<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 10, 1994
FIRST BANCORPORATION OF OHIO
(Exact name of registrant as specified in its charter)
OHIO 0-010161 34-1339938
(State or other jurisdiction of (Commission (IRS employer identification
incorporation or organization) file number) number)
106 S. MAIN STREET, AKRON, OHIO 44308 (216) 384-8000
(Address of Principal Executive Offices) (Zip Code) (Telephone Number)
Copy to:
KEVIN C. O'NEIL, ESQ.
BROUSE & MCDOWELL
500 First National Tower
Akron, Ohio 44308-1471
(216) 434-5207
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ITEM 5. OTHER EVENTS.
On August 10, 1994, First Bancorporation of Ohio ("FBOH"), entered into
an Agreement of Affiliation and Plan of Merger ("Agreement") with The CIVISTA
Corporation ("CIVISTA"), a savings and loan holding corporation headquartered
in Canton, Ohio, whereby CIVISTA would merge with and into FBOH. Under the
terms of the Agreement, FBOH will exchange 1.723 shares of FBOH common stock
for each share of outstanding CIVISTA common stock. As part of the
transaction, FBOH and CIVISTA also entered into The CIVISTA Corporation Stock
Purchase Option whereby CIVISTA granted to FBOH the option to acquire up to
350,655 shares of a newly created class of Series A Preferred Stock at a
purchase price per share equal to $33.50. FBOH's right to exercise the option
is based upon the occurrence of certain events involving CIVISTA, a subsidiary
of CIVISTA or a third party. The transaction is valued at $43.08 per share of
CIVISTA common stock, or approximately $162.0 million dollars based on the
$25.00 closing price of FBOH common stock on August 9, 1994 and is structured
as a tax-free exchange of the securities to be accounted for as a pooling of
interests. Closing of the transaction is subject to certain conditions
including regulatory approval and the approval of the shareholders of FBOH and
CIVISTA.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
--- -----
(C) EXHIBITS.
10(a) Agreement of Affiliation and Plan of Merger dated
August 10, 1994
10(b) The CIVISTA Corporation Stock Purchase Option dated
August 10, 1994
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST BANCORPORATION OF OHIO
Dated: Agust 16, 1994 By: /s/ Terry E. Patton
-----------------------------
Terry E. Patton
Secretary
[79798]
2
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FIRST BANCORPORATION OF OHIO
CURRENT REPORT ON FORM 8-K
INDEX OF EXHIBITS
EXHIBIT
10(a) Agreement of Affiliation and Plan of Merger dated August 10,
1994
10(b) The CIVISTA Corporation Stock Purchase Option dated August 10,
1994
3
<PAGE> 1
Exhibit 10(a)
________________________
AGREEMENT OF AFFILIATION
AND
PLAN OF MERGER
________________________
____________________________
FIRST BANCORPORATION OF OHIO
AND
THE CIVISTA CORPORATION
____________________________
August 10, 1994
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<TABLE>
AGREEMENT OF AFFILIATION AND PLAN OF MERGER
FIRST BANCORPORATION OF OHIO AND
THE CIVISTA CORPORATION
TABLE OF CONTENTS
<S> <C> <C>
1. THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1. MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. CONVERSION OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. CONVERSION OF SHARES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2. EXCHANGE OF CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3. DISSENTERS' RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4. CLOSING OF CIVISTA'S TRANSFER BOOKS. . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5. EMPLOYEE STOCK OPTIONS AND ASSUMPTION. . . . . . . . . . . . . . . . . . . . . . . . 5
3. REPRESENTATIONS AND WARRANTIES OF FBOH . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1. CORPORATE ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2. AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3. CAPITALIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4. SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5. INFORMATION IN DISCLOSURE DOCUMENTS, REGISTRATION STATEMENT, ETC. . . . . . . . . . 7
3.6. CONSENTS AND APPROVALS; NO VIOLATION. . . . . . . . . . . . . . . . . . . . . . . . 8
3.7. REPORTS AND FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9. EMPLOYEE PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10. MATERIAL CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11. ABSENCE OF CERTAIN CHANGES OR EVENTS . . . . . . . . . . . . . . . . . . . . . . . . 10
3.12. LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13. COMPLIANCE WITH LAWS AND ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14. AGREEMENTS WITH BANK REGULATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.15. FBOH OWNERSHIP OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.16. ACCOUNTING MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.17. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.18. FBOH ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.19. VOTE REQUIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.20. RIGHTS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.21. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. REPRESENTATIONS AND WARRANTIES OF CIVISTA . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1. CORPORATE ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2. AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.3. CAPITALIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4. SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.5. INFORMATION IN DISCLOSURE DOCUMENTS REGISTRATION STATEMENT, ETC. . . . . . . . . . . 13
4.6. CONSENT AND APPROVALS; NO VIOLATION. . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.7. REPORTS AND FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.8. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.9. EMPLOYEE PLANS, EMPLOYEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.10. MATERIAL CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.11. ABSENCE OF CERTAIN CHANGES OR EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.12. LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
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<TABLE>
<S> <C> <C>
4.13. COMPLIANCE WITH LAWS AND ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.14. AGREEMENTS WITH REGULATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.15. COMPANY OWNERSHIP OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.16. ACCOUNTING MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.17. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.18. COMPANY ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.19. VOTE REQUIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.20. CONDUCT OF CIVISTA TO DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.21. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1. ACQUISITION PROPOSALS AND NEGOTIATIONS. . . . . . . . . . . . . . . . . . . . . . . . . 19
5.2. INTERIM OPERATIONS OF CIVISTA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.3. INTERIM OPERATIONS OF FBOH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.4. EMPLOYMENT MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.5. ACCESS, INFORMATION AND CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . . 24
5.6. CERTAIN FILINGS, CONSENTS AND ARRANGEMENTS, DIVESTITURES. . . . . . . . . . . . . . . . 24
5.7. TAKEOVER STATUTES AND PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.8. INDEMNIFICATION AND INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.9. ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.10. COMPLIANCE WITH ANTITRUST LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.11. PUBLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.12. REGISTRATION STATEMENT, JOINT PROXY STATEMENT AND COMFORT LETTERS. . . . . . . . . . . . 26
5.13. AFFILIATES COMPLIANCE WITH THE SECURITIES ACT . . . . . . . . . . . . . . . . . . . . . 27
5.14. STOCKHOLDERS MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.15. POOLING AND TAX-FREE REORGANIZATION TREATMENT . . . . . . . . . . . . . . . . . . . . . 28
5.16. MERGERS OF SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.17. CURRENT INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.18. INTEGRATION OF OPERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.19. NASD LISTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.20. ENVIRONMENTAL SURVEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6. CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.1. CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER. . . . . . . . . . . . . . . 29
6.2. CONDITIONS TO OBLIGATION OF CIVISTA TO EFFECT THE MERGER. . . . . . . . . . . . . . . . 30
6.3. CONDITIONS TO OBLIGATION OF FBOH TO EFFECT THE MERGER. . . . . . . . . . . . . . . . . . 30
7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.1. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.2. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES; EFFECT OF TERMINATION. . . . . . . . . . . 32
7.3. WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.4. AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.5. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.6. APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.7. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.8. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.9. COUNTERPARTS, EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.10. PARTIES IN INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.11. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.12. ENFORCEMENT OF THE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.13. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
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AGREEMENT OF AFFILIATION
AND PLAN OF MERGER
THIS AGREEMENT OF AFFILIATION AND PLAN OF MERGER, dated as
of August 10, 1994 (this "AGREEMENT"), is made by and between First
Bancorporation of Ohio, an Ohio corporation ("FBOH"), and The
CIVISTA Corporation, an Ohio corporation ("CIVISTA").
WHEREAS, the respective Boards of Directors of FBOH and
CIVISTA have each determined that it is in the best interests of
their respective stockholders for CIVISTA to merge with and into
FBOH upon the terms and subject to the conditions set forth herein;
WHEREAS, the respective Boards of Directors of FBOH and
CIVISTA have each approved the merger of CIVISTA with and into
FBOH, upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of FBOH intend to
contemporaneously with the merger of CIVISTA with and into FBOH,
to merge the wholly owned subsidiary of CIVISTA, Citizens Savings
Bank of Canton, an Ohio savings and loan association
("CITIZENS"), with and into a wholly owned subsidiary of FBOH,
with the surviving entity utilizing the name "Citizens," and to
retain as separate entities, The CASNET Group, Inc., Citizens
Investment Corporation, Citizens Savings Corporation and Crest
Investments, Inc. (collectively, the "NON-BANKING SUBSIDIARIES"),
WHEREAS, the Board of Directors of FBOH will appoint to the
FBOH Board of Directors at the Effective Time, an individual to be
recommended by CIVISTA (subject to the approval of the FBOH Board of
Directors);
WHEREAS, the Board of Directors of FBOH has requested
CIVISTA, as a condition and as an inducement for FBOH to enter
into this Agreement, and CIVISTA has agreed, to provide FBOH with
an option to purchase up to ten percent of the capital stock of
CIVISTA, but only if certain events occur, pursuant to the terms and
conditions of the CIVISTA Stock Purchase Option (as hereinafter
defined);
WHEREAS, for Federal income tax purposes, it is
intended that the merger shall qualify as a reorganization under
the provisions of Section 368 of the Internal Revenue Code of
1986, as amended (the "CODE"); and
WHEREAS, for accounting purposes, it is intended that the
merger shall be accounted for as a "pooling of interests;"
NOW, THEREFORE, in consideration of the foregoing premises
and the representations, warranties and agreements contained
herein, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1
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1. THE MERGER
1.1. MERGER.
1.1.1. MERGER. At the Effective Time (as
hereinafter defined), CIVISTA will be merged with and into FBOH
(the "MERGER") in accordance with the provisions of Section
1701.78 of the Ohio General Corporation Law ("OGCL"). FBOH shall
be the surviving corporation in the Merger and shall continue after
the Merger to be incorporated under the laws of the State of Ohio
(the "SURVIVING CORPORATION"). The Merger shall have the effects
specified in the OGCL. The name of the Surviving Corporation
shall be "First Bancorporation of Ohio."
1.1.2. EFFECTIVE TIME. As soon as practicable
following the Closing (as hereinafter defined), FBOH and CIVISTA
(the "CONSTITUENT CORPORATIONS") shall cause a certificate of
merger complying with the requirements of Section 1701.81 of the
OGCL (the "CERTIFICATE OF MERGER") to be filed with the Secretary
of State of the State of Ohio. The form of Certificate of Merger
is attached hereto as Exhibit 1.1.2, which has attached to it
the Amended and Restated Articles of Incorporation of the
Surviving Corporation. The Merger will become effective at the time
and date which the Certificate of Merger is filed with the Secretary
of State of the State of Ohio (the "EFFECTIVE TIME").
1.1.3. CONSUMMATION OF MERGER. The closing of
the Merger (the "CLOSING") will take place (i) at 10:00 a.m. (local
time) at the principal executive offices of FBOH as promptly as
practicable after the date on which all of the conditions set forth
in Article 6 are satisfied or duly waived, or (ii) at such other
time and place and on such other date as FBOH and CIVISTA may agree.
1.1.4. ARTICLES OF INCORPORATION AND REGULATIONS.
The Amended and Restated Articles of Incorporation and Code of
Regulations of FBOH, attached hereto as Exhibit 1.1.4, in effect
immediately prior to the Effective Time will be the Amended and
Restated Articles of Incorporation and Regulations of the Surviving
Corporation after the Effective Time, until duly amended in
accordance with their respective terms and the OGCL.
1.1.5. DIRECTORS AND OFFICERS. The directors and
officers of FBOH immediately prior to the Effective Time will be
the directors and officers, respectively, of the Surviving
Corporation, until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation
or removal in accordance with the terms of the Surviving
Corporation's Amended and Restated Articles of Incorporation and
Code of Regulations and the OGCL. As indicated in Section 5.14,
the Board of Directors of FBOH will appoint to the FBOH Board of
Directors at the Effective Time, an individual to be recommended
by CIVISTA, but subject to the approval of the FBOH Board of
Directors.
1.1.6. SERVICE OF PROCESS. B.&McD., Inc., whose
address is 106 S. Main Street, Akron, Summit County, Ohio 44308,
is the statutory agent upon whom any process, notice or demand
against FBOH, or the Surviving Corporation may be served.
2. CONVERSION OF SHARES
2.1. CONVERSION OF SHARES. At the Effective Time,
(a) each then-outstanding share of common stock, no
par value, of CIVISTA ("COMMON STOCK" or "SHARE") (other than
shares of Common Stock (i) held in the treasury of CIVISTA, or
(ii) owned by FBOH for its own account), will, by virtue of the
Merger, automatically be cancelled and extinguished in consideration
and exchanged for the right to receive 1.723 (subject to
adjustment pursuant to Section 2.1(d)) (the "EXCHANGE RATIO")
shares of common stock, no par value, of FBOH ("FBOH COMMON STOCK");
2
<PAGE> 6
(b) each Share issued and held in CIVISTA's
treasury will, by virtue of the Merger, automatically be
cancelled and retired and all rights in respect thereof will cease to
exist;
(c) each then-outstanding share of FBOH Common
Stock shall continue to be an issued and outstanding Common
Share, no par value, of the Surviving Corporation and any shares of
FBOH Common Stock held in FBOH's treasury immediately prior to the
Effective Time shall continue to be held in the treasury of the
Surviving Corporation at the Effective Time; and
(d) if between the date of this Agreement and the
Effective Time, the shares of FBOH Common Stock shall be changed
into a different number of shares by reason of any reclassification,
recapitalization, split-up, combination or exchange of shares, or if
a stock dividend or stock split thereon shall be declared with a
record date within said period, appropriate adjustment or
adjustments shall be made to the Exchange Ratio established by
Section 2.1(a) and the adjusted Exchange Ratio established by this
Section 2.1(d).
2.2. EXCHANGE OF CERTIFICATES.
2.2.1. EXCHANGE AGENT. First National Bank of
Ohio ("FNBO") shall act as agent of FBOH for purposes of, among
other things, mailing and receiving transmittal letters and
distributing certificates for FBOH Common Stock and cash in lieu
of fractional shares of FBOH Common Stock, to CIVISTA stockholders
(the "EXCHANGE AGENT"). Prior to the Effective Time, FBOH and the
Exchange Agent shall enter into an exchange agent agreement
providing for, among other things, the matters set forth in this
Section 2.2.
Except as set forth herein, from and after the Effective
Time, each holder of a certificate that immediately prior to the
Effective Time represented outstanding shares of Common Stock
("CERTIFICATE") shall be entitled to receive in exchange therefor,
upon surrender thereof to the Exchange Agent, a certificate for the
number of shares of FBOH Common Stock (together with cash in lieu
of a fractional share of FBOH Common Stock, if any) (the "COMMON
STOCK CONSIDERATION" or "MERGER CONSIDERATION") to which such holder
is entitled in accordance with the terms of this Agreement. The
Exchange Agent shall not be entitled to vote or to exercise any
rights of ownership with respect to the shares of FBOH Common Stock
held by it from time to time hereunder, except that it shall
receive and hold all dividends or other distributions paid or
distributed with respect to such shares for the account of the
persons entitled thereto. Within 180 days following the Effective
Time, the Exchange Agent shall deliver to FBOH any shares of FBOH
Common Stock and funds (including any interest with respect thereto)
which FBOH has made available to the Exchange Agent and which
have not been disbursed to holders of Certificates, and thereafter
such holders shall be entitled to look to the Surviving
Corporation (subject to abandoned property, escheat, or other
similar laws) with respect to the shares of FBOH Common Stock and
cash in lieu of fractional shares deliverable or payable upon due
surrender of their Certificates.
In the event that any holder of Common Stock cancelled and
retired in accordance with this Agreement is unable to deliver the
Certificate which represents such shares of the holder, FBOH, in
the absence of actual notice that any shares theretofore
represented by any such Certificate have been acquired by a bona
fide purchaser, shall deliver to such holder the number of shares
of Common Stock to which such holder is entitled in accordance
with the provisions of this Agreement upon the presentation of
the following: (i) evidence to the reasonable satisfaction of FBOH
that any such Certificate has been lost, wrongfully taken or
destroyed; (ii) such security or indemnity as may be reasonably
requested by FBOH to indemnify and hold FBOH and the transfer agent
harmless; or (iii) evidence satisfactory to FBOH that such person is
the owner of the shares theretofore represented by each Certificate
claimed by him to be lost, wrongfully taken or destroyed and that
he is the person who would be entitled to present each such
Certificate for exchange pursuant to this Agreement.
3
<PAGE> 7
2.2.2. NOTICE OF EXCHANGE. Promptly after
the Effective Time, FBOH shall cause the Exchange Agent to mail
and/or make available to each record holder of a Certificate a
notice and letter of transmittal advising such holder of the
effectiveness of the Merger and the procedures to be used in
effecting the surrender of the Certificate for exchange therefor
and specifying that delivery shall be effected, and risk of loss
and title to the Certificate shall pass, only upon proper
delivery of the Certificate to the Exchange Agent, and such other
matters as FBOH shall reasonably specify. Upon surrender to the
Exchange Agent of a Certificate, together with such letter of
transmittal duly executed and completed in accordance with the
instructions thereon, and such other documents as may reasonably be
requested by FBOH or the Exchange Agent, and subject to any
required withholding of taxes, the Exchange Agent shall promptly
deliver to the person entitled thereto the appropriate Merger
Consideration, and the surrendered Certificate shall, by virtue of
such delivery, automatically be cancelled.
2.2.3. RIGHT TO MERGER CONSIDERATION. Until
surrendered and exchanged in accordance with this Section 2.2, each
Certificate shall, from and after the Effective Time, represent
solely the right to receive the Common Stock Consideration, as
the case may be, together with any dividends or other
distributions as provided in Section 2.2.4, and shall have no other
rights. Neither CIVISTA nor FBOH shall be liable to any holder of
shares of Common Stock for any Merger Consideration (or dividends,
distributions or interest with respect thereto) delivered to a
public official pursuant to any applicable abandoned property,
escheat or similar law.
2.2.4. DISTRIBUTION WITH RESPECT TO UNEXCHANGED
CERTIFICATES. No dividends (cash or stock) or other distributions
with respect to FBOH Common Stock declared or paid by FBOH after
the Effective Time with a record date after the Effective Time
shall be paid to the holder of any unsurrendered Certificate
until the holder of such Certificate surrenders such Certificate.
Subject to the effect of applicable laws, following surrender of
any such Certificate, there shall be paid to the holder of
the certificates representing shares of FBOH Common Stock, as the
case may be, issued in exchange therefor, without interest, (i) the
amount of dividends or other distributions, if any, with a record
date after the Effective Time theretofore payable with respect to
such shares of FBOH Common Stock, as the case may be, and (ii) at
the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but
prior to surrender and a payment date subsequent to surrender
payable with respect to such shares of FBOH Common Stock, as the
case may be. The Surviving Corporation shall pay any dividends or
make any other distributions with a record date prior to the
Effective Time which may have been declared or made by CIVISTA (in
accordance with its historical practices and record dates) on
Shares in accordance with the terms of this Agreement on or prior to
the Effective Time and which remain unpaid at the Effective Time.
2.2.5. VOTING WITH RESPECT TO UNEXCHANGED
CERTIFICATES. Holders of unsurrendered Certificates shall be
entitled to vote after the Effective Time at any meeting of
FBOH stockholders the number of whole shares of FBOH Common Stock
represented by such Certificates, regardless of whether such
holders have exchanged their Certificates, provided that no holder
of unsurrendered Certificates may vote at any meeting of FBOH
stockholders that is held more than 30 days after the mailing of the
notice and letter of transmittal provided for under Section 2.2.2.
2.2.6. FRACTIONAL SHARES. No certificates
representing fractional shares of FBOH Common Stock shall be
issued upon the surrender for exchange of a Certificate or
Certificates. No dividends or distributions of FBOH shall be
payable on or with respect to any fractional share and any such
fractional share interest will not entitle the owner thereof to
vote or to any rights of stockholders of FBOH. In lieu of any such
fractional share, a holder of shares of Common Stock otherwise
entitled to a fractional share of FBOH Common Stock shall be
entitled to receive promptly from the Exchange Agent a cash
payment (without interest) in an amount equal to the fraction of
such share of FBOH Common Stock to which such holder would
otherwise be entitled multiplied by the average of the high and
low sales prices of FBOH Common Stock as reported on the NASDAQ
National Market System on the trading day immediately preceding the
Effective Time.
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2.3. DISSENTERS' RIGHTS. To the extent provided by the
OGCL, any holder of record of the Common Stock as of the date fixed
for the determination of stockholders of CIVISTA entitled to notice
of the CIVISTA Meeting (as hereinafter defined), and who shall have
filed with CIVISTA, not later than ten (10) days after such
meeting, a written demand for payment of the fair cash value of
such shares in compliance with Section 1701.85 of the OGCL, and
whose shares shall not have been voted in favor of the Merger or
adoption of this Agreement, shall cease at the Effective Time to
have any of the rights of a stockholder in respect of such shares
and shall only have the right to be paid the fair cash value of such
shares under Sections 1701.84 and 1701.85 of the OGCL. Any former
holder of Common Stock who after the Effective Time (i)
surrenders his certificates representing shares of Common Stock for
exchange pursuant to Section 2.3 hereof, or (ii) validly withdraws
his written demand for payment of fair cash value of such shares
pursuant to Sections 1701.84 and 1702.85 of the OGCL, will thereupon
be entitled to receive the Merger Consideration as of the Effective
Time pursuant to this Agreement.
To the extent provided by the OGCL, any holder of record
of FBOH Common Stock as of the date fixed for the determination of
stockholders of FBOH entitled to notice of the FBOH Meeting (as
hereinafter defined) shall be entitled to relief as a dissenting
shareholder in accordance, and subject to compliance with, the
OGCL.
2.4. CLOSING OF CIVISTA'S TRANSFER BOOKS. At the
close of business on the business day immediately preceding the
date of the Effective Time, the stock transfer books of CIVISTA
will be closed and no transfer of Shares will thereafter be made.
In the event of a transfer of ownership of CIVISTA Common Stock
which is not registered in the transfer records of CIVISTA, the
Merger Consideration to be distributed pursuant to this Agreement
may be delivered to a transferee if a Certificate is presented to
the Exchange Agent accompanied by all documents required to
evidence and effect such transfer and by payment of any
applicable transfer taxes.
2.5. EMPLOYEE STOCK OPTIONS AND ASSUMPTION. CIVISTA
Disclosure Letter (as hereinafter defined) sets forth a list of each
employee stock option outstanding on the date of this Agreement
(collectively, the "COMPANY STOCK OPTIONS"), pursuant to The
CIVISTA Corporation Stock Option Plan and the 1993 CIVISTA
Corporation Stock Option Plan (collectively, the "COMPANY OPTION
PLANS"), to purchase Common Stock heretofore granted pursuant to the
Company Option Plans. CIVISTA Disclosure Letter also sets forth
with respect to each Company Stock Option the option exercise
price, the number of shares subject to the option, the dates of
grant, vesting, exercisability and expiration of the option and
that the option is either a qualified or nonqualified stock
option. Without the written consent of FBOH, no additional stock
options shall, after the date of this Agreement, be granted under
the Company Option Plans. All rights under Company Stock Options
shall be treated as provided in this Section.
Each Company Stock Option outstanding immediately prior to
the Effective Time shall be assumed at the Effective Time by the
Surviving Corporation and continue to be an issued and
outstanding option of the Surviving Corporation in accordance with
the terms of the respective Company Option Plans, except that: (a)
the Surviving Corporation and its Compensation Committee shall
be substituted for the Company and the Committee of the Company's
Board of Directors administering such Company Option Plans, (b) from
and after the Effective Time, each such Company Stock Option may
be exercised only for FBOH Common Stock notwithstanding any
contrary provision of the Company Option Plans or stock option
agreements executed in connection therewith, (c) each such
Company Stock Option shall at the Effective Time become an option
to purchase a number of shares of FBOH Common Stock equal to the
product arrived at by multiplying the Exchange Ratio by the number
of shares of Common Stock subject to such option immediately prior
to the Effective Time, and (d) the exercise price per share of
FBOH Common Stock at which each such Company Stock Option is
exercisable shall be the amount (rounded up to the next whole cent)
arrived at by dividing the exercise price per share of Common Stock
at which such Company Stock Option is exercisable immediately prior
to the Effective Time by the Exchange Ratio; PROVIDED, HOWEVER,
that, notwithstanding the foregoing, the Surviving Corporation shall
not issue or pay for any fractional share otherwise issuable upon
any exercise of a Company Stock Option, as assumed and adjusted as
aforesaid.
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In addition, notwithstanding clauses (c) and (d) of the
immediately preceding sentence, each Company Stock Option which is
an incentive stock option shall be adjusted as required by Section
424 of the Code, and the regulations promulgated thereunder, so as
not to constitute a modification, extension or renewal of the
option, within the meaning of Section 424 of the Code. The Board
of Directors of the Surviving Corporation shall take such action as
may be required under the Company Option Plans to effectuate the
foregoing. Prior to the Closing, FBOH shall reserve for issuance
(and, if not previously registered pursuant to the Securities Act,
register) the number of shares of FBOH Common Stock necessary to
satisfy FBOH's obligations under this Section. Prior to the
Closing, and thereafter as may be appropriate, FBOH shall take
such actions as are necessary to effect the provisions of this
Section, and to preserve for the holders of Company Stock Options
the benefits to be provided pursuant to this Section.
3. REPRESENTATIONS AND WARRANTIES OF FBOH
FBOH hereby represents and warrants to CIVISTA that:
3.1. CORPORATE ORGANIZATION. FBOH is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Ohio and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which its ownership or lease of property or the nature of the
business conducted by it makes such qualification necessary,
except for such jurisdictions in which the failure to be so
qualified would not have a Material Adverse Effect (as hereinafter
defined) on FBOH. FBOH is registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHCA").
FBOH has the requisite corporate power and authority to own, lease
and operate its properties and assets and to carry on its business as
it is now being conducted.
3.2. AUTHORITY. FBOH has the requisite corporate power
and authority to execute and deliver this Agreement and, except
for any required approval of FBOH's stockholders and the approval
of the applicable Regulatory Authorities (as defined hereinafter),
to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized and
approved by the Board of Directors of FBOH, including provisions for
the resolution of certain issues by management, and no other
corporate proceedings on the part of FBOH are necessary to
authorize this Agreement or to consummate the transactions so
contemplated, except for any required approval of FBOH's
stockholders. This Agreement has been duly executed and delivered
by, and constitutes a valid and binding obligation of, FBOH,
enforceable against FBOH in accordance with its terms, except as
enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of
the court before which any proceedings may be brought.
3.3. CAPITALIZATION. The authorized capital stock of
FBOH consists of 40,000,000 shares of FBOH Common Stock and
3,500,000 shares of preferred stock. As of July 31, 1994, (i)
27,151,891 shares of FBOH Common Stock (including treasury shares)
were validly issued and outstanding, fully paid and nonassessable
and not issued in violation of any preemptive right of any
stockholder of FBOH, and (ii) no shares of preferred stock were
issued and outstanding. Since July 31, 1994 and through the date
of this Agreement, FBOH has not issued any additional shares of
FBOH Common Stock or preferred stock other than pursuant to the
exercise of employee stock purchase rights or stock options under
FBOH Option Plans (as hereinafter defined) outstanding on July 31,
1994. Except as contemplated by this Agreement, the FBOH Rights
Plan (as hereinafter defined) or in the FBOH Disclosure Letter
(which is a letter attached hereto as Exhibit 3.3, dated the date
of this Agreement, from FBOH to CIVISTA, such letter being
identified by CIVISTA executing a copy thereof), as of the date
of this Agreement, there are no shares of capital stock of FBOH
authorized, issued or outstanding and there are no outstanding
subscriptions, options, warrants, scrip, rights, calls, convertible
securities or any other similar agreements, arrangements or
commitments of any character relating to the issued or unissued
capital stock or other securities of FBOH obligating,
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<PAGE> 10
or which may obligate, FBOH to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of capital stock of
FBOH or obligating, or which may obligate, FBOH to grant, extend or
enter into any subscription, option, warrant, scrip, right,
call, convertible security or other similar agreement,
arrangement or commitment. Except as set forth in the FBOH
Disclosure Letter, there are no voting trusts or other similar
agreements, arrangements or commitments to which FBOH or any FBOH
Subsidiary (as hereinafter defined) is a party with respect to
the voting of the capital stock of FBOH. All of the shares of
FBOH Common Stock issuable in exchange for the Common Stock at
the Effective Time in accordance with this Agreement will be,
when so issued, duly authorized, validly issued, fully paid and
nonassessable and will not be subject to preemptive rights. FBOH
has reserved for issuance the number of shares of FBOH Common
Stock necessary to satisfy FBOH's obligations under Section 2.1.
3.4. SUBSIDIARIES. The FBOH Disclosure Letter sets
forth, as of the date of this Agreement, the name and state of
incorporation of each banking, savings bank and each other
significant subsidiary (as hereinafter defined) of FBOH
(collectively, the "FBOH SUBSIDIARIES"). Except as set forth
in the FBOH Disclosure Letter, each of the FBOH Subsidiaries is a
bank, savings bank or a corporation duly organized, validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization and is duly
qualified to do business as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
nature of the business conducted by it makes such qualification
necessary, except for such jurisdictions in which the failure to
be so qualified would not have a Material Adverse Effect on FBOH.
Each of the FBOH Subsidiaries has the requisite corporate power
and authority to own, lease and operate its properties and
assets and to carry on its businesses as they are now being
conducted.
Except as set forth in the FBOH Disclosure Letter, as of
the date of this Agreement, all outstanding shares of capital stock
of each FBOH Subsidiary are owned by FBOH or another FBOH Subsidiary
and are validly issued, fully paid and nonassessable, have not been
issued in violation of any preemptive right and are owned free and
clear of all liens, claims, charges, options, encumbrances or
agreements with respect thereto. Except as set forth in the FBOH
Disclosure Letter, as of the date of this Agreement, neither FBOH
nor any FBOH Subsidiary owns beneficially more than 5% of any class
of equity securities or any similar interests of any corporation,
bank, business, trust, association or similar organization. There
are, as of the date of this Agreement, no outstanding
subscriptions, options, warrants, scrip, rights, calls, convertible
securities or any other similar agreements, arrangements or
commitments of any character relating to the issued or unissued
capital stock or other securities of any FBOH Subsidiary obligating,
or which may obligate, any FBOH Subsidiary to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares
of its capital stock or obligating, or which may obligate, any FBOH
Subsidiary to grant, extend or enter into any subscription,
option, warrant, scrip, right, call, convertible security or
other similar agreement, arrangement or commitment.
3.5. INFORMATION IN DISCLOSURE DOCUMENTS, REGISTRATION
STATEMENT, ETC.
(a) None of the information with respect to FBOH or
any FBOH Subsidiary provided by FBOH for inclusion in the
registration statement to be filed with the Securities and
Exchange Commission (the "COMMISSION") by FBOH on Form S-4 (or
any other appropriate form) under the Securities Act of 1933,
as amended (the "SECURITIES ACT") for the purpose of registering the
shares of FBOH Common Stock to be issued in the Merger (the
"REGISTRATION STATEMENT") will, at the time it becomes effective and
at the time of the FBOH Meeting and the CIVISTA Meeting (both as
hereinafter defined), contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not
misleading. None of the information with respect to FBOH or any
FBOH Subsidiary provided by FBOH for inclusion in any joint proxy
statement or information statement or notice of FBOH and CIVISTA,
or any amendments or supplements thereto, required to be mailed to
FBOH's and CIVISTA's stockholders in connection with the Merger
(the "PROXY" or "PROXY STATEMENT") will, at the time of the
mailing of the Proxy Statement, and at the time of the FBOH
Meeting and the CIVISTA Meeting, contain any statement which, at
the time it is made and in light of the circumstances under which
it is made, is false or misleading with respect to any material fact,
or which omits to state any material fact necessary in order to
make the statements therein not false
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<PAGE> 11
or misleading or necessary to correct any statement in any
earlier communication with respect to the solicitation of any
proxy for the FBOH Meeting and the CIVISTA Meeting which has become
false or misleading. The Registration Statement will comply as
to form in all material respects with the provisions of the
Securities Act and the rules and regulations promulgated thereunder.
The Proxy Statement will comply as to form in all material respects
with the provisions of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and the rules and regulations
promulgated thereunder.
(b) All documents that FBOH is responsible for filing
with any Governmental Entity will comply as to form in all material
respects with applicable law. None of the information with respect
to FBOH or any FBOH Subsidiary provided by FBOH for inclusion in any
document to be filed with any regulatory authority in connection
with the transactions contemplated hereby will contain any
statement of a material fact which is untrue as of the time that
such statement is made.
3.6. CONSENTS AND APPROVALS; NO VIOLATION. Except as
set forth in the FBOH Disclosure Letter, neither the execution
and delivery of this Agreement by FBOH, nor the consummation
by FBOH of the transactions contemplated hereby, nor compliance
by FBOH with any of the provisions hereof will (a) conflict with or
result in any breach of any provision of its Amended and Restated
Articles of Incorporation or Code of Regulations, (b) violate,
conflict with, constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration of,
or result in the creation of any lien, security interest, charge or
other encumbrance upon any of the properties or assets of FBOH or
any of the FBOH Subsidiaries under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation
to which FBOH or any FBOH Subsidiary is a party or to which they or
any of their respective properties or assets may be subject, except
for such violations, conflicts, breaches, defaults, terminations,
accelerations or creations of liens or other encumbrances, which,
individually or in the aggregate, will not have a Material Adverse
Effect on FBOH, (c) violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to
FBOH or any FBOH Subsidiary or any of their respective properties
or assets, except for such violations which, individually or in the
aggregate, will not have a Material Adverse Effect on FBOH, or (d)
require any consent, approval, authorization or permit of or from,
or filing with or notification to, any court, governmental
authority or other regulatory or administrative agency or
commission, domestic or foreign ("GOVERNMENTAL ENTITY"), except (i)
pursuant to the Exchange Act and the Securities Act, (ii) filing
the certificate of merger pursuant to the OGCL, (iii) filings
required under the securities or blue sky laws of the various
states, (iv) filings with, and approval by, the Board of Governors
of the Federal Reserve System (the "FRB"), (v) filings with, and
approval by, the Office of the Comptroller of the Currency (the
"OCC"), (vi) filings with, and approval by, the Office of Thrift
Supervision ("OTS"), (vii) filings with, and approval by, the
Ohio Division of Savings and Loan Associations ("DIVISION"),
(viii) filings and approvals pursuant to any applicable state
takeover laws ("STATE TAKEOVER APPROVALS"), (ix) consents,
approvals, authorizations, permits, filings or notifications in
connection with compliance with applicable provisions of federal
and state securities laws relating to the regulation of
broker-dealers, investment advisors, or stock transfer agents, or
(x) consents, approvals, authorizations, permits, filings or
notifications which have either been obtained or made prior to
the Closing or which, if not obtained or made, will neither,
individually or in the aggregate, have a Material Adverse Effect on
FBOH nor restrict FBOH's legal authority to execute and deliver this
Agreement and consummate the transactions contemplated hereby.
3.7. REPORTS AND FINANCIAL STATEMENTS. Since January
1, 1991, FBOH has filed all reports, registrations and
statements, together with any required amendments thereto, that it
was required to file with the Commission, including, but not
limited to Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements
(collectively, the "FBOH REPORTS"). FBOH has previously made
available or furnished, or, with respect to the FBOH Reports filed
after the date of this Agreement, will promptly furnish, CIVISTA
with true and complete copies of each of the FBOH Reports. As of
their respective dates (but taking into account any amendments
filed prior to the date of this Agreement), the FBOH Reports
complied, or, with respect to FBOH Reports filed after the date of
this Agreement, will comply, in all material respects with all the
rules and regulations promulgated by the Commission and did not
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<PAGE> 12
contain, or, with respect to FBOH Reports filed after the date of
this Agreement, 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, in
light of the circumstances under which they were made, not
misleading. The audited consolidated financial statements and
unaudited interim financial statements of FBOH included in the
FBOH Reports (the "FBOH FINANCIAL STATEMENTS") have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and fairly present the
consolidated financial position of FBOH and the FBOH
Subsidiaries as at the dates thereof and the consolidated
results of operations and cash flows for the periods then ended
subject, in the case of the unaudited interim financial statements,
to normal year-end and audit adjustments and any other adjustments
described therein.
3.8. TAXES. Except as set forth in the FBOH
Disclosure Letter, FBOH and each FBOH Subsidiary have prepared in
good faith and duly and timely filed, all federal, state,
local and foreign income, franchise, sales, real and personal
property and other tax returns and reports required to be filed by
them on or before the date of this Agreement, except where the
failure to file would not have a Material Adverse Effect on FBOH.
Except as set forth in the FBOH Disclosure Letter, FBOH and each
FBOH Subsidiary have paid, or have adequately reserved or have made
adequate accruals (in accordance with generally accepted accounting
principles) with respect to, all taxes, interest and penalties
shown to be owing on all such returns or reports. There are no
liens for federal, state, local or foreign taxes upon the assets
of FBOH or of any FBOH Subsidiary, except for statutory liens for
taxes and assessments not yet delinquent or the validity of which
is being contested in good faith by appropriate proceedings. As of
the date of this Agreement, except as set forth in the FBOH
Disclosure Letter, neither FBOH nor any of the FBOH Subsidiaries is
a party to any action or proceeding, nor is any such action or
proceeding threatened, by any Governmental Entity for the
assessment or collection of taxes which are material in amount,
and no deficiency notices or reports have been received by FBOH
or any of the FBOH Subsidiaries in respect of any material
deficiencies for any tax, assessment or government charges.
3.9. EMPLOYEE PLANS. All employee bonus, deferred
compensation, pension, retirement, profit sharing, stock option,
stock purchase, employee stock ownership, stock appreciation
rights, savings, consulting, severance, collective bargaining,
group insurance, fringe benefit and other employee benefit,
incentive and welfare plans, policies, contracts and arrangements
and all trust agreements related thereto, now in effect and
relating to any present or former directors, officers or
employees of FBOH or FBOH subsidiaries, whether or not described in
Section 3(3) of Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), are identified in the FBOH Disclosure Letter
("FBOH EMPLOYEE PLANS"). All of the FBOH employee plans have
been maintained, operated and administered in substantial
compliance with their terms, and FBOH, all of the FBOH Subsidiaries
and all of the FBOH Employee Plans currently comply, and have at
all relevant times complied, in all material respects with ERISA,
the Code, and any other applicable laws. FBOH has previously
delivered or made available to CIVISTA copies of all FBOH Employee
Plans, in each case as in effect on the date of this Agreement.
3.10. MATERIAL CONTRACTS. Except as set forth in the
FBOH Disclosure Letter or disclosed in the FBOH Reports, neither
FBOH nor any FBOH Subsidiary is, as of the date of this Agreement,
a party to, or is bound by, (a) any material lease not made in
the ordinary course of business of FBOH, (b) any agreement,
arrangement, or commitment not made in the ordinary course of
business which materially restricts the conduct of any line of
business of FBOH, (c) any material agreement, indenture or other
instrument not specifically disclosed in the FBOH Financial
Statements relating to the borrowing of money by FBOH or the
guarantee by FBOH of any such obligation (other than trade payables
and instruments relating to transactions entered into in the
ordinary course of business), (d) any agreement, arrangement or
commitment with or to a labor union, or (e) any other contract or
agreement or amendment thereto that would be required to be filed
as an exhibit to a Form 10-K filed by FBOH with the Commission as
of the date of this Agreement (the "FBOH CONTRACTS"). Neither FBOH
nor any FBOH Subsidiary is in default under any FBOH Contract,
which default is reasonably likely to have, either individually or
in the aggregate, a Material Adverse Effect on FBOH, and there has
not occurred any event that with the lapse of time or the giving
of notice or both would constitute such a default.
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3.11. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
set forth in the FBOH Disclosure Letter or disclosed in FBOH
Reports filed by FBOH with the Commission prior to the date of
this Agreement, since December 31, 1993 to the date of this
Agreement, there has not been any change in the financial
condition, results of operations or business of FBOH and the
FBOH Subsidiaries that either individually or in the aggregate
has had a Material Adverse Effect on FBOH.
3.12. LITIGATION. Except as disclosed in the FBOH
Disclosure Letter or in FBOH Reports filed by FBOH with the
Commission prior to the date of this Agreement, there is no
litigation, action, arbitration or proceeding pending, or, to the
best knowledge of FBOH, threatened against or affecting FBOH or
any FBOH Subsidiary which, either individually or in the
aggregate, is having, or insofar as reasonably can be foreseen,
will have, a Material Adverse Effect on FBOH, nor is there any
judgment, decree, injunction, rule or order of any Governmental
Entity or arbitrator, outstanding against FBOH or any FBOH
Subsidiary having, or which, insofar as reasonably can be foreseen,
in the future would have, any such effect.
3.13. COMPLIANCE WITH LAWS AND ORDERS. Except as
disclosed in the FBOH Disclosure Letter or in FBOH Reports filed by
FBOH with the Commission prior to the date of this Agreement, the
businesses of FBOH and the FBOH Subsidiaries are not being
conducted, and have not been conducted since December 31, 1991, in
violation of any law, ordinance, regulation, judgment, order,
decree, license or permit of any Governmental Entity, except for
possible violations which individually or in the aggregate do
not, and, insofar as reasonably can be foreseen, in the future
will not, have a Material Adverse Effect on FBOH. Except as set
forth in the FBOH Disclosure Letter, no investigation or review
by any Governmental Entity with respect to FBOH or any of the FBOH
Subsidiaries outside the ordinary course of business and not
generally applicable to entities engaged in the same business is
pending or, to the knowledge of FBOH, threatened, and no
Governmental Entity has indicated an intention to conduct the same
in each case other than those the outcome of which will not have a
Material Adverse Effect on FBOH.
3.14. AGREEMENTS WITH BANK REGULATORS. As of the date
of this Agreement, except as set forth in the FBOH Disclosure
Letter, neither FBOH nor any FBOH Subsidiary is a party to any
written agreement or memorandum of understanding with, or a party
to any commitment letter or similar undertaking to, or is
subject to any order or directive by, or is a recipient of any
extraordinary supervisory letter from, any Governmental Entity
outside the ordinary course of business and not generally
applicable to entities engaged in the same business, including,
without limitation, cease and desist or other orders of any bank
regulatory authority, which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its
credit policies or its management, nor has FBOH been advised by any
Governmental Entity that it is contemplating issuing, requiring or
requesting (or is considering the appropriateness of issuing,
requiring or requesting) any such order, directive, agreement,
memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar undertaking. Except as set forth in
the FBOH Disclosure Letter, there are no (i) material violations or
(ii) violations with respect to which refunds or restitutions which
are material in amount to FBOH and the FBOH Subsidiaries taken as a
whole may be required, cited in any compliance report to FBOH or
any FBOH Subsidiary as a result of an examination by any bank
regulatory authority.
3.15. FBOH OWNERSHIP OF STOCK. Except as disclosed in
the FBOH Disclosure Letter, and except pursuant to The CIVISTA
Corporation Stock Purchase Option dated August 10, 1994 (the
"CIVISTA STOCK PURCHASE OPTION"), a copy of which is attached hereto
as Exhibit 3.15, neither FBOH nor, to the best of its knowledge,
any of its affiliates or associates (i) beneficially owns, directly
or indirectly, or (ii) are parties to any agreement, arrangement or
commitment for the purpose of acquiring, holding, voting or
disposing of, in each case, Shares (other than Shares held in a
fiduciary, trust, custodial or agency capacity by a bank or trust
subsidiary of FBOH) which in the aggregate, represent 1% or more of
the outstanding Shares.
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<PAGE> 14
3.16. ACCOUNTING MATTERS. Neither FBOH nor, to the best
of its knowledge, any of its affiliates, has taken or agreed to
take any action that would prevent FBOH from accounting for the
business combination to be effected by the Merger as a
"pooling of interests." FBOH has received from its
independent accountants, Coopers & Lybrand, a letter stating that
based upon Coopers & Lybrand's review of FBOH's letter proposal to
CIVISTA dated August 1, 1994 (including the form of this Agreement
dated August 1, 1994 which was incorporated therein), the form of
this Agreement dated August 7, 1994, a review of CIVISTA's
financial statements, both audited and unaudited, and such other
relevant documents and information which Coopers & Lybrand deemed
relevant, that such firm is currently unaware of any reason why
it would not be able to provide the letter to FBOH required under
Section 6.3(g).
3.17. FEES. Except for the fees paid and payable to
Alex. Brown & Sons Incorporated, neither FBOH nor any FBOH
Subsidiary has paid or become obligated to pay any fee or
commission to any broker, finder or intermediary in connection with
the transactions contemplated by this Agreement.
3.18. FBOH ACTION. The Board of Directors of FBOH (at a
meeting duly called and held) has by the requisite vote (i)
determined that the Merger is advisable and in the best
interests of FBOH and its stockholders, (ii) authorized and
approved this Agreement, and the transactions contemplated
hereby and thereby, including the Merger (iii) directed that the
Merger be submitted for consideration by FBOH's stockholders at
the FBOH Meeting, and (iv) authorized and approved the Merger in
accordance with Chapter 1704 of the Ohio Revised Code with the
result that Chapter 1704 will not apply to the consummation of the
Merger and acquisition of shares of FBOH Common Stock by the holders
of Common Stock pursuant to this Agreement.
3.19. VOTE REQUIRED. The affirmative vote of the holders
of two-thirds of the outstanding shares of FBOH Common Stock is
necessary to approve this Agreement and the transactions contemplated
hereby.
3.20. RIGHTS AGREEMENT. No person will become an
"Acquiring Person" and no "Shares Acquisition Date" or
"Distribution Date" will occur under the Shareholder Rights
Agreement, dated October 21, 1993, between FBOH and FNBO, as
rights agent (the "FBOH RIGHTS PLAN"), and no holder of rights
issued under the FBOH Rights Plan shall have any rights under
Sections 7(a), 11(a)(ii) or 13(a) of the FBOH Rights Plan as a
result of the approval, execution or delivery of this Agreement
or the consummation of the Merger. No amendments have been made
prior to the date of this Agreement to the FBOH Rights Plan except
as specifically referred to in this Section 3.20.
3.21. ENVIRONMENTAL MATTERS. Except as set forth in the
FBOH Disclosure Letter, to the best of FBOH's knowledge: (i)
neither FBOH nor any of the FBOH subsidiaries has been or is in
violation of or liable under any Environmental Law (as hereinafter
defined), except for any such violations or liabilities which
would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on FBOH; and (ii)
none of the Loan Portfolio Properties and Other Properties Owned
(as hereinafter defined) by FBOH or any of the FBOH subsidiaries has
been since such properties have been owned, operated or managed by
FBOH or any of the FBOH subsidiaries, or is in violation of or
liable under any Environmental Law, except for any such violations
or liabilities which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on FBOH.
Except as set forth in the FBOH Disclosure Letter, there are no
actions, suits, demands, notices, claims, investigations or
proceedings pending, or to the best of FBOH's knowledge
threatened, relating to the liability of the Loan Portfolio
Properties and Other Properties Owned by FBOH or the FBOH
subsidiaries under any Environmental Law, including, without
limitation, any notices, demand letters or requests for information
from any federal, state or local environmental agency relating to
any such liabilities under or violations of Environmental Law.
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<PAGE> 15
4. REPRESENTATIONS AND WARRANTIES OF CIVISTA
CIVISTA hereby represents and warrants to FBOH that:
4.1. CORPORATE ORGANIZATION. CIVISTA is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Ohio and is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction in which its ownership or lease of property or the
nature of the business conducted by it makes such qualification
necessary, except for such jurisdictions in which the failure to
be so qualified would not have a Material Adverse Effect on
CIVISTA. CIVISTA is registered as a unitary savings and loan
holding company with OTS (as defined herein). CIVISTA has the
requisite corporate power and authority to own, lease and operate
its properties and assets and to carry on its business as it is
now being conducted. CIVISTA has delivered to FBOH as
attachments to the CIVISTA Disclosure Letter true and complete
copies of its Articles of Incorporation, as amended, and its
Code of Regulations, as amended (the "CORPORATE GOVERNANCE
DOCUMENTS") as currently in effect.
4.2. AUTHORITY. CIVISTA has the requisite corporate
power and authority to execute and deliver this Agreement and,
except for any required approval of CIVISTA's stockholders and
the approval of the applicable Regulatory Authorities, to
consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized and
approved by the Board of Directors of CIVISTA and no other
corporate proceedings on the part of CIVISTA are necessary to
authorize this Agreement or to consummate the transactions so
contemplated, except for approval by the stockholders of CIVISTA as
provided in Section 6.1(a). This Agreement has been duly
executed and delivered by, and constitutes a valid and binding
obligation of, CIVISTA, enforceable against CIVISTA in accordance
with its terms, except as enforceability hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors'
rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceedings may be
brought, and except as enforceability hereof may be limited by
laws relating to the safety and soundness of insured depository
institutions as set forth in 12 U.S.C. Section 1818(b) or to the
appointment of a conservator or receiver by the Federal Deposit
Insurance Corporation.
4.3. CAPITALIZATION. The authorized capital stock of
CIVISTA consists of 5,000,000 shares of Common Stock and 5,000,000
shares of serial preferred stock. As of the date of this Agreement,
(i) 3,506,552 shares of Common Stock (including 8,248 treasury
shares) were validly issued and outstanding, fully paid and
nonassessable and not issued in violation of any preemptive right
of any Company stockholder, and (ii) no shares of serial preferred
stock were issued and outstanding. As of the date of this
Agreement, there were outstanding Company Stock Options to
purchase 281,800 shares of Common Stock, all of which are
currently exercisable. Except as contemplated by this Agreement,
the CIVISTA Stock Purchase Option or in CIVISTA Disclosure Letter
(which is a letter attached hereto as Exhibit 4.3, dated the date
of this Agreement, from CIVISTA to FBOH, such letter being
identified by FBOH executing a copy thereof), there are no shares
of capital stock of CIVISTA authorized, issued or outstanding
and there are no outstanding subscriptions, options, warrants,
scrip, rights, calls, convertible securities or any other similar
agreements, arrangements or commitments of any character relating
to the issued or unissued capital stock or other securities of
CIVISTA obligating, or which may obligate, CIVISTA to issue,
deliver or sell, or cause to be issued, delivered or sold,
additional shares of capital stock of CIVISTA or obligating, or
which may obligate, CIVISTA to grant, extend or enter into any
subscription, option, warrant, scrip, right, call, convertible
security or other similar agreement, arrangement or commitment.
Except as set forth in CIVISTA Disclosure Letter, there are no
voting trusts or other similar agreements, arrangements, or
commitments to which CIVISTA or any Company Subsidiary (as
hereinafter defined) is a party with respect to the voting of the
capital stock of CIVISTA.
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<PAGE> 16
4.4. SUBSIDIARIES. CIVISTA Disclosure Letter sets
forth, as of the date of this Agreement, the name and state of
incorporation of each subsidiary of CIVISTA (collectively, the
"COMPANY SUBSIDIARIES") and the authorized capital stock of each
Company Subsidiary. Except as set forth in CIVISTA Disclosure
Letter, each of the Company Subsidiaries is a savings association
or a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of
incorporation or organization and is duly qualified to do business
as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the nature of the business
conducted by it makes such qualification necessary, except for such
jurisdictions in which the failure to be so qualified would not
have a Material Adverse Effect on CIVISTA. Each of the Company
Subsidiaries has the requisite corporate power and authority to
own, lease and operate its properties and assets and to carry on
its businesses as they are now being conducted. CIVISTA has
delivered to FBOH as attachments to the CIVISTA Disclosure Letter
true and complete copies of the Company Subsidiaries' articles of
incorporation and code of regulations, both as currently in effect.
Except as set forth in CIVISTA Disclosure Letter, as of
the date of this Agreement, all outstanding shares of capital stock
of each Company Subsidiary are owned by CIVISTA or another Company
Subsidiary and are validly issued, fully paid and nonassessable,
have not been issued in violation of any preemptive right and are
owned free and clear of all liens, claims, charges, options,
encumbrances or agreements with respect thereto. Except as set
forth in CIVISTA Disclosure Letter, as of the date of this
Agreement, neither CIVISTA nor any Company Subsidiary owns
beneficially more than 5% of any class of equity securities or
any similar interests of any corporation, bank, business, trust,
association or similar organization. There are, as of the date
of this Agreement, no outstanding subscriptions, options,
warrants, scrip, rights, calls, convertible securities or any
other similar agreements, arrangements or commitments of any
character relating to the issued or unissued capital stock or
other securities of any Company Subsidiary obligating, or which may
obligate, any Company Subsidiary to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of its
capital stock or obligating, or which may obligate, any Company
Subsidiary to grant, extend or enter into any subscription,
option, warrant, scrip, right, call, convertible security or other
similar agreement, arrangement or commitment.
4.5. INFORMATION IN DISCLOSURE DOCUMENTS, REGISTRATION
STATEMENT, ETC.
(a) None of the information with respect to CIVISTA
or any Company Subsidiary provided in writing by CIVISTA for
inclusion in the Registration Statement will, at the time it becomes
effective and at the time of the FBOH Meeting and the CIVISTA
Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. None
of the information with respect to CIVISTA or any Company
Subsidiary provided in writing by CIVISTA for inclusion in the
Proxy Statement will, at the time of the mailing of the Proxy
Statement, and at the time of the FBOH Meeting and the CIVISTA
Meeting, contain any statement which, at the time it is made and
in light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or which omits to
state any material fact necessary in order to make the statements
therein not false or misleading or necessary to correct any
statement in any earlier communication with respect to the
solicitation of any proxy for the FBOH Meeting and the CIVISTA
Meeting which has become false or misleading. The Proxy Statement
will comply as to form in all material respects with the
provisions of the Exchange Act, and the rules and regulations
promulgated thereunder.
(b) All documents that CIVISTA is responsible for
filing with any Governmental Entity will comply as to form in
all material respects with applicable law. None of the
information with respect to CIVISTA or any Company Subsidiary
provided by CIVISTA for inclusion in any document to be filed
with any regulatory authority in connection with the transactions
contemplated hereby will contain any statement of a material fact
which is untrue as of the time that such statement is made.
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<PAGE> 17
4.6. CONSENT AND APPROVALS; NO VIOLATION. Except as
set forth in CIVISTA Disclosure Letter, neither the execution and
delivery of this Agreement by CIVISTA, nor the consummation by
CIVISTA of the transactions contemplated hereby, nor compliance
by CIVISTA with any of the provisions hereof, will (a) conflict
with or result in any breach of any provision of its Corporate
Governance Documents, (b) violate, conflict with, constitute a
default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
result in a right of termination or acceleration of, or result
in the creation of any lien, security interest, charge or other
encumbrance upon any of the properties or assets of CIVISTA or any
of the Company Subsidiaries under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to
which CIVISTA or any Company Subsidiary is a party or to which
they or any of their respective properties or assets may be
subject, except for such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of liens or
other encumbrances, that are set forth in CIVISTA Disclosure
Letter or which, individually or in the aggregate, will not have
a Material Adverse Effect on CIVISTA, (c) violate any judgment,
ruling, order, writ, injunction, decree, statute, rule or
regulation applicable to CIVISTA or any Company Subsidiary or any
of their respective properties or assets, except for such
violations which, individually or in the aggregate, will not have
a Material Adverse Effect on CIVISTA, or (d) require any consent,
approval, authorization or permit of or from, or filing with or
notification to, any Governmental Entity, except (i) pursuant to
the Exchange Act and the Securities Act, (ii) filing certificates
of merger pursuant to the OGCL, (iii) filings required under the
securities or blue sky laws of the various states, (iv) filings
with, and approval by, the FRB, (v) filings with, and approval by,
the OCC, (vi) filings with, and approval by, the OTS, (vii) filings
with, and approval by the Division, (viii) filings and approvals
pursuant to any applicable State Takeover Approvals, or (ix)
consents, approvals, authorizations, permits, filings or
notifications which have either been obtained or made prior to the
Closing or which, if not obtained or made, will neither,
individually or in the aggregate, have a Material Adverse Effect on
CIVISTA nor restrict CIVISTA's legal authority to execute and
deliver this Agreement and consummate the transactions contemplated
hereby.
4.7. REPORTS AND FINANCIAL STATEMENTS. Since September
30, 1991, CIVISTA has filed all reports, registrations and
statements, together with any required amendments thereto, that it
was required to file with the Commission, including, but not
limited to Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements
(collectively, the "COMPANY REPORTS"). The Company has
previously made available or furnished, or, with respect to
Company Reports filed after the date of this Agreement, will
promptly furnish, FBOH with true and complete copies of each of the
Company Reports. As of their respective dates (but taking into
account any amendments filed prior to the date of this Agreement),
the Company Reports complied, or, with respect to Company Reports
filed after the date of this Agreement, will comply, in all
material respects with all the rules and regulations promulgated by
the Commission, and did not contain, or, with respect to Company
Reports filed after the date of this Agreement, 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, in light of the circumstances under which they
were made, not misleading. The audited consolidated financial
statements and unaudited interim financial statements of CIVISTA
included in the Company Reports (the "COMPANY FINANCIAL
STATEMENTS") have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto)
and fairly present the consolidated financial position of CIVISTA
and the Company Subsidiaries as at the dates thereof and the
consolidated results of operations and cash flows for the periods
then ended subject, in the case of the unaudited interim financial
statements, to normal year-end and audit adjustments and any other
adjustments described therein.
4.8. TAXES. Except as set forth in CIVISTA Disclosure Letter,
CIVISTA and each Company Subsidiary have prepared in good faith and duly
and timely filed, or caused to be duly and timely filed, all federal,
state, local and foreign income, franchise, sales, real and personal
property and other tax returns and reports required to be filed by them
on or before the date of this Agreement, except where the failure to file
would not have a Material Adverse Effect on CIVISTA. Except as set forth
in CIVISTA Disclosure Letter, CIVISTA and each Company Subsidiary have
paid, or have adequately reserved or have made adequate accruals (in
accordance with generally accepted accounting principles) with
respect to, all taxes, interest and penalties shown to be owing on
all such returns and
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<PAGE> 18
reports. The CIVISTA Disclosure Letter sets forth, as of the
date of this Agreement, the following information with respect
to CIVISTA and each Company Subsidiary: (i) the most recent tax
year through which the IRS has completed its examination of such
corporation, (ii) whether there is an examination pending by the
IRS with respect to such corporation and, if so, the tax years
involved, (iii) whether such corporation has executed or filed with
the IRS any agreement which is still in effect extending the period
for assessment and collection of any federal tax and, if so, the tax
years covered by such agreement and the expiration date of such
extension, and (iv) whether there are any existing material
disputes as to state, local or foreign taxes. Except as set
forth in CIVISTA Disclosure Letter, there are no liens for
federal, state, local or foreign taxes upon the assets of CIVISTA or
of any Company Subsidiary, except for statutory liens for taxes and
assessments not yet delinquent or the validity of which is being
contested in good faith by appropriate proceedings. Except as set
forth in CIVISTA Disclosure Letter, neither CIVISTA nor any of
the Company Subsidiaries is a party to any action or proceeding, nor
is any such action or proceeding threatened, by any Governmental
Entity for the assessment or collection of taxes which are material
in amount, and no deficiency notices or reports have been
received by CIVISTA or any of the Company Subsidiaries in
respect of any material deficiencies for any tax, assessment, or
government charges. After the date of this Agreement, CIVISTA
will promptly notify FBOH of (i) the commencement or threat of
any such action or proceeding involving an amount of taxes
material to CIVISTA and its subsidiaries taken as a whole, and (ii)
the receipt by CIVISTA or the Company Subsidiaries of any such
deficiency notices or reports in respect of any material
deficiencies.
4.9. EMPLOYEE PLANS, EMPLOYEES. All employee bonus,
deferred compensation, pension, retirement, profit sharing, stock
option, stock purchase, employee stock ownership, stock
appreciation rights, savings, consulting, severance, collective
bargaining, group insurance, fringe benefit and other employee
benefit, incentive and welfare plans, policies, contracts and
arrangements and all trust agreements related thereto, now in
effect and relating to any present or former directors, officers
or employees of CIVISTA or the Company Subsidiaries, whether or
not described in Section 3(3) of ERISA ("COMPANY EMPLOYEE
PLANS"), are identified in CIVISTA Disclosure Letter. CIVISTA has
previously delivered or made available to FBOH copies of all
Company Employee Plans, in each case as in effect on the date of
this Agreement. All of Company Employee Plans have been
maintained, operated and administered in substantial compliance
with their terms, and CIVISTA, all of the Company Subsidiaries and
all of the Company Employee Plans currently comply, and have at all
relevant times complied, in all material respects with ERISA, the
Code, and any other applicable laws. With respect to each Company
Employee Plan which is a pension plan (as defined in Section 3(2) of
ERISA): (a) except as set forth in CIVISTA Disclosure Letter
each pension plan as amended (and any trust relating thereto)
intended to be a qualified plan under Section 401(a) of the Code
either has been determined by the Internal Revenue Service ("IRS")
to be so qualified or is the subject of a pending application
for such determination that was timely filed, (b) except as set
forth in CIVISTA Disclosure Letter, would be fully funded
(calculated using the interest rate and other actuarial assumptions
mandated by the Pension Benefit Guaranty Corporation ("PBGC")) if
terminated at the Effective Time and there is no accumulated
funding deficiency (as defined in Section 302 of ERISA and Section
412 of the Code), whether or not waived, and no waiver of the
minimum funding standards of such sections has been requested from
the IRS, (c) no reportable event described in Section 4043 of ERISA
has occurred, (d) no defined benefit plan has been terminated, nor
has the PBGC instituted proceedings to terminate a defined
benefit plan or to appoint a trustee or administrator of a
defined benefit plan, and no circumstances exist that constitute
grounds under Section 4042 of ERISA entitling the PBGC to
institute any such proceedings, and (e) no pension plan is a
"multi-employer plan" within the meaning of Section 3(37) of
ERISA. Except as set forth in CIVISTA Disclosure Letter, no
Company Employee Plan provides benefits, including, without
limitation, death or medical benefits (whether or not insured),
with respect to current or former employees beyond their
retirement or other termination of service (other than (i)
temporary coverage mandated by applicable law, (ii) death benefits
or retirement benefits under any "employee pension plan," as
that term is defined in Section 3(2) of ERISA, (iii) deferred
compensation benefits accrued as liabilities on the books of CIVISTA
or any Company Subsidiary, or (iv) benefits the full cost of which
are borne by the current or former employee (or his or her
beneficiary)).
Except as set forth in CIVISTA Disclosure Letter, all
employees of CIVISTA and the Company Subsidiaries are "at will"
and there are no employment, consulting or like agreements,
written or oral, expressed or implied.
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<PAGE> 19
4.10. MATERIAL CONTRACTS. Except as set forth in
CIVISTA Disclosure Letter or disclosed in the Company Reports,
neither CIVISTA nor any Company Subsidiary is, as of the date of this
Agreement, a party to, or is bound by, (a) any material lease
not made in the ordinary course of business of CIVISTA, (b) any
agreement, arrangement, or commitment not made in the ordinary
course of business which materially restricts the conduct of any
line of business of CIVISTA, (c) any benefit agreements providing
for aggregate payments to any person in any calendar year in
excess of $100,000, (d) any material agreement, indenture or other
instrument not specifically disclosed in CIVISTA Financial
Statements relating to the borrowing of money by CIVISTA or the
guarantee by CIVISTA of any such obligation (other than trade
payables and instruments relating to transactions entered into in
the ordinary course of business), (e) any agreement, arrangement or
commitment with or to a labor union or (f) any other contract or
agreement or amendment thereto that would be required to be filed
as an exhibit to a Form 10-K filed by the Company with the
Commission (the agreements and other documents referred to in
clauses (a) through (e) of this sentence, collectively, the
"COMPANY CONTRACTS"). Neither CIVISTA nor any Company Subsidiary
is in default under any Company Contract, which default is
reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on CIVISTA, and there has not
occurred any event that with the lapse of time or the giving of
notice or both would constitute such a default.
4.11. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
set forth in CIVISTA Disclosure Letter or disclosed in Company
Reports filed by the Company with the Commission prior to the date
of this Agreement, since September 30, 1993 to the date of this
Agreement, there has not been any change in the financial
condition, results of operations or business of CIVISTA and the
Company Subsidiaries that either individually or in the aggregate
has had a Material Adverse Effect on CIVISTA.
4.12. LITIGATION. Except as disclosed in CIVISTA
Disclosure Letter or in Company Reports filed by the Company with
the Commission prior to the date of this Agreement, there is
no litigation, action, arbitration or proceeding pending, or, to
the best knowledge of CIVISTA, threatened against or affecting
CIVISTA or any Company Subsidiary which, either individually or in
the aggregate, is having, or insofar as reasonably can be
foreseen will have, a Material Adverse Effect on CIVISTA, nor
is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator, outstanding against CIVISTA or
any Company Subsidiary having, or which, insofar as reasonably can
be foreseen, in the future would have, any such effect.
4.13. COMPLIANCE WITH LAWS AND ORDERS. Except as
disclosed in CIVISTA Disclosure Letter or in Company Reports filed
by the Company with the Commission prior to the date of this
Agreement, the businesses of CIVISTA and the Company Subsidiaries
are not being conducted, and have not been conducted since
September 30, 1991, in violation of any law, ordinance, regulation,
judgment, order, decree, license or permit of any Governmental
Entity (including, without limitation, zoning ordinances, building
codes, and environmental, civil rights, and occupational health
and safety laws and regulations and, in the case of Company
Subsidiaries that are savings and loans or thrifts, all statutes,
rules and regulations pertaining to the conduct of such business),
except for possible violations which individually or in the
aggregate do not, and, insofar as reasonably can be foreseen, in
the future will not, have a Material Adverse Effect on CIVISTA.
Except as set forth in CIVISTA Disclosure Letter, no investigation
or review by any Governmental Entity with respect to CIVISTA or
any of the Company Subsidiaries outside the ordinary course of
business and not generally applicable to entities engaged in the
same business is pending or, to the knowledge of CIVISTA,
threatened, nor has any Governmental Entity indicated an intention
to conduct the same in each case other than those the outcome of
which will not have a Material Adverse Effect on CIVISTA.
4.14. AGREEMENTS WITH REGULATORS. As of the date of
this Agreement, except as disclosed in CIVISTA Disclosure Letter,
neither CIVISTA nor any Company Subsidiary is a party to any
written agreement or memorandum of understanding with, or a party
to any commitment letter or similar undertaking to, or is
subject to any order or directive by, or is a recipient of any
extraordinary supervisory letter from, any Governmental Entity
outside the ordinary course of business and not generally
applicable to entities engaged in the same business, including,
without limitation, cease and desist orders of any regulatory
authority, which restricts materially the
16
<PAGE> 20
conduct of its business, or in any manner relates to its
capital adequacy, its credit policies or its management, nor has
CIVISTA been advised by any Governmental Entity that it is
contemplating issuing, requiring, or requesting (or is considering
the appropriateness of issuing, requiring or requesting) any such
order, directive, agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar
undertaking. Except as set forth in CIVISTA Disclosure Letter,
there are no (i) material violations, or (ii) violations with
respect to which refunds or restitutions which are material in
amount to CIVISTA and the Company Subsidiaries taken as a whole
may be required, cited in any compliance report to CIVISTA or any
Company Subsidiary as a result of an examination by any regulatory
authority.
4.15. COMPANY OWNERSHIP OF STOCK. Except as disclosed
in CIVISTA Disclosure Letter, as of the date of this Agreement,
neither CIVISTA nor, to the best of its knowledge, any of its
affiliates or associates (i) beneficially owns directly or
indirectly, or (ii) are parties to any agreement, arrangement or
commitment for the purpose of acquiring, holding, voting or
disposing of, in each case, shares of FBOH Common Stock (other than
shares of FBOH Common Stock held in a fiduciary, trust, custodial or
agency capacity by a subsidiary of CIVISTA) which in the aggregate,
represent 1% or more of the outstanding shares of FBOH Common
Stock.
4.16. ACCOUNTING MATTERS. Neither CIVISTA nor, to
the best of its knowledge, any of its affiliates, has taken or
agreed to take any action that would prevent FBOH from accounting
for the business combination to be effected by the Merger as a
"pooling of interests."
4.17. FEES. Except for fees paid and payable to McDonald
& Company Securities, Inc. ("MCDONALD"), neither CIVISTA nor any
Company Subsidiary has paid or become obligated to pay any fee or
commission to any broker, finder or intermediary in connection with
the transactions contemplated by this Agreement.
4.18. COMPANY ACTION. The Board of Directors of CIVISTA
(at a meeting duly called and held) has by the requisite vote (i)
determined that the Merger is advisable and in the best interests
of CIVISTA and its stockholders, (ii) authorized and approved
this Agreement, the CIVISTA Stock Purchase Option and the
transactions contemplated hereby and thereby, including the
Merger, (iii) directed that the Merger be submitted for
consideration by CIVISTA's stockholders entitled to vote thereon
at the CIVISTA Meeting, and (iv) authorized and approved the CIVISTA
Stock Purchase Option and the Merger in accordance with Chapter
1704 of the Ohio Revised Code with the result that Chapter 1704
will not apply to the consummation of the Merger and the
acquisition by FBOH of shares of Common Stock pursuant to the
Merger, the CIVISTA Stock Purchase Option or any of the
transactions contemplated by this Agreement or the CIVISTA Stock
Purchase Option. McDonald, CIVISTA's financial advisor, has
provided the Board of Directors of CIVISTA with its opinion that, as
of the date of such duly called meeting of the Board, the Exchange
Ratio is fair, from a financial point of view, to the stockholders
of CIVISTA.
4.19. VOTE REQUIRED. The affirmative vote of the
holders of two-thirds of the outstanding shares of Common Stock
entitled to vote thereon is the only vote of the holders of any
class or series of Company capital stock necessary to approve this
Agreement and the transactions contemplated hereby, unless FBOH
has exercised its rights to acquire the CIVISTA preferred stock under
the CIVISTA Stock Purchase Option.
4.20. CONDUCT OF CIVISTA TO DATE. Except as disclosed in
CIVISTA Disclosure Letter and in Company Reports filed with the
Commission prior to the date of this Agreement, from and after
September 30, 1993, to the date of this Agreement: (a) CIVISTA
and the Company Subsidiaries have carried on their respective
businesses in the ordinary and usual course consistent with their
current practices, (b) CIVISTA has not issued or sold any of its
capital stock (except shares of Common Stock issued upon exercise of
employee stock options outstanding on or before September 30,
1993), or any corporate debt securities which would be
classified as long-term debt on the balance sheets of CIVISTA, (c)
CIVISTA has not granted any option for the purchase of its capital
stock (other than pursuant to the CIVISTA Stock Purchase Option),
effected any stock split, or otherwise changed its authorized
capitalization, (d) CIVISTA has not declared, set aside, or paid
any dividend or other distribution in respect of its capital stock,
or, directly or indirectly, redeemed or otherwise acquired any of
its capital stock, except regular
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quarterly cash dividends and a regular "extra" cash dividend, (e)
CIVISTA has neither incurred nor prepaid any corporate debt
securities or instruments which are or would be classified as
long-term debt on the balance sheet of CIVISTA, (f) neither
CIVISTA nor any Company Subsidiary has sold, assigned, transferred,
or otherwise disposed of to a third party (i) equity securities in
or issued by any Company Subsidiary, (ii) branch offices of any
Company Subsidiary, (iii) assets constituting any other line of
business, or (iv) any of its other material properties or assets
other than for a fair consideration in the ordinary course of
business, (g) neither CIVISTA nor any Company Subsidiary has
purchased or otherwise acquired from a third party equity
securities in or issued by such third party other than in the
ordinary course of business, branch offices of such third party,
assets constituting any other line of business, or any other
material properties or assets outside the ordinary course of its
business, (h) neither CIVISTA nor any Company Subsidiary has:
increased the rate of compensation of, or paid any bonus to, any of
its directors, officers, or other employees, except under
existing plans and policies, entered into any new, or amended
or supplemented any existing, or secured, collateralized, or
funded any, employment, management, consulting, deferred
compensation, severance, or other similar contract, entered
into, terminated, or substantially modified any Company Employee
Plan in respect of any of its present or former directors,
officers, or other employees, or agreed to do any of the foregoing,
(i) neither CIVISTA nor any Company Subsidiary, has entered into
any transaction, contract, lease, agreement or commitment
requiring the approval of the Board of Directors of CIVISTA or
any Company Subsidiary, or amended, modified or terminated any
contract, lease or other agreement to which it is a party in a
manner requiring the approval of the Board of Directors of
CIVISTA or any Company Subsidiary, and (j) no Company Subsidiary
has entered into any material transaction, contract, lease,
agreement or commitment outside the ordinary course of business
requiring the approval of the Board of Directors of such Subsidiary
or amended, modified or terminated outside the ordinary course of
business any material contract, lease or other agreement to which
it is a party in a manner requiring the approval of the Board of
Directors of such Subsidiary.
4.21. ENVIRONMENTAL MATTERS. For purposes of this
Agreement, the following terms shall have the indicated MEANINGS:
"ENVIRONMENTAL LAW" means any federal, state
or local law, statute, ordinance, rule, regulation,
code, license, permit, authorization, approval,
consent, order, judgment, decree, injunction or
agreement with any Governmental Entity relating to (i) the
protection, preservation or restoration of the environment
(including, without limitation, air, water vapor,
surface water, ground water, drinking water supply,
surface soil, subsurface soil, plant and animal life or
any other natural resource), and/or (ii) the use,
storage, recycling, treatment, generation,
transportation, processing, handling, labeling,
production, release or disposal of Hazardous
Substances. The term Environmental Law includes, without
limitation; the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C.
Section 9601, et seq.; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901, et seq.;
the Clean Air Act, as amended, 42 U.S.C. Section 7401, et
seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 et seq.; the Toxic
Substances Control Act, as amended, 125 U.S.C. Section
9601, et seq.; the Emergency Planning and Community Right
to Know Act, 42 U.S.C. Section 11001, et seq.; the Safe
Drinking Water Act, 42 U.S.C. Section 300f, et seq.; all
comparable state and local laws; and any common law
(including without limitation common law that may impose
strict liability) that may impose liability or obligations
for injuries or damages due to, or threatened as a result
of, the presence of or exposure to any Hazardous Substance.
"HAZARDOUS SUBSTANCE" means any substance
presently listed, defined, designated or classified
as hazardous, toxic, radioactive or dangerous, or
otherwise regulated, under any Environmental Law,
whether by type or by quantity, including any material
containing any such substance as a component.
Hazardous Substances include, without limitation,
petroleum or any derivative or by-product thereof,
asbestos, radioactive material, and polychlorinated
biphenyls.
"LOAN PORTFOLIO PROPERTIES AND OTHER PROPERTIES
OWNED" means those properties owned, operated or managed
(including those held in trust) by CIVISTA, as the case
may be, or any of their subsidiaries.
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Except as set forth in CIVISTA Disclosure Letter, to the best of
CIVISTA's knowledge: (i) neither CIVISTA nor any of the Company
Subsidiaries has been or is in violation of or liable under any
Environmental Law, except for any such violations or liabilities
which would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on CIVISTA; and (ii)
none of the Loan Portfolio Properties and Other Properties Owned by
CIVISTA or any of the Company Subsidiaries has been since such
properties have been owned, operated or managed by CIVISTA or any
of the Company Subsidiaries, or is in violation of or liable under
any Environmental Law, except for any such violations or
liabilities which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on
CIVISTA. Except as set forth in CIVISTA Disclosure Letter, there
are no actions, suits, demands, notices, claims, investigations or
proceedings pending, or to the best of CIVISTA's knowledge
threatened, relating to the liability of the Loan Portfolio
Properties and Other Properties Owned by CIVISTA or the
Company Subsidiaries under any Environmental Law, including,
without limitation, any notices, demand letters or requests for
information from any federal, state or local environmental agency
relating to any such liabilities under or violations of
Environmental Law.
5. COVENANTS
5.1. ACQUISITION PROPOSALS AND NEGOTIATIONS. Each of
CIVISTA and the Company Subsidiaries shall not, directly or
indirectly, and shall instruct and otherwise use its diligent
efforts to cause their respective officers, directors, employees,
agents and advisors not to, directly or indirectly, solicit or
initiate any proposals or offers from any person, or discuss or
negotiate with any such person, relating to any acquisition or
purchase of all or a material amount of the assets of, or any equity
securities of, or any merger, consolidation or business
combination with, CIVISTA or any of the Company Subsidiaries
(such transactions are referred to herein as "Acquisition
Transactions"), provided, however, that nothing contained in this
Section shall prohibit (i) CIVISTA or any Company Subsidiary, as
the case may be, from furnishing information to, or entering into
discussions or negotiations with, any person or entity that
makes an unsolicited proposal of an Acquisition Transaction if
and to the extent that (a) the Board of Directors of CIVISTA, after
consultation with and based upon the written advice of Squire,
Sanders & Dempsey, determines in good faith that such action is
required for the directors of CIVISTA to fulfill their fiduciary
duties and obligations to the CIVISTA stockholders and other
constituencies under Ohio law, taking into consideration the
bidding procedures engaged in in connection with the transactions
contemplated hereby and (b) prior to furnishing such information
to, or entering into discussions or negotiations with, such person
or entity, CIVISTA provides immediate written notice to FBOH to
the effect that it is furnishing information to, or entering into
discussions or negotiations with, such a person or entity, or
(ii) the Board of Directors of CIVISTA from failing to make,
withdrawing or modifying its recommendation referred to in
Section 5.14 following receipt of a proposal for an Acquisition
Transaction if the Board of Directors of CIVISTA, after
consultation with and based upon the written advice of Squire,
Sanders & Dempsey, determines in good faith that such action is
required for the directors of CIVISTA to fulfill their fiduciary
duties and obligations to the CIVISTA stockholders and other
constituencies under Ohio law, taking into consideration the
bidding procedures engaged in in connection with the transactions
contemplated hereby.
5.2. INTERIM OPERATIONS OF CIVISTA. During the period
from the date of this Agreement to the Effective Time, except as
specifically contemplated by this Agreement, as required by law,
as set forth in CIVISTA Disclosure Letter, or as otherwise
approved in writing by FBOH (which shall not be unreasonably
withheld):
5.2.1. CONDUCT OF BUSINESS. CIVISTA shall,
and shall cause each of the Company Subsidiaries to, conduct
their respective businesses only in, and not take any action except
in the ordinary course of business substantially consistent with
current practices (which practices include any workout
arrangements for troubled loans and real estate development
assets). CIVISTA shall use all diligent efforts to (i) maintain
and preserve intact the business organization of CIVISTA and
each of the Company Subsidiaries, keep available the services
of its and their present officers and employees, and keep the
branch operations fully staffed with competent employees, (ii)
preserve the goodwill of those having business relationships with
CIVISTA or the Company Subsidiaries, (iii) maintain and
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keep its properties in as good repair and condition as at present,
except for depreciation due to ordinary wear and tear, (iv)
attempt to resolve such loans which FBOH has identified in
writing to CIVISTA as "troubled," in a workout arrangement which
conditions and terms shall be satisfactory to FBOH, (v) keep in
full force and effect insurance and bonds comparable in amount and
scope of coverage to that now maintained by it, provided however, in
the event that any such insurance (including, without limitation,
directors' and officers' liability insurance) is cancelled or not
renewable at its expiration at current or standard rates, CIVISTA
shall consult with FBOH in order to determine whether to exercise
its right to extend the discovery period and in evaluating
available alternatives to replace the current insurance, (vi)
perform in all material respects all obligations required to be
performed by each of CIVISTA and each of the Company
Subsidiaries under all material contracts, leases and documents
relating to or affecting its assets, properties, and business,
and (vii) comply with and perform in all material respects all
obligations and duties imposed upon it by all federal, state,
municipal, and local laws, and all rules, regulations and orders
imposed by federal, state, municipal or local governmental agencies.
5.2.2. NEGATIVE COVENANTS. CIVISTA shall not
and shall not permit any of the Company Subsidiaries to make any
change or amendment to, or to repeal, their respective articles of
incorporation or codes of regulations (or comparable governing
instruments). Neither CIVISTA nor any Company Subsidiary shall
after the date of this Agreement enter into any loan or credit
commitment (including standby letters of credit) to, or invest (as
a venture capital or similar investment) or agree to invest (as a
venture capital or similar investment) in, any person or entity if
such loan, commitment or investment, would exceed $250,000 as a
residential loan or investment, or $500,000 as a commercial loan,
without first consulting with FBOH; PROVIDED, HOWEVER, that
nothing in this paragraph shall prohibit CIVISTA or any Company
Subsidiary from honoring any contractual obligation in existence
on the date of this Agreement. Neither CIVISTA nor any Company
Subsidiary shall after the date of this Agreement enter into any
participatory agreements, loans, commitments or investments involving
collateral outside of Ohio, without first consulting with FBOH.
Neither CIVISTA nor any Company Subsidiary shall
sell, assign, transfer or otherwise dispose of to a third party,
(i) branch offices of any Company Subsidiary, or (ii) any of its
material properties or assets. Neither CIVISTA nor any Company
Subsidiary shall purchase or otherwise acquire from a third party,
branch offices of such third party, assets constituting any other
line of business, or any other material properties or assets
outside the ordinary course of its business. Neither CIVISTA nor
any Company Subsidiary shall enter into any transaction,
contract, lease, agreement or commitment (or any amendment to
any transaction, contract, lease, agreement or commitment) outside
of the ordinary course of business which is material to CIVISTA
and the Company Subsidiaries taken as a whole.
5.2.3. CAPITAL STOCK. CIVISTA shall not, and
shall not permit any of the Company Subsidiaries to, issue or
sell any shares of capital stock or any other securities of any of
them (other than pursuant to Company Stock Options outstanding on
the date of this Agreement or the exercise by FBOH of its rights
under the CIVISTA Stock Purchase Option) or issue any securities
convertible into or exchangeable for, or options, warrants to
purchase, scrip, rights to subscribe for, calls or commitments
of any character whatsoever relating to, or enter into any
contract, commitment or arrangement with respect to the issuance
of, any shares of capital stock or any other securities of any
of them or enter into any arrangement, contract or commitment
with respect to the purchase or voting of shares of their capital
stock, or adjust, split, combine or reclassify any of their
capital stock or other securities or make any other changes in
their capital structures. Neither CIVISTA nor any Company
Subsidiary shall acquire beneficial ownership of more than 5% of
any class of equity securities or any similar interests of any
corporation, bank, business, trust, association or similar
organization.
5.2.4. DIVIDENDS. CIVISTA shall not and shall
not permit any of the Company Subsidiaries to declare, set aside,
pay or make any dividend or other distribution or payment (whether
in cash, stock or property) with respect to, or purchase or redeem,
any shares of the capital stock of any of them other than (a)
CIVISTA's regular quarterly cash dividends in the amount of $.10 per
share and its regular "extra" cash dividend in the amount of $.25
per share (to the extent each is legally permitted), and (b)
dividends paid (to the extent legally permitted)
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by any Company Subsidiary to another Company Subsidiary or CIVISTA
with respect to such Company Subsidiary's capital stock. From the
date of this Agreement to the earlier of the Effective Time or the
termination of this Agreement, CIVISTA shall not, without the
prior written consent of FBOH, make any changes in its practice
of setting dividend record or dividend payment dates.
5.2.5. EMPLOYEE PLANS. Except as is necessary to
comply with the Code, CIVISTA shall not, and shall not permit any
of Company Subsidiaries to: adopt or amend any bonus, profit
sharing, compensation, severance, termination, stock option,
pension, retirement, deferred compensation, employment or other
employee benefit agreements, trusts, plans, funds or other
arrangements for the benefit or welfare of any present or former
director, officer or employee of CIVISTA or any Company
Subsidiary; increase the compensation or fringe benefits of any
present or former director, officer or employee, including the
Senior Officers (as hereinafter defined); pay any bonus,
compensation or benefit not required by any existing plan or
arrangement (including, without limitation, the granting of stock
options or stock rights); take any action or grant any benefit
not required under the terms of any existing agreements, trusts,
plans, funds or other such arrangements; or enter into any
contract, agreement, commitment or arrangement to do any of the
foregoing. Notwithstanding the restrictions contained in this
Section, CIVISTA or the Company Subsidiaries may grant individual
merit increases to the non-Senior Officer employees in accordance
with past practices up to a total of 5% of the total annual
compensation of all employees, excluding from such total the
aggregate of the compensation for the employees of CIVISTA and
of the Company Subsidiaries who are parties to a Severance
Agreement (the "SENIOR OFFICERS"); and may pay bonuses to employees,
including Senior Officers, but only to the extent the aggregate of
such bonuses does not exceed the aggregate of bonuses paid for the
1993 fiscal year plus an amount equal to $42,000.
5.2.6. CONFORMING ACCOUNTING AND RESERVE POLICIES;
RESTRUCTURING EXPENSES.
(a) Notwithstanding that CIVISTA believes that
it has established all reserves and taken all provisions
for possible loan losses required by generally accepted
accounting principles and applicable laws, rules and
regulations, CIVISTA recognizes that FBOH has adopted
different loan, accrual and reserve policies (including
loan classifications and levels of reserves for possible
loan losses). From and after the date of this Agreement
to the Effective Time, CIVISTA and FBOH shall consult and
cooperate with each other with respect to conforming, as
specified in a notice from FBOH to CIVISTA, based upon
such consultation, CIVISTA's loan, accrual and reserve
policies to those policies of FBOH.
(b) In addition, from and after the date of this
Agreement to the Effective Time, CIVISTA and FBOH shall
consult and cooperate with each other with respect to
determining, as specified in a notice from FBOH to
CIVISTA, based upon such consultation, appropriate accruals,
reserves and charges to establish and take in respect of
excess facilities and equipment capacity, restructuring
costs, severance costs, litigation matters, write-off or
write-down of various assets and other appropriate
accounting adjustments taking into account the Surviving
Corporation's business plan following the Merger.
(c) CIVISTA and FBOH shall consult and cooperate
with each other with respect to determining, as specified
in a notice from FBOH to CIVISTA, based upon such
consultation, the amount and the timing for recognizing
for financial accounting purposes the expenses of the
Merger and the restructuring charges related to or to be
incurred in connection with the Merger.
(d) At the request of FBOH, and in an amount and on
a basis satisfactory to CIVISTA, CIVISTA shall promptly
establish and take such reserves and accruals as FBOH
shall request to conform, on a mutually satisfactory
basis, CIVISTA's loan, accrual and reserve policies to
FBOH's policies, shall establish and take such accruals,
reserves and charges in order to implement such policies in
respect of excess facilities and equipment capacity,
severance costs, litigation matters, write-off or
write-down of various assets and other appropriate
accounting adjustments, and to recognize for financial
accounting purposes such expenses of the Merger and
restructuring charges related to or to be incurred in
connection
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with the Merger; PROVIDED, HOWEVER, that it is the
objective of FBOH and CIVISTA that such reserves, accruals
and charges be taken on or before December 31, 1994, but
in no event later than immediately prior to the Closing;
and PROVIDED, FURTHER, that CIVISTA shall not be obligated
to take any such action pursuant to this Section 5.2.6
unless and until (i) FBOH specifies its request in a
writing delivered to CIVISTA, (ii) all conditions to the
obligations of CIVISTA and FBOH to consummate the Merger
set forth in Sections 6.1 through 6.3 have been waived or
satisfied by the appropriate party, and (iii) such reserves,
accruals and charges conform with generally accepted
accounting principles.
5.3. INTERIM OPERATIONS OF FBOH. During the period
from the date of this Agreement to the Effective Time, except as
specifically contemplated by this Agreement, as required by law,
or as otherwise approved in writing by CIVISTA (which shall not be
unreasonably withheld) FBOH shall, and shall cause each of the FBOH
Subsidiaries to, conduct their respective businesses in such a
manner so as not to materially interfere with the ability to
consummate the Merger, delay the Effective Time or have a
Material Adverse Effect upon the transactions contemplated by the
Agreement.
5.4. EMPLOYMENT MATTERS.
(a) As of the Effective Time, FBOH will assume the
obligations of the CIVISTA and the Company Subsidiaries, as
applicable, Severance Agreements, as amended as of August 10, 1994,
("SEVERANCE AGREEMENTS" or "SEVERANCE AGREEMENT") to the extent such
obligations can be assumed or benefits thereunder provided as a
matter of law. Each Severance Agreement has been amended, which
amendments are conditioned upon the Merger becoming effective, to
delete in its entirety Section 3(e) which provides for a cash
payment in lieu of the right of the holder to exercise CIVISTA Stock
Options.
(b) It is FBOH's intent, to the extent possible, to
maintain the current employee base of CIVISTA and Citizens. After
the Effective Time, FBOH will cause each of its subsidiaries to use
its diligent efforts to minimize terminations of employees of
CIVISTA and Citizens and to give priority to any displaced
employees of CIVISTA and Citizens equal to that given to employees
of FBOH and its subsidiaries in filling positions within FBOH and
its subsidiaries. It is FBOH's intent, to the extent possible,
to retain the employees of each of the Non-banking Subsidiaries
during the pendency of the disposition of such subsidiary or its
assets (except for any termination for cause).
FBOH agrees to pay as separation monies to employees of
CIVISTA and Citizens, other than the persons with Severance
Agreements, in consideration for a standard release of FBOH
regarding matters related to employment and termination of
employment, who either at Closing do not become employees of
FBOH or its subsidiaries or to persons who become employees
of FBOH or its subsidiaries but whose employment is terminated
during the 180-day period after the Effective Time (except if such
termination is for cause). The separation monies will be calculated
as follows: (i) all such employees shall receive a minimum of four
weeks salary (net of required taxes), (ii) employees with more than
two years of service will receive two weeks of salary (net of
required taxes) for each full year of service up to a maximum
severance benefit equal to 26 weeks of salary. Such employees will
also be entitled to any other benefits, if any, required by law.
In lieu of the above separation amounts, employees of the
Non-banking Subsidiaries shall receive separation benefits as
provided in the disposition document for their subsidiary or its
assets.
FBOH is not required to hire any employees of CIVISTA or
the Company Subsidiaries, but may if it so desires. All persons
employed by FBOH and its subsidiaries as of the Effective Time will
remain "at will" employees, meaning that their employment can be
terminated for any or no reason. Notwithstanding anything
contained herein to the contrary, no third party shall have a right
to enforce the provisions of this Section 5.4(b) or assert any claim
hereunder.
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(c) Following the Effective Time, the employee benefit
programs to be available and applicable to the persons who were
employees of CIVISTA and the Company Subsidiaries, and who become
employees of FBOH and/or its subsidiaries, are as follows:
(i) DEFINED BENEFIT RETIREMENT AND PENSION PLANS.
At such time on or after the Effective Time as FBOH shall deem
appropriate, FBOH will either (a) cause the merger of the CIVISTA
pension plan into the FBOH defined benefit plan, in which case (i)
each CIVISTA employee shall be credited with the service for
eligibility and vesting purposes (but not for benefit accrual
purposes) with which he was credited under the CIVISTA pension plan
as of the date of such merger, (ii) each participant in the CIVISTA
pension plan shall be entitled to his benefit accrued under the
CIVISTA plan as of the date of such merger, but only to the
extent such participant is otherwise eligible therefor under the
terms of the FBOH defined benefit plan, and (iii) each CIVISTA
employee who satisfies the age and service eligibility requirements
of the FBOH defined benefit plan shall be eligible to participate
in the FBOH defined benefit plan and accrue benefits thereunder on
and after the date of such merger in accordance with the provisions
thereof; or (b) terminate the CIVISTA pension plan and provide
benefits in accordance with the terms thereof, and extend the FBOH
defined benefit plan to CIVISTA employees as of the effective date
of the CIVISTA pension plan termination, in which case such
CIVISTA employees shall be credited with service for eligibility
and vesting purposes (but not for benefit accrual purposes) under
the FBOH defined benefit plan for periods of their CIVISTA
employment.
(ii) SAVINGS PLANS. CIVISTA does not have in effect
any savings or similar type plan for its employees. FBOH
maintains the First Bancorporation of Ohio and Subsidiaries
Employees' Salary Savings Retirement Plan ("FBOH 401K Plan"). At
the Effective Time, FBOH will credit the CIVISTA employees who
become employees of FBOH or any of its current subsidiaries, for
purposes of the FBOH 401K Plan, with all service with CIVISTA or
any of the Company Subsidiaries for purposes of determining their
eligibility to participate in such plan and the vested portion of
their respective accrued benefits under such plan.
(iii) HEALTH CARE PLANS. At such time on or after the
Effective Time as FBOH shall deem appropriate, FBOH and its
subsidiaries will provide CIVISTA employees hired by FBOH with
such coverage under the FBOH health care plan as they then provide
their employees, with all service with CIVISTA or any of the Company
Subsidiaries credited for purposes of determining such employee's
eligibility to participate in such plan. No benefits currently
provided CIVISTA or the Company Subsidiaries employees, which
exceed those provided by FBOH and its subsidiaries, will be
grandfathered or provided, except if required by law. The
employees of the Non-banking Subsidiaries will receive the same
benefits they receive as of the date of this Agreement. FBOH will
assume the existing CIVISTA and the Company Subsidiaries retiree
health care benefit plan at the Effective Time, pursuant to the
terms and conditions of such plan as of the date of this
Agreement, FBOH, however, retains the existing rights to amend
or terminate such plan which have been reserved by the plan
sponsor in the plan document.
(iv) SERP PLAN. CIVISTA has adopted and maintains
The CIVISTA Corporation Supplemental Employee Retirement Plan
("SERP PLAN") for a limited number of employees. CIVISTA agrees
that as of the date of this Agreement it will not amend or make
any changes to the terms or conditions of such SERP Plan. As of
the Effective Time, accruals under the SERP Plan shall cease,
participants shall be vested in their accrued benefits as of such
date and FBOH agrees to assume the liabilities under the SERP Plan as
of such date.
(v) Other Benefit Plans. At such time on or after the
Effective Time as FBOH shall deem appropriate, FBOH and its
subsidiaries will provide former CIVISTA employees with such
coverage under the FBOH benefit plans and programs as are generally
provided to all employees of FBOH and its Subsidiaries. All service
with CIVISTA or any of the Company Subsidiaries shall be
credited for purposes of determining a former CIVISTA employee's
eligibility to participate in such other benefit plans. No
benefits currently provided CIVISTA or the
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Company Subsidiaries employees which exceed those provided by FBOH
and its subsidiaries will be grandfathered or provided, except if
required by law, unless otherwise specifically agreed to by FBOH in
writing.
5.5. ACCESS, INFORMATION AND CONFIDENTIALITY. Upon
reasonable notice, CIVISTA and each of the Company Subsidiaries
shall afford to FBOH and its representatives (including, without
limitation, directors, officers and employees of FBOH, its
counsel, accountants, environmental consultants and other
professionals retained by FBOH) full access during normal business
hours throughout the period prior to the Effective Time to the
books, contracts, records (including, without limitation, tax
returns and work papers of independent auditors), shareholder and
customer information, properties, personnel and such other
information and documents of CIVISTA and each of the Company
Subsidiaries. FBOH shall have a right with the prior notice to
CIVISTA to have environmental assessments conducted on any
properties owned, managed or controlled by CIVISTA and the Company
Subsidiaries. CIVISTA shall not be required to provide access
to any such item or information if the providing of such access
(i) would be reasonably likely to result in the loss or
impairment of any privilege with respect to such information,
or (ii) would be precluded by any law, ordinance, regulation,
judgment, order, decree, license or permit of any Governmental
Entity.
All information furnished by one party to another party
in connection with this Agreement and the transactions contemplated
hereby which is regarded by such furnishing party as confidential
will be kept confidential by such other party and its
representatives (including, without limitation, directors, officers
and employees, its counsel, accountants and other professionals
retained by such party) and will be used only in connection with
this Agreement and the transactions contemplated hereby, and not in
such party's business or by its directors, officers and employees,
its counsel, accountants and other professionals retained by such
party if the Merger is not consummated. Nothing contained in this
Section shall restrict or prohibit CIVISTA or FBOH from disclosing
information in any document filed with the Commission, FRB, OCC,
OTS, the Division and other governmental authorities and bodies
nor shall it in any way restrict FBOH's right to exercise the
CIVISTA Stock Purchase Option, and so long as this Agreement has not
been terminated pursuant to Article 7 hereof, FBOH may,
notwithstanding this confidentiality provision, disclose such
information as it deems necessary or advisable in connection with
explaining or providing background information to security analysts
and others concerning the transactions contemplated by this
Agreement, except that any such information dealing with the areas
of individual employees, their future employment, reserves
established for specific loans, matters related to litigation and
CIVISTA's business strategies, may only be disclosed with the prior
approval of CIVISTA, which approval shall not be unreasonably
withheld. It is the parties' intent to provide such analysts
with accurate information regarding the transaction in a light
favorable to completion of the transactions contemplated by this
Agreement.
5.6. CERTAIN FILINGS, CONSENTS AND ARRANGEMENTS,
DIVESTITURES. FBOH and CIVISTA shall (a) promptly file all
reports and applications required to be filed with the Commission,
the FRB and such other regulatory authorities (the "REGULATORY
AUTHORITIES") as may have jurisdiction for such approvals as may
be required to be obtained from such regulatory authorities in order
to carry out the transactions contemplated by this Agreement as soon
as practicable between the date of this Agreement and the Effective
Time and each FBOH Subsidiary or Company Subsidiary that is a bank
or savings bank shall also file all reports required to be filed
with the FRB, the OCC, the OTS and the Division with respect
to the Merger and the other transactions contemplated by this
Agreement, (b) cooperate with one another (i) in promptly
determining whether any other filings are required to be made or
consents, approvals, permits or authorizations are required to be
obtained under any other federal, state or foreign law or
regulation, and (ii) in promptly making any such filings,
furnishing information required in connection therewith and seeking
timely to obtain any such consents, approvals, permits or
authorizations, and (c) deliver to the other party to this
Agreement copies of all such applications and reports promptly
after they are filed. In no event, however, shall either party
hereto be liable for any untrue statement of a material fact or
omission to state a material fact in any filing made with any
Governmental Entity pursuant to this Section made in reliance upon,
and in conformity with, written information concerning the other
party hereto furnished by such other party specifically for use
in such filing. Each party hereto shall advise the other party
hereto promptly of the occurrence of any event which makes untrue
any statement of a material fact contained in any such filing or
any amendment or supplement
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thereto or that requires the making of a change in any such filing
or any amendment or supplement thereto in order to make any material
statement therein not misleading.
Between the date of this Agreement and the Effective Time,
CIVISTA and FBOH agree to cooperate in a review of the possible
divestiture of all or some of the Non-banking Subsidiaries. In the
event CIVISTA and FBOH determine to divest one or more of the
Non-banking Subsidiaries, FBOH will fully cooperate with CIVISTA or
the Company Subsidiaries in arranging these divestitures, and in
conducting any bidding, due diligence or other process established
by CIVISTA to accomplish the divestitures. CIVISTA agrees to
enter, or to cause the Company Subsidiaries to enter, into
binding agreements, acceptable to CIVISTA and FBOH, to divest the
Non-banking Subsidiaries, except that, the obligation of CIVISTA or
the Company Subsidiary to consummate the divestiture may be subject
to the condition that the Merger be consummated. CIVISTA and
FBOH agree to cooperate in obtaining any regulatory approvals
required for the approval of the divestitures. Notwithstanding
anything to the contrary contained in this Agreement, (i) the
representations and warranties of CIVISTA in this Agreement shall
not be deemed to be untrue or breached, (ii) CIVISTA shall not be
deemed to have failed to perform any covenant or obligation contained
in this Agreement, and (iii) no condition to FBOH's obligation to
effect the Merger shall be deemed not to have been satisfied, by or
as a result of any divestitures or other acts consummated pursuant
to this second paragraph of Section 5.6.
5.7. TAKEOVER STATUTES AND PROVISIONS. CIVISTA shall
take all necessary steps to (i) exempt CIVISTA, this Agreement,
the CIVISTA Stock Purchase Option and the Merger from the
requirements of any state takeover law (including without
limitation, statutes relating to business combinations, control
share acquisitions and merger moratoriums) and from any provisions
under its Corporate Governance Documents, as applicable, by action
of CIVISTA's Board of Directors or otherwise, and (ii) assist in any
challenge by FBOH to the applicability to the Merger of any state
takeover law.
5.8. INDEMNIFICATION AND INSURANCE. Except as may be
limited by applicable law, FBOH hereby agrees to assume and honor
the terms of the indemnification provisions of Article IV of
CIVISTA's Code of Regulations, a copy of which is attached hereto
as Exhibit 5.8, which are provided to CIVISTA's directors,
officers and employees as contractual rights, for matters occurring
prior to the Effective Time. Moreover, indemnification of
directors, officers and employees of CIVISTA and Company
Subsidiaries following the Effective Time will be provided to
the same extent it is provided to other persons working in
similar capacities for FBOH following the Closing. This Section 5.8
shall be construed as an agreement, as to which the potential
indemnitees are intended to be third-party beneficiaries.
For a period of at least two years following the Effective
Time, FBOH shall maintain in effect the current insurance policies
maintained by CIVISTA (or substitute policies with substantially the
same coverage and terms) covering directors' and officers'
liability with respect to claims which arise from factors or
events which occurred before the Effective Time, except that FBOH's
obligation under this paragraph for the second year following the
Effective Time will be based upon its ability to obtain such
insurance at a commercially reasonable cost. CIVISTA shall notify
FBOH prior to purchasing or continuing any insurance to cover the
matters contained herein, PROVIDED, HOWEVER, it is the intent of
FBOH that tail coverage will be purchased if such is available.
To the extent insurance is available under any of the provisions
in this Section to cover such claims and costs, such insurance
shall be the primary source of funding these obligations.
5.9. ADDITIONAL AGREEMENTS. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to
use its diligent efforts to take promptly, or cause to be
taken, all actions necessary, proper or advisable under applicable
laws to consummate the transactions contemplated by this
Agreement. In addition, without limitation, each party shall from
time to time execute such certificates as to factual matters
necessary, proper or advisable in order to receive the opinions
contemplated by Article 6 of this Agreement.
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If, at any time after the Effective Time, the Surviving
Corporation considers or is advised that any further deeds, bills
of sale, assignments, assurances or any other actions or things
are necessary or desirable to vest, perfect or confirm of record
its right, title or interest in and to any of the rights,
properties or assets of CIVISTA acquired or to be acquired by the
Surviving Corporation, CIVISTA and its officers and directors shall
be deemed to have granted to the Surviving Corporation an
irrevocable power of attorney to execute and deliver all such
deeds, bills of sale, assignments and assurances and to take and do
all such other actions and things as may be necessary or desirable
to vest, perfect or confirm any and all right, title and interest in
and to such rights, properties or assets in the Surviving
Corporation.
5.10. COMPLIANCE WITH ANTITRUST LAWS. Each of FBOH and
CIVISTA shall use its diligent efforts to resolve such objections,
if any, which may be asserted with respect to the Merger by the FRB,
the Department of Justice, or any other Governmental Entity
(including, without limitation, objections under any antitrust laws
and any applicable laws or regulations). In the event a suit is
threatened or instituted challenging the Merger as violative of the
antitrust laws, each of FBOH and CIVISTA shall use its diligent
efforts to avoid the filing of, resist or resolve such suit. FBOH
and CIVISTA shall use their diligent efforts to take such action
as may be required: (a) by the FRB, the Department of Justice, or
any other Governmental Entity in order to resolve such objections
as any of them may have to the Merger, or (b) by any federal or
state court of the United States, in any suit brought by a private
party or Governmental Entity challenging the Merger as violative of
any antitrust laws, in order to avoid the entry of, or to effect
the dissolution of, any injunction, temporary restraining order
or other order which has the effect of preventing the
consummation of the Merger.
5.11. PUBLICITY. The initial press release announcing
this Agreement shall be a joint press release in a form mutually
agreed upon by the parties and thereafter CIVISTA and FBOH shall
consult with each other and provide a written copy to each other
prior to issuing any press releases, or otherwise making public
statements, with respect to the transactions contemplated hereby
and in making any filings with any Governmental Entity.
5.12. REGISTRATION STATEMENT, JOINT PROXY STATEMENT AND
COMFORT LETTERS.
(a) FBOH will as soon as practicable prepare and
file with the Commission the Registration Statement, and any
required amendments thereto, will use all reasonable efforts to
have the Registration Statement declared effective by the Commission
as promptly as practicable and will maintain the effectiveness of
such Registration Statement. FBOH will also take any action
required to be taken under any applicable state blue sky or
securities laws in connection with the issuance of the FBOH Common
Stock pursuant to the Merger. CIVISTA shall promptly furnish FBOH
all information concerning CIVISTA, the Company Subsidiaries, and
the holders of its capital stock and shall promptly take any action
as FBOH may reasonably request in connection with any such action.
FBOH, with the direct assistance of CIVISTA, will
as soon as practicable prepare and file the Proxy Statement with
the Commission, and take such other action so that they may
promptly thereafter mail the Proxy Statement to their
stockholders. FBOH and CIVISTA shall cooperate and consult with each
other in the preparation of the Proxy Statement and CIVISTA shall
promptly furnish FBOH all information concerning CIVISTA, the
Company Subsidiaries, and the holders of its capital stock, and
shall promptly take any action as FBOH may reasonably request in
connection with any such action.
(b) Each of FBOH and CIVISTA will cause its respective
independent auditors to issue a letter addressed to both FBOH
and CIVISTA, within three business days prior to the effectiveness
of the Registration Statement and also as of Closing, stating among
other things, the following: (i) such accountants are independent
public accountants within the meaning of the Securities Act and the
rules and regulations promulgated thereunder; (ii) in the opinion of
such accountants, the financial statements included in the
Registration Statement and reported on therein by such accountants
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules and
Regulations promulgated thereunder; (iii) on the basis of specified
limited procedures (which procedures do not constitute an examination
in accordance with generally accepted auditing
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standards), including a reading of the latest available
unaudited financial statements, inquiries of officials
responsible for financial and accounting matters, nothing came to
their attention which caused them to believe that, during the
period subsequent to December 31, 1993 for FBOH and September
30, 1993 for CIVISTA, to a specified date not more than three
business days prior to the effective date of the Registration
Statement and to a specified date not more than three business days
prior to Closing, there was any change in the shares of its capital
stock or long-term debt, if any, (other than changes due to
payments in accordance with the terms of such debt, or in the event
of any such change in long-term debt, the amount thereof) or any
decrease (increase) in the total or per share amount of its net
income (net loss) as compared with the corresponding period in
the preceding year, except in all instances for changes or
decreases (increases) which the Registration Statement discloses
have occurred or may occur; (iv) such accountants have read the
other data included in the Registration Statement with respect
to the financial condition and operations of their respective
clients and they find such data to be correctly computed and in
agreement with their respective books and records of FBOH and
CIVISTA.
(c) FBOH shall be responsible for all expenses
incident to the obtaining of the requisite regulatory approvals.
Without limiting the generality of the foregoing, the expenses to
be assumed by FBOH shall include (i) all expenses for its own legal
counsel and other expenses incurred by FBOH incident to the
preparation and filing of applications on its behalf and on
behalf of CIVISTA and other requests for regulatory consents and
approvals with the appropriate regulatory agencies as contemplated
by this Agreement; and (ii) all expenses for its own legal
counsel and all other expenses incurred in connection with the
registration of the FBOH Common Stock under the federal and
state securities laws. The expenses to be assumed by FBOH shall
not include any legal, accounting or other expenses incurred by
CIVISTA in connection with its own corporate proceedings or incident
to the transactions contemplated by this Agreement.
5.13. AFFILIATES COMPLIANCE WITH THE SECURITIES ACT.
(a) Within 30 days after the date of this Agreement,
each of CIVISTA and FBOH shall identify to the other party all
persons whom it reasonably believes are its "affiliates" as
that term is used in paragraphs (c) and (d) of Rule 145 under the
Securities Act and/or Accounting Series, Releases 130 and 135, as
amended, of the Commission (the "AFFILIATES"). Thereafter and
until the Effective Time, each of CIVISTA and FBOH shall identify
to the other party each additional person whom it reasonably
believes to have thereafter become its Affiliate.
(b) Each of CIVISTA and FBOH shall use its diligent
efforts to cause each person who is identified as an Affiliate
pursuant to clause (a) above to deliver to FBOH not later than the
date on which the Merger is approved, a written agreement,
substantially in the form of Exhibit 5.13(b)-1 (in the case of
Affiliates of CIVISTA) and Exhibit 5.13(b)-2 (in the case of
Affiliates of FBOH). Because the Merger is intended to qualify
for pooling of interests accounting treatment, the shares of FBOH
Common Stock received by such Affiliates in the Merger shall not be
transferable until such time as financial results covering at least
30 days of post-Merger operations have been published within the
meaning of Section 201.01 of the Commission's Codification of
Financial Reporting Policies, regardless of whether each such
Affiliate has provided the written agreement referred to in this
Section, and the certificates representing such shares will bear
an appropriate restrictive legend.
5.14. STOCKHOLDERS' MEETINGS.
(a) CIVISTA shall take all action necessary, in
accordance with applicable law and its Corporate Governance
Documents to convene a special meeting of the holders of Common
Stock (the "CIVISTA MEETING") as promptly as practicable for the
purpose of considering and taking action upon this Agreement
and the transactions contemplated herein. Subject to the fiduciary
obligations and duties of the Board of Directors of CIVISTA under
Ohio law and to the provisions of Section 5.1 of this Agreement,
the Board of Directors of CIVISTA shall recommend that the holders
of the Common Stock vote in favor of and approve the Merger and
adopt this Agreement at the CIVISTA Meeting.
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(b) FBOH shall take all action necessary, in
accordance with applicable law and its Amended Articles of
Incorporation and Regulations, to convene a special meeting of the
holders of FBOH Common Stock (the "FBOH MEETING") as promptly as
practicable for the purpose of considering and taking action upon
this Agreement. The Board of Directors of FBOH shall recommend
that the holders of FBOH Common Stock vote in favor of and
approve the Merger and this Agreement and such other matters as
deemed necessary or desirable. At the Effective Time, the FBOH
Board will appoint an individual recommended by CIVISTA, subject
to the approval of the FBOH Board of Directors, to the FBOH Board
of Directors.
5.15. POOLING AND TAX-FREE REORGANIZATION TREATMENT.
Neither FBOH nor CIVISTA shall intentionally take or cause to be
taken any action, whether before or after the Effective Time, which
would disqualify the Merger as a "pooling of interests" for
accounting purposes or as a "reorganization" within the meaning
of Section 368(a) of the Code, other than FBOH's exercise of its
rights under the CIVISTA Stock Purchase Option.
5.16. MERGERS OF SUBSIDIARIES. The Board of Directors
of FBOH intends, contemporaneously with the merger of CIVISTA with
and into FBOH, to merge Citizens with and into a wholly owned
subsidiary of FBOH, currently determined to be The First National
Bank in Massillon, with the surviving entity utilizing the name
"Citizens" and to also appoint the current directors of CIVISTA to
the board of directors of the surviving subsidiary, grandfathered
for a minimum of one year consistent with the board of director
policies and practices of the other FBOH subsidiaries thereafter.
CIVISTA shall cause such of the Company Subsidiaries as
FBOH may request to enter into definitive merger or consolidation
agreements with FBOH Subsidiaries, providing for the merger or
consolidation of the Company Subsidiaries with or into any such
FBOH Subsidiaries; PROVIDED, HOWEVER, that, in all cases, the
obligation of CIVISTA to cause such merger or consolidation shall be
subject to the condition that the Merger be simultaneously
consummated; and provided further, notwithstanding anything to
the contrary in this Agreement, (i) the representations and
warranties of CIVISTA in this Agreement shall not be deemed to
be untrue or breached, (ii) CIVISTA shall not be deemed to have
failed to perform any covenant or obligation contained in this
Agreement, and (iii) no condition to FBOH's obligation to effect the
Merger shall be deemed not to have been satisfied by or as a
result of any merger or consolidation consummated pursuant to
this Section. CIVISTA shall cause the Company Subsidiaries to
fully cooperate with FBOH in consummating these mergers or
consolidations, including cooperating in the filing of any necessary
regulatory applications.
5.17. CURRENT INFORMATION. During the period from the
date of this Agreement to the Effective Time, each of CIVISTA and
FBOH will promptly notify the other of (i) any material change in
the normal course of its business, (ii) any governmental
complaints, investigations or hearings (or communications indicating
that the same may be contemplated), or receipt of any memorandum or
understanding or cease and desist order from a regulatory
authority, or (iii) the institution or the threat of material
litigation involving such party and will keep the other party fully
informed of such events. During such period, FBOH and CIVISTA
shall promptly provide the other with monthly unaudited financial
statements as soon as they are available and each shall promptly
provide the other with a copy of all Reports filed by it after
the date of this Agreement through the Effective Time. Each of
FBOH and CIVISTA agrees to keep the information contained in the
monthly unaudited financial statements strictly confidential.
5.18. INTEGRATION OF OPERATIONS. During the period
from the date of this Agreement to the Effective Time, the
parties will consult and cooperate fully with each other to do all
things advisable to prepare for and facilitate the integration of
CIVISTA and the applicable Company Subsidiaries operations into and
with FBOH's operations as rapidly and effectively as possible as
of the Effective Time, including, without limitation, preparation
for the integration of such branch operations, if any (including,
without limitation, the preparation for the necessary installation
of all of FBOH's or its subsidiaries hardware and software systems),
management information systems, financial and accounting operations,
employee compensation and benefit matters and similar matters, and
employee training, as requested by FBOH.
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5.19. NASD LISTING. FBOH will file a Form 10-C with the
Commission and the National Association of Securities Dealers, Inc.
(the "NASD") at the time prescribed by applicable rules and
regulations. In addition, FBOH will use its best efforts to
maintain its listing on the NASD Automated Quotation-National
Market System.
5.20. ENVIRONMENTAL SURVEY. In the event FBOH elects to
conduct, or have conducted on its behalf, an environmental review,
study, survey or assessment to verify the representations and
warranties given by CIVISTA with respect to the environmental
matters referred to in Section 4.21 of this Agreement, such
environmental review, study, survey or assessment shall be
completed, and all reports and findings related thereto shall be
disclosed to CIVISTA within 60 days of the date of this Agreement.
Nothing in this Section is intended to be a limitation upon or a
waiver of the representations and warranties contained in Section
4.21.
6. CONDITIONS
6.1. CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT
THE MERGER. The respective obligations of each party to effect the
Merger shall be subject to the fulfillment or waiver at or prior to
the Closing of the following conditions:
(a) The Merger and this Agreement shall have been
approved and adopted by the requisite vote of the holders of
CIVISTA's Common Stock and the holders of FBOH's Common Stock.
(b) All authorizations, consents, orders or approvals,
lack of any injunctive actions by the Department of Justice or any
state anti-trust agency, of the FRB, OTS, Division and any other
Governmental Entity (collectively, "CONSENTS") which are
necessary for the consummation of the Merger (other than
immaterial Consents, the failure to obtain which would not involve
criminal liability, any material civil penalties or fines, or would
not have or reasonably be expected to have a Material Adverse
Effect on the combined businesses, financial condition, or results
of operations of FBOH, CIVISTA, the FBOH Subsidiaries and the
Company Subsidiaries taken as a whole), shall have been obtained or
shall have occurred and shall be in full force and effect, and all
applicable waiting periods shall have expired, at the Effective
Time. A material Consent shall not be deemed to have been
obtained if the Consent shall include any conditions or
requirements which, in the reasonable opinion of the Board of
Directors of FBOH, would have a Material Adverse Effect on the
anticipated economic and business benefits to FBOH of the
transactions contemplated by this Agreement, taken as a whole.
(c) The Registration Statement shall have become
effective in accordance with the provisions of the Securities Act
and shall not be subject to a stop order suspending the
effectiveness of the Registration Statement.
(d) No temporary restraining order, preliminary or
permanent injunction or other order by any federal or state court
or agency in the United States which enjoins or prohibits the
consummation of the Merger shall have been issued and remain in
effect.
(e) FBOH shall have obtained an opinion of its
counsel, reasonably satisfactory in form and substance to FBOH and
CIVISTA and dated as of Closing, to the effect that (i) the Merger
will constitute a tax-free reorganization within the meaning of
Section 368(a)(1)(A) of the Code, (ii) no gain or loss will be
recognized by FBOH as a consequence of the transaction contemplated
herein, and (iii) no gain or loss will be recognized by the
stockholders of CIVISTA upon the conversion of their shares of
Common Stock into shares of FBOH Common Stock pursuant to the terms
of the Merger (except for the effect of any cash received in lieu of
fractional shares).
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6.2. CONDITIONS TO OBLIGATION OF CIVISTA TO EFFECT THE
MERGER. The obligation of CIVISTA to effect the Merger shall be
subject to the fulfillment or waiver at or prior to the Closing of
the additional following conditions:
(a) FBOH shall have performed in all material respects
all of its obligations contained in this Agreement required to be
performed at or prior to the Closing.
(b) The representations and warranties of FBOH
contained in this Agreement shall be true and correct both: (i)
on the date of this Agreement, and (ii) as of the Effective Time
as if made at and as of such time, (x) except, both on the
date of this Agreement and at the Effective Time, as
expressly contemplated or permitted by this Agreement, (y) except,
as of the Effective Time, for representations and warranties
relating to a time or times other than the Effective Time, and (z)
except, both on the date of this Agreement and at the Effective
Time, to the extent that the untruthfulness or inaccuracy of
the representations or warranties of FBOH, individually or in the
aggregate, shall not have a Material Adverse Effect on FBOH.
(c) FBOH shall have furnished CIVISTA a Certificate
dated the date of the Closing, signed on behalf of FBOH by the
Chief Executive Officer or President, and the Chief Financial
Officer of FBOH, that to the best of their knowledge and belief,
the conditions set forth in Sections 6.2(a) and (b) have been
satisfied.
(d) CIVISTA shall have received the opinion of legal
counsel for FBOH, dated as of Closing, substantially to the
effect set forth in Exhibit 6.2(d) hereto, and such certificates
from the appropriate persons and/or authorities regarding FBOH's
board resolutions, form of corporate governance documents and good
standing.
(e) Since the date of this Agreement, there shall
have not been any change in the financial condition, results of
operations or business of FBOH and the subsidiaries of FBOH that
would have a Material Adverse Effect on FBOH.
6.3. CONDITIONS TO OBLIGATION OF FBOH TO EFFECT THE
MERGER. The obligation of FBOH to effect the Merger shall be
subject to the fulfillment or waiver at or prior to the Closing of
the additional following conditions:
(a) CIVISTA shall have performed in all material
respects all of its obligations contained in this Agreement
required to be performed at or prior to the Closing.
(b) The representations and warranties of CIVISTA
contained in this Agreement shall be true and correct both: (i) on
the date of this Agreement, and (ii) as of the Effective Time as
if made on and as of such time, (x) except, both on the date
of this Agreement and at the Effective Time, as expressly
contemplated or permitted by this Agreement, (y) except, as of the
Effective Time, for representations and warranties relating to a
time or times other than the Effective Time, and (z) except, both
on the date of this Agreement and at the Effective Time, to
the extent that the untruthfulness or inaccuracy of the
representations or warranties of CIVISTA, individually or in the
aggregate, shall not have a Material Adverse Effect on CIVISTA.
(c) Since the date of this Agreement (i) there shall
not have been any change in the financial condition, results of
operations or business of CIVISTA and the subsidiaries of
CIVISTA that either individually or in the aggregate would have
a Material Adverse Effect on CIVISTA, other than change as a
result of action taken under Section 5.2.6 and the second paragraph
of Section 5.6, and the responses thereto by CIVISTA and the impact
thereof on the operating performance of CIVISTA, and (ii) the
consolidated net worth of CIVISTA at the close of business on
December 31, 1994 shall not be less than $90,000,000 and as of the
Closing shall not be less than that amount plus an additional
amount of $1,500,000 for each quarter in 1995 until Closing (or a
pro rata amount per month thereof if less than a full quarter),
unless the failure to meet such net worth requirements is as a result
of action taken under Section 5.2.6, responses thereto by CIVISTA,
or the impact thereof on the operating performance of CIVISTA. For
the purposes of this Section 6.3(c), "NET WORTH" shall be calculated
in accordance with generally accepted
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accounting principles. Notwithstanding anything to the contrary
contained in this Section 6.3(c), the legal and accounting costs of
CIVISTA will be deemed as expenses in calculating the net worth
requirements under this Section, but the fees payable to McDonald,
the proceeds received from the exercise of any Company Stock
Options, and the effect of the sale of one or more of the
Non-banking Subsidiaries or assets as indicated under the second
paragraph Section 5.6 will not be used in calculating the net worth
requirement.
(d) CIVISTA shall have furnished FBOH a certificate
dated the date of the Closing signed on behalf of CIVISTA by the
Chief Executive Officer or President, and Chief Financial Officer
of CIVISTA, that to the best of their knowledge and belief, the
conditions set forth in Sections 6.3(a), (b) and (c) have been
satisfied. In addition, CIVISTA shall have furnished FBOH
certificates, one dated the effective date of the Registration
Statement and Proxy, and one as of the Closing, signed on
behalf of CIVISTA by the Chief Executive Officer or President,
and Chief Financial Officer of CIVISTA, that to the best of their
knowledge and belief, that CIVISTA participated in the
preparation of the Registration Statement and the Proxy
Statement, including review and discussion of the contents
thereof, and nothing came to the attention of CIVISTA that caused
it to believe that the Registration Statement or the Proxy
Statement at the time such documents became effective, and as of
the date of Closing, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading.
(e) FBOH shall have received the opinion of legal
counsel for CIVISTA dated as of Closing, substantially to the
effect set forth in Exhibit 6.3(e) hereto, and such certificates
from the appropriate persons and/or authorities regarding CIVISTA's
and its subsidiaries' board resolutions, forms of corporate
governance documents and good standing.
(f) FBOH shall have received a letter, dated the date
of the Closing, from Coopers & Lybrand to the effect that, for
financial reporting purposes, the Merger qualifies for
pooling-of-interests accounting treatment under generally accepted
accounting principles, if consummated in accordance with this
Agreement.
7. MISCELLANEOUS
7.1. TERMINATION. Notwithstanding any other provision
of this Agreement, this Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of this
Agreement by the stockholders of FBOH and CIVISTA:
(a) by the vote of a majority of the Board of Directors
of each of FBOH and CIVISTA;
(b) by the vote of a majority of the Board of Directors
of either FBOH or CIVISTA if the Merger shall not have been
consummated on or before April 30, 1995, unless the failure to
consummate by such date is related to the action or inaction of the
Regulatory Authorities and such action or inaction is not directly
related to either FBOH's or CIVISTA's breach of their respective
obligations under Sections 5.6 or 5.12(a), then on or before June
30, 1995;
(c) by the vote of a majority of the Board of
Directors of CIVISTA if any of the conditions specified in Sections
6.1 and 6.2 have not been met or waived by CIVISTA at such time as
such condition can no longer be satisfied;
(d) by the vote of a majority of the Board of
Directors of FBOH if any of the conditions specified in Sections
6.1 and 6.3 have not been met or waived by FBOH at such time as
such condition can no longer be satisfied;
31
<PAGE> 35
(e) by the vote of a majority of the Board of
Directors of either FBOH or CIVISTA if any regulatory agency has
denied approval of the Merger and neither FBOH nor CIVISTA has
timely filed a request for reconsideration or a petition seeking
review of such order (regardless of whether CIVISTA is deemed to be
a "party" to an application with respect to the Merger);
(f) by CIVISTA if both of the following conditions are
satisfied:
(i) the average of the per share daily closing
prices of a share of FBOH Common Stock as reported on the
NASDAQ National Market System for the 20 consecutive
trading days ending at the end of the fifth trading day
immediately preceding the date of Closing ("FBOH AVERAGE
PRICE") is less than $21.875, and
(ii) the number obtained by dividing the FBOH
Average Price by $25.00 (which is the closing price of FBOH
Common Stock on the trading day immediately preceding the
public announcement of this Agreement) is less than the
number obtained by dividing the Final Index Price (as
hereinafter defined) by the Initial Index Price and
subtracting .10 from such quotient. For purposes of
Section 7.1(f):
(1) The "INDEX GROUP" shall mean all of
those companies listed on Exhibit 7.1(f), the
common stock of which is publicly traded and as to
which there has not been a publicly announced
proposal at any time hereafter from such company
to be acquired. In the event that any such
company or companies are so removed from the
Index Group, the weights attributed to the
remaining companies shall be adjusted
proportionately.
(2) The "INITIAL INDEX PRICE" shall
mean the weighted average (weighted in
accordance with the factors listed on Exhibit
7.1(f)) of the closing sales prices, as reported
in the consolidated transaction reporting system
for the market or exchange on which such stock is
principally traded, on the trading day immediately
preceding the public announcement of this Agreement
of the common stock of the companies comprising
the Index Group.
(3) The "FINAL PRICE" of any company
belonging to the Index Group shall mean the
average of the daily closing sale prices of a
share of common stock of such company, as
reported in the consolidated transaction
reporting system for the market or exchange on
which such common stock is principally traded,
during the period of 20 trading days ending at the
end of the fifth trading day immediately preceding
the date of Closing.
(4) The "FINAL INDEX PRICE" shall mean
the weighted average (weighted in accordance with
the factors listed on Exhibit 7.1(f)) of the
Final Prices for all of the companies comprising
the Index Group. If FBOH or any company belonging
to the Index Group declares a stock dividend or
effects a reclassification, recapitalization,
split-up, combination, exchange of shares or
similar transaction between the date of this
Agreement and the date of Closing, the closing
prices for the common stock of such company shall
be appropriately adjusted for the purposes of the
definitions above so as to be comparable to the
price on the date of this Agreement.
(g) by the vote of a majority of the Board of Directors
of either FBOH or CIVISTA in the event of a material breach by the
other party of any representation, warranty, covenant or agreement,
which breach is not cured, or cannot be cured, within 30 days
after written notice thereof is given to the party committing
such breach.
7.2. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES; EFFECT
OF TERMINATION. The representations and warranties or covenants in
this Agreement will terminate at the Effective Time or the earlier
termination of this Agreement pursuant to Section 7.1, as the case
may be: PROVIDED HOWEVER, that if the Merger is consummated, Sections
2.1 through 2.5, 5.4, 5.5, 5.8, 5.9, 5.10, 5.12(c), 5.13, 5.15, 5.16,
5.19 and 7.2 will survive the Effective Time to the extent
contemplated by such Sections; provided, further in the event of the
termination of this
32
<PAGE> 36
Agreement, this Agreement shall become void and of no effect except
that the first sentence in the second paragraph of Section 5.5, and
all of Sections 5.12(c) and 7.11, will in all events survive any
termination of this Agreement.
7.3. WAIVER. Either party hereto may, by written
notice to the other party hereto, (a) extend the time for the
performance of any of the obligations or other actions of such
other party under this Agreement, (b) waive any inaccuracies in
the representations or warranties of such other party contained in
this Agreement or in any document delivered pursuant to this
Agreement, (c) waive compliance with any of the conditions or
covenants of such other party contained in this Agreement, or (d)
waive or modify performance of any of the obligations of such
other party under this Agreement. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of
either party, shall be deemed to constitute a waiver by the
party taking such action of compliance with any of the
representations, warranties, covenants, conditions, or agreements
contained in this Agreement. The waiver by either party hereto of
a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
7.4. AMENDMENT. This Agreement may be amended or
supplemented by the parties hereto, by action taken by or on behalf
of their respective Boards of Directors, at any time before or
after approval of this Agreement by the stockholders of CIVISTA and
FBOH, PROVIDED HOWEVER, that any such amendment or supplement to
this Agreement made subsequent to the adoption of this Agreement by
the stockholders of CIVISTA shall not (a) alter the amount or change
the form of the consideration contemplated by this Agreement, (b)
alter or change any term of the Amended and Restated Articles of
Incorporation of the Surviving Corporation to be affected by the
Merger, or (c) alter or change any of the terms of this Agreement
if such alteration or change would adversely affect the holders of
the Shares or the FBOH Common Stock.
7.5. ENTIRE AGREEMENT. This Agreement and the CIVISTA
Stock Purchase Option, and the agreements referenced and
contemplated therein and thereby, contain the entire agreement
among FBOH and CIVISTA with respect to the Merger and the other
transactions contemplated hereby and thereby, and supersede all
prior agreements among the parties with respect to such matters.
7.6. APPLICABLE LAW. This Agreement will be governed
by and construed in accordance with the laws of the State of Ohio,
without giving effect to the principles of conflicts of law thereof.
7.7. CERTAIN DEFINITIONS.
(a) For purposes of this Agreement, the term:
(i) "AFFILIATE" and "ASSOCIATE" shall have the
respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Exchange
Act, as in effect on the date hereof;
(ii) "CONTROL" (including the terms "CONTROLLED
BY" and "UNDER COMMON CONTROL WITH") means the possession,
directly or indirectly or as trustee or executor, of the
power to direct or cause the direction of the management
or policies of a person, whether through the ownership
of stock, as trustee or executor, by contract or credit
arrangement or otherwise;
(iii) "PERSON" means an individual,
corporation, partnership, association, trust or
unincorporated organization; and
(iv) "MATERIAL ADVERSE EFFECT" on CIVISTA or FBOH
means a material adverse effect (other than as a result
of changes (x) in banking laws or regulations of
general applicability or interpretations thereof by court
or governmental entities, (y) in generally accepted
accounting principles, or (z) that should, under the
circumstances, reasonably have been anticipated in light of
disclosures made in FBOH Reports or CIVISTA Reports, as
the case may be, filed prior to the date of the Agreement,
in CIVISTA Disclosure
33
<PAGE> 37
Letter or FBOH Disclosure Letter, or in other writings
delivered by one party to the other prior to the date of
this Agreement) on the respective condition (financial
and otherwise), results of operations, or business of
CIVISTA and its subsidiaries or FBOH and its subsidiaries,
as the case may be, taken as a whole, or on the ability
of CIVISTA or FBOH, as the case may be, to consummate the
transactions contemplated hereby. The effect of any action
taken by CIVISTA, at the written request of FBOH pursuant
to Section 5.2.6, or action taken by CIVISTA regarding the
sale of the Non-banking Subsidiaries pursuant to the second
paragraph of Section 5.6, shall not be taken into
consideration in determining whether any Material Adverse
Effect has occurred.
7.8. NOTICES. All notices and other communications
hereunder will be in writing and will be deemed to have been
duly given or delivered, if delivered personally or delivered by a
recognized commercial courier, to each of the parties at the
following addresses:
TO CIVISTA: TO FBOH:
Richard G. Gilbert, Chairman and Howard L. Flood, President and
Chief Executive Officer Chief Executive Officer
The CIVISTA Corporation First Bancorporation of Ohio
100 Central Plaza South 106 South Main Street
Canton, Ohio 44701 Akron, Ohio 44308
WITH A COPY TO: WITH COPIES TO:
Jeffrey J. Margulies, Esq. Terry E. Patton,
Squire, Sanders & Dempsey Senior Vice President and Secretary
4900 Society Center First Bancorporation of Ohio
127 Public Square 106 South Main Street
Cleveland, Ohio 44114 Akron, Ohio 44308
Philip A. Lloyd II, Esq.
and Kevin C. O'Neil, Esq.
Brouse & McDowell
500 First National Tower
Akron, Ohio 44308
or to such other address as any party may have furnished to the
other parties in writing in accordance with this Section 7.8.
7.9. COUNTERPARTS; EXHIBITS. This Agreement may be
executed in any number of counterparts, each of which will be
deemed to be an original but all of which together will constitute
but one agreement. Any exhibits or schedules referenced herein and
attached hereto shall be incorporated by reference herein as if
fully written out in this Agreement.
7.10. PARTIES IN INTEREST. This Agreement is not
intended to nor will it confer upon any other person any rights or
remedies, except as expressly stated herein.
7.11. EXPENSES. Except as otherwise set forth in this
Agreement, each party shall be responsible for the costs and
expenses incurred by it in connection with the transactions
contemplated by this Agreement. If this Agreement is terminated by
CIVISTA or FBOH pursuant to 7.1(g) because of the material breach by
the other party of any representation, warranty, covenant,
undertaking or restriction contained in this Agreement, if the
terminating party is not in material breach of any
representation, warranty, covenant, undertaking or restriction
contained in this Agreement, then the breaching party shall pay
all costs and expenses of the terminating party, including but not
limited to fees for financial advisors, accountants and
legal counsel; PROVIDED, HOWEVER, that if this Agreement is
terminated under circumstances other than those described in this
Section 7.11, all costs and expenses incurred in
34
<PAGE> 38
connection with this Agreement and the transactions contemplated
hereby will be paid by the party incurring such costs and expenses.
7.12. ENFORCEMENT OF THE AGREEMENT. The parties hereto
agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached,
that it is impossible to measure in money the damages that would
result to a party by reason of the failure of any of the parties
to perform any of the obligations of this Agreement and that money
damages would be an inadequate remedy in this instance. It is
accordingly agreed that the parties hereto will be entitled to
an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, it is agreed
and that if any party should institute an action or proceeding
seeking specific enforcement of this Agreement, the party against
which such action or proceeding is brought hereby waives the claim
or defense that the party instituting such action or proceeding
has an adequate remedy at law and hereby agrees not to assert in
any such action or proceeding the claim or defense that such a
remedy at law exists and shall waive or not assert any requirement
to post bond in connection with seeking specific performance.
7.13. SEVERABILITY. If any term or other provision
of this Agreement is invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other terms
and provisions of this Agreement will nevertheless remain in full
force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any
term or other provision is invalid, illegal or incapable of being
enforced and does not adversely affect the substance of these
transactions in a material way, the parties hereto will negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated by this
Agreement are consummated to the extent possible.
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized representatives to execute this Agreement as of the
date first above written.
FIRST BANCORPORATION OF OHIO
Attest:
/s/ Terry E. Patton By: /s/ Howard L. Flood
- - - ------------------------------- -------------------------------
Terry E. Patton, Secretary Howard L. Flood, President and
Chief Executive Officer
THE CIVISTA CORPORATION
Attest:
/s/ Janice R. Van Voorhis By: /s/ Richard G. Gilbert
- - - ------------------------------ -------------------------------
Janice R. Van Voorhis, Secretary Richard G. Gilbert, Chairman and
Chief Executive Officer
By: /s/ Paul G. Basner
-------------------------------
Paul G. Basner, Vice Chairman
35
<PAGE> 39
ACKNOWLEDGEMENT
STATE OF OHIO )
) SS:
COUNTY OF STARK )
BE IT REMEMBERED that on this 10th day of August, 1994,
personally came before me, a Notary Public in and for the State and
County aforesaid, Howard L. Flood, President and Chief Executive
Officer, and Terry E. Patton, Senior Vice President and Secretary
of First Bancorporation of Ohio, an Ohio corporation, and they duly
executed the Agreement of Affiliation and Plan of Merger before me
and acknowledged it to be their act and deed and the act and deed of
said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 10th day of August, 1994.
/s/ Kevin C. O'Neil
-----------------------
Notary Public
ACKNOWLEDGEMENT
STATE OF OHIO )
) SS:
COUNTY OF STARK )
BE IT REMEMBERED that on this 9th day of August, 1994,
personally came before me, a Notary Public in and for the State
and County aforesaid, Paul G. Basner, Vice Chairman and Janice
R. Van Voorhis, Vice President and Secretary of The CIVISTA
Corporation, an Ohio corporation, and they duly executed the
Agreement of Affiliation and Plan of Merger before me and
acknowledged it to be their act and deed and the act and deed of
said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 9th day of August, 1994.
/s/ Jeffrey J. Margulies
-------------------------------
Notary Public
ACKNOWLEDGEMENT
STATE OF OHIO )
) SS:
COUNTY OF STARK )
BE IT REMEMBERED that on this 9th day of August, 1994,
personally came before me, a Notary Public in and for the State
and County aforesaid, Richard G. Gilbert, Chairman and Chief
Executive Officer of The CIVISTA Corporation, an Ohio corporation,
and they duly executed the Agreement of Affiliation and Plan of
Merger before me and acknowledged it to be his act and deed and the
act and deed of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 9th day of August, 1994.
/s/ Janice R. Van Voorhis
-----------------------------
Notary Public
<PAGE> 40
<TABLE>
EXHIBITS TO
AGREEMENT OF AFFILIATION AND PLAN OF MERGER
FIRST BANCORPORATION OF OHIO AND
THE CIVISTA CORPORATION
<S> <C>
Certificate of Merger Exhibit 1.1.2
Articles and Regulations of Surviving Corporation Exhibit 1.1.4
FBOH Disclosure Letter Exhibit 3.3
The CIVISTA Corporation Stock Purchase Option Exhibit 3.15
CIVISTA Disclosure Letter Exhibit 4.3
Indemnification Provisions Exhibit 5.8
Form of Affiliates Agreement for CIVISTA Exhibit 5.13(b)-1
Form of Affiliates Agreement for FBOH Exhibit 5.13(b)-2
Form of Tax Opinion from Brouse & McDowell Exhibit 6.1(e)
Form of Legal Opinion to CIVISTA from Brouse & McDowell Exhibit 6.2(d)
Form of Legal Opinion to FBOH from Squire, Sanders & Dempsey Exhibit 6.3(e)
Index Group of Companies Exhibit 7.1(f)
</TABLE>
<PAGE> 1
EXHIBIT 10(b)
THE CIVISTA CORPORATION STOCK PURCHASE OPTION
THE CIVISTA CORPORATION STOCK PURCHASE OPTION, dated as of August 10, 1994
(the "Agreement"), by and between The CIVISTA Corporation, an Ohio corporation
("CIVISTA"), and First Bancorporation of Ohio, an Ohio corporation ("FBOH").
WHEREAS, CIVISTA and FBOH propose to enter into an Agreement of Affiliation
and Plan of Merger, dated as of August 10, 1994 (the "Merger Agreement"),
providing for the merger of CIVISTA with and into FBOH (the "Merger"); and
WHEREAS, as a condition and inducement to FBOH to enter into the Merger
Agreement, FBOH has requested that CIVISTA agree, and CIVISTA has agreed, to
grant the Option to FBOH;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, and covenants set forth in this Agreement and in
the Merger Agreement, CIVISTA and FBOH agree as follows:
1. CERTAIN DEFINITIONS. In addition to the terms otherwise defined in this
Agreement, the following terms shall have the meanings set forth below:
(a) "Affiliate" and "Associate" shall have the meanings given to them in
Rule 12b-2 under the Exchange Act.
(b) "Beneficial ownership" and "beneficially own" shall have the meanings
given to them in Rule 13d-3 under the Exchange Act.
(c) "BHC Act" shall mean the Bank Holding Company Act of 1956, as amended.
(d) "Preferred Stock" shall mean the Preferred Shares, without par value,
of CIVISTA, with the terms and conditions set forth in Exhibit 1(d)
attached hereto.
(e) "Common Stock" shall mean the Common Shares, without par value, of
CIVISTA.
(f) "Effective Time" shall have the meaning given to it in the Merger
Agreement.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
(i) "OTS" shall mean the Office of Thrift Supervision.
(j) "Group" shall have the same meaning as the term "group" in Section
13(d)(3) of the Exchange Act.
(k) "Option Shares" shall mean shares of Preferred Stock that are subject
to the Option.
<PAGE> 2
(l) "Person" shall have the meaning given to it in Sections 3(a)(9) and
13(d)(3) of the Exchange Act.
(m) "Securities Act" shall mean the Securities Act of 1933, as amended.
(n) "Significant Subsidiary" shall have the meaning given to it in Rule
1.02 of Regulation S-X of the Securities and Exchange Commission.
2. GRANT OF OPTION. Subject to the terms and conditions set forth in this
Agreement, CIVISTA hereby grants to FBOH an irrevocable option (the "Option")
to purchase from CIVISTA up to 350,655 shares of Preferred Stock (subject to
adjustment hereafter pursuant to Section 7), free and clear of all liens,
claims, charges, and encumbrances of any kind, at a purchase price per share
(the "Purchase Price") equal to $33.50.
3. EXERCISE OF OPTION.
(a) Following the occurrence of a Purchase Event, FBOH may exercise the
Option, in whole or in part, at any time and from time to time prior to the
expiration of the right to exercise the Option (as provided in Section 3(c));
except that (i) FBOH may not exercise the Option if, at the time of exercise,
it is in material breach of any term, condition, covenant, representation or
warranty of or contained within the Merger Agreement, and (ii) any purchase of
Option Shares upon exercise of the Option shall be subject to compliance with
applicable law, including the BHC Act and the regulations of the Federal
Reserve promulgated thereunder, and the regulations of OTS.
(b) As used herein, a "Purchase Event" means any of the following events
that occurs after the date of this Agreement:
(i) CIVISTA or any subsidiary of CIVISTA, without the prior written consent
of FBOH, shall have authorized, recommended, or proposed, shall have publicly
announced an intention to authorize, recommend, or propose, or shall have
entered into an agreement to effect (A) a merger, consolidation or other
business combination involving CIVISTA or any of its Significant Subsidiaries
with or into any person (other than a merger, consolidation, joint venture,
or other business combination with or into FBOH or any subsidiary of FBOH, or
a merger or consolidation of any subsidiary of CIVISTA with or into CIVISTA
or any other subsidiary of CIVISTA), (B) a sale, lease, or other disposition
of assets or earning power of CIVISTA or any of its subsidiaries, in one or
more transactions, representing 25% or more of the consolidated assets or
earning power of CIVISTA and its subsidiaries to any person (other than FBOH
or any subsidiary of FBOH), or (C) an issuance, sale, or other disposition
(whether by means of a merger, consolidation, share exchange, or other
transaction) of securities representing 20% or more of the voting power of
CIVISTA or any of its Significant Subsidiaries to any person (other than FBOH
or any subsidiary of FBOH) (any of the foregoing being an "Acquisition
Transaction;" except that, if FBOH has given its prior written consent to any
such transaction, the transaction as to which FBOH has given its prior
written consent shall not be an "Acquisition Transaction");
(ii) any person (other than FBOH or any subsidiary of FBOH) shall have
commenced (as such term is defined in Rule 14d-2 under the Exchange Act), or
shall have filed a registration statement under the Securities Act with
respect to, a tender offer or exchange offer
2
<PAGE> 3
to acquire shares of Common Stock or Preferred Stock such that, upon
consummation of the offer, such person would beneficially own 25% or more of
the Common Stock or Preferred Stock then outstanding;
(iii) any person (other than FBOH or any subsidiary of FBOH, any subsidiary
of CIVISTA in a fiduciary capacity in the ordinary course of such
subsidiary's business, any employee benefit plan or employee stock ownership
plan of CIVISTA or any subsidiary of CIVISTA, or any person organized,
appointed, or established by CIVISTA or any subsidiary of CIVISTA for or
pursuant to the terms of any such plan), alone or together with such person's
Affiliates, shall have acquired beneficial ownership of 20% or more of the
Common Stock or Preferred Stock (if any) then outstanding, or any group
(other than a group of which FBOH or any subsidiary of FBOH, any subsidiary
of CIVISTA in a fiduciary capacity in the ordinary course of such
subsidiary's business, any employee benefit plan or employee stock ownership
plan of CIVISTA or any subsidiary of CIVISTA, or any person organized,
appointed, or established by CIVISTA or any subsidiary of CIVISTA for or
pursuant to the terms of any such plan is a member) shall have been formed,
as reasonably determined in good faith by the Board of Directors of FBOH,
that beneficially owns 20% or more of the Common Stock or Preferred Stock (if
any) then outstanding; or
(iv) the holders of Common Stock and Preferred Stock (if any) shall not have
approved the Merger Agreement at the meeting of such stockholders (or any
adjournment or postponement thereof) held for the purpose of voting on the
Merger Agreement, such meeting shall not have been held or shall have been
canceled (and not rescheduled) prior to termination of the Merger Agreement,
or CIVISTA's Board of Directors shall have withdrawn or modified in a manner
adverse to FBOH the recommendation of CIVISTA's Board of Directors that
CIVISTA's stockholders vote in favor of and approve the Merger and adopt the
Merger Agreement, in each case after any person (other than FBOH or any
subsidiary of FBOH) shall, after the date of this Agreement, have (A)
publicly announced a bona fide proposal, or publicly disclosed a bona fide
intention to make a bona fide proposal, to engage in an Acquisition
Transaction (or CIVISTA shall have publicly disclosed receipt of such a
proposal) or (B) filed an application or given a notice, whether in draft or
final form, under the BHC Act or the Change in Bank Control Act of 1978 for
approval to engage in an Acquisition Transaction.
(c) Except as provided in the last sentence of this Section 3(c) and in
Section 9(c), the right to exercise the Option shall terminate upon the
earliest to occur of (i) the Effective Time, (ii) 12 months after the first
occurrence of a Purchase Event, and (iii) termination of the Merger Agreement
in accordance with its terms prior to the occurrence of a Purchase Event. The
rights set forth in Sections 9 and 11 shall not terminate when the right to
exercise the Option terminates, but shall extend to such time as is provided in
Sections 9 or 11, respectively. Notwithstanding the termination of the right
to exercise the Option, FBOH shall be entitled to purchase those Option Shares
with respect to which it has exercised the Option prior to termination of the
right to exercise the Option.
(d) In the event FBOH wishes to exercise the Option, it shall send to
CIVISTA a written notice (the date on which the notice is sent being herein
referred to as the "Notice Date") specifying (i) the number of Option Shares
that it intends to purchase pursuant to such exercise and (ii) a place and date
not earlier than three business days nor later than 15 business days from the
Notice Date for the closing of such purchase (the "Closing Date").
Notwithstanding the foregoing, if the closing of such purchase cannot be
consummated by reason of any applicable judgment, decree, order, law, or
regulation, the
3
<PAGE> 4
Closing Date shall be extended and occur not earlier than three business days
nor later than 30 business days after such restriction on consummation has
expired or been terminated. If prior notification to or approval by the Federal
Reserve or any other regulatory authority is required in connection with such
purchase and sale, FBOH shall promptly file and expeditiously process the
notice or application for approval (and CIVISTA shall cooperate with FBOH in
the filing and processing thereof), and the Closing Date shall be extended and
occur not earlier than three business days nor later than 30 business days
after the date on which (x) any required notification period has expired or
been terminated or (y) such approval has been obtained, as the case may be,
and, in either event, any requisite waiting period has expired.
(e) Notwithstanding Section 3(d), in no event shall any Closing Date be
more than 18 months after the Notice Date, and, if the Closing Date has not
occurred within 18 months after the related Notice Date due to the failure to
obtain any required approval by the Federal Reserve, OTS or any other
regulatory authority, the exercise of the Option on the Notice Date shall be
deemed to have been rescinded. In the event (i) FBOH receives official notice
that an approval of the Federal Reserve, OTS or any other regulatory authority
required for the purchase and sale of the Option Shares will not be issued or
granted or (ii) a Closing Date has not occurred within 18 months after the
related Notice Date due to the failure to obtain any such required approval,
FBOH shall be entitled to exercise the Option in connection with the resale of
the Option Shares pursuant to a registration statement as provided in Section
10.
4. PAYMENT AND DELIVERY OF CERTIFICATES.
(a) On each Closing Date, FBOH shall pay to CIVISTA in immediately
available funds, by wire transfer to a bank account designated by CIVISTA, an
amount equal to the Purchase Price multiplied by the number of Option Shares to
be purchased on the Closing Date.
(b) On each Closing Date, simultaneous with the delivery of immediately
available funds as provided in Section 4(a), CIVISTA shall deliver to FBOH a
certificate or certificates representing the Option Shares being purchased, and
FBOH shall deliver to issuer a letter in which FBOH agrees not to sell or
otherwise dispose of such Option Shares in violation of applicable law or the
provisions of this Agreement.
(c) Certificates for the Option Shares shall be endorsed with a restrictive
legend substantially as follows:
THE TRANSFER OF THE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND PURSUANT TO THE TERMS OF THE CIVISTA CORPORATION STOCK PURCHASE OPTION
DATED AS OF AUGUST ___, 1994. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO
THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY CIVISTA OF A WRITTEN REQUEST
THEREFOR.
It is understood and agreed that the reference in the foregoing legend to
restrictions arising under the Securities Act shall be removed, by delivery of
a substitute certificate or certificates without such reference, if FBOH
delivers to CIVISTA a copy of a letter from the staff of the Securities and
Exchange Commission, or an opinion of counsel in form and substance reasonably
satisfactory to CIVISTA and its counsel, to the effect that an exemption is
available for the transaction under the Securities Act.
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<PAGE> 5
5. REPRESENTATIONS AND WARRANTIES OF CIVISTA. CIVISTA hereby represents and
warrants to FBOH as follows:
(a) DUE AUTHORIZATION. CIVISTA has all requisite corporate power and
authority to enter into this Agreement and, subject to obtaining the approvals,
if any, contemplated by this Agreement or required by law, to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of CIVISTA.
This Agreement has been duly executed and delivered by CIVISTA and constitutes
a valid and binding obligation of CIVISTA, enforceable against CIVISTA in
accordance with its terms.
(b) AUTHORIZED STOCK. CIVISTA has heretofore taken, and until termination of
the right to exercise the option shall hereafter take, all corporate and other
action necessary to authorize and reserve, and, subject to obtaining the
governmental and other approvals and consents contemplated by this Agreement
and as may be required by law, to permit it to issue, all of the Option Shares,
including any additional shares of Preferred Stock or other securities that may
be issued pursuant to Section 7. The Option Shares, including any such
additional shares of Preferred Stock or other securities, upon issuance
pursuant hereto, shall be duly and validly issued, fully paid, and
nonassessable, and shall be delivered free and clear of all liens, claims,
charges, and encumbrances of any kind, including any preemptive rights of any
stockholder of CIVISTA.
(c) NO CONFLICTS. Except as disclosed pursuant to the Merger Agreement, the
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in a
violation of or default under, (i) any provision of the Articles of
Incorporation or Code of Regulations of CIVISTA or the governing documents of
any subsidiary of CIVISTA or (ii), subject to obtaining the approvals, if any,
contemplated by this Agreement or required by law, any loan or credit
agreement, note, mortgage, indenture, lease, or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule, or regulation applicable to CIVISTA or any
subsidiary of CIVISTA or their respective properties or assets, which conflict,
violation, or default would have a material adverse effect on CIVISTA.
6. REPRESENTATIONS AND WARRANTIES OF FBOH. FBOH hereby represents and
warrants to CIVISTA that:
(a) DUE AUTHORIZATION. FBOH has all requisite corporate power and authority
to enter into this Agreement and, subject to obtaining the approvals referred
to in this Agreement, to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of FBOH. This Agreement has been duly executed and
delivered by FBOH and constitutes a valid and binding obligation of FBOH,
enforceable against FBOH in accordance with its terms.
(b) NO CONFLICTS. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, conflict
with, or result in a violation of or default under, (i) any provision of the
Articles of Incorporation or Code of Regulations of FBOH or any subsidiary of
FBOH or (ii), subject to obtaining the approvals referred to in this Agreement
or required by law, any loan or credit agreement, note, mortgage, indenture,
lease, or other agreement, obligation, instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law,
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<PAGE> 6
ordinance, rule, or regulation applicable to FBOH or any subsidiary of FBOH or
their respective properties or assets, which conflict, violation, or default
would have a material adverse effect on FBOH.
(c) PURCHASE NOT FOR DISTRIBUTION. Any Option Shares or other securities
acquired by FBOH upon exercise of the Option will not be taken with a view to
the public distribution thereof and will not be transferred or otherwise
disposed of except in a transaction registered or exempt from registration
under the Securities Act.
7. VOTING OF OPTION SHARES AND OTHER SHARES BY FBOH. FBOH hereby covenants
and agrees, with respect to all shares of Common Stock and Preferred Stock
which it beneficially owns, whether or not acquired pursuant to the terms of
this Agreement, that it will either (i) vote such shares proportionately with
the vote of all other shareholders of CIVISTA on any matter submitted to such
shareholders relating to a Purchase Event or an Acquisition Transaction, or
(ii) at the discretion of its Board of Directors, abstain from voting such
shares on any matter submitted to shareholders of CIVISTA relating to a
Purchase Event or an Acquisition Transaction.
8. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in the Common Stock or Preferred Stock by
reason of a stock dividend, split-up, recapitalization, combination, exchange
of shares, or similar transaction, the type and number of shares or securities
subject to the option, and the Purchase Price therefor, shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
any such transaction, so that FBOH shall receive upon exercise of the Option
the number and class of shares, other securities, property, or cash that FBOH
would have received in respect of the Option Shares if the Option had been
exercised and the Option Shares had been issued to FBOH immediately prior to
such event or the record date therefor, as applicable.
(b) In the event that CIVISTA enters into an agreement (i) to consolidate
with or merge into any person (other than FBOH or any subsidiary of FBOH), and
CIVISTA shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) pursuant to which any person (other than FBOH or
any subsidiary of FBOH) shall merge into CIVISTA, and CIVISTA shall be the
continuing or surviving corporation, but outstanding shares of Preferred Stock
or Common Stock shall be changed into or exchanged for stock, other securities,
property, or cash, or (iii) to sell, lease, or otherwise transfer assets of
CIVISTA or any of its subsidiaries, in one or more transactions, representing
more than 50% of the consolidated assets or earning power of CIVISTA and its
subsidiaries to any person (other than FBOH or any subsidiary of FBOH), then,
and in each such case, the agreement governing such transaction shall make
proper provisions so that, upon the consummation of such transaction, FBOH may,
in its discretion, (x) retain the Option to purchase the Option Shares or (y)
convert the Option into the right to receive, at the election of FBOH either
from the Acquiring Corporation or from any person that controls the Acquiring
Corporation, the number and class of shares, other securities, property, or
cash that FBOH would have received in respect of the Option Shares if the
Option had been exercised and the Option Shares had been issued to FBOH
immediately prior to the consummation of such transaction, the distribution of
the proceeds thereof to CIVISTA's stockholders, or the record date therefor, as
applicable.
(c) For purposes of this Agreement, "Acquiring Corporation" means (i) the
continuing or surviving corporation in a merger or consolidation involving
CIVISTA in which CIVISTA is not the continuing or surviving corporation, (ii)
CIVISTA in a merger in which CIVISTA is the continuing or surviving
corporation, and (iii) the transferee of more than 50% of the consolidated
assets or earning
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<PAGE> 7
power of CIVISTA and its subsidiaries. The provisions of Sections 8, 9, 10, 11,
12 and 13 shall apply with appropriate adjustments to any securities for which
the Option becomes exercisable pursuant to this Section 8.
9. REPURCHASE OF OPTION AT REQUEST OF FBOH.
(a) At the request of FBOH at any time during the period beginning upon the
first occurrence of a Repurchase Event and ending 12 months thereafter, CIVISTA
shall repurchase from FBOH the Option (unless the Option shall have expired or
been terminated) and all shares of Preferred Stock purchased by FBOH upon
exercise of the Option that are beneficially owned by FBOH at the Request Date.
(The date on which FBOH requests that CIVISTA repurchase the Option or Option
Shares under this Section 9 is referred to as the "Request Date".) Such
repurchase shall be at an aggregate price (the "Put Consideration") equal to
the sum of:
(x) the aggregate Purchase Price paid by FBOH for all shares of Preferred
Stock purchased upon exercise of the Option that are beneficially owned by
FBOH on the Request Date;
(y) the excess, if any, of the Applicable Price over the Purchase Price
paid by FBOH for each share of Preferred Stock with respect to which the
Option has been exercised that are beneficially owned by FBOH on the Request
Date, multiplied by the number of such shares; and
(z) the excess, if any, of the Applicable Price over the Purchase Price
(adjusted pursuant to Section 8), multiplied by the number of Option Shares
with respect to which the Option has not been exercised; provided that, in
the case of Option Shares with respect to which the Option has been exercised
but the Closing Date has not occurred, the Closing Date shall be suspended
and the Option shall be treated, for purposes of this clause (z), as if it
had not been exercised.
(b) If FBOH exercises its rights under this Section 8, CIVISTA shall,
within 10 business days after the Request Date, pay the Put Consideration to
FBOH in immediately available funds, by wire transfer to a bank account
designated by FBOH; FBOH shall, against receipt of the payment therefor,
surrender to CIVISTA the Option and the certificates evidencing the shares of
Preferred Stock purchased upon exercise of the Option that are beneficially
owned by FBOH on the Request Date; and FBOH shall warrant that it has sole
record and beneficial ownership of such shares, free and clear of all liens,
claims, charges, and encumbrances of any kind. Notwithstanding the foregoing,
if CIVISTA is prohibited from repurchasing the Option or any or all Option
Shares or from paying all or any portion of the Put Consideration by reason of
any applicable judgment, decree, order, law, or regulation, CIVISTA shall
immediately repurchase or pay that portion of the Option and Option Shares or
Put Consideration that it is not prohibited from repurchasing or paying, shall
from time to time thereafter immediately repurchase or pay such further portion
of the Put Consideration that it is not then prohibited from repurchasing or
paying, and, in all cases, shall pay the balance of the Option and Option
Shares or Put Consideration within 10 business days after such prohibition has
expired or been terminated. Upon receipt of a partial payment of the Put
Consideration, FBOH shall surrender a portion of the Option and/or Option
Shares, as selected by FBOH, corresponding (as closely as practicable) to the
portion of the Put Consideration received by FBOH. If prior notification to or
approval by the Federal Reserve, OTS or any other regulatory authority is
required in connection with the payment of all or any portion of the Put
Consideration, CIVISTA shall pay from time to time that portion of the Put
Consideration that it is not
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<PAGE> 8
prohibited from paying and shall promptly file and expeditiously process the
required notice or application for approval (and FBOH shall cooperate with
CIVISTA in the filing of any such notice or application and the obtaining of
any such approval), and CIVISTA shall pay the Put Consideration within 10
business days after the date on which, as the case may be, (i) any required
notification period has expired or been terminated or (ii) such approval has
been obtained.
(c) If the Federal Reserve, OTS or any other regulatory authority
disapproves of the repurchase by CIVISTA of all or any part of the Option or
Option Shares pursuant to this Section 8, CIVISTA shall promptly give notice of
such disapproval to FBOH, and FBOH shall have the right to exercise the Option
as to the number of Option Shares for which the Option was exercisable at the
Request Date less the number of shares as to which payment has been made. If
the Option shall have terminated prior to the date of such notice or shall be
scheduled to terminate at any time before the expiration of a period ending on
the thirtieth business day after the date of such notice, FBOH shall
nevertheless have the right so to exercise the Option or exercise its right
under Section 12 until the expiration of such period of 30 business days.
Notwithstanding anything herein to the contrary, CIVISTA shall not be obligated
to repurchase the Option or any Option Shares on more than one occasion.
(d) For purposes of this Agreement, the "Applicable Price" means the
highest of (i) the highest price per share to be paid by any person (other than
FBOH or one of its subsidiaries) for shares of Common Stock or Preferred Stock
or the highest consideration per share to be received by holders of Common
Stock or Preferred Stock, in each case pursuant to an agreement for a merger,
consolidation, joint venture, or other business combination with CIVISTA
entered into after the date hereof and on or prior to the Request Date, (ii)
the highest closing sales price per share of Common Stock reported on the
National Market System of the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") (or, if transactions in Common Stock are
not reported on NASDAQ, the highest bid price quoted on the principal trading
market on which the Common Stock is traded as reported by a recognized source)
during the 60 business days preceding the Request Date, and (iii) in the event
of the sale by CIVISTA or its subsidiaries, in one or more transactions, of
assets or earning power aggregating more than 50% of the consolidated assets or
earning power of CIVISTA and its subsidiaries to any person (other than FBOH or
any subsidiary of FBOH), the sum of the price paid for such assets or earning
power and the current value of the remaining assets of CIVISTA and its
subsidiaries divided by the number of shares of Common Stock outstanding at the
time of the sale. The value of any consideration other than cash that is
offered, paid, or received pursuant to clauses (i) or (iii) of this Section
9(d), and the value of the remaining assets of CIVISTA and its subsidiaries
referred to in clause (iii), shall be determined in good faith by an
independent nationally recognized investment banking firm mutually acceptable
to FBOH and CIVISTA, which determination shall be conclusive for all purposes
of this Agreement.
(e) As used herein, a "Repurchase Event" means the consummation of an
Acquisition Transaction, provided, that, the percentage for purposes of Section
3(b)(i)(B) shall be 50% and the percentages for purposes of Section 3(b)(i)(C)
shall be 40%.
(f) Notwithstanding anything in this Agreement to the contrary, the Put
Consideration payable to FBOH, determined in accordance with Subsection (a) of
this Section, shall be adjusted so that in no event will the aggregate Put
Consideration payable to FBOH pursuant to the terms of this Section 9 exceed
the aggregate Purchase Price paid by FBOH pursuant to the Option, plus
$4,000,000.
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<PAGE> 9
10. REPURCHASE OF OPTION AT REQUEST OF CIVISTA.
(a) Except to the extent that FBOH shall have previously exercised its
rights under Section 9, at the request of CIVISTA during the six-month period
commencing 12 months following the first occurrence of a Repurchase Event,
CIVISTA may repurchase from FBOH, and FBOH shall sell to CIVISTA, all (but not
less than all) of the shares of Preferred Stock purchased by FBOH upon exercise
of the Option that are beneficially owned by FBOH on the Call Date at a price
(the "Call Consideration") equal to the greater of (x) 110% of the Current
Market Price and (y) the sum of (A) the Purchase Price paid by FBOH for such
shares plus (B) FBOH's pre-tax per share carrying cost, multiplied in either
case by the number of shares being repurchased. (The date on which CIVISTA
requests that FBOH sell the Option Shares under this Section 10 is referred to
as the "Call Date.") Notwithstanding the foregoing, FBOH may, within 30 days
following CIVISTA's notice of its intention to purchase shares pursuant to this
Section 10, deliver an Offeror's Notice pursuant to Section 12, in which case
the provisions of Section 12 and not those of this Section 10 shall control.
Notwithstanding any contrary provision of this Section 10, CIVISTA's rights
under this Section 10 shall be suspended (with any such rights being extended
accordingly) during any period in which the exercise of such rights would
subject FBOH to liability pursuant to Section 16(b) of the Exchange Act.
(b) If CIVISTA exercises its rights under this Section 10 and FBOH does not
deliver an Offeror's Notice or sell shares of Preferred Stock to a third party
pursuant to the Offeror's Notice, CIVISTA shall, within 10 business days after
the thirtieth day following CIVISTA's notice of its intention to purchase
shares pursuant to this Section 10 or, if applicable, within 10 business days
after abandonment of the transaction covered by the Offeror's Notice, pay the
Call Consideration in immediately available funds, by wire transfer to a bank
account designated by FBOH; FBOH shall surrender to CIVISTA the certificates
evidencing the shares of Preferred Stock purchased upon exercise of the option
that are beneficially owned by FBOH on the Call Date; and FBOH shall warrant
that it has sole record and beneficial ownership of such shares, free and clear
of all liens, claims, charges, and encumbrances of any kind.
(c) As used herein, (i) "Current Market Price" means the average closing
sales price per share of Common Stock reported on NASDAQ (or if the Common
Stock is not reported on NASDAQ, the highest bid price quoted on the principal
trading market on which such shares are traded as reported by a recognized
source) for the 10 business days preceding the Call Date, and (ii) "FBOH's
pretax per share carrying cost" shall be the amount equal to the interest on
the aggregate Purchase Price paid for the shares of Preferred Stock being
repurchased pursuant to this Section 10 from the date of purchase to the date
of repurchase at the rate of interest announced by CIVISTA as its prime or base
lending or reference rate during such period, less any dividends received on
the shares being repurchased, divided by the number of shares being
repurchased.
11. REGISTRATION RIGHTS. If requested by FBOH at any time and from time to
time within (a) the period beginning upon the first exercise of the Option and
ending three years thereafter or (b) the period beginning upon the occurrence
of either of the events set forth in clauses (i) and (ii) of Section 3(e), or
the receipt by FBOH of official notice that an approval of the Federal Reserve,
OTS or any other regulatory authority required for a repurchase pursuant to
Section 9(c) will not be issued or granted, and ending 30 business days
thereafter (but solely as to shares of Preferred Stock with respect to which
the required approval was not received), CIVISTA shall prepare and file a
registration statement under the Securities Act, if such registration is
necessary, in order to permit the sale or other disposition of any or all
shares of Preferred Stock or other securities that have been purchased by or
are issuable to FBOH
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<PAGE> 10
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by FBOH, including, if applicable, a "shelf"
registration statement under Rule 415 under the Securities Act or any successor
provision, and CIVISTA shall use its best efforts to qualify such shares or
other securities under any applicable state securities laws. FBOH shall use
all reasonable efforts to cause, and to cause any underwriters of any sale or
other disposition to cause, any sale or other disposition pursuant to
registration statement to be effected on a widely distributed basis. CIVISTA
shall use all reasonable efforts to cause each such registration statement to
become effective, to obtain all consents or waivers of other parties that are
required therefor, and to keep such registration statement effective for such
period (not in excess of 180 days from the day such registration statement
first becomes effective) as may be reasonably necessary to effect such sale or
other disposition. In the event that FBOH requests CIVISTA to file a
registration statement following the failure to obtain an approval required for
an exercise of the Option as described in Section 3(e), the closing of the sale
or other disposition of Preferred Stock or other securities pursuant to such
registration statement shall occur substantially simultaneously with the
exercise of the Option. The obligations of CIVISTA hereunder to file a
registration statement and to maintain its effectiveness may be suspended for
one or more periods of time not exceeding 90 days in the aggregate if the Board
of Directors of CIVISTA determines that the filing of such registration
statement or the maintenance of its effectiveness would require disclosure of
nonpublic information that would materially and adversely affect CIVISTA. Any
registration statement prepared and filed under this Section 11, and any sale
covered thereby, shall be at CIVISTA's expense, except for underwriting
discounts or commissions, brokers' fees, and the fees and disbursements of
FBOH's counsel related thereto. FBOH shall provide all information reasonably
requested by CIVISTA for inclusion in any registration statement to be filed
hereunder, and shall make all necessary representations and warranties with
respect to the accuracy and completeness thereof and shall hold CIVISTA
harmless with respect to any liability therefor. If, during the time periods
referred to in the first sentence of this Section 11, CIVISTA effects a
registration under the Securities Act of any Common Stock or Preferred Stock
for its own account or for the account of any stockholder of CIVISTA (other
than a registration on Form S-4, Form S-8, or any successor form), CIVISTA
shall afford FBOH the right to participate in such registration, and such
participation shall not affect the obligation of CIVISTA to effect a
registration statement for FBOH under this Section 11; provided that, if the
managing underwriters of such offering advise CIVISTA in writing that, in their
opinion, the number of shares of Preferred Stock requested to be included in
such registration exceeds the number that can be sold in such offering, CIVISTA
shall include the shares requested to be included in the offering by FBOH pro
rata with the shares intended to be included in the offering by CIVISTA. In
connection with any registration pursuant to this Section 11, CIVISTA and FBOH
shall provide each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification, and contribution in
connection with such registration.
12. FIRST REFUSAL. At any time after the first occurrence of a Purchase
Event and prior to the later of (a) the expiration of 24 months following the
first purchase of shares of Preferred Stock upon exercise of the Option and (b)
the termination of the right to exercise the Option pursuant to Section 3(c),
if FBOH desires to sell, assign, transfer, or otherwise dispose of all or any
of the shares of Preferred Stock or other securities purchased by it upon
exercise of the Option, FBOH shall give CIVISTA written notice of the proposed
transaction (an "Offeror's Notice"), identifying the proposed transferee,
accompanied by a copy of a binding offer to purchase such shares or other
securities signed by such transferee and setting forth the terms of the
proposed transaction. An Offeror's Notice shall be deemed an offer by FBOH to
CIVISTA, which may be accepted within 10 business days after receipt of such
Offeror's Notice by CIVISTA, to sell such shares or other securities to CIVISTA
on the same terms and conditions and at the same price as those set forth in
the Offeror's Notice for the proposed transaction. The purchase of any such
shares or other securities by CIVISTA shall be settled within 10 business days
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of the date of the acceptance of the offer by CIVISTA, and the purchase price
shall be paid to FBOH in immediately available funds. Notwithstanding the
foregoing, if prior notification to or approval by the Federal Reserve, OTS or
any other regulatory authority is required in connection with such purchase,
CIVISTA shall promptly file and expeditiously process the required notice or
application for approval (and FBOH shall cooperate with CIVISTA in the filing
of any such notice or application and the obtaining of any such approval), and
the purchase of such shares or other securities by CIVISTA shall be settled
within 10 business days after the date on which, as the case may be, (a) any
required notification period has expired or been terminated or (b) such
approval has been obtained. In the event of the failure or refusal of CIVISTA
to purchase all the shares or other securities covered by an offeror's Notice,
or if the Federal Reserve, OTS or any other regulatory authority disapproves of
CIVISTA's proposed purchase of such shares or other securities, FBOH may
thereafter sell all, but not less than all, of such shares to the proposed
transferee at no less than the price specified and on terms no more favorable
than those set forth in the Offeror's Notice. The requirements of this Section
12 shall not apply to (x) any disposition as a result of which the proposed
transferee will purchase or acquire in such transaction not more than 2% of the
outstanding Common Stock or Preferred Stock, (y) any sale by means of a public
offering registered under the Securities Act in which steps are taken to
reasonably ensure that no purchaser will purchase or acquire more than 2% of
the outstanding Common Stock or Preferred Stock, or (z) any transfer to a
wholly owned subsidiary of FBOH that agrees in writing to be bound by the terms
hereof.
13. LISTING. If shares of Preferred Stock or any other securities to be
acquired upon exercise of the Option are quoted on NASDAQ, CIVISTA, at the
request of FBOH, will thereafter, use reasonable efforts to cause the Preferred
Stock to continue to be so quoted.
14. DIVISION OF OPTION. This Agreement (and the Option granted hereby) are
exchangeable, without expense, at the option of FBOH, upon presentation and
surrender of this Agreement at the principal office of CIVISTA, for other
Agreements providing for options of different denominations entitling the
Holder thereof to purchase in the aggregate the same number of shares of
Preferred Stock purchasable hereunder. The terms "Agreement" and "Option" as
used herein include any other Agreements and related options for which this
Agreement and the Option granted hereby may be exchanged. Upon receipt by
CIVISTA of evidence reasonably satisfactory to it of the loss, theft,
destruction, or mutilation of this Agreement, and (in the case of loss, theft,
or destruction) of reasonably satisfactory indemnification, and (in the case of
mutilation) upon surrender and cancellation of this Agreement, CIVISTA will
execute and deliver a new Agreement of like tenor and date. Any such new
Agreement, when executed and delivered, shall constitute an additional
contractual obligation on the part of CIVISTA, whether or not the Agreement so
lost, stolen, destroyed, or mutilated shall at any time be enforceable by
anyone.
15. FBOH'S BREACH. Notwithstanding anything to the contrary contained
herein, all of CIVISTA's obligations under this Agreement shall immediately
terminate and the Option shall no longer be exercisable if the Merger Agreement
has been terminated and FBOH was in material breach of any term, condition,
covenant, representation or warranty of or contained within the Merger
Agreement when it was terminated; provided, however, that CIVISTA may not
assert, for purposes of this Section 14 only, a material breach of the Merger
Agreement by FBOH if FBOH terminated the Merger Agreement pursuant to the terms
of the Merger Agreement and CIVISTA failed to notify FBOH, upon FBOH's written
request prior to termination, of the material breach; provided, further,
however, that CIVISTA may not assert, for purposes of this Section 15 only, a
material breach of the Merger Agreement by FBOH if CIVISTA terminated the
Merger Agreement pursuant to the terms of the Merger Agreement
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and all material breaches by FBOH were curable, unless CIVISTA provided written
notice to FBOH of the material breaches and an opportunity to cure as soon as
reasonably practicable.
16. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in Section 11, each of the
parties hereto shall bear and pay all expenses incurred by it or on its behalf
in connection with the transactions contemplated hereunder, including fees and
expenses of its own financial consultants, investment bankers, accountants, and
counsel.
(b) WAIVER AND AMENDMENT. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision, but
such waiver shall only be effective if in writing and signed by the party
entitled to the benefits of such provision. This Agreement may not be
modified, amended, altered, or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY. Except as
otherwise set forth in the Merger Agreement, this Agreement, the Merger
Agreement, and the other documents and instruments referred to therein and
herein (a) constitute the entire agreement and understanding, and supersede all
prior agreements and understandings, both written and oral, between the parties
with respect to their subject matter and (b) are not intended to confer upon
any person other than the parties hereto any rights or remedies. If any term,
provision, covenant, or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void, or unenforceable, the other terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
not be affected, impaired, or invalidated. If for any reason such court or
regulatory agency determines that the Option does not permit FBOH to acquire,
or does not require CIVISTA to repurchase, the full number of shares of
Preferred Stock as provided in Sections 3 and 9 (as adjusted pursuant to
Section 8), it is the express intention of CIVISTA to allow FBOH to acquire, or
to require CIVISTA to repurchase, such lesser number of shares as may be
permissible without any amendment or modification hereof.
(d) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Ohio without regard to any applicable
conflicts of law rules.
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation), or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
as shall be specified by like notice):
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<S> <C>
TO CIVISTA: TO FBOH:
Richard G. Gilbert, Chairman and Howard L. Flood, President and
Chief Executive Officer Chief Executive Officer
The CIVISTA Corporation First Bancorporation of Ohio
100 Central Plaza South 106 South Main Street
Canton, Ohio 44701 Akron, Ohio 44308
WITH A COPY TO: WITH COPIES TO:
Jeffrey J. Margulies, Esq. Terry E. Patton, Senior Vice President
Squire, Sanders & Dempsey and Secretary
4900 Society Center First Bancorporation of Ohio
127 Public Square 106 South Main Street
Cleveland, OH 44114-1304 Akron, Ohio 44308
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(g) COUNTERPARTS. This Agreement and any amendments hereto may be executed
in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both Parties need not sign the same counterpart.
(h) ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder or under the Option shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
(i) FURTHER ASSURANCES. In the event of any exercise of the Option by FBOH,
CIVISTA and FBOH shall execute and deliver all other documents and instruments
and take all other action that may be reasonably necessary in order to
consummate the transactions provided for by such exercise.
(j) SPECIFIC PERFORMANCE. This Agreement may be enforced by either party
through specific performance, injunctive relief, and other equitable relief.
Both parties hereby waive any requirement for the securing or posting of any
bond in connection with the obtaining of any such equitable relief and agree
that this provision is without prejudice to any other rights that the parties
hereto may have for any failure to perform this Agreement.
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IN WITNESS WHEREOF, CIVISTA and FBOH have caused this Agreement to be signed
by their respective officers thereunto duly authorized, all as of the day and
year first written above.
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THE CIVISTA CORPORATION
Attest:
/s/ Janice R. Van Voorhis By: /s/ Richard G. Gilbert
- - - ---------------------------------- --------------------------------------
Janice R. Van Voorhis, Secretary Richard G. Gilbert, Chairman and
Chief Executive Officer
By: /s/ Paul G. Basner
-------------------------------------
Paul G. Basner, Vice Chairman
FIRST BANCORPORATION OF OHIO
Attest:
/s/ Terry E. Patton By: /s/ Howard L. Flood
- - - ---------------------------------- -------------------------------------
Terry E. Patton, Secretary Howard L. Flood, President and
Chief Executive Officer
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EXHIBIT 1(B)
TERMS OF PREFERRED STOCK
1. DESIGNATION AND AMOUNT. The shares of this series of
Preferred Stock of the CIVISTA Corporation (the "Corporation") shall be
designated as "Series A Preferred Stock," and the number of authorized shares
constituting the Series A Preferred Stock shall be four hundred thousand
(400,000). Such number of shares may be increased or decreased by resolution
of the Board of Directors; provided, that no decrease shall reduce the number
of shares of Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the conversion
of any outstanding securities issued by the Corporation convertible into Series
A Preferred Stock.
2. DIVIDENDS.
a. Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of shares of stock ranking junior to the shares of Series
A Preferred Stock with respect to dividends, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable
in cash in an amount per share equal to one fourth of one cent
(.25 cents), commencing on the first of the following dates to occur
after the first issuance of Series A Preferred Stock: January 1,
April 1, July 1, and October 1.
b. In the event the Corporation, after having declared
and made any dividends required under Section 2.a, declares a dividend
payable in cash to the holders of shares of Common Stock, the holders
of Series A Preferred Stock shall participate in that dividend at the
same rate per share and on the same conditions as are applicable to
the shares of Common Stock. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock would have been entitled immediately prior to
such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
c. Notwithstanding the foregoing, the amounts to which
holders of shares of Series A Preferred Stock are entitled as
dividends under divisions a and b of this Section 2 in any calendar
year shall not exceed $33.50 per share of Series A Preferred Stock.
3. LIQUIDATION, DISSOLUTION OR WINDING UP.
a. Upon any voluntary liquidation, dissolution or
winding-up of the affairs of the Corporation, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received $1 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
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whether or not declared, to the date of such payment, or (2)
to the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled
upon such liquidation, dissolution or winding up.
b. After the Corporation has made any payments required
under division a of this Section 3, the holders of shares of Series A
Preferred Stock shall be entitled to receive distributions at the same
rate per share and on the same conditions as are applicable to the
shares of Common Stock of the Corporation. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock would have been entitled
immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
c. Notwithstanding the foregoing, the amounts which are
payable under divisions a and b of this Section 3 upon voluntary
liquidation, dissolution or winding up shall not exceed $33.50 per
share of Series A Preferred Stock, except that the foregoing
limitation shall not apply to the payment of amounts representing
accrued and unpaid dividends and distributions, which amounts shall be
subject instead to the limitation contained in Section 2.c.
4. OTHER TERMS. The terms of the Series A Preferred Stock shall
otherwise be in accordance with Article Fourth of the Corporation's Amended
Articles of Incorporation.
