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Exhibit 4.2 WARRANT TO PURCHASE COMMON STOCK THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH
LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON
TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT
BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO
THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES
REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
WARRANT
to purchase
813,008 Shares of Common Stock
of
OLD NATIONAL BANCORP Issue Date: December 12, 2008
1. Definitions . Unless
the context otherwise requires, when used herein the following
terms shall have the meanings indicated.
" Affiliate " has the meaning
ascribed to it in the Purchase Agreement.
" Appraisal Procedure " means
a procedure whereby two independent appraisers, one chosen by the
Company and one by the Original Warrantholder, shall mutually agree
upon the determinations then the subject of appraisal. Each party
shall deliver a notice to the other appointing its appraiser within
15 days after the Appraisal Procedure is invoked. If within
30 days after appointment of the two appraisers they are
unable to agree upon the amount in question, a third independent
appraiser shall be chosen within 10 days thereafter by the
mutual consent of such first two appraisers. The decision of the
third appraiser so appointed and chosen shall be given within
30 days after the selection of such third appraiser. If three
appraisers shall be appointed and the determination of one
appraiser is disparate from the middle determination by more than
twice the amount by which the other determination is disparate from
the middle determination, then the determination of such appraiser
shall be excluded, the remaining two determinations shall be
averaged and such average shall be
binding and conclusive upon the Company and the Original
Warrantholder; otherwise, the average of all three determinations
shall be binding upon the Company and the Original Warrantholder.
The costs of conducting any Appraisal Procedure shall be borne by
the Company. " Board of
Directors " means the board of directors of the Company,
including any duly authorized committee thereof.
" Business Combination " means
a merger, consolidation, statutory share exchange or similar
transaction that requires the approval of the Company’s
stockholders. " business day "
means any day except Saturday, Sunday and any day on which banking
institutions in the State of New York generally are authorized or
required by law or other governmental actions to close.
" Capital Stock " means
(A) with respect to any Person that is a corporation or
company, any and all shares, interests, participations or other
equivalents (however designated) of capital or capital stock of
such Person and (B) with respect to any Person that is not a
corporation or company, any and all partnership or other equity
interests of such Person. "
Charter " means, with respect to any Person, its certificate
or articles of incorporation, articles of association, or similar
organizational document. " Common
Stock " has the meaning ascribed to it in the Purchase
Agreement. " Company " means
the Person whose name, corporate or other organizational form and
jurisdiction of organization is set forth in Item 1 of
Schedule A hereto. "
conversion " has the meaning set forth in
Section 13(B). " convertible
securities " has the meaning set forth in Section 13(B).
" CPP " has the meaning
ascribed to it in the Purchase Agreement.
" Exchange Act " means the
Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
" Exercise Price " means the
amount set forth in Item 2 of Schedule A hereto.
" Expiration Time " has the
meaning set forth in Section 3.
" Fair Market Value " means,
with respect to any security or other property, the fair market
value of such security or other property as determined by the Board
of Directors, acting in good faith or, with respect to
Section 14, as determined by the Original Warrantholder acting
in good faith. For so long as the Original Warrantholder holds this
Warrant or any portion thereof, it may object in writing to the
Board of Director’s calculation of fair market value within
10 days of receipt of written notice thereof. If the Original
Warrantholder and the Company are unable to agree on fair market
value during the 10-day period following the delivery of the
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Original Warrantholder’s objection, the Appraisal
Procedure may be invoked by either party to determine Fair Market
Value by delivering written notification thereof not later than the
30th day after delivery of the Original Warrantholder’s
objection. " Governmental
Entities " has the meaning ascribed to it in the Purchase
Agreement. " Initial Number "
has the meaning set forth in Section 13(B).
"Issue Date" means the date
set forth in Item 3 of Schedule A hereto.
" Market Price " means, with
respect to a particular security, on any given day, the last
reported sale price regular way or, in case no such reported sale
takes place on such day, the average of the last closing bid and
ask prices regular way, in either case on the principal national
securities exchange on which the applicable securities are listed
or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average of the closing bid
and ask prices as furnished by two members of the Financial
Industry Regulatory Authority, Inc. selected from time to time by
the Company for that purpose. "Market Price" shall be determined
without reference to after hours or extended hours trading. If such
security is not listed and traded in a manner that the quotations
referred to above are available for the period required hereunder,
the Market Price per share of Common Stock shall be deemed to be
(i) in the event that any portion of the Warrant is held by
the Original Warrantholder, the fair market value per share of such
security as determined in good faith by the Original Warrantholder
or (ii) in all other circumstances, the fair market value per
share of such security as determined in good faith by the Board of
Directors in reliance on an opinion of a nationally recognized
independent investment banking corporation retained by the Company
for this purpose and certified in a resolution to the
Warrantholder. For the purposes of determining the Market Price of
the Common Stock on the "trading day" preceding, on or following
the occurrence of an event, (i) that trading day shall be
deemed to commence immediately after the regular scheduled closing
time of trading on the New York Stock Exchange or, if trading is
closed at an earlier time, such earlier time and (ii) that trading
day shall end at the next regular scheduled closing time, or if
trading is closed at an earlier time, such earlier time (for the
avoidance of doubt, and as an example, if the Market Price is to be
determined as of the last trading day preceding a specified event
and the closing time of trading on a particular day is 4:00 p.m.
and the specified event occurs at 5:00 p.m. on that day, the Market
Price would be determined by reference to such 4:00 p.m. closing
price). " Ordinary Cash
Dividends " means a regular quarterly cash dividend on shares
of Common Stock out of surplus or net profits legally available
therefor (determined in accordance with generally accepted
accounting principles in effect from time to time), provided
that Ordinary Cash Dividends shall not include any cash dividends
paid subsequent to the Issue Date to the extent the aggregate per
share dividends paid on the outstanding Common Stock in any quarter
exceed the amount set forth in Item 4 of Schedule A
hereto, as adjusted for any stock split, stock dividend, reverse
stock split, reclassification or similar transaction.
" Original Warrantholder "
means the United States Department of the Treasury. Any actions
specified to be taken by the Original Warrantholder hereunder may
only be taken by such Person and not by any other
Warrantholder.
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" Permitted Transactions "
has the meaning set forth in Section 13(B).
" Person " has the meaning
given to it in Section 3(a)(9) of the Exchange Act and as used
in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
" Per Share Fair Market Value
" has the meaning set forth in Section 13(C).
"Preferred Shares " means the
perpetual preferred stock issued to the Original Warrantholder on
the Issue Date pursuant to the Purchase Agreement.
" Pro Rata Repurchases " means
any purchase of shares of Common Stock by the Company or any
Affiliate thereof pursuant to (A) any tender offer or exchange
offer subject to Section 13(e) or 14(e) of the Exchange Act or
Regulation 14E promulgated thereunder or (B) any other
offer available to substantially all holders of Common Stock, in
the case of both (A) or (B), whether for cash, shares of
Capital Stock of the Company, other securities of the Company,
evidences of indebtedness of the Company or any other Person or any
other property (including, without limitation, shares of Capital
Stock, other securities or evidences of indebtedness of a
subsidiary), or any combination thereof, effected while this
Warrant is outstanding. The " Effective Date " of a Pro Rata
Repurchase shall mean the date of acceptance of shares for purchase
or exchange by the Company under any tender or exchange offer which
is a Pro Rata Repurchase or the date of purchase with respect to
any Pro Rata Repurchase that is not a tender or exchange offer.
" Purchase Agreement " means
the Securities Purchase Agreement – Standard Terms
incorporated into the Letter Agreement, dated as of the date set
forth in Item 5 of Schedule A hereto, as amended from
time to time, between the Company and the United States Department
of the Treasury (the " Letter Agreement "), including all
annexes and schedules thereto. "
Qualified Equity Offering " has the meaning ascribed to it
in the Purchase Agreement. "
Regulatory Approvals " with respect to the Warrantholder,
means, to the extent applicable and required to permit the
Warrantholder to exercise this Warrant for shares of Common Stock
and to own such Common Stock without the Warrantholder being in
violation of applicable law, rule or regulation, the receipt of any
necessary approvals and authorizations of, filings and
registrations with, notifications to, or expiration or termination
of any applicable waiting period under, the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and
regulations thereunder. " SEC
" means the U.S. Securities and Exchange Commission.
" Securities Act " means the
Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.
" Shares " has the meaning set
forth in Section 2. "trading
day" means (A) if the shares of Common Stock are not
traded on any national or regional securities exchange or
association or over-the-counter market, a business day or (B)
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if the shares of Common Stock are traded on any national or
regional securities exchange or association or over-the-counter
market, a business day on which such relevant exchange or quotation
system is scheduled to be open for business and on which the shares
of Common Stock (i) are not suspended from trading on any
national or regional securities exchange or association or
over-the-counter market for any period or periods aggregating one
half hour or longer; and (ii) have traded at least once on the
national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading
of the shares of Common Stock. "
U.S. GAAP " means United States generally accepted
accounting principles. "
Warrantholder " has the meaning set forth in Section 2.
" Warrant " means this
Warrant, issued pursuant to the Purchase Agreement.
2. Number of Shares;
Exercise Price . This certifies that, for value received, the
United States Department of the Treasury or its permitted assigns
(the " Warrantholder ") is entitled, upon the terms and
subject to the conditions hereinafter set forth, to acquire from
the Company, in whole or in part, after the receipt of all
applicable Regulatory Approvals, if any, up to an aggregate of the
number of fully paid and nonassessable shares of Common Stock set
forth in Item 6 of Schedule A hereto, at a purchase price
per share of Common Stock equal to the Exercise Price. The number
of shares of Common Stock (the " Shares ") and the Exercise
Price are subject to adjustment as provided herein, and all
references to "Common Stock," "Shares" and "Exercise Price" herein
shall be deemed to include any such adjustment or series of
adjustments. 3. Exercise of
Warrant; Term . Subject to Section 2, to the extent
permitted by applicable laws and regulations, the right to purchase
the Shares represented by this Warrant is exercisable, in whole or
in part by the Warrantholder, at any time or from time to time
after the execution and delivery of this Warrant by the Company on
the date hereof, but in no event later than 5:00 p.m., New York
City time on the tenth anniversary of the Issue Date (the "
Expiration Time "), by (A) the surrender of this
Warrant and Notice of Exercise annexed hereto, duly completed and
executed on behalf of the Warrantholder, at the principal executive
office of the Company located at the address set forth in
Item 7 of Schedule A hereto (or such other office or
agency of the Company in the United States as it may designate by
notice in writing to the Warrantholder at the address of the
Warrantholder appearing on the books of the Company), and
(B) payment of the Exercise Price for the Shares thereby
purchased:
(i) by
having the Company withhold, from the shares of Common Stock that
would otherwise be delivered to the Warrantholder upon such
exercise, shares of Common stock issuable upon exercise of the
Warrant equal in value to the aggregate Exercise Price as to which
this Warrant is so exercised based on the Market Price of the
Common Stock on the trading day on which this Warrant is exercised
and the Notice of Exercise is delivered to the Company pursuant to
this Section 3, or
(ii) with
the consent of both the Company and the Warrantholder, by tendering
in cash, by certified or cashier’s check payable to the order
of the Company, or by wire transfer of immediately available funds
to an account designated by the Company.
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If
the Warrantholder does not exercise this Warrant in its entirety,
the Warrantholder will be entitled to receive from the Company
within a reasonable time, and in any event not exceeding three
business days, a new warrant in substantially identical form for
the purchase of that number of Shares equal to the difference
between the number of Shares subject to this Warrant and the number
of Shares as to which this Warrant is so exercised. Notwithstanding
anything in this Warrant to the contrary, the Warrantholder hereby
acknowledges and agrees that its exercise of this Warrant for
Shares is subject to the condition that the Warrantholder will have
first received any applicable Regulatory Approvals.
4. Issuance of Shares;
Authorization; Listing . Certificates for Shares issued upon
exercise of this Warrant will be issued in such name or names as
the Warrantholder may designate and will be delivered to such named
Person or Persons within a reasonable time, not to exceed three
business days after the date on which this Warrant has been duly
exercised in accordance with the terms of this Warrant. The Company
hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued,
fully paid and nonassessable and free from all taxes, liens and
charges (other than liens or charges created by the Warrantholder,
income and franchise taxes incurred in connection with the exercise
of the Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as
of the close of business on the date on which this Warrant and
payment of the Exercise Price are delivered to the Company in
accordance with the terms of this Warrant, notwithstanding that the
stock transfer books of the Company may then be closed or
certificates representing such Shares may not be actually delivered
on such date. The Company will at all times reserve and keep
available, out of its authorized but unissued Common Stock, solely
for the purpose of providing for the exercise of this Warrant, the
aggregate number of shares of Common Stock then issuable upon
exercise of this Warrant at any time. The Company will (A) procure,
at its sole expense, the listing of the Shares issuable upon
exercise of this Warrant at any time, subject to issuance or notice
of issuance, on all principal stock exchanges on which the Common
Stock is then listed or traded and (B) maintain such listings
of such Shares at all times after issuance. The Company will use
reasonable best efforts to ensure that the Shares may be issued
without violation of any applicable law or regulation or of any
requirement of any securities exchange on which the Shares are
listed or traded. 5. No
Fractional Shares or Scrip . No fractional Shares or scrip
representing fractional Shares shall be issued upon any exercise of
this Warrant. In lieu of any fractional Share to which the
Warrantholder would otherwise be entitled, the Warrantholder shall
be entitled to receive a cash payment equal to the Market Price of
the Common Stock on the last trading day preceding the date of
exercise less the pro-rated Exercise Price for such fractional
share. 6. No Rights as
Stockholders; Transfer Books . This Warrant does not entitle
the Warrantholder to any voting rights or other rights as a
stockholder of the Company prior to the date of exercise hereof.
The Company will at no time close its transfer books against
transfer of this Warrant in any manner which interferes with the
timely exercise of this Warrant.
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7. Charges, Taxes and
Expenses . Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made
without charge to the Warrantholder for any issue or transfer tax
or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company. 8.
Transfer/Assignment .
(A) Subject to compliance with
clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in part, upon the books of
the Compa
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