Attached files
| file | filename |
|---|---|
| 8-K - PARK NATIONAL CORP /OH/ | v204810_8k.htm |
| EX-4.1 - PARK NATIONAL CORP /OH/ | v204810_ex4-1.htm |
| EX-5.1 - PARK NATIONAL CORP /OH/ | v204810_ex5-1.htm |
| EX-10.2 - PARK NATIONAL CORP /OH/ | v204810_ex10-2.htm |
| EX-23.2 - PARK NATIONAL CORP /OH/ | v204810_ex23-2.htm |
 |
Exhibit
10.1
|
December
7, 2010
CONFIDENTIAL
Mr. C.
Daniel DeLawder
Chairman
& Chief Executive Officer
Park
National Corporation
50 North
Third Street
PO Box
3500
Newark,
OH 43058-3500
Dear Mr.
DeLawder:
This
letter (the “Agreement”)
constitutes the agreement between Rodman & Renshaw, LLC (“Rodman” or the “Placement Agent”) and
Park National Corporation (the “Company”), that
Rodman shall serve as the exclusive placement agent for the Company, on a
“reasonable best efforts” basis, in connection with the proposed placement (the
“Placement”) of
registered securities of the Company, consisting of common shares, without par
value (the “Common
Shares”), of the Company, warrants to purchase Common Shares (the “Warrants”) and the
Common Shares issuable upon exercise of the Warrants (together with the Common
Shares and the Warrants, the “Securities”). The
terms of such Placement and the Securities shall be mutually agreed upon by the
Company and the purchasers (each, a “Purchaser” and
collectively, the “Purchasers”) and
Rodman shall not, and nothing herein implies that Rodman would, have the power
or authority to bind the Company or any Purchaser and the Company shall not, and
nothing herein implies that the Company would, have an obligation to issue any
Securities or complete the Placement. This Agreement and the
documents executed and delivered by the Company and the Purchasers in connection
with the Placement shall be collectively referred to herein as the “Transaction
Documents.” The date of the closing of the Placement shall be
referred to herein as the “Closing
Date.” The Company expressly acknowledges and agrees that
Rodman’s obligations hereunder are on a reasonable best efforts basis only and
that the execution of this Agreement does not constitute a commitment by Rodman
to purchase the Securities and does not ensure the successful placement of the
Securities or any portion.
SECTION
1. COMPENSATION AND OTHER
FEES.
(A) As
compensation for the services provided by Rodman hereunder, the Company agrees
to pay to Rodman a cash fee payable immediately upon (but only in the event of)
the closing of the Placement and equal to 3% of the aggregate gross proceeds
raised in the Placement. Additionally, a cash fee payable within 48
hours after (but only in the event of) the receipt by the Company of any
proceeds from the exercise of the Warrants sold in the Placement to Purchasers
and otherwise in compliance with Financial Industry Regulatory Authority (“FINRA”) Rule 5110
equal to 3% of the aggregate cash exercise price received by the Company upon
such exercise, if any (the “Warrant Solicitation
Fee”).
(B) The
Company also agrees to provide Rodman with a non-accountable expense allowance
equal to 1% of the aggregate gross proceeds raised in the Placement, but in no
event more than $40,000. Such reimbursement shall be payable
immediately upon (but only in the event of) the closing of the
Placement.
Rodman
& Renshaw, LLC 1251 Avenue of the Americas, 20th Floor,
New York, NY 10020
Tel: 212 356 0500 Fax: 212 581 5690
www.rodm.com Member: FINRA,
SIPC
SECTION
2. REGISTRATION
STATEMENT.
The
Company represents and warrants to, and agrees with, the Placement Agent
that:
(A) The
Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (Registration File No. 333-159454) under the
Securities Act of 1933, as amended (the “Securities Act”),
which became effective on May 22, 2009, for the registration under the
Securities Act of Common Shares and warrants to purchase Common Shares. At the
time of such filing, the Company met the requirements of Form S-3 under the
Securities Act. Such registration statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said
Rule. The Company will file with the Commission pursuant to Rule
424(b) under the Securities Act, and the rules and regulations (the “Securities Act Rules and
Regulations”) of the Commission promulgated under the Securities Act, a
supplement to the form of prospectus included in such registration statement
relating to the placement of the Securities and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented) is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to
refer to and include the documents incorporated by reference therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement, or the filing date of the Base Prospectus or
the Prospectus Supplement, as the case may be; and any reference in this
Agreement to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the filing date of the Base Prospectus
or the Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference. All references in this Agreement to financial statements
and schedules and other information that is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is or is deemed to
be incorporated by reference in the Registration Statement, the Base Prospectus
or the Prospectus Supplement, as the case may be. No stop order
suspending the effectiveness of the Registration Statement or the use of the
Base Prospectus or the Prospectus Supplement has been issued, and no proceeding
for any such purpose is pending or has been initiated or, to the Company’s
knowledge, is threatened by the Commission. For purposes of this
Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale
Prospectus” means the preliminary prospectus, if any, together with the
free writing prospectuses, if any, used in connection with the Placement,
including any documents incorporated by reference therein.
2
(B) The
Registration Statement (and any further documents to be filed with the
Commission in connection with the Placement) contains or will contain, as
applicable, all exhibits and schedules as required by the Securities Act. Each
of the Registration Statement and any post-effective amendment thereto, at the
time it became or becomes effective, complied or will comply, as applicable, in
all material respects with the Securities Act and the Securities Act Rules and
Regulations and the Exchange Act and the rules and regulations (the “Exchange Act Rules and
Regulations”) of the Commission promulgated under the Exchange Act and
did not and, as amended or supplemented, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time
of Sale Prospectus, if any, and the Prospectus Supplement, each as of its
respective date, complied or will comply in all material respects with the
Securities Act and the Exchange Act and the applicable Securities Act or
Exchange Act Rules and Regulations. Each of the Base Prospectus, the Time
of Sale Prospectus, if any, and the Prospectus Supplement, as amended or
supplemented, did not and will not contain as of the date thereof any 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. The Incorporated Documents, when they were filed with
the Commission, conformed in all material respects to the requirements of the
Exchange Act and the applicable Exchange Act Rules and Regulations, and none of
such documents, when they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein (with respect to Incorporated Documents incorporated
by reference in the Base Prospectus or the Prospectus Supplement), in light of
the circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus, the Time
of Sale Prospectus, if any, or the Prospectus Supplement, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the Exchange Act Rules and Regulations, as
applicable, and will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising
after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed
with the Commission. There are no documents required to be filed with
the Commission in connection with the transaction contemplated hereby that (x)
have not been filed as required pursuant to the Securities Act or (y) will not
be filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus, the Time
of Sale Prospectus, if any, or the Prospectus Supplement, or to be filed as
exhibits or schedules to the Registration Statement, that have not been
described or filed as required. Notwithstanding anything to the
contrary contained herein, the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement, the Base
Prospectus,
the Time of Sale Prospectus, if any, the Prospectus Supplement or any
free writing prospectus, including any amendments or supplements thereto, in
reliance upon, and in conformity with, information furnished in writing to the
Company by or on behalf of Rodman expressly for use in or preparation
thereof.
(C) The
Company is eligible to use free writing prospectuses in connection with the
Placement pursuant to Rules 164 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the applicable
Securities Act Rules and Regulations. Each free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used by the
Company, in each case in connection with the Placement, complies or will comply
in all material respects with the requirements of the Securities Act and the
applicable Securities Act Rules and Regulations. The Company will
not, without the prior consent of the Placement Agent, prepare, use or refer to,
any free writing prospectus in connection with the Placement.
(D) The
Company has delivered or made available, or will as promptly as practicable
deliver or make available, to the Placement Agent complete conformed copies of
the Registration Statement and of each consent and certificate of experts, as
applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Base Prospectus , the Time
of Sale Prospectus, if any, and the Prospectus Supplement, as amended or
supplemented, in such quantities and at such places as the Placement Agent
reasonably requests. Neither the Company nor any of its directors and
officers has distributed and none of them will distribute, prior to the Closing
Date, any offering material in connection with the offering and sale of the
Common Shares other than the Base Prospectus, the Time
of Sale Prospectus, if any, the Prospectus Supplement, the Registration
Statement, copies of the documents incorporated by reference therein and any
other materials permitted by the Securities Act.
3
SECTION
3. REPRESENTATIONS AND
WARRANTIES. Except as set forth under the corresponding section of 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 representations and warranties set forth below to
the Placement Agent.
(A) Organization and
Qualification. All of the direct and indirect significant
subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) (individually, a
“Subsidiary”)
of the Company are set forth in the SEC Reports (as defined in Subsection 3(G)
below). 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” (which for
purposes of this Agreement shall mean a lien, charge, security interest,
encumbrance, right of first refusal, preemptive right or other restriction),
and, except as set forth in the SEC Reports, all the issued and outstanding
shares of capital stock of each Subsidiary, where applicable, are validly issued
and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. 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 on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which
for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition, whether commenced or threatened)) has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or
qualification.
(B) 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 thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company, the Company’s board of directors or the Company’s shareholders in
connection therewith other than in connection with the “Required Approvals”
(as defined in Subsection 3(D) below). 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.
4
(C) No
Conflicts. The execution and delivery by the Company of the
Transaction Documents to which it is a party and the performance by the Company
of its obligations under the Transaction Documents to which it is a party, the
issuance and sale of the Securities by the Company and the consummation by the
Company of the other transactions contemplated by this Agreement and by the
Transaction Documents to which the Company 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, 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 result in the creation of any Lien upon
any of the properties or assets of the Company or any Subsidiary 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.
(D) 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” (defined as
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,
including, without limitation, any Trading Market) 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 the Securities
Purchase Agreement(s) to be entered into by the Company with the Purchasers;
(ii) the filing with the Commission of the Prospectus Supplement; (iii)
application(s) to NYSE Amex (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”).
(E) Issuance of the Securities;
Registration. The Common Shares and 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 the Transaction Documents. 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 preventing the use of the Base 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 applicable Securities Act
Rules and Regulations, 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 Base
Prospectus and any amendments or supplements thereto, at the time the Base
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.
5
(F) Capitalization. The
capitalization of the Company is as set forth in the Company’s most recent Form
10-Q. As of the date of this 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 National Corporation Dividend Reinvestment
Plan (the “Park DRIP”) for the accounts of participants in the Park DRIP and
under the terms of the Park National Corporation Employees Stock Ownership Plan
(the “Park KSOP”) for the accounts of participants in the Park KSOP, 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 for the Park DRIP or for the Park KSOP, as
appropriate. 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 a
result of the purchase and sale of the Securities and except as disclosed in the
SEC Reports, pursuant to equity compensation plans or agreements filed as
exhibits to the SEC Reports or pursuant to the Park DRIP or the Park KSOP, 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, 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 of the
Company 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.
(G) 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,
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 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
Securities Act Rules and Regulations or the Exchange Act and the Exchange Act
Rules and Regulations, 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.
6
(H) 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” (defined
as 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), except
pursuant to existing Company stock option or compensation plans or the Park
DRIP. Except for the issuance of the Securities contemplated by this
Agreement or as set forth in the SEC Reports, no event, liability or development
has occurred or exists with respect to the Company or its Subsidiaries or their
respective businesses, 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 one
(1) Trading Day prior to the date that this representation is made.
(I)
Litigation. There
is no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the actual knowledge of the Company, threatened against or
affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) (collectively,
an “Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or (ii)
would reasonably be expected to result in a Material Adverse Effect if there
were an unfavorable decision. Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former
director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act
(J)
Labor
Relations. No material labor dispute exists or, to the actual
knowledge of the Company, is imminent with respect to any of the employees of
the Company which could reasonably be expected to result in a Material Adverse
Effect.
(K) 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 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.
7
(L) Material
Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure
to possess such permits would not reasonably be expected to result in a Material
Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit,
except where such potential revocation or modification would not reasonably be
expected to result in a Material Adverse Effect.
(M) Sarbanes-Oxley. The
Company is and will be in material compliance with all provisions of the
Sarbanes-Oxley Act of 2002 which are applicable to it as of the date hereof and
as of the Closing Date.
(N) Certain
Fees. Except as otherwise provided in this Agreement, 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 in connection with the transactions contemplated by the Transaction
Documents.
(O) Trading Market
Rules. The issuance and sale of the Securities hereunder does
not contravene the rules and regulations of the Trading Market.
(P) 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.
(Q) Registration
Rights. Except as disclosed in the SEC Reports, no Person has
any right to cause the Company to effect the registration under the Securities
Act of any securities of the Company.
(R) Listing and Maintenance
Requirements. The Company’s 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 any Trading Market
on which the Common Shares is or has been listed or quoted to the effect that
the Company is not in compliance with the material listing or maintenance
requirements of such Trading Market. The Company is in compliance in all
material respects with all such listing and maintenance
requirements.
(S) Application of Takeover
Protections. The Company and its 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.
(T) 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 (other than for the Placement
Agent’s placement 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 Rodman in connection with the placement of the Securities and as
disclosed in the SEC Reports.
8
SECTION
4. ENGAGEMENT
TERM. Rodman’s engagement hereunder will be for the period of
30 days. The engagement may be terminated by either the Company or Rodman at any
time upon five days’ written notice and, subject to the delivery and
satisfaction (or waiver) of all closing conditions in connection with the
Placement, will be terminated automatically on the Closing
Date. Notwithstanding anything to the contrary contained herein, the
provisions in this Agreement concerning confidentiality, indemnification and
contribution will survive any expiration or termination of this
Agreement. Upon any termination of this Agreement, the Company’s
obligation to pay Rodman any fees actually earned and payable on closing of the
Placement, shall survive any termination of this Agreement, as permitted by
FINRA Rule 5110(f)(2)(D). Upon any termination of this Agreement, the
Company’s obligation to reimburse Rodman for out-of-pocket accountable expenses
actually incurred by Rodman and reimbursable upon closing of the Placement, will
survive any termination of this Agreement, as permitted by FINRA Rule
5110(f)(2)(D). Rodman agrees not to use any confidential information
concerning the Company provided to Rodman by the Company for any purposes other
than those contemplated under this Agreement.
SECTION
5. RODMAN
INFORMATION. The Company agrees that any information or advice
rendered by Rodman in connection with this engagement is for the confidential
use of the Company only in its evaluation of the Placement and, except as
otherwise required by law or the rules and regulations of the Trading Market,
the Company will not disclose or otherwise refer to the advice or information in
any manner without Rodman’s prior written consent; except that the Company may
file this Agreement as an exhibit to, and disclose Rodman’s role as placement
agreement pursuant to this Agreement in, the Company’s filings with the
Commission.
SECTION
6. NO THIRD-PARTY
BENEFICIARIES; FIDUCIARY RELATIONSHIP. This Agreement does not
create, and shall not be construed as creating rights enforceable by any person
or entity not a party hereto, except those entitled thereto by virtue of the
indemnification provisions hereof. The Company acknowledges and
agrees that Rodman is not and shall not be construed as a fiduciary of the
Company and shall have no duties or liabilities to the equity holders or the
creditors of the Company or any other person (other than the Company) by virtue
of this Agreement or the retention of Rodman hereunder, all of which are hereby
expressly waived.
SECTION
7. CLOSING
CONDITIONS. The obligations of the Placement Agent and the
Purchasers, and the closing of the sale of the Securities hereunder are subject
to the accuracy, when made and on the Closing Date (unless as of a specified
date therein), of the representations and warranties on the part of the Company
and its Subsidiaries contained herein, to the accuracy of the statements of the
Company and its Subsidiaries made in any certificates pursuant to the provisions
hereof, to the performance by the Company and its Subsidiaries of their
obligations hereunder required to be performed on or prior to the Closing Date,
and to each of the following additional terms and conditions:
(A) No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent.
9
(B) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the reasonable opinion of counsel for the
Placement Agent, is material or omits to state any fact which, in the reasonable
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein, in the case of the Base Prospectus or
the Prospectus Supplement, in light of the circumstances under which they were
made, not misleading.
(C) All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent.
(E) Neither
the Company nor any of its Subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Base Prospectus, any material loss or interference with its business from
fire, explosion, flood, terrorist act or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth in or contemplated by the Base Prospectus
and (ii) since such date, there shall not have been any material change in the
capital stock or material increase in the long-term debt of the Company or any
of its Subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the business, general
affairs, management, financial condition, stockholders’ equity or results of
operations of the Company and its Subsidiaries, taken as a whole, otherwise than
as set forth in or contemplated by the Base Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the reasonable and good
faith judgment of the Placement Agent, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base
Prospectus,
the Time of Sale Prospectus, if any, and the Prospectus
Supplement.
(F) The
Common Shares are registered under the Exchange Act and, as of the Closing Date,
the Common Shares shall be listed and admitted and authorized for trading on the
Trading Market, and reasonably satisfactory evidence of such actions shall have
been provided to the Placement Agent. The Company shall have taken no
action designed to, or likely to have the effect of, terminating the
registration of the Common Shares under the Exchange Act or delisting or
suspending from trading the Common Shares from the Trading Market, nor has the
Company received any information suggesting that the Commission or the Trading
Market is contemplating terminating such registration or
listing.
10
(G) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq Global Select Market or the NYSE Amex or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
or maximum prices or maximum ranges for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by federal or Ohio, Kentucky,
Alabama, Florida or New York authorities or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, (iii) the United States shall have become engaged in hostilities
in which it is not currently engaged or the subject of an act of terrorism,
there shall have been an escalation in hostilities involving the United States,
or there shall have been a declaration of a national emergency or war by the
United States, or (iv) there shall have occurred any other calamity or crisis or
any change in general economic, political or financial conditions in the United
States or elsewhere, if the effect of any such event in clause (iii) or (iv)
makes it, in the reasonable and good faith judgment of the Placement Agent,
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus
and the Prospectus Supplement.
(H) No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which
would, as of the Closing Date, prevent the issuance or sale of the Securities or
reasonably be expected to materially and adversely affect the business or
operations of the Company; and no injunction, restraining order or order of any
other nature by any federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the issuance or sale of
the Securities or reasonably be expected to materially and adversely affect the
business or operations of the Company.
(I) The
Company shall have prepared and filed with the Commission a Current Report on
Form 8-K with respect to the Placement, including as an exhibit thereto this
Agreement.
(J) The
Company shall have entered into one or more securities purchase agreements with
each of the Purchasers and such agreements shall be in full force and effect and
shall contain representations and warranties of the Company as agreed between
the Company and the Purchasers.
(K) FINRA
shall have raised no objection to the fairness and reasonableness of the terms
and arrangements of this Agreement. In addition, the Company shall,
if requested by the Placement Agent, make or authorize Placement Agent’s counsel
to make on the Company’s behalf, an Issuer Filing with FINRA pursuant to FINRA
Rule 5110 with respect to the Registration Statement and pay all filing fees
required in connection therewith.
(L) Prior
to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, certificates and documents as the Placement Agent may
reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
SECTION
8. INDEMNIFICATION. (A) To
the extent permitted by law, the Company will indemnify Rodman and its
affiliates, stockholders, directors, officers, employees and controlling persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) against all losses, claims, damages, expenses and liabilities, as
the same are incurred (including the reasonable fees and expenses of counsel),
relating to or arising out of its activities hereunder or pursuant to this
Agreement, except to the extent that any losses, claims, damages, expenses or
liabilities (or actions in respect thereof) are found in a final judgment (not
subject to appeal) by a court of law to have resulted primarily and directly
from Rodman’s material breach of this Agreement or Rodman’s willful misconduct
or gross negligence in performing the services described herein or from
information contained in or omitted from the Registration Statement, the Base
Prospectus,
the Time of Sale Prospectus, if any, or the Prospectus Supplement,
including any amendments or supplements thereto, in reliance upon, and in
connection with, information furnished in writing to the Company by or on behalf
of Rodman expressly for use in or preparation thereof (and Rodman shall repay to
the Company any reimbursements or other amounts paid hereunder to the extent
they are attributable thereto).
11
(B) To
the extent permitted by law, Rodman will indemnify the Company and its
affiliates, shareholders, directors, officers, employees and controlling persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) against all losses, claims, damages, expenses and liabilities, as
the same are incurred (including the reasonable fees and expenses of counsel),
relating to or arising from information contained in or omitted from the
Registration Statement, the Base Prospectus, the Time
of Sale Prospectus, if any, or the Prospectus Supplement, including any
amendments or supplements thereto, in reliance upon, and in conformity with,
information furnished in writing to the Company by or on behalf of Rodman
expressly for use in or preparation thereof.
(C) Promptly
after receipt by an indemnified party of notice of any claim or the commencement
of any action or proceeding with respect to which the indemnified party is
entitled to indemnity hereunder, the indemnified party will notify the
indemnifying party in writing of such claim or of the commencement of such
action or proceeding; provided, however, that the failure timely to give such
notice shall affect the rights of an indemnified party hereunder only to the
extent that such failure has a material prejudicial effect on the defenses or
other rights available to the indemnifying party with respect to such claim,
action or proceeding. At the election of the indemnifying party, the
indemnifying party will assume the defense of such claim, action or proceeding
and will employ counsel reasonably satisfactory to the indemnified party and
will pay the fees and expenses of such counsel. Notwithstanding the
preceding sentence, the indemnified party will be entitled to employ counsel
separate from counsel for the indemnifying party and from any other party in
such claim, action or proceeding if counsel for the indemnified party reasonably
determines that it would be inappropriate under the applicable rules of
professional responsibility for the same counsel to represent both the
indemnifying party and the indemnified party. In such event, the
reasonable fees and disbursements of no more than one such separate counsel will
be paid by the indemnifying party. The indemnifying party will have
the exclusive right to settle the claim, action or proceeding; provided that the
indemnifying party will not settle any such claim, action or proceeding without
the prior written consent of the indemnified party, which will not be
unreasonably withheld or delayed; provided, further, that such consent shall not
be required if the settlement includes a full and unconditional release 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 indemnified
party.
(D) The
indemnifying party agrees to notify the indemnified party promptly of the
assertion against it or any other person of any claim or the commencement of any
action or proceeding relating to a transaction contemplated by this
Agreement.
(E) If
for any reason the foregoing indemnity is unavailable to the indemnified party
or insufficient to hold the indemnified party harmless, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, but
also the relative fault of the indemnifying party on the one hand and the
indemnified party on the other that resulted in such losses, claims, damages or
liabilities, as well as any relevant equitable considerations. The
relative benefits received by the Company on the one hand and Rodman on the
other shall be deemed to be the same proportion as the total net proceeds from
the Placement (before deducting expenses) received by the Company bear to the
total compensation received under this Agreement by Rodman. The
relative fault shall be determined by reference to, among other things, whether
an untrue or alleged untrue statement of a material fact or an omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or Rodman on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amounts paid or payable by a party in
respect of losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees and expenses incurred in defending any
litigation, proceeding or other action or claim. Notwithstanding the
provisions hereof, Rodman’s share of the liability hereunder shall not be in
excess of the amount of fees actually received, or to be received, by Rodman
under this Agreement (excluding any amounts received as reimbursement of
expenses incurred by Rodman). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
12
(F) These
indemnification provisions shall remain in full force and effect whether or not
the transaction contemplated by this Agreement is completed and shall survive
the termination of this Agreement, and shall be in addition to any liability
that the Company or Rodman might otherwise have to any indemnified party under
this Agreement or otherwise.
SECTION
9. GOVERNING
LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely in such State. This Agreement may not be
assigned by either party without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and permitted
assigns. To the extent permitted by applicable law, any right to
trial by jury with respect to any dispute arising under this Agreement or any
transaction or conduct in connection herewith is waived. Any dispute arising
under this Agreement may be brought into the courts of the State of New York or
into the Federal Court located in New York, New York and, by execution and
delivery of this Agreement, the Company hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of aforesaid
courts. Each party hereto hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by
delivering a copy thereof via 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 manner permitted by law. If either
party shall commence an action or proceeding to enforce any provisions of a
Transaction Document, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
SECTION
10. ENTIRE
AGREEMENT/MISC. This Agreement embodies the entire agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings, relating to the subject matter
hereof. If any provision of this Agreement is determined to be
invalid or unenforceable in any respect, such determination will not affect such
provision in any other respect or any other provision of this Agreement, which
will remain in full force and effect. This Agreement may not be
amended or otherwise modified or waived except by an instrument in writing
signed by both Rodman and the Company. The representations,
warranties, agreements and covenants contained herein shall survive the closing
of the Placement and delivery and/or exercise of the Securities, as
applicable. 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 both
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.
13
SECTION
11. 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 specified below
each party’s signature of this Agreement prior to 6:30 p.m. (New York City time)
on a business day, (b) the next business day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified below each party’s signature of this Agreement on a day that is not a
business day or later than 6:30 p.m. (New York City time) on any business day,
(c) the business 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 below each party’s signature of
this Agreement.
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to Rodman a copy of this Agreement.
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Very
truly yours,
|
|
|
RODMAN
& RENSHAW, LLC
|
|
|
By:
|
/s/
David Horin
|
|
Name:
David Horin
|
|
|
Title:
Chief Financial Officer
|
|
|
Address for notice:
|
|
|
1251
Avenue of the Americas, 20th Floor
|
|
|
New
York, NY, 10020
|
|
|
Fax:
(646) 841-1640
|
|
|
Attention: General
Counsel
|
|
Accepted
and Agreed to as of
the date
first written above:
|
PARK
NATIONAL CORPORATION
|
|
|
By:
|
/s/ John W. Kozak |
|
Name:
John W. Kozak
|
|
|
Title:
Chief Financial Officer
|
|
Address for
notice:
50 North
Third Street
Newark,
Ohio 43055
Fax:
(740) 349-3709
Attention:
Chief Financial Officer
14