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
313,505
Shares of Common
Stock
of Peoples Bancorp
Inc.
Issue Date: January 30,
2009
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 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.
“ 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) 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.
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.
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.
(A) Subject to
compliance with clause (B) of this Section 8, this Warrant and all
rights
