of New York are authorized or required by law or other governmental action to close.




“Closing” means the closing of the purchase and sale of the Warrants pursuant
to Section 2.1.




“Closing Date” means the Trading Day on which all of the Transaction Documents
have been executed and delivered by the applicable parties thereto, and all conditions
precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Warrants, in each case, have been satisfied or waived.




“Commission” means the United States Securities and Exchange Commission.


 


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“Common Shares” means the common shares of the Company, no par value, and any
other class of securities into which such securities may hereafter be reclassified or
changed.




“Common Share Equivalents” means any securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at any time Common Shares,
including, without limitation, any debt, preferred shares, rights, options, warrants or
other instrument that is at any time convertible into or exercisable or exchangeable for, or
otherwise entitles the holder thereof to receive, Common Shares.




“Company Counsel” means Vorys, Sater, Seymour and Pease LLP, with offices
located at 52 East Gay Street, Columbus, Ohio 43215.




“Disclosure Schedules” means the Disclosure Schedules of the Company delivered
concurrently herewith.




“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.




“Exempt Issuance” means the issuance of (a) Common Shares or options to
employees, officers or directors of the Company pursuant to any 401(k), stock or option plan
duly adopted for such purpose, by a majority of the non-employee members of the Board of
Directors, by a majority of the members of a committee of non-employee directors established
for such purpose or otherwise pursuant to the terms of such plan, (b) Common Shares to the
Park National Corporation Defined Benefit Pension Plan, (c) securities upon the exercise or
exchange of or conversion of any Warrants issued hereunder and/or other securities
exercisable or exchangeable for or convertible into Common Shares issued and outstanding on
the date of this Agreement (including, without limitation, the Warrant to Purchase Common
Stock issued by the Company to the United States Department of the Treasury on December 23,
2008), provided that such securities have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities other than pursuant to the terms of such securities,
(d) securities issued pursuant to stock splits, stock dividends or distributions,
recapitalizations and similar events affecting the Common Shares and (e) securities issued
pursuant to acquisitions or strategic transactions approved by a majority of the
disinterested directors of the Company, provided that any such issuance shall only be to a
Person (or to the equityholders of a Person) which is, itself or through its subsidiaries,
an operating company or an asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to the investment of funds,
but shall not include a transaction in which the Company is issuing securities primarily for
the purpose of raising capital or to an entity whose primary business is investing in
securities. “Exempt Issuance” also includes the acquisition of Common Shares under
the terms of the Park National Corporation Dividend Reinvestment Plan (the “Park
DRIP”) for the accounts of participants in the Park DRIP, which Common Shares will be
purchased on the open market at current market prices by or at the direction of a
registered broker-dealer acting as an independent stock purchasing agent (the “Park
DRIP Purchasing Agent”) for the Park DRIP.


 


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“Liens” means a lien, charge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction, other than restrictions imposed by
securities laws.




“Per Share Exercise Price” equals $67.75, subject to adjustment as set forth in
the Warrants.




“Per Warrant Purchase Price” equals $1.59 for each Series A Warrant and Series
B Warrant together as a unit, subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Shares that
occur after the date of this Agreement.




“Person” means an individual or corporation, partnership, trust, incorporated
or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.




“Proceeding” means an action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a
deposition), whether commenced or threatened.




“Prospectus” means the base prospectus filed with the Registration Statement.




“Prospectus Supplement” means the supplement to the Prospectus complying with
Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the
Company to each Purchaser prior to or at the Closing.




“Registration Statement” means the effective registration statement, as
amended, filed with the Commission (File No. 333-159454) which registers the sale of the
Warrants and the Warrant Shares to the Purchasers.




“Rule 144” means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same effect as such
Rule.




“Rule 424” means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended or interpreted from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.




“Securities” means the Warrants and the Warrant Shares.




“Securities Act” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.


 


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“Series A Warrants” means, collectively, the Series A Common Share Warrants
delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
shall be exercisable commencing on the Closing Date and have a term of exercise equal to six
months from the Closing Date, in the form of Exhibit A attached hereto.




“Series B Warrants” means, collectively, the Series B Common Share Warrants
delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
shall be exercisable commencing on the Closing Date and have a term of exercise equal to one
year from the Closing Date, in the form of Exhibit A attached hereto.




“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or reservation
of borrowable Common Shares).




“Subscription Amount” means, as to each Purchaser, the aggregate amount to be
paid for Warrants purchased hereunder as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading “Subscription Amount,” in United
States dollars and in immediately available funds.




“Subsidiary” means any subsidiary of the Company as set forth in the SEC
Reports, and shall, where applicable, also include any direct or indirect subsidiary of the
Company formed or acquired after the date hereof.




“Trading Day” means a day on which the Trading Market is open for trading.




“Trading Market” means NYSE Amex (or any successors).




“Transaction Documents” means this Agreement, the Warrants and any other
documents or agreements executed in connection with the transactions contemplated hereunder.




“Transfer Agent” means The Park National Bank (through the First-Knox National
Division), the current transfer agent of the Company, with a mailing address of One South
Main Street, Mount Vernon, Ohio 43050, and a facsimile number of (740) 399-5296, and any
successor transfer agent of the Company.




“Warrants” means the Series A Warrants and the Series B Warrants, collectively.




“Warrant Shares” means the Common Shares issuable upon exercise of the
Warrants.




“WS” means Weinstein Smith LLP with offices located at 420 Lexington Avenue,
Suite 2620, New York, New York 10170-0002.


 


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ARTICLE II.

PURCHASE AND SALE




2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set
forth herein, substantially concurrent with the execution and delivery of this Agreement by the
parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to
purchase, Warrants to purchase such number of Common Shares as determined in accordance with
Section 2.2(a), as to each Purchaser for such Subscription Amount as is specified below such
Purchaser’s name on the signature page hereto. Each Purchaser shall deliver to the Company, via
wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set
forth on the signature page hereto executed by such Purchaser and the Company shall deliver to each
Purchaser its respective Warrants as determined pursuant to Section 2.2(a), and the Company and
each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing.
Upon satisfaction or waiver of the covenants and conditions set forth in Sections 2.2 and 2.3, the
Closing shall occur at the offices of WS or such other location as the parties shall mutually
agree.




2.2 Deliveries.




(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered
to each Purchaser the following:




(i) this Agreement duly executed by the Company;




(ii) a legal opinion of Company Counsel, in form and substance reasonably
satisfactory to Rodman & Renshaw, LLC, the placement agent;




(iii) a Series A Warrant registered in the name of such Purchaser to purchase
up to that number of Common Shares set forth on the signature page hereto Common
Shares with an exercise price equal to the Per Share Exercise Price (such Warrant
certificate may be delivered within three Trading Days of the Closing Date);




(iv) a Series B Warrant registered in the name of such Purchaser to purchase up
to that number of Common Shares set forth on the signature page hereto with an
exercise price equal to the Per Share Exercise Price (such Warrant certificate may
be delivered within three Trading Days of the Closing Date); and




(v) the Prospectus and Prospectus Supplement (which may be delivered in
accordance with Rule 172 under the Securities Act).




(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be
delivered to the Company the following:




(i) this Agreement duly executed by such Purchaser; and




(ii) such Purchaser’s Subscription Amount by wire transfer to the account as
specified in writing by the Company.


 


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2.3 Closing Conditions. 




(a) The obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:




(i) the accuracy in all material respects when made and on the Closing Date
(unless as of a specific date therein) of the representations and warranties of the
Purchasers contained herein;




(ii) all obligations, covenants and agreements of each Purchaser required to be
performed at or prior to the Closing Date shall have been performed in all material
respects; and




(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b)
of this Agreement.




(b) The respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:




(i) the accuracy in all material respects when made and on the Closing Date
(unless as of a specific date therein) of the representations and warranties of the
Company contained herein;




(ii) all obligations, covenants and agreements of the Company required to be
performed at or prior to the Closing Date shall have been performed in all material
respects; and




(iii) the delivery by the Company of the items set forth in Section 2.2(a) of
this Agreement.



ARTICLE III.

REPRESENTATIONS AND WARRANTIES




3.1 Representations and Warranties of the Company. Except as set forth in the
Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify
any representation otherwise made herein to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedules, the Company hereby makes the following
representations and warranties to each Purchaser:




(a) Subsidiaries. All of the direct and indirect significant Subsidiaries (as
defined in Rule 1-02(w) of Regulation S-X) of the Company are set forth in the SEC Reports.
Except as set forth in the SEC Reports, the Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and clear of any Liens, and,
except as set forth in the SEC Reports, all of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities.


 


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(b) Organization and Qualification. The Company and each of the Subsidiaries
is an entity duly incorporated or otherwise organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization (as applicable),
with the requisite power and authority to own and use its properties and assets and to carry
on its business as currently conducted. Neither the Company nor any Subsidiary is in
violation or default of any of the provisions of its respective certificate or articles of
incorporation, bylaws, regulations or other organizational or charter documents. Each of
the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be, would not
reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material adverse effect on the results
of operations, assets, business or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability
to perform in any material respect its obligations under any Transaction Document (any of
(i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.




(c) Authorization; Enforcement. The Company has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by each of the
Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby and have been duly
authorized by all necessary action on the part of the Company and no further action is
required by the Company, the Board of Directors or the Company’s shareholders in connection
therewith other than in connection with the Required Approvals. Each Transaction Document
to which the Company is a party has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.




(d) No Conflicts. The execution, delivery and performance by the Company of
the Transaction Documents, the issuance and sale of the Securities and the consummation by
the Company of the transactions contemplated hereby and thereby to which it is a party do
not and will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws, regulations or other
organizational or charter documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, result in the
creation of any Lien upon any of the properties or assets of


 


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the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary
debt or otherwise) or other understanding to which the Company or any Subsidiary is a party
or by which any property or asset of the Company or any Subsidiary is bound or affected, or
(iii) subject to the Required Approvals, conflict with or result in a violation of any law,
rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company
or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii),
such as would not have or reasonably be expected to result in a Material Adverse Effect.




(e) Filings, Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of
the Transaction Documents, other than: (i) the filings required pursuant to Section 4.2 of
this Agreement; (ii) the filing with the Commission of the Prospectus Supplement; (iii)
application(s) to the Trading Market for the listing of the Securities for trading thereon
in the time and manner required thereby; (iv) such filings as are required to be made under
applicable state securities laws; and (v) such consents, waivers, authorizations or orders,
or such filings, as have been obtained or made (collectively, the “Required
Approvals”).




(f) Issuance of the Securities; Registration. The Warrants are duly authorized
and, when issued and paid for in accordance with the applicable Transaction Documents, will
be duly and validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. The Warrant Shares, when issued in accordance with the terms of the
Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. The Company has reserved from its duly authorized capital stock the
maximum number of Common Shares issuable pursuant to this Agreement and the Warrants. The
Registration Statement was declared effective under the Securities Act on May 22, 2009 (the
“Effective Date”) and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Prospectus has been
issued by the Commission and no proceedings for that purpose have been instituted or, to the
actual knowledge of the Company, are threatened by the Commission. The Company, if required
by the rules and regulations of the Commission, proposes to file the Prospectus Supplement,
with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any
amendments thereto became effective, at the date of this Agreement and at the Closing Date,
the Registration Statement and any amendments thereto conformed and will conform in all
material respects to the requirements of the Securities Act and did not and will not contain
any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and the
Prospectus and any amendments or supplements thereto, at time the Prospectus or any
amendment or supplement thereto was issued and at the Closing Date, conformed
and will conform in all material respects to the requirements of the Securities Act and
did not and will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.


 


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(g) Capitalization. The capitalization of the Company is as set forth on
Schedule 3.1(g). As of the date of the Agreement, the Company has not issued any capital
stock since it filed its most recently filed periodic report under the Exchange Act, other
than pursuant to the exercise of employee stock options under the Company’s stock option
plans and the issuance of Common Shares pursuant to the Company’s Stock Plan for
Non-Employee Directors of Park National Corporation and Subsidiaries. In addition, Common
Shares are to be acquired under the terms of the Park DRIP for the accounts of participants
in the Park DRIP, which Common Shares will be purchased on the open market at current market
prices by or at the direction of the Park DRIP Purchasing Agent. No Person has any right of
first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. Except as disclosed in the
SEC Reports, as a result of the purchase and sale of the Securities, pursuant to equity
compensation plans or agreements filed as exhibits to the SEC Reports or pursuant to the
Park DRIP, there are no outstanding options, warrants, script rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to
subscribe for or acquire, any Common Shares, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to issue
additional Common Shares or Common Share Equivalents, in each case issued by the Company.
The issuance and sale of the Securities will not obligate the Company to issue Common Shares
or other securities to any Person (other than the Purchasers) and will not result in a right
of any holder of Company securities to adjust the exercise, conversion, exchange or reset
price under any of such securities. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any shareholder, the Board of Directors
or others is required for the issuance and sale of the Securities. There are no
shareholders agreements, voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or, to the actual knowledge of the
Company, between or among any of the Company’s shareholders.




(h) SEC Reports; Financial Statements. The Company has complied in all
material respects with requirements to file all reports, schedules, forms, statements and
other documents required to be filed by the Company under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required by law or
regulation to file such material) (the foregoing materials, including the exhibits thereto
and documents incorporated by reference therein, together with the Prospectus and the
Prospectus Supplement, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any
such


 


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SEC Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes thereto and except that
unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and cash flows
for the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.




(i) Material Changes; Undisclosed Events, Liabilities or Developments. Since
the date of the latest audited financial statements included within the SEC Reports, except
as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i)
there has been no event, occurrence or development that has had or that would reasonably be
expected to result in a Material Adverse Effect, (ii) the Company has not incurred any
material liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s financial statements pursuant to
GAAP or required to be disclosed in filings made with the Commission, (iii) the Company has
not materially altered its method of accounting, (iv) the Company has not declared or made
any dividend or distribution of cash or other property to its shareholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock and
(v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company stock option or compensation plans. Except for the
issuance of the Securities contemplated by this Agreement, no event, liability or
development has occurred or exists with respect to the Company or its Subsidiaries or their
respective business, properties, operations or financial condition, that would be required
to be disclosed by the Company under applicable securities laws at the time this
representation is made that has not been publicly disclosed prior to the date that this
representation is made.




(j) Compliance. Neither the Company nor any Subsidiary: (i) is in default
under or in violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which it or any of its properties
is bound (whether or not such default or violation has been waived), (ii) is in violation of
any judgment, decree or order of any court, arbitrator or governmental body
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of
any governmental authority, including without limitation all foreign, federal, state and
local laws applicable to its business and all such laws that affect the environment, except
in each case as would not reasonably be expected to result in a Material Adverse Effect.


 


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(k) Certain Fees. Except as set forth in the Prospectus Supplement, no
brokerage or finder’s fees or commissions are or will be payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by the Transaction Documents.
The Purchasers shall have no obligation with respect to any fees or with respect to any
claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due from the Company in connection with the transactions contemplated by the
Transaction Documents.




(l) Investment Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the Securities, will not be or be an Affiliate of,
an “investment company” within the meaning of the Investment Company Act of 1940, as
amended.




(m) Listing and Maintenance Requirements. The Common Shares are registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed
to, or which to its actual knowledge is likely to have the effect of, terminating the
registration of the Common Shares under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such registration. The
Company has not, in the 12 months preceding the date hereof, received notice from the
Trading Market that the Company is not in compliance with the material listing or
maintenance requirements of the Trading Market. The Company is in compliance with all such
listing and maintenance requirements.




(n) Application of Takeover Protections. The Company and the Board of
Directors have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Company’s
Articles of Incorporation (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to the Purchasers solely as a result of the
Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.




(o) Disclosure. Except with respect to the material terms and conditions of
the transactions contemplated by the Transaction Documents, the Company confirms that
neither it nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or might
constitute material, non-public information which is not otherwise disclosed in the
Prospectus Supplement. The Company understands and confirms that the Purchasers will rely
on the foregoing representation in effecting transactions in securities of the Company.


 


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(p) No Integrated Offering. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2, neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would cause this offering of the Securities to be integrated with prior
offerings by the Company for purposes of any applicable shareholder approval provisions of
the Trading Market.




(q) Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an
arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is acting as a
financial advisor or fiduciary of the Company (or in any similar capacity) with respect to
the Transaction Documents and the transactions contemplated thereby and any advice given by
any Purchaser or any of their respective representatives or agents in connection with the
Transaction Documents and the transactions contemplated thereby is merely incidental to the
Purchasers’ purchase of the Securities. The Company further represents to each Purchaser
that the Company’s decision to enter into this Agreement and the other Transaction Documents
has been based solely on the independent evaluation of the transactions contemplated hereby
by the Company and its representatives.




(r) Acknowledgement Regarding Purchaser’s Trading Activity. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(g)
and 4.12 hereof), it is understood and acknowledged by the Company that: (i) none of the
Purchasers have been asked by the Company to agree, nor has any Purchaser agreed, to desist
from purchasing or selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities for any
specified term; (ii) past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative” transactions, before
or after the Closing, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may
have a “short” position in the Common Shares, and (iv) each Purchaser shall not be deemed to
have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) one or more
Purchasers may engage in hedging activities at various times during the period that the
Securities are outstanding, including, without limitation, during the periods that the value
of the Warrant Shares deliverable with respect to Securities are being determined, and (z)
such hedging activities (if any) could reduce the value of the existing shareholders’ equity
interests in the Company at and after the time that the hedging activities are being
conducted. The Company acknowledges that such aforementioned hedging activities do not
constitute a breach of any of the Transaction Documents.




 


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(s) Regulation M Compliance. The Company has not, and to its actual knowledge
no one acting on its behalf has, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the Securities, (ii)
sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the
Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company, other than, in the case of clauses
(ii) and (iii), compensation paid to the Company’s placement agent in connection with the
placement of the Securities and as disclosed in the SEC Reports.



Each Purchaser acknowledges and agrees that the Company does not make and has not made any
representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in this Section 3.1.



3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and
for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing
Date to the Company as follows (unless as of a specific date therein):




(a) Organization; Authority. Such Purchaser is either an individual or an
entity duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate, partnership or limited
liability company power and authority to enter into and to consummate the transactions
contemplated by this Agreement and the other Transaction Documents to which such Purchaser
is a party and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all necessary
corporate, partnership, limited liability company or similar action, as applicable, on the
part of such Purchaser. Each Transaction Document to which it is a party has been duly
executed by such Purchaser, and when delivered by such Purchaser in accordance with the
terms hereof, will constitute the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms, except: (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law.




(b) No Conflicts. The execution, delivery and performance by such Purchaser of
the Transaction Documents to which such Purchaser is a party and the consummation by it of
the transactions contemplated hereby and thereby do not and will not (i) conflict with or
violate any provision of the Purchaser’s certificate or articles of incorporation, bylaws or
other organizational or charter documents, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, result
in the creation of any Lien upon any of the properties or assets of such Purchaser, or give
to others any rights of termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Purchaser debt or otherwise) or other understanding to which such
Purchaser is a party or by which any property or asset of such Purchaser is bound or
affected, or (iii) conflict with or result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Purchaser is subject (including federal and
state securities laws and regulations), or by which any property or asset of the Purchaser
is bound or affected, except in the case of each of clauses (ii) and (iii), such as would
not reasonably be expected to have a material adverse effect on such Purchaser’s ability to
perform in any material respect its obligations under any Transaction Documents to which
such Purchaser is a party.


 


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(c) Filings, Consents and Approvals. Neither such Purchaser nor any of its
Affiliates or related companies is required to obtain any consent, waiver, authorization,
approval or order of, give any notice to, or make any filing or registration with, any court
or other federal, state, local or other governmental authority or other Person (including,
without limitation, any approval, notice and/or filing with federal or state bank regulatory
authorities under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, or
otherwise) in connection with the execution, delivery and performance by such Purchaser of
the Transaction Documents, other than, to the extent such Purchaser’s beneficial ownership
of Common Shares (determined in accordance with the Exchange Act) after giving effect to the
purchase and sale to all Purchasers contemplated hereby, would exceed 5%, the filing with
the Commission of a Schedule 13G with respect to its purchase of Securities hereunder.




(d) Independent Investment Decision. Such Purchaser (i) to its knowledge, is
not affiliated with any other Purchaser, investor or proposed investor in the Company, (ii)
reached its decision to invest in the Company independently from each other Purchaser,
investor or proposed investor in the Company, and (iii) has entered into no agreements with
the other Purchasers, investors or proposed investors in the Company for the purpose of
controlling the Company.




(e) Own Account. Such Purchaser is acquiring the Securities as principal for
its own account and not with a view to or for distributing or reselling such Securities or
any part thereof in violation of the Securities Act or any applicable state securities law,
has no present intention of distributing any of such Securities in violation of the
Securities Act or any applicable state securities law and has no direct or indirect
arrangement or understandings with any other persons to distribute or regarding the
distribution of such Securities in violation of the Securities Act or any applicable state
securities law (this representation and warranty not limiting such Purchaser’s right to sell
the Securities in compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its business,
solely for the purpose of passive investment, and has no present or, to its present
knowledge, any future, plan or intent to control the Company, to influence the management or
Board of Directors or to take any other action that would require such Purchaser to file a
Schedule 13D with respect to any securities of the Company.




(f) Purchaser Status. At the time such Purchaser was offered the Securities,
it was, and as of the date hereof it is, and on each date on which it exercises any
Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional
buyer” as defined
in Rule 144A(a) under the Securities Act. Such Purchaser is not required to be
registered as a broker-dealer under Section 15 of the Exchange Act.


 


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(g) Experience of Such Purchaser. Such Purchaser, either alone or together
with its representatives, has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and risks of the prospective
investment in the Securities, and has so evaluated the merits and risks of such investment.
Such Purchaser is able to bear the economic risk of an investment in the Securities and, at
the present time, is able to afford a complete loss of such investment.




(h) Information. Such Purchaser and its advisors, if any, have been furnished
with all materials relating to the business, financial condition and results of operations
of the Company, and materials relating to the offer and sale of the Securities, that have
been requested by the Purchaser or its advisors, if any. The Purchaser acknowledges and
understands that its investment in the Securities involves a significant degree of risk.




(i) Certain Transactions and Confidentiality. Other than consummating the
transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on
behalf of or pursuant to any understanding with such Purchaser, directly or indirectly
executed any purchases or sales, including Short Sales, of the securities of the Company
during the period commencing as of the time that such Purchaser first became aware of the
proposed transactions contemplated hereunder and ending immediately prior to the execution
hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Purchaser’s assets,
the representation set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the
Securities covered by this Agreement. Other than to other Persons party to this Agreement,
such Purchaser has maintained the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms of this transaction).
Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall
constitute a representation or warranty, or preclude any actions, with respect to the
identification of the availability of, or securing of, available Common Shares to borrow in
order to effect Short Sales or similar transactions in the future.



The Company acknowledges and agrees that each Purchaser does not make or has not made any
representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in this Section 3.2.


 


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ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES




4.1 Warrant Shares. If all or any portion of a Warrant is exercised at a time when
there is an effective registration statement to cover the issuance of the Warrant Shares or if the
Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise
shall be issued free of all legends. If at any time following the date hereof the
Registration Statement (or any subsequent registration statement registering the sale or
resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale
of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing
that such registration statement is not then effective and thereafter shall promptly notify such
holders when the registration statement is effective again and available for the sale or resale of
the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability
of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with
applicable federal and state securities laws). The Company shall use reasonable best efforts to
keep a registration statement (including the Registration Statement) registering the issuance or
resale of the Warrant Shares effective during the term of the Warrants. Additionally, until the
Warrants have expired (or have earlier been exercised), the Company covenants to use its
commercially reasonable efforts to timely file (or obtain extensions in respect thereof and file
within the applicable grace period) all reports required to be filed by the Company after the date
hereof pursuant to the Exchange Act.



4.2 Securities Laws Disclosure; Publicity. The Company shall, by 9:15 a.m. (New York
City time) on the Trading Day immediately following the date hereof, issue a press release
disclosing the material terms of the transactions contemplated hereby and file a Current Report on
Form 8-K disclosing the material terms of the transactions contemplated hereby and including the
Transaction Documents as exhibits thereto. From and after the filing of such Current Report on
Form 8-K, the Company shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective
officers, directors, employees or agents in connection with the transactions contemplated by the
Transaction Documents. The Company and each Purchaser shall consult with each other in issuing any
press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of any Purchaser, or without
the prior consent of each Purchaser, with respect to any press release of the Company, which
consent shall not unreasonably be withheld or delayed, except if such disclosure is required by
law, in which case the disclosing party shall promptly provide the other party with prior notice of
such public statement or communication. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
with the Commission or any regulatory agency or Trading Market, without the prior written consent
of such Purchaser, except (a) as required by federal securities law in connection with the filing
of final Transaction Documents (including signature pages thereto) with the Commission and (b) to
the extent such disclosure is required by law, by Trading Market rules or regulations or pursuant
to an investigation conducted by the Financial Industry Regulatory Authority, in which case the
Company shall, to the extent permissible and practicable, provide the Purchasers with prior notice
of such disclosure permitted under this clause (b).



4.3 Non-Public Information. Except with respect to the material terms and conditions
of the transactions contemplated by the Transaction Documents, the Company covenants and agrees
that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents
or counsel with any information that the Company believes constitutes material non-public
information, unless prior thereto such Purchaser shall have executed a written agreement with the
Company regarding the confidentiality and use of such information. The Company
understands and confirms that each Purchaser shall be relying on the foregoing covenant in
effecting transactions in securities of the Company.


 


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4.4 Use of Proceeds. Except as set forth in the Prospectus Supplement, the Company
shall use the net proceeds from the sale of the Securities hereunder for working capital purposes.



4.5 Indemnification of Purchasers. Subject to the provisions of this Section 4.5 and
to the extent permitted by law, the Company will indemnify and hold each Purchaser and its
directors, officers, shareholders, members, partners, employees and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title), each Person who controls such Purchaser (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers,
shareholders, agents, members, partners or employees (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other
title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all
losses, liabilities, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur due to a claim by a third party as a result of or relating to
any action instituted against a Purchaser in any capacity, or any of them or their respective
Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser, with
respect to any of the transactions contemplated by the Transaction Documents (unless such action is
based upon a breach of such Purchaser’s representations, warranties or covenants under the
Transaction Documents or any agreements or understandings such Purchaser may have with any such
shareholder or any violations by such Purchaser of state or federal securities laws or any conduct
by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance).
If any claim, action or proceeding shall be brought against any Purchaser Party in respect of which
indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the
Company in writing, and the Company shall have the right to assume the defense thereof with counsel
of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have
the right to employ separate counsel in any such claim, action or proceeding and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such
Purchaser Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time
to assume such defense and to employ counsel or (iii) in such claim, action or proceeding there is,
in the reasonable opinion of counsel, a material conflict on any material issue between the
position of the Company and the position of such Purchaser Party, in which case the Company shall
be responsible for the reasonable fees and expenses of no more than one such separate counsel. The
Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a
Purchaser Party effected without the Company’s prior written consent, which shall not be
unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other
Transaction Documents. The Company will have the exclusive right to settle any claim, action or
proceeding, provided that the Company will not settle any such claim, action or proceeding without
the prior written consent of the Purchaser Party, which will not be unreasonably withheld or
delayed; provided, however, that such consent shall not be required if the settlement includes a
full and unconditional release
reasonably satisfactory to the Purchaser Party from all liability arising or that may arise
out of such claim, action or proceeding and does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any Purchaser Party.


 


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4.6 Reservation of Common Shares. As of the date hereof, the Company has reserved and
the Company shall continue to reserve and keep available at all times, free of preemptive rights, a
sufficient number of Common Shares for the purpose of enabling the Company to issue Warrant Shares
pursuant to any exercise of the Warrants. 



4.7 Listing of Common Shares. The Company hereby agrees to use commercially reasonable
best efforts to maintain the listing or quotation of the Common Shares on the Trading Market, and
the Company shall promptly apply to list or quote all of the Warrant Shares on such Trading Market
and promptly secure the listing of all of the Warrant Shares on such Trading Market. The Company
further agrees, if the Company applies to have the Common Shares traded on any other trading
market, it will then include in such application all of the Warrant Shares, and will take such
other action as is necessary to cause all of the Warrant Shares to be listed or quoted on such
other trading market as promptly as possible. The Company will use its reasonable best efforts to
continue the listing and trading of its Common Shares on a trading market and will comply in all
material respects with the Company’s reporting, filing and other obligations under the bylaws or
rules of the trading market.




4.8 Subsequent Equity Sales.




(a) From the date hereof until 15 days after the Closing Date, neither the Company nor
any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or
proposed issuance of any Common Shares or Common Share Equivalents. From the date that is 15
days after the Closing Date until the date that is 30 days after the Closing Date, other
than pursuant to an “At-the-Market” offering registered pursuant to the Registration
Statement, the Company shall not issue, enter into any agreement to issue or announce the
issuance or proposed issuance of any Common Shares or Common Share Equivalents at an
effective price (other than underwriting or placement agent discounts) less than $60.00 per
share.




(b) Notwithstanding the foregoing, this Section 4.8 shall not apply in respect of an
Exempt Issuance.




4.9 RESERVED.




4.10 RESERVED.



4.11 Equal Treatment of Purchasers. No consideration (including any modification of
any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless the same consideration is
also offered to all of the parties to the Transaction Documents. For clarification purposes, this
provision constitutes a separate right granted to each Purchaser by the Company and negotiated
separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class
and shall not in any way be construed as the Purchasers acting in concert or as a group with
respect to the purchase, disposition or voting of Securities or otherwise.


 


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4.12 Certain Transactions and Confidentiality. Each Purchaser, severally and not
jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or pursuant to any understanding with it will execute any purchases or sales, including Short Sales
of any of the Company’s securities during the period commencing with the execution of this
Agreement and ending at such time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as described in Section 4.2. Each
Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as
the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to
the initial press release as described in Section 4.2, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the information included in the
Disclosure Schedules. Notwithstanding the foregoing and notwithstanding anything contained in this
Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser
makes any representation, warranty or covenant hereby that it will not engage in effecting
transactions in any securities of the Company after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial press release as described in
Section 4.2, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in
any securities of the Company in accordance with applicable securities laws from and after the time
that the transactions contemplated by this Agreement are first publicly announced pursuant to the
initial press release as described in Section 4.2 and (iii) no Purchaser shall have any duty of
confidentiality to the Company or its Subsidiaries after the issuance of the initial press release
as described in Section 4.2. Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the
covenant set forth above shall only apply with respect to the portion of assets managed by the
portfolio manager that made the investment decision to purchase the Securities covered by this
Agreement.



4.13 Delivery of Warrants After Closing. The Company shall deliver, or cause to be
delivered, the respective Warrant certificates purchased by each Purchaser to such Purchaser within
three Trading Days of the Closing Date.



4.14 Cooperation. The Company and each of the Purchasers shall reasonably cooperate
and use their respective commercially reasonable efforts to provide any information reasonably
requested by the other parties hereto with respect to such filings and other disclosures as may be
necessary in connection with the transactions contemplated hereby.



ARTICLE V.

MISCELLANEOUS




5.1 Termination. This Agreement may be terminated by (i) any Purchaser, as to such
Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between
the Company and the other Purchasers, or (ii) by the Company, in each case, by written notice to
the other parties, if the Closing has not been consummated on or before November 2, 2009;
provided, however, that no such termination will affect the right of any party to
sue for any breach by the other party (or parties), for which purpose the provisions of Section 4.5
shall remain in effect in accordance with the provisions and limitations thereof.


 


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5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents to
the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the delivery
of any Securities to the Purchasers.



5.3 Entire Agreement. The Transaction Documents, together with the exhibits and
schedules thereto, the Prospectus and the Prospectus Supplement, contain the entire understanding
of the parties with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties acknowledge have
been merged into such documents, exhibits and schedules.



5.4 Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of: (a) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
set forth on the signature pages attached hereto on a day that is not a Trading Day or later than
5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight courier service or
(d) upon actual receipt by the party to whom such notice is required to be given. The address for
such notices and communications shall be as set forth on the signature pages attached hereto.



5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified,
supplemented or amended except in a written instrument signed, in the case of an amendment, by the
Company and, prior to the Closing, the Purchasers holding at least a majority in interest of the
Warrants then outstanding (which amendment shall be binding on all Purchasers) or, in the case of a
waiver or an amendment following the Closing, by the party against whom enforcement of any such
waived provision is sought or to be bound by such amendment. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.



5.6 Headings. The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.



5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written consent of each
Purchaser (other than by merger, consolidation or sale of all or substantially all of the Company’s
assets). Any Purchaser may assign any or all of its rights under this Agreement to any Person to
whom such Purchaser assigns or transfers any Securities, provided that such
transferee agrees in writing to be bound, with respect to the transferred Securities, by the
provisions of the Transaction Documents that apply to the “Purchasers.”


 


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5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in
Section 4.5.



5.9 Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of the Transaction Documents shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at
the address in effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by
law. If any party shall commence an action or proceeding to enforce any provisions of the
Transaction Documents, then, in addition to the obligations of the Company under Section 4.5, the
prevailing party in such action or proceeding shall be reimbursed by the other party for its
reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.



5.10 Survival. The representations and warranties contained herein shall expire on
the date that is the 12-month anniversary of the Closing Date.



5.11 Execution. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party, it being
understood that all parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.



5.12 Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.


 


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5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary
contained in (and without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option under a
Transaction Document and the Company does not timely perform its related obligations within the
periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from
time to time upon written notice to the Company within two Business Days of the Company’s failure
to perform, any relevant notice, demand or election in whole or in part without prejudice to its
future actions and rights; provided, however, that in the case of a rescission of
an exercise of a Warrant, the applicable Purchaser shall be required to return any Common Shares
subject to any such rescinded exercise notice concurrently with the return to such Purchaser of the
aggregate exercise price paid to the Company for such Common Shares and the restoration of such
Purchaser’s right to acquire such Common Shares pursuant to such Purchaser’s Warrant (including,
issuance of a replacement warrant certificate evidencing such restored right).



5.14 Replacement of Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in
lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary
and reasonable indemnity or security, if requested. The applicant for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party costs (including
customary indemnity) associated with the issuance of such replacement Securities.



5.15 Remedies. In addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, each of the Purchasers and the Company will be
entitled to seek specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of
obligations contained in the Transaction Documents and hereby agree to waive and not to assert in
any action for specific performance of any such obligation the defense that a remedy at law would
be adequate.



5.16 Payment Set Aside. To the extent that the Company makes a payment or payments to
any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.


 


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5.17 Independent Nature of Purchasers’ Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any other Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. Except as set forth in Section 5.5, each
Purchaser shall be entitled to independently protect and enforce its rights including, without
limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and
it shall not be necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel
in their review and negotiation of the Transaction Documents. For reasons of administrative
convenience only, each Purchaser and its respective counsel have chosen to communicate with the
Company through WS. WS does not represent any of the Purchasers and only represents Rodman &
Renshaw, LLC, the placement agent. The Company has elected to provide all Purchasers with the same
terms and Transaction Documents for the convenience of the Company and not because it was required
or requested to do so by any of the Purchasers.



5.18 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.



5.19 Construction. The parties agree that each of them and/or their respective counsel
has reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal
rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the Transaction Documents or any amendments
hereto. In addition, each and every reference to share prices and Common Shares in any Transaction
Document shall be subject to adjustment for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Shares that occur after the date of
this Agreement.



5.20 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION
BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE
GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND
EXPRESSLY WAIVES FOREVER TRIAL BY JURY.




 


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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.



	 	 	 	 	 	 	 	 	 
	PARK NATIONAL CORPORATION

	 	 
	 	Address for Notice:
	 

	 	 	 	 	 	 
	 	50 North Third Street
	 

	 	 	 	 	 	 	 	Newark, Ohio 43055
	By:

	 	 	 	 	 	 	 	Fax: (740) 349-3709
	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Attention: Chief Financial Officer
	 

	 	Title:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	With a copy to (which shall not constitute notice):	 	 
	 

	 	 	 	 	 	 	 	Vorys, Sater, Seymour and Pease LLP
	 

	 	 	 	 	 	 	 	52 East Gay Street
	 

	 	 	 	 	 	 	 	Columbus, Ohio 43215
	 

	 	 	 	 	 	 	 	Fax: (614) 719-4708
	 

	 	 	 	 	 	 	 	Attention: Elizabeth Turrell Farrar






[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGES FOR PURCHASERS FOLLOW]





 


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[PURCHASER
SIGNATURE PAGES TO PARK NATIONAL CORPORATION SECURITIES PURCHASE AGREEMENT]




IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly
executed by their respective authorized signatories as of the date first indicated above.




	 	 	 
	Name of Purchaser:

	 	 






	 	 	 
	Signature of Authorized Signatory of Purchaser:

	 	 







	 	 	 
	Name of Authorized Signatory:

	 	 







	 	 	 
	Title of Authorized Signatory:

	 	 







	 	 	 
	Email Address of Authorized Signatory:

	 	 







	 	 	 
	Facsimile Number of Authorized Signatory:

	 	 







Address for Notice of Purchaser:



Address for Delivery of Warrant certificates for Purchaser (if not same as address for notice):




Subscription Amount: $                        

Series A Warrants:                             

Series B Warrants:                              

Purchaser elects the following beneficial ownership blocker in the
Warrant:        
4.99%/        9.99%




EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]




[SIGNATURE PAGES CONTINUE]




 


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