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As filed with the Securities and Exchange Commission on June 3, 1997
Registration No. 33-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CINCINNATI BELL INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1056105
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 East Fourth Street
Cincinnati, Ohio 45202
(513) 397-9900
(Address, including zip code, of registrant's principal executive office)
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CINCINNATI BELL INC.
1997 LONG TERM INCENTIVE PLAN
(Full title of the plan)
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William H. Zimmer III
Secretary and Treasurer
201 East Fourth Street
Cincinnati, Ohio 45202
(513) 397-9900
(Name, address including zip code, and telephone number including
area code, of agent for service)
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Please send copies of all communications to:
Neil Ganulin, Esq.
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
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CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title of Amount Offering Maximum Amount of
Securities To be Price Per Offering Registration
To be Registered Registered Share(1) Price Fee
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Common Shares,
Par value $1.00
Per share 15,000,000 $58.313 $874,695,000 $265,059.09
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1. Estimated in accordance with Rule 457(c) pursuant to Rule 457(h)(i), based
upon the average of the high and low prices per share on the New York Stock
Exchange on May 27, 1997, solely for the purpose of calculation of the
registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by Cincinnati Bell Inc. (the
"Company") with the Commission (File No. 1-8519) and are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1996.
2. The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1997.
3. The Company's Current Report on Form 8-K filed April 29, 1997.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Subsequently Filed Documents"), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of
this Registration Statement from the date of filing such documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any Subsequently Filed Document modifies
or supersedes such statement. Any such modified or superseded statement shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The Company will provide without charge, upon written or oral request, to
each person to whom a copy of this Registration Statement is delivered, a copy
of any or all of the documents incorporated by reference herein, not including
exhibits to such documents. Requests for such copies should be directed to the
Secretary, Cincinnati Bell Inc., 201 East Fourth Street, Cincinnati, Ohio 45202,
telephone number (513) 397-7700.
ITEM 4. DESCRIPTION OF CAPITAL STOCK
The following is a summary description of the capital stock of the Company
and is qualified by reference to the Company's Amended Articles of Incorporation
(the "Articles") as filed with the Securities and Exchange Commission (see
Exhibit 3.1 to this Registration Statement).
The authorized capital stock of the Company consists of 480,000,000 common
shares, par value $1.00 per share (the "Common Shares"), and 5,000,000 preferred
shares, without par value (the "Preferred Shares"), of which 4,000,000 are
voting preferred shares (the
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"Voting Preferred Shares"). At April 30, 1997, 67,840,709 Common Shares were
outstanding. There are currently no Preferred Shares outstanding.
The Board of Directors approved a two-for-one share split that was
effected by issuing one additional Common Share for each Common Share
outstanding at May 2, 1997.
All Common Shares of the Company are entitled to participate equally in
such dividends as may be declared by the Board of Directors of the Company and
upon liquidation of the Company, subject to the prior rights of any Preferred
Shares. All Common Shares are fully paid and nonassessable.
Each shareholder has one vote for each Common Share registered in the
shareholder's name. The Board of Directors is divided into three classes as
nearly equal in size as the total number of directors constituting the Board
permits. The number of directors may be fixed or changed from time to time by
the shareholders or the directors.
The Board of Directors is authorized to issue the Preferred Shares from
time to time in series and to fix the dividend rate and dividend dates,
liquidation price, redemption rights and redemption prices, sinking fund
requirements, conversion rights, restrictions, if any, on the creation of
indebtedness and on the issuance of such Preferred Shares, and certain other
rights, preferences and limitations. Each series of Preferred Shares would
rank, with respect to dividends and redemption and liquidation rights, senior to
the Common Shares. It is not possible to state the actual effect of the
authorization of any series of Preferred Shares upon the rights of holders of
the Common Shares until the Board of Directors determines the rights of the
holders of one or more series of Preferred Shares. However, such effects could
include (a) restrictions on dividends on the Common Shares, (b) dilution of the
voting power of the Common Shares to the extent that the Voting Preferred Shares
have voting rights or (c) inability of the Common Shares to share in the
Company's assets upon liquidation until satisfaction of any liquidation
preference granted to the Preferred Shares.
No holders of shares of any class of the Company's capital stock have pre-
emptive rights nor the right to exercise cumulative voting in the election of
directors.
The transfer agent and registrar of the Common Shares is The Fifth Third
Bank, Corporate Trust Services, 38 Fountain Square Plaza, Cincinnati, Ohio
45236.
CHANGE IN CONTROL
The following provisions of the Company's Articles and Ohio law might have
the effect of delaying, deferring or preventing a change in control of the
Company and would operate only with respect to an extraordinary corporate
transaction, such as a merger, reorganization, tender offer, sale or transfer of
assets or liquidation involving the Company and certain persons described below.
Ohio law provides that the approval of two-thirds of the voting power of a
corporation is required to effect mergers and similar transactions, to adopt
amendments to the articles of incorporation of a corporation and to take certain
other significant actions. Although under Ohio law the articles of
incorporation of a corporation may permit such actions to be taken by a vote
that is less than two-thirds (but not less than a majority), the Company's
Articles do not
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contain such a provision. The two-thirds voting requirement tends to make
approval of such matters, including further amendments to the Articles,
relatively difficult and a vote of the holders of in excess of one-third of
the outstanding Common Shares of the Company would be sufficient to prevent
implementation of any of the corporate actions mentioned above. In addition,
Article Fifth classifies the Board of Directors into three classes of
directors with staggered terms of office and the Company's Amended
Regulations provide certain limitations on the removal from and filling of
vacancies in the office of director.
Article Sixth of the Articles requires that certain minimum price
requirements and procedural safeguards be observed by a person or entity after
he or it becomes the holder of 10% or more of the voting shares of the Company
if such person or entity seeks to effect mergers or certain other business
combinations ("Business Combinations") that could fundamentally change or
eliminate the interests of the remaining shareholders. If such requirements and
procedures are not complied with, or if the proposed Business Combination is not
approved by at least a majority of the members of the Board of Directors who are
unaffiliated with the new controlling person or entity (taking into account
certain special quorum requirements), the proposed Business Combination must be
approved by the holders of 80% of the outstanding Common Shares and outstanding
Voting Preferred Shares of the Company (collectively, "Voting Shares"), voting
together as a class, notwithstanding any other class vote required by law or by
the Articles. In the event the price criteria and procedural requirements are
met or the requisite approval by such unaffiliated directors (taking into
account certain special quorum requirements) is given with respect to a
particular Business Combination, the normal voting requirements of Ohio law
would apply.
In addition, Article Sixth of the Articles provides that the affirmative
vote of the holders of 80% of the Voting Shares, voting as a single class, shall
be required to amend or repeal, or adopt any provisions inconsistent with,
Article Sixth. An 80% vote is not required to amend or repeal, or adopt a
provision inconsistent with, Article Sixth if the Board of Directors has
recommended such amendment or other change and if, as of the record date for the
determination of shareholders entitled to vote thereon, no person is known by
the Board of Directors to be the beneficial owner of 10% or more of the Voting
Shares, in which event the affirmative vote of the holders of two-thirds of the
Voting Shares, voting as a single class, shall be required to amend or repeal,
or adopt a provision inconsistent with, Article Sixth.
Ohio, the state of the Company's incorporation, has enacted Ohio Revised
Code Section 1701.831, a "control share acquisition" statute, and Chapter 1704,
a "merger moratorium" statute. The control share acquisition statute basically
provides that any person acquiring shares of an "issuing public corporation"
(which definition the Company meets) in any of the following three ownership
ranges must seek and obtain shareholder approval of the acquisition transaction
that first puts such ownership within each such range: (i) more than 20% but
less than 33 1/3%; (ii) 33 1/3% but not more than 50%; and (iii) more than 50%.
The merger moratorium statute provides that, unless a corporation's
articles of incorporation or regulations otherwise provide, an "issuing public
corporation" (which definition the Company meets) may not engage in a "Chapter
1704 transaction" for three years following the date on which a person acquires
more than 10% of the voting power in the
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election of directors of the issuing corporation, unless the "Chapter 1704
transaction" is approved by the corporation's board of directors prior to
such voting power acquisition. A person who acquires such voting power is an
"interested shareholder", and "Chapter 1704 transactions" involve a broad
range of transactions, including mergers, consolidations, combinations,
liquidations, recapitalizations and other transactions between an "issuing
public corporation" and an "interested shareholder" if such transactions
involve 5% of the assets or shares of the "issuing public corporation" or 10%
of its earning power. After the initial three year moratorium, Chapter 1704
prohibits such transactions absent approval by disinterested shareholders or
the transaction meeting certain statutorily defined fair price provisions.
Ohio has also enacted a "greenmailer disgorgement" statute which provides
that a person who announces a control bid must disgorge profits realized by that
person upon the sale of any equity securities within 18 months of the
announcement.
In addition, Ohio has a "control bid" statute that provides for the
dissemination of certain information and the possibility of a hearing concerning
compliance with law in connection with a proposed acquisition of more than 10%
of any class of equity securities of a corporation, such as the Company, that
has significant contacts with Ohio.
On March 3, 1997, the Board of Directors of the Company declared a dividend
distribution of one right ("Right") on each of the Company's outstanding Common
Shares to holders of record of the Common Shares at the close of business on May
2, 1997 (the "Record Date"). One Right also will be distributed for each Common
Share issued after May 2, 1997, until the Distribution Date (which is described
in the next paragraph). Each Right entitles the registered holder to purchase
from the Company a unit ("Unit") consisting of one two-hundredth of a Series A
Preferred Share of the Company (the "Preferred Shares") at a purchase price of
$62.50 per Unit, subject to adjustment (the "Purchase Price"). The terms of the
Rights are more fully described in a Form 8-A for Registration of Certain
Classes of Securities Pursuant to Section 12(b) or (g) of the Securities
Exchange Act of 1934, which has previously been filed with the Securities and
Exchange Commission and is incorporated by reference herein. See Exhibit 4.1 to
this Registration Statement.
Initially, the Rights will be attached to all Common Share certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Shares and the
"Distribution Date" will occur upon the earlier of (a) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding Common Shares
or (b) 10 business days following the commencement of a tender offer or exchange
offer that would if consummated result in a person or group beneficially owning
15% or more of the outstanding Common Shares.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on May 2, 2007, unless earlier redeemed by the Company
as described below.
After the Distribution Date, the separate Rights Certificates alone will
represent the Rights. Except for certain issuances in connection with
outstanding options and convertible
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securities and as otherwise determined by the Board of Directors, only Common
Shares issued prior to the Distribution Date will be issued with Rights.
If a person becomes the beneficial owner of 15% or more of the Common
Shares ("Flip-In Event"), each holder of a Right will have the right to receive,
upon exercise, Common Shares having a value equal to two times the Purchase
Price of the Right. Moreover, the Rights will not be exercisable until the
Rights are no longer redeemable as described below. The Acquiring Person would
not be permitted to exercise any Rights and any Rights held by such person (or
certain transferees of such person) will be null and void and non-transferable.
If, following the Distribution Date, the Company is acquired in certain
specified mergers or other business combinations (i.e., the Company does not
survive or its Common Shares are changed or exchanged), or 50% or more of its
assets or earning power (on a consolidated basis) is sold or transferred in one
transaction or a series of related transactions ("Flip-Over Events"), each Right
becomes a Right to acquire common stock of the other party to the transaction
(or its ultimate parent in certain circumstances) having a value equal to two
times the Purchase Price. As an enforcement mechanism, the Rights Agreement
prohibits the Company from entering into any such transaction unless the other
party agrees to comply with the provisions of the Rights.
In general, the Company may redeem the Rights in whole, but not in part, at
a price of $0.005 per Right, at any time prior to a Flip-In Event. Immediately
upon the action of the Board of Directors ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the $0.005 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The issuance of the Rights may have certain anti-takeover effects and
possible disadvantages. The Rights will cause substantial dilution to a person
or group who attempts to acquire the Company or a significant Common Share
ownership interest without conditioning the offer on the Rights being redeemed
or a substantial number of Rights being acquired. Accordingly, an Acquiring
Person might decide not to acquire the Company or such an interest, although
individual shareholders may view such an acquisition favorably. In addition, to
the extent that issuance of the Rights discourages takeovers that would result
in a change in the Company's management or Board of Directors, such a change
will be less likely to occur. The Board of Directors believes, however, that
the advantages of discouraging potentially discriminatory and abusive takeover
practices outweigh any potential disadvantages of the Rights. The Rights should
not interfere with any merger or other Business Combination approved by the
Board of Directors. The Rights are designed to protect shareholders against
unsolicited attempts to acquire control of the Company, whether through
accumulation of Common Shares in the open market or partial or two-tier tender
offers, that do not offer a fair price to all shareholders.
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ITEM 5. INTERESTS OF NAMES EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Company's Amended Articles of Incorporation
by which an officer or director may be indemnified against any liability which
he or she may incur in his or her capacity as such. However, the Company has
indemnification provisions in its Amended Regulations which provide the Company
will, to the full extent permitted by Ohio law, indemnify all persons whom it
may indemnify thereto.
Reference is made to Section 1701.13(E) of the Ohio Revised Code which
provides for indemnification of directors and officers in certain circumstances.
The foregoing references are necessarily subject to the complete text of
the Amended Regulations and the statute referred to above and are qualified in
their entirety by reference thereto.
The Company provides liability insurance for its directors and officers for
certain losses arising from certain claims and charges, including claims and
charges under the Securities Act of 1933, which may be made against such persons
while acting in their capacities as directors and officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits filed as part of this Registration Statement are described
in the Exhibit Index included in this filing.
ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales of the
securities registered hereunder are being made, a post-effective
amendment to this registration statement:
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(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this
registration statement or any material change to such
information in the registration statement;
provided; however, that this undertaking will only apply to the
extent that the information in clauses (i) - (ii) hereof is not
contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses
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incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issues.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati and State of Ohio, on the 30th day of
May, 1997.
CINCINNATI BELL INC.
By /s/ Brian C. Henry
---------------------------------
Brian C. Henry
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Principal Executive Officer:
/s/ John T. LaMacchia
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John T. LaMacchia
President and Chief Executive Officer
Principal Accounting and Financial Officer
/s/ Brian C. Henry
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Brian C. Henry
Executive Vice President and
Chief Financial Officer
Directors:
John F. Barrett
Phillip R. Cox
William A. Friedlander
Roger L. Howe
Robert P. Hummel, M.D.
James D. Kiggen
John T. LaMacchia
Charles S. Mechem, Jr.
Mary D. Nelson
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James F. Orr
Brian H. Rowe
David B. Sharrock
By: /s/ Brian C. Henry
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Brian C. Henry as attorney in fact
for each Director and on his own
behalf as Principal Accounting and
Financial Officer
May 30, 1997
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EXHIBIT INDEX
Exhibit Description Page
3.1 The Company's Amended Articles of
Incorporation
3.2 The Company's Amended Regulations
4.1 The Company's Rights Agreement is hereby
incorporated by reference to Exhibit 4.1 to
the Registration Statement on Form 8A filed
on May 1, 1997
5 Opinion of Frost & Jacobs LLP
23.1 Consent of Frost & Jacobs LLP (contained in
Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney
24.1 Cincinnati Bell Inc. 1997 Long Term Incentive Plan
413789.05
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AMENDED ARTICLES OF INCORPORATION
OF
CINCINNATI BELL INC
April 28, 1997
FIRST: The name of the corporation is CINCINNATI BELL INC.
SECOND: The place in Ohio where its principal office is located is
Cincinnati, Hamilton County.
THIRD: The purpose for which the corporation is formed is to engage in any
lawful act or activity for which corporations may be formed under Sections
1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The number of shares that the corporation is authorized to have
outstanding is 480,000,000 common shares, $1.00 par value (classified as "Common
Shares"), 4,000,000 voting preferred shares without par value (classified as
"Voting Preferred Shares") and 1,000,000 non-voting preferred shares without
par value (classified as "Non-Voting Preferred Shares"). The preferred shares
of both classes are collectively referred to herein as "Preferred Shares". The
express terms of the shares of each of such classes are as follows:
1. Preferred Shares may be issued from time to time in one or more series.
All Preferred Shares of all series shall rank equally and be identical in
all respects except that only Voting Preferred Shares shall be voting
shares and except that the board of directors is authorized to adopt
amendments to the Amended Articles in respect of any unissued or treasury
Preferred Shares and thereby to fix or change, to the full extent now or
hereafter permitted by the laws of Ohio, the division of such shares into
series and the designation and authorized number of shares of each series
and, subject to the provisions of this Article Fourth, the relative rights,
preferences and limitations of each series and the variations in such
rights, preferences and limitations as between series and specifically is
authorized to fix or change with respect to each series:
(a) the dividend rate on the shares of such series, the
dates of payment of such
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dividends, and the date or dates from which such dividends shall be
cumulative;
(b) the times when, the prices at which, and all other
terms and conditions upon which, shares of such series shall
be redeemable;
(c) the amounts which the holders of shares of such series
shall be entitled to receive upon the liquidation,
dissolution or winding up of the corporation, which amounts
may vary depending on whether such liquidation, dissolution
or winding up is voluntary or involuntary and, if voluntary,
may vary at different dates;
(d) whether or not the shares of such series shall be
subject to the operation of a purchase, retirement or
sinking fund and, if so, the extent to and manner in which
such purchase, retirement or sinking fund shall be applied
to the purchase or redemption of the shares of such series
for retirement or for other corporate purposes and the terms
and provisions relative to the operation of such fund or
funds;
(e) whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other
class or series and, if so, the price or prices or the rate
or rates of conversion or exchange and the method, if any,
of adjusting the same;
(f) the restrictions, if any, upon the payment of dividends
or making of other distributions on, and upon the purchase
or other acquisition of, Common Shares;
(g) the restrictions, if any, upon the creation of
indebtedness, and the restrictions, if any, upon the issue
of shares of such series or of any additional shares ranking
on a parity with or prior to the shares of such series in
addition to the restrictions provided for in this Article
Fourth; and
(h) such other rights, preferences and limitations as shall
not be inconsistent with this Article Fourth.
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All shares of any particular series shall rank equally and
be identical in all respects except that shares of any one
series issued at different times may differ as to the date
from which dividends shall be cumulative.
2. Dividends on Preferred Shares of each series shall be cumulative from
the date or dates fixed with respect to such series and shall be paid or
declared or set apart for payment for all past dividend periods and for the
current dividend period before any dividends (other than dividends payable
in Common Shares) shall be declared or paid or set apart for payment on
Common Shares. Whenever, at any time, full cumulative dividends for all
past dividend periods and for the current dividend period shall have been
paid or declared and set apart for payment on all then outstanding
Preferred Shares and all requirements with respect to any purchase,
retirement or sinking fund or funds for all series of Preferred Shares
shall have been complied with, the board of directors may declare dividends
on Common Shares, and Preferred Shares shall not be entitled to share
therein.
3. Upon any liquidation, dissolution or winding up of the corporation, the
holders of Preferred Shares of each series shall be entitled to receive the
amounts to which such holders are entitled as fixed with respect to such
series, including all dividends accumulated to the date of final
distribution, before any payment or distribution of assets of the
corporation shall be made to or set apart for the holders of Common Shares,
and after such payments shall have been made in full to the holders of
Preferred Shares, the holders of Common Shares shall be entitled to receive
any and all assets remaining to be paid or distributed to shareholders, and
the holders of Preferred Shares shall not be entitled to share therein.
For the purposes of this paragraph, the voluntary sale, conveyance, lease,
exchange or transfer of all or substantially all the property or assets of
the corporation or a consolidation or merger of the corporation with one
or more other corporations (whether or not the corporation is the
corporation surviving such consolidation or merger) shall not be deemed to
be a liquidation, dissolution or winding up, voluntary or involuntary.
4. Each outstanding Common Share and each outstanding Voting Preferred
Share shall entitle the holder thereof to one vote on each matter properly
submitted to the shareholders for their vote, consent, waiver, release or
other action, subject to the provisions of law from time to time in effect
with respect to cumulative voting. Except as otherwise required by law or
by this Article Fourth, Non-Voting Preferred Shares
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shall not entitle the holders thereof to vote, consent, waive, release or
otherwise act on any question or in any proceeding or to be represented at
or receive notice of any meeting of shareholders.
5. So long as any Preferred Shares are outstanding, the corporation will
not (a) without the affirmative vote or consent of the holders of at least
two-thirds of all Preferred Shares at the time outstanding, (1) authorize
shares ranking prior to Preferred Shares or (2) change any provision of
this Article Fourth so as to affect adversely Preferred Shares; (b) without
the affirmative vote or consent of the holders of at least two-thirds of
any series of Preferred Shares at the time outstanding, change any of the
provisions of such series so as to affect adversely the shares of such
series; or (c) without the affirmative vote or consent of the holders of at
least a majority of all Preferred Shares at the time outstanding, (1)
increase the authorized number of Preferred Shares or (2) authorize shares
of any other class ranking on a parity with Preferred Shares.
6. Whenever, at any time or times, dividends payable on Preferred Shares
shall be in default in an aggregate amount equivalent to six full quarterly
dividends on any series of Preferred Shares at the time outstanding, the
number of directors then constituting the board of directors of the
corporation shall ipso facto be increased by two, and the outstanding
Preferred Shares shall, in addition to any other voting rights, have the
exclusive right, voting separately as a class and without regard to series,
to elect two directors of the corporation to fill such newly created
directorships, and such right shall continue until such time as all
dividends accumulated on all Preferred Shares to the latest dividend
payment date shall have been paid or declared and set apart for payment.
7. If the amounts payable with respect to any requirement to retire
Preferred Shares are not paid in full with respect to all series as to
which such requirement exists, the number of shares to be retired in each
series shall be in proportion to the amounts which would be payable on
account of such requirement if all amounts payable were paid in full.
8. No holder of shares of any class shall have any preemptive rights.
9. Of the 4,000,000 Voting Preferred Shares of the corporation, 2,000,000
shall constitute a series of Voting Preferred Shares designated as Series A
Preferred Shares (the "Series A Preferred Shares") and have, subject and in
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addition to the other provisions of this Article Fourth, the following
relative rights, preferences and limitations:
(1) DIVIDENDS AND DISTRIBUTIONS
(A) Subject to the provisions of this Article Fourth, the
holders of the Series A Preferred Shares shall be entitled to
receive, when and as declared by the Board of Directors, out of
funds legally available for that purpose, cumulative dividends in
cash on the 1st day of January, April, July and October in each
year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a Series A
Preferred Share or fraction thereof, in an amount per share per
quarter (rounded to the nearest cent) equal to the greater of (i)
$20.00 or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions (other than a dividend payable in Common Shares or
a subdivision of the outstanding Common Shares, by
reclassification or otherwise), declared on the Common Shares,
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of a Series A Preferred Share or
fraction thereof; PROVIDED THAT, in the event no dividend or
distribution shall have been declared on the Common Shares during
the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend on
the Series A Preferred Shares of $20.00 per share shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date. In the event the corporation shall at any time
declare or pay any dividend on the Common Shares payable in
Common Shares, or effect a subdivision or combination of the
outstanding Common Shares (by reclassification or otherwise) into
a greater or lesser number of Common Shares, then in each such
case the amount to which holders of the Series A Preferred Shares
were entitled immediately prior to such event under clause (ii)
of the next preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number
of Common Shares
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outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding
immediately prior to such event.
(B) The Board of Directors may fix a record date for the
determination of holders of the Series A Preferred Shares
entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 60 days
prior to the date fixed for the payment thereof. Dividends shall
begin to accrue and be cumulative on outstanding Series A
Preferred Shares from the Quarterly Dividend Payment Date next
preceding the date of issue of such Series A Preferred Shares,
unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of the Series A Preferred Shares
entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the Series A
Preferred Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding.
(2) LIQUIDATION RIGHTS. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the corporation, then,
subject to the provisions of this Article Fourth, the holders of
the Series A Preferred Shares shall be entitled to receive, from
the assets of the corporation available for distribution to
shareholders, an amount equal to all dividends accumulated to the
date of final distribution plus an amount equal to the greater of
(A) $125.00 per share or (B) an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, of
100 times the aggregate amount to be distributed per share to
holders of Common Shares. All such preferential amounts shall be
paid or set apart for payment before the payment or setting
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apart for payment of any amount for, or the distribution of
any assets of the corporation to, the holders of any class of
shares ranking junior as to assets to the Series A Preferred
Shares, or the holders of any series of Preferred Shares
ranking junior as to assets to the Series A Preferred Shares.
In the event the corporation shall at any time declare or pay
any dividend on Common Shares payable in Common Shares, or
effect a subdivision or combination of the outstanding Common
Shares (by reclassification or otherwise) into a greater or
lesser number of Common Shares, then in each such case the
aggregate amount to which holders of the Series A Preferred
Shares were entitled immediately prior to such event under
clause (B) of the next preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which
is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such
event.
(3) REDEMPTION. The Series A Preferred Shares shall not be
redeemable.
(4) VOTING RIGHTS. Subject to the provisions of this Article Fourth,
each Series A Preferred Share shall entitle the holder thereof to
one vote on all matters submitted to a vote of the shareholders
of the corporation. The holders of fractional Series A Preferred
Shares shall not be entitled to any vote on any matter submitted
to a vote of the shareholders of the corporation.
(5) CERTAIN RESTRICTIONS.
(A) Subject to the provisions of this Article Fourth, whenever
quarterly dividends or other dividends or distributions payable
on the Series A Preferred Shares are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether
or not declared, on outstanding Series A Preferred Shares shall
have been paid in full, the corporation shall not:
(i) declare or pay dividends on, or make any other
distributions on, any shares ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Shares;
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(ii) redeem, purchase or otherwise acquire for
consideration shares ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the
Series A Preferred Shares; PROVIDED THAT the corporation may
at any time redeem, purchase or otherwise acquire any such
junior shares in exchange for any shares of the corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Shares;
(iii) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Shares, except dividends paid
ratably on the Series A Preferred Shares and all such parity
shares on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all
such shares are then entitled;
(iv) purchase or otherwise acquire for consideration any
Series A Preferred Shares, or any shares ranking on a parity
with the Series A Preferred Shares, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective
series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective
series or classes.
(B) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration
any shares of the corporation unless the corporation could,
pursuant to paragraph (A) of this subparagraph 5, purchase or
otherwise acquire such shares at such time and in such manner.
(6) REACQUIRED SHARES. Any Series A Preferred Shares purchased or
otherwise acquired by the corporation in
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any manner whatsoever shall be retired promptly after the
acquisition thereof. All such shares shall upon their retirement
become authorized but unissued Voting Preferred Shares and may be
reissued as part of a new series of Voting Preferred Shares to be
created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
(7) CONSOLIDATION, MERGER, ETC. In case the corporation shall enter
into any consolidation, merger, combination or other transaction in
which the Common Shares are exchanged for or changed into other shares
or securities, cash and/or any other property, then in any such case
the Series A Preferred Shares shall at the same time be similarly
exchanged or changed in an amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate
amount of shares, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each Common
Share is changed or exchanged. In the event the corporation shall at
any time declare or pay any dividend on Common Shares payable in
Common Shares, or effect a subdivision or combination of the
outstanding Common Shares (by reclassification or otherwise) into a
greater or lesser number of Common Shares, then in each such case the
amount set forth in the next preceding sentence with respect to the
exchange or change of Series A Preferred Shares shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and
the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
10. Of the 4,000,000 Voting Preferred Shares of the corporation, 1,578,948
shall constitute a series of Voting Preferred Shares designated as 7.25%
Cumulative Convertible Voting Preferred Shares (for the purposes of this
paragraph 10, the "Preferred Shares") and have, subject and in addition to
the other provisions of this Article Fourth, the following relative rights,
preferences and limitations:
1. DIVIDENDS.
(a) The holders of record of Preferred Shares shall be entitled to
receive cash dividends, when, as and if declared by the Board of
Directors out
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of assets of the corporation which are legally available for the
payment of such dividends, at the annual rate of 7.25% per Preferred
Share, and no more, payable quarterly on the first day of March, June,
September and December in each year commencing on September 1, 1988.
Dividends shall be cumulative and will accrue on each Preferred Share
from the date of issue thereof. Dividends payable on Preferred Shares
for any period less than a full quarter shall be computed on the basis
of a 360-day year. Accrued but unpaid dividends shall not bear
interest. So long as any Preferred Shares are outstanding, the
corporation shall not declare, pay or set apart any dividend on the
Common Shares or declare, make or set apart any distribution on the
Common Shares unless concurrently therewith all dividends or
distributions on Preferred Shares, through the date of such
declaration, payment, making or setting apart of any dividend or
distribution on the Common Shares, are declared, paid, made or set
apart, as the case may be.
(b) Subject to the limitations set forth in this subsection l(b), if
because of Tax Law Changes (as defined below) holders of Preferred
Shares would realize less or more after-tax yield from dividend
payments on the Preferred Shares than would have been the case had
such Tax Law Changes not occurred, then the rate of dividends will
increase or decrease, as appropriate, so that the net after-tax yield
to a holder of Preferred Shares would be the same as if there had been
no Tax Law Changes. "Tax Law Changes" means any change, effective on
or after July 22, 1988, in the Internal Revenue Code of 1986, as
amended (the "Code"), or any other revenue statute of the United
States, or the issuance of any regulation, ruling, administrative
interpretation or judicial or other official interpretation, the
effect of which is to reduce, eliminate or increase the dividends
received deductions with respect to dividend payments on the Preferred
Shares presently permitted by Section 243 of the Code; PROVIDED,
HOWEVER, that any ruling, administrative, judicial or other
interpretation which is based on the action or failure to act of a
holder of the Preferred Shares (other than acquisition of the
Preferred Shares) shall not be deemed to be a Tax Law Change. No
adjustment is
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to be made under this subsection l(b) for changes in the laws of any
state or municipality.
(c) If, as a result of the Preferred Shares being deemed to be debt,
rather than equity for tax purposes (a "Debt/Equity
Recharacterization"), a holder of record of Preferred Shares suffers
an adverse tax effect as a result thereof, including the loss of the
right to claim, being delayed in claiming, or suffering a disallowance
of the dividend exclusion or other tax attribute that otherwise would
be available to such holder if the Preferred Shares were treated as
equity for tax purposes (any such event being referred to as a "Tax
Loss"), then (i) the rate of dividends on the Preferred Shares paid by
the corporation after an event of a Debt/Equity Recharacterization
will increase so that the net after-tax yield from all Preferred Share
dividend payments to such holder of Preferred Shares will be the same
as if no Debt/Equity Recharacterization had occurred, and (ii) within
30 days after the mailing date of notice of a Tax Loss by a holder to
the corporation, the corporation shall pay to a holder of Preferred
Shares an amount equal to any additional tax liability owed by any
such holder with respect to any dividend payments theretofore made by
the corporation as to which a Tax Loss arose.
(d) The corporation covenants that neither it nor any of its
affiliates (within the meaning of Section 1504(a) of the Code) will at
any time take any action, omit to take any action or file any return
or document inconsistent with the treatment of the Preferred Shares as
the equity for tax and accounting purposes, unless otherwise agreed
to by a majority of the holders of record of Preferred Shares.
2. LIQUIDATION.
Upon any liquidation, dissolution or winding up of the corporation,
after payment or provision for payment of the debts and other
liabilities of the corporation, the holders of the Preferred Shares
shall be entitled, before any distribution or payment is made upon any
Common Shares, to be paid an amount equal to $38.00 per share, plus an
amount equal to dividends accrued and unpaid to the date of such
payment (unless such liquidation,
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dissolution or winding up is the result of a transaction giving rise
to rights under Section 9 of the Preferred Shares Purchase Agreement
dated July 22, 1988 (the "Purchase Agreement") between the corporation
and The Western and Southern Life Insurance Company, in which case
holders of Preferred Shares may elect to enforce any rights
thereunder), or, in the event that the assets of the corporation
remaining after such payment or provision for payment of the debts and
other liabilities of the corporation are insufficient to permit
such payment in full to the holders of the Preferred Shares, such
holders shall be entitled to share pro rata in the distribution
of such remaining assets of the corporation; and the holders of
Preferred Shares shall not be entitled to any further payment, such
amounts being herein sometimes referred to as the "Liquidation
Payments". Written notice of such liquidation, dissolution or winding
up, stating a payment date, the amount of the Liquidation Payment and
the place where said sums shall be payable and containing a statement
of or reference to the conversion right set forth in Section 3, shall
be given by mail, postage prepaid, not less than 30 days prior to the
payment date stated therein, to the holders of record of Preferred
Shares, such notice to be addressed to each stockholder at his post
office address as shown by the records of the corporation.
3. CONVERSION.
(a) CONVERSION. The holder of any Preferred Shares shall have the
right, at any time and from time to time, to convert all or any of
such shares into fully-paid and nonassessable Common Shares of the
corporation at the Conversion Rate of one of Common Share per
Preferred Share or at the Conversion Rate that results from making the
adjustments specified in subsection 3(b) below. To the extent
permitted by law, when Preferred Shares are converted, all dividends
accrued and unpaid on the Preferred Shares so converted to the date of
conversion (whether or not currently payable) shall be immediately due
and payable and must accompany the Common Shares issued upon such
conversion.
In order to exercise the conversion right, the holder of Preferred
Shares shall surrender the
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certificate representing such shares at the principal office of the
corporation or at such other office of the corporation specified for
such purpose together with written notice to the corporation of the
number of Preferred Shares which the holder elects to convert, and
written instructions regarding the registration and delivery of
certificates for Common Shares acquired thereby. The person entitled
to receive Common Shares issuable upon conversion shall be deemed to
have become the holder of record of such shares at the close of
business on the date upon which the conversion right is so exercised.
If any certificate representing Preferred Shares shall have been
converted in part, the holder shall be entitled to a new certificate
representing the Preferred Shares not converted.
(b) ADJUSTMENT OF CONVERSION RATE. The Conversion Rate shall be
subject to adjustment as follows:
(i) If the corporation shall declare and pay to the holders of
Common Shares a dividend or other distribution payable in Common
Shares, the holders of Preferred Shares thereafter surrendered
for conversion shall be entitled to receive the number of Common
Shares which such holder would have owned or been entitled to
receive after the declaration and payment of such dividend or
other distribution if such Preferred Shares had been converted
immediately prior to the record date for the determination of
stockholders entitled to receive such dividend or other
distribution.
(ii) If the corporation shall subdivide the outstanding Common
Shares into a greater number of Common Shares, or combine the
outstanding Common Shares into a lesser number of shares, or
issue by reclassification of its Common Shares any shares of the
corporation, the Conversion Rate in effect immediately prior
thereto shall be adjusted so that each holder of Preferred Shares
thereafter surrendered for conversion shall be entitled to
receive the number of Common Shares or other shares which such
holder would have owned or been entitled to receive after the
happening of any of the events described above if such Preferred
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Shares had been converted immediately prior to the happening of
such event on the day upon which such subdivision, combination or
reclassification, as the case may be, becomes effective.
(iii) If the corporation shall issue or sell any Common Shares
for a consideration per share less than the Current Market Price
of the Common Shares, then the Conversion Rate shall be adjusted
to the number determined by multiplying the Conversion Rate in
effect immediately prior to such issuance or sale by a fraction,
the numerator of which shall be the number of Common Shares
outstanding immediately prior to the issuance or sale of such
Common Shares plus the number of such Common Shares so issued or
sold, and the denominator of which shall be the number of Common
Shares outstanding immediately prior to the issuance or sale of
such Common Shares plus the number of Common Shares which the
aggregate consideration for such Common Shares so issued or sold
would purchase at a consideration per share equal to Current
Market Price. For the purpose of this subsection 3(b)(iii), the
date as of which such Current Market Price shall be computed
shall be the earlier of (x) the date on which the corporation
shall enter into a firm contract for the issuance or sale of such
Common Shares or (v) the date of the actual issuance or sales of
such shares.
(iv) If the corporation shall issue or sell any warrants or
options or other rights entitling the holders thereof to
subscribe for or purchase either any Common Shares or evidences
of indebtedness, shares of stock or other securities which are
convertible into or exchangeable, with or without payment of
additional consideration in cash or property, for Common Shares
(such convertible or exchangeable evidences of indebtedness,
shares of stock or other securities hereinafter being called
"Convertible Securities"), and the consideration per share for
which Common Shares may at any time thereafter be issuable
pursuant to such warrants or other rights or pursuant to the
terms of such Convertible Securities (when
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<PAGE>
added to the consideration per Common Share, if any, received for
such warrants or other rights), shall be less than the Current
Market Price of the Common Shares at the date of such issue or
sale, then the Conversion Rate applicable to such series shall be
adjusted as provided in subsection 3(b)(iii) on the basis that
(x) the maximum number of Common Shares issuable pursuant to all
such warrants or other rights or necessary to affect the
conversion or exchange of all such Convertible Securities shall
be deemed to have been issued and (y) the aggregate
consideration for such maximum number of Common Shares shall be
deemed to be the minimum consideration received and receivable by
the corporation for the issuance of such Common Shares (plus the
consideration, if any, received for such warrants or other
rights) pursuant to such warrants or other rights or pursuant to
the terms of such Convertible Securities.
(v) If the corporation shall issue or sell Convertible
Securities and the consideration per share for which Common
Shares may at any time thereafter be issuable pursuant to the
terms of such Convertible Securities shall be less than the
Current Market Price of the Common Shares at the date of such
issue or sale, then the Conversion Rate applicable to such series
shall be adjusted as provided in subsection 3(b)(iii) on the
basis that (x) the maximum number of Common Shares necessary to
effect the conversion or exchange of all such Convertible
Securities shall be deemed to have been issued and (y) the
aggregate consideration for such maximum number of Common Shares
shall be deemed to be the minimum consideration received and
receivable by the corporation for the issuance of such Common
Shares pursuant to the terms of such Convertible Securities. No
adjustment of such Conversion Rate shall be made under this
subsection 3(b)(v) upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any
warrants or other subscription or purchase rights therefor, if
such adjustment shall previously have been made upon the issuance
of such
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warrants or other rights pursuant to subsection 3(b)(iv).
(vi) For the purposes of subsections 3(b)(iv) and 3(b)(v), the
date as of which such Conversion Rate shall be computed shall be
the earliest of (x) the date on which the corporation shall take
a record of the holders of its Common Shares for the purpose of
entitling them to receive any warrants or other rights referred
to in subsection 3(b)(iv) or to receive any Convertible
Securities, (y) the date on which the corporation shall enter
into a firm contract for the issuance of such warrants or other
rights or Convertible Securities or (z) the date of the actual
issuance of such warrants or other rights or Convertible
Securities.
(vii) No adjustment of a Conversion Rate shall be made under
subsection 3(b)(iii) upon the issuance of any Common Shares which
are issued pursuant to the exercise of any warrants or other
subscription or purchase rights or pursuant to the exercise of
any conversion or exchange rights in any Convertible Securities,
if such adjustment shall previously have been made upon the
issuance of such warrants or other rights or upon the issuance of
such Convertible Securities (or upon the issuance of any warrants
or other rights therefor), pursuant to subsections 3(b)(iv) or
3(b)(v).
(viii) If any warrants or other rights (or any portions thereof)
which shall have given rise to an adjustment pursuant to
subsection 3(b)(iv) or conversion rights pursuant to Convertible
Securities which shall have given rise to an adjustment pursuant
to subsection 3(b)(v) shall have expired or terminated without
the exercise thereof and/or if by reason of the terms of such
warrants or other rights or Convertible Securities there shall
have been an increase or increases, with the passage of time or
otherwise, in the price payable upon the exercise or conversion
thereof, then the affected Conversion Rate hereunder shall be
readjusted (but to no greater extent than originally adjusted) on
the basis of (x) eliminating from the
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computation any Common Shares corresponding to such warrants or
other rights or conversion rights as shall have expired or
terminated, (y) treating the Common Shares, if any, actually
issued or issuable pursuant to the previous exercise of such
warrants or other rights or of conversion rights pursuant to any
Convertible Securities as having been issued for the
consideration actually received and receivable therefor, and (z)
treating any of such warrants or other rights or of conversion
rights pursuant to any Convertible Securities which remain
outstanding as being subject to exercise or conversion on the
basis of such exercise conversion price as shall be in effect at
the time; provided, however, that any consideration which was
actually received by the corporation in connection with the
issuance or sale of such warrants or other rights shall form part
of the readjustment computation even though such warrants or
other rights shall have expired without the exercise thereof.
The Conversion Rate shall be adjusted as provided in subsection
3(b)(iii) as a result of any increase in the number of Common
Shares issuable, or any decrease in the consideration payable
upon any issuance of Common Shares, pursuant to any antidilution
provisions contained in any warrants or other rights or in any
Convertible Securities.
(ix) To the extent that any Common Shares, any warrants or other
rights to subscribe for or purchase any Common Shares, or any
Convertible Securities shall be issued for a cash consideration,
the consideration received by the corporation therefor shall be
deemed to be the amount of the cash received by the corporation
therefor, or, if such Common Shares, warrants or other rights or
Convertible Securities are offered by the corporation for
subscription, the subscription price, or, if such Common Shares,
warrants or other rights or Convertible Securities are sold to
underwriters or dealers for public offering without a
subscription offering, the initial public offering price, in any
such case excluding any amounts paid or receivable for
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accrued interest or accrued dividends and without deduction of
any compensation, discounts or expenses paid or incurred by the
corporation for and in the underwriting of, or otherwise in
connection with, the issuance thereof. If and to the extent that
such issuance shall be for a consideration other than cash, then,
except as herein otherwise expressly provided, the amount of such
consideration shall be deemed to be the fair value of such
consideration at the time of such issuance as determined in good
faith by the Board of Directors of the corporation. If Common
Shares shall be issued as part of a unit with warrants or other
rights, then the amount of consideration for the warrant or other
right shall be deemed to be the amount determined in good faith
at the time of issuance by the Board of Directors of the
corporation. If the Board of Directors of the corporation shall
not make any such determination, the consideration for the
warrant or other right shall be deemed to be zero.
(x) In case the corporation shall effect a reorganization, shall
merge with or consolidate into another corporation, shall sell,
transfer or otherwise dispose of all or substantially all of its
property, assets or business or shall otherwise engage in any
transaction whereby a "Change of Control", as defined in the
Purchase Agreement, shall occur and, pursuant to the terms of
such reorganization, merger, consolidation, disposition of assets
or other transaction effecting a Change of Control, shares of
stock or other securities, property or assets of the
corporation, successor or transferee or an affiliate thereof or
cash are to be received by or distributed to the holders of
Common Shares, then each holder of Preferred Shares shall be
given written notice from the corporation informing each holder
of the terms of such reorganization, merger, consolidation,
disposition of assets or other transaction effecting a Change of
Control and of the record date thereof for any distribution
pursuant thereto, at least ten days in advance of such record
date, and each holder of Preferred Shares, in addition
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to any other rights pursuant to the Purchase Agreement or the
terms hereof, shall have the right thereafter to receive, upon
conversion of such Preferred Shares, the number of shares or
other securities, property or assets of the corporation,
successor or transferee or affiliate thereof or cash receivable
upon or as a result of such reorganization, merger,
consolidation, disposition of assets or other transaction
effecting a Change of Control the number of Common Shares equal
to the Conversion Rate applicable to such shares immediately
prior to such event, multiplied by such number of shares as may
be converted. The provisions of this subsection 3(b)(x) shall
similarly apply to successive reorganizations, mergers,
consolidations or dispositions of assets or other transactions
effecting a Change of Control.
(xi) If a purchase, tender or exchange offer is made to and
accepted by the holders of more than 20% of the outstanding
Common Shares, the corporation shall not effect any
consolidation, merger or sale with the person having made such
offer or with any affiliate of such person or engage in any
transaction which will have the effect of increasing the equity
ownership of such person in the corporation by more than one
percent (1%), unless prior to the consummation thereof each
holder of Preferred Shares shall have been given a reasonable
opportunity then to elect to receive, upon conversion of the
Preferred Shares then held by such holder, either the stock,
securities, cash or assets then issuable with respect to the
Common Shares or the stock, securities, cash or assets issued to
previous holders of the Common Shares in accordance with such
offer, or the equivalent thereof.
(xii) The number of Common Shares outstanding at any given time
shall not include shares owned or held by or for the account of
the corporation, for the purposes of this subsection 3(b).
(xiii) If a state of facts shall occur which, without being
specifically controlled
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by the provisions of this subsection 3(b), would not fairly
protect the conversion rights of the Preferred Shares in
accordance with the essential intent and principles of such
provisions, then the Board of Directors of the corporation shall
make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to
protect such conversion rights.
(xiv) Anything herein to the contrary notwithstanding, no
adjustment in a Conversion Rate shall be required unless such
adjustment, either by itself or with other adjustments not
previously made, would require a change of at least one
percent (1%) in such rate; and further provided that no
adjustment in the Conversion Rate shall be made with respect
to (i) any option issued to any employee or director of the
corporation or any options or shares issued pursuant to a
dividend reinvestment plan or employee stock ownership or
savings plans, (ii) any transaction pursuant to which Common
Shares are issued and sold or issuable pursuant to any
warrants, options, other rights or Convertible Securities and
the difference between the Consideration received or to be
received for such Common Shares (including any consideration
paid or given to purchase any warrant, option, other right or
Convertible Security) and the fair market value of such Common
Shares on the date of such sale or issuance is less than
$10,000,000, or (iii) any transaction pursuant to which Common
Shares are issuable for other than cash and the Board of
Directors has made a good faith determination that the
consideration received for such Common Shares is equal to the
fair market value of such Common Shares; provided, however,
that any adjustment which by reason of this subsection
3(b)(xiv) is not required to be made shall be carried forward
and taken into account in any subsequent adjustment.
(xv) All calculations under this subsection 3(b) shall be made
to the nearest one-thousandth of a share.
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(xvi) Whenever a Conversion Rate shall be adjusted pursuant to
this subsection 3(b), the corporation shall forthwith obtain, and
cause to be delivered to each holder of Preferred Shares, a
certificate signed by the principal financial or accounting
officer of the corporation, setting forth in reasonable detail
the event requiring the adjustment and the method by which such
adjustment was calculated (including a description of the basis
on which the Board of Directors of the corporation determined the
fair value of any consideration other than cash pursuant to
subsection 3(b)(ix)) and specifying the new Conversion Rate. In
the case referred to in subsection 3(b)(x), such a certificate
shall be issued describing the amount and kind of stock,
securities, property or assets or cash which shall be receivable
upon conversion of the Preferred Shares after giving effect to
the provisions of such subsection (b)(x).
(c) RESERVATION AND VALIDITY OF COMMON SHARES. The corporation
covenants and agrees that all Common Shares which may be issued
upon the exercise of the rights represented by each Preferred Share
will, upon issuance, be legally and validly issued, fully paid, and
nonassessable and free from all taxes, liens, and charges with
respect to the issue thereof except to the extent created by a
holder thereof and without limiting the generality of the
foregoing, the corporation agrees that it will from time to time
take all such action as may be required to assure that the par
value per share of the Common Shares is at all times equal to or
less than the consideration which would then be deemed to be
received by the corporation for the issuance of such Common Shares
pursuant to the exercise of any conversion rights relating to the
Preferred Shares. The corporation further covenants and agrees
that during the period within which the rights represented by the
Preferred Shares may be exercised, the corporation will at all
times have authorized and reserved a sufficient number of its
Common Shares to provide for the exercise of the rights represented
by the Preferred Shares and will at its expense expeditiously upon
each registration of shares use its best efforts to procure the
listing thereof (subject to issuance
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or notice of issuance) on all stock exchanges on which the Common
Shares are then listed.
(d) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any Preferred
Shares. If, upon the conversion of any Preferred Shares as an
entirety, the holder would, except for the provisions of this
subparagraph, be entitled to receive a fractional Common Share, then
an amount equal to such fractional share multiplied by the "fair
market value" of a Common Share shall be paid by the corporation in
cash to such holder.
(e) "FAIR MARKET VALUE"; "CURRENT MARKET PRICE". Whenever Common
Shares of the corporation shall be regularly traded in any market, the
"fair market value" of the Common Shares shall be deemed to mean the
closing sales price of Common Shares on the principal national
securities exchange on which the Common Shares may at any time be
listed, or, if there shall have been no sales on any such exchange on
such day, the average of the bid and asked prices at the end of such
day, or, if the Common Shares shall not be so listed, the average of
the high bid and low asked prices in the over-the-counter market on
such day as reported on NASDAQ (if so quoted) or by the National
Quotation Bureau, Inc., or, if not so traded, as determined in good
faith by or pursuant to the directions and authorization of the Board
of Directors of the corporation, in each such case as of the business
day prior to the day as of which "fair market value" is being
determined. The term "Current Market Price" per share of Common
Shares at any date shall for purposes of this Section 3 be deemed to
be the average of the "fair market value" of the Common Shares for the
10 consecutive business days immediately preceding the day in
question.
(f) NOTICE OF CAPITAL CHANGES. In case:
(i) the corporation shall declare a dividend on its Common
Shares payable in shares of its capital stock or Convertible
Securities or payable otherwise than out of earnings or
surplus (other than capital surplus); or
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(ii) the corporation shall authorize the issuance to all
holders of its Common Shares of options or warrants or other
rights to subscribe for or purchase its Common Shares,
Convertible Securities, or any subscription rights or
warrants; or
(iii) the corporation shall authorize the distribution to all
holders of its Common Shares of evidences of its indebtedness
or other property (other than cash dividends paid out of
earnings or surplus (other than capital surplus)), all
determined in accordance with generally accepted accounting
principles; or
(iv) the corporation shall fix a record date for approval of
any subdivision, combination, recapitalization or
reclassification of its Common Shares, or of any consolidation
or merger to which the corporation is a party and for which
approval of any shareholders of the corporation is required,
or of the sale, transfer or other disposition of all or
substantially all of the assets of the corporation, or any
other transaction whereby a Change of Control may be effected;
or
(v) the corporation shall fix a record date for approval of
the voluntary or involuntary dissolution, liquidation or
winding up of the corporation; then, in each of said cases,
the corporation shall give the holders of Preferred Shares
written notice, by registered mail, postage prepaid, of the
date of which (A) a record shall be taken for such dividend,
distribution or subscription rights or (B) such subdivision,
combination, recapitalization, reclassification,
consolidation, merger, sale, transfer, disposition,
dissolution, liquidation, winding up or other transaction
effecting a Change of Control shall take place, as the case
may be. Such notice shall also specify the date as of which
the holders of Common Shares of record shall participate in
such dividend, distribution or subscription rights, or shall
be entitled to exchange their Common Shares for securities or
other property deliverable upon such subdivision,
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combination, recapitalization, reclassification,
consolidation, merger, sale, transfer, disposition,
dissolution, liquidation or winding up, as the case may be.
Such written notice shall be given at least ten days prior to
the action in question and not less than ten days prior to the
record date in respect thereof.
(g) TRANSFER TAXES. The issuance of shares or certificates
for Common Shares upon the conversion of Preferred Shares
shall be made without charge to the converting holder of
record of such Preferred Shares for any tax in respect of the
issuance of such shares or certificates, and such certificates
shall be issued in the respective names of, or in such names
as may be directed by the holder of record of such Preferred
Shares; provided, however, that the corporation shall not be
required to pay any tax which may be payable in respect of any
transfer involving the issue and delivery of any such shares
or certificate in a name other than that of the holder of
record of the Preferred Shares converted, and the corporation
shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance
thereof shall have paid to the corporation the amount of such
tax or shall have established to the satisfaction of the
corporation that such tax has been paid.
4. REDEMPTIONS.
(a) The corporation shall redeem, to the extent permitted by law, on July
22, 1998 (the "Maturity Date") all of the Preferred Shares then outstanding
on the close of business on such date. Such redemption shall be at a
redemption price equal to the sum of $38.00 per share, plus accrued and
unpaid dividends thereon.
(b) On or after July 22, 1993, the Preferred Shares at the time
outstanding may be redeemed by the corporation, in whole or in part, at the
option of the corporation expressed by a resolution of its Board of
Directors, at any time and from time to time at a redemption price per
share equal to the percentage set forth below
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opposite the period in which such redemption occurs multiplied by $38.00,
plus accrued and unpaid dividends thereon to the date fixed for redemption:
Period Redemption Premium
July 22, 1993 through July 21, 1994 103.625%
July 22, 1994 through July 21, 1995 102.900
July 22, 1995 and thereafter 100.000
(c) In addition to the rights of the corporation to redeem Preferred
Shares pursuant to subsections 4(a) or (b), the holders of Preferred Shares
shall have the right to require the corporation to redeem Preferred Shares
in the manner and for the redemption price specified in Section 9 of the
Purchase Agreement.
(d) If pursuant to subsections 4(a) or (b), the corporation shall redeem
any Preferred Shares, the corporation shall give written notice of such
redemption to each holder of record of Preferred Shares to be redeemed
not less than thirty (30) nor more than sixty (60) days prior to the date
fixed for redemption, by certified mail enclosed in a postage paid envelope
addressed to such holder at such holder's address as the same shall appear
on the books of the corporation. Such notice shall (i) state that the
corporation has elected or is required to redeem such shares, (ii) state
the date fixed for redemption, (iii) state the amount payable on
redemption, (iv) state that the shares called for redemption are
convertible until the close of business on the day preceding the date fixed
for redemption and (v) call upon such holder to surrender to the
corporation on or after said date at its principal place of business
designated in such notice, a certificate or certificates representing the
number of Preferred Shares to be redeemed in accordance with such notice.
On or after the date fixed in such notice for redemption or on or after the
date on which the corporation shall be required to redeem Preferred Shares
in accordance with the provisions of the Purchase Agreement, each holder of
Preferred Shares to be so redeemed shall present and surrender the
certificate or certificates for such shares to the corporation at the place
designated by the corporation and thereupon the redemption price of such
shares shall be paid to,
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or to the order of, in immediately available funds, the person whose name
appears on such certificate or certificates as the owner thereof. From and
after the date fixed as the date for redemption, unless default shall be
made by the corporation in providing for the payment of the redemption
price pursuant to such notice, all rights of the holders of the Preferred
Shares so redeemed, except the right to receive the redemption price (but
without interest thereon) shall cease and terminate; provided, however,
that on or before the date fixed for redemption, the corporation shall
deposit with a bank or trust company having a capital stock and surplus of
at least $50,000,000 to be applied to the redemption of the Preferred
Shares so called for redemption, an amount sufficient to redeem all such
shares upon the date specified in the notice for redemption. Any moneys so
deposited which remain unclaimed at the end of three years from the date of
such deposit shall be repaid to the corporation, but the corporation shall
remain obligated to make payment thereof to the holders of such shares
entitled thereto (subject to any applicable escheat or similar laws). If
less than all of the outstanding shares of a series of Preferred Shares are
to be redeemed, such shares of such series as are to be redeemed shall be
allocated among the holders thereof in proportion to the respective numbers
of shares of such series held by them.
(e) Any Preferred Shares redeemed by the corporation shall be retired and
shall not be reissued and the corporation may from time to time take such
appropriate corporate action as may be necessary to reduce the authorized
Preferred Shares.
FIFTH: The number of directors of the corporation shall be fixed from time
to time by its Regulations and may be increased or decreased as therein
provided, but the number of directors shall in no event be fixed at less than
nine. The board of directors shall be divided into three classes, as nearly
equal in number as the then fixed number of directors permits, with the term of
office of one class expiring each year. At the annual meeting of shareholders
in 1984, directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of the second class
shall be elected to hold office for a term expiring at the second succeeding
annual
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meeting and directors of the third class shall be elected to hold office for a
term expiring at the third succeeding annual meeting. At the annual meeting of
shareholders in 1985 and at each annual meeting of shareholders thereafter, the
successors to that class of directors whose term then expires shall be elected
to hold office for a term expiring at the third succeeding annual meeting. In
the event of any increase in the number of directors of the corporation, the
additional directors shall be similarly classified in such a manner that each
class of directors shall be as equal in number as possible. In the event of any
decrease in the number of directors of the corporation, such decrease shall be
effected in such a manner that each class of directors shall be as equal in
number as possible.
SIXTH: 1. (a) In addition to any affirmative vote required by law or by
these Amended Articles, and except as otherwise expressly provided in paragraph
2 of this Article Sixth:
(1) any merger or consolidation of the corporation or of
any Subsidiary (as hereinafter defined) with (A) any
Interested Shareholder (as hereinafter defined) or (B) any
other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an
Interested Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of any assets of the
corporation or of any Subsidiary having an aggregate Fair
Market Value (as hereinafter defined) of $5,000,000 or more;
or
(3) the issuance or transfer by the corporation or by any
Subsidiary (in one transaction or a series of transactions)
of any securities of the corporation or of any Subsidiary to
any Interested Shareholder or to any Affiliate of any
Interested Shareholder in exchange for cash, securities or
other property (or combination thereof) having an aggregate
Fair Market Value of $5,000,000 or more; or
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(4) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or
on behalf of an Interested Shareholder or any Affiliate of
any Interested Shareholder; or
(5) any reclassification of securities (including any
reverse stock split), or recapitalization of the
corporation, or any merger or consolidation of the
corporation with any Subsidiary or any other transaction
(whether or not with or into or otherwise involving an
Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible
securities of the corporation or of any Subsidiary which is
directly or indirectly owned by any Interested Shareholder
or any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least 80% of the
then outstanding Common Shares and Voting Preferred Shares of the
corporation entitled to a vote (the "Voting Shares"), voting as a single
class at a meeting of shareholders called for such purpose. Such
affirmative vote shall be required notwithstanding that no vote may be
required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(b) The term "Business Combination" as used in this Article Sixth
shall mean any transaction referred to in any one or more of clauses
(1) through (5) of subparagraph (a) of this paragraph 1.
2. The provisions of paragraph 1 of this Article Sixth shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law
and by any other provision of these Amended Articles, if all of the
conditions specified in either of the following subparagraphs (a) or (b)
are met:
(a) The Business Combination shall have been approved by a majority
of the Continuing Directors (as hereinafter defined) of the
corporation; provided, however, that such approval shall be effective
only if obtained at a meeting at which a Continuing Director Quorum
(as hereinafter defined) is present.
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(b) All of the following conditions shall have been met:
(1) The aggregate amount of (x) cash and (y) Fair Market Value
(determined as of the date of the consummation of the Business
Combination) of consideration other than cash, to be received per
share by holders of Common Shares in such Business Combination
shall be at least equal to the highest amount determined under
subclauses (A), (B) and (C) below:
(A) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees, if
any) paid by the Interested Shareholder for any Common Share
acquired by it (i) within the two-year period immediately
prior to the first public announcement of the proposal of
the Business Combination (the "Announcement Date") or (ii)
in the transaction in which it became an Interested
Shareholder, whichever is higher;
(B) the Fair Market Value per Common Share on the
Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (the
"Determination Date"), whichever is higher; and
(C) the price per Common Share equal to the Fair Market
Value per Common Share determined pursuant to subparagraph
(b)(1)(B) above, multiplied by the ratio of (i) the highest
per share price (including brokerage commissions, transfer
taxes and soliciting dealers' fees, if any) paid by the
Interested Shareholder for any Common Share acquired by it
within the two-year period immediately prior to the
Announcement Date to (ii) the Fair Market Value per Common
Share on the first day in such two-year period on which the
Interested Shareholder acquired any Common Share.
(2) The aggregate amount of (x) cash and (y) Fair Market Value
(determined as of the date of the consummation of the Business
Combination) of consideration other than cash, to be received per
share by holders of any class of Preferred Shares shall be at
least equal to the highest amount
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determined under subclauses (A), (B), (C) and (D) below:
(A) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fee, if
any) paid by the Interested Shareholder for any shares of
such class of Preferred Shares acquired by it (i) within
the two-year period immediately prior to the Announcement
Date or (ii) in the transaction in which it became an
Interested Shareholder, whichever is higher;
(B) the highest preferential amount per share to which the
holders of such class of Preferred Shares would be entitled
in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation
regardless of whether the Business Combination to be
consummated constitutes such an event;
(C) the Fair Market Value per share of such class of
Preferred Shares on the Announcement Date or on the
Determination Date, whichever is higher; and
(D) the price per Preferred Share equal to the Fair Market
Value per share of such class of Preferred Shares determined
pursuant to subparagraph (b)(2)(C) above, multiplied by the
ratio of (i) the highest per share price (including
brokerage commissions, transfer taxes and soliciting
dealers' fees, if any) paid by the Interested Shareholder
for any shares of such class of Preferred Shares acquired by
it within the two-year period immediately prior to the
Announcement Date to (ii) the Fair Market Value per share of
such class of Preferred Shares on the first day in such
two-year period on which the Interested Shareholder acquired
any share of such class of Preferred Shares.
The provisions of this subparagraph (b)(2) shall be required to
be met with respect to every class of outstanding Preferred
Shares, whether or not the Interested Shareholder has previously
acquired any shares of a particular class of Preferred Shares.
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(3) The consideration to be received by holders of Common Shares
or of a particular class of Preferred Shares shall be in cash or
in the same form as the Interested Shareholder has previously
paid for shares of each such class of Common Shares or Preferred
Shares, respectively. If the Interested Shareholder has paid for
shares of any class of Common Shares or Preferred Shares,
respectively, with varying forms of consideration, the form of
consideration for such class shall be either cash or that form
used to acquire the largest number of shares of such class
previously acquired by the Interested Shareholder.
(4) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination: (A) except as approved by a majority of the
Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on outstanding Preferred
Shares; (B) except as approved by a majority of the Continuing
Directors, there shall have been (i) no reduction in the annual
rate of dividends paid on Common Shares (except as necessary to
reflect any subdivision of the Common Shares); and (ii) an
increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding Common
Shares; and (C) such Interested Shareholder shall not have become
the beneficial owner of any additional Common or Preferred Shares
of the corporation except as part of the transaction which
results in such Interested Shareholder becoming an Interested
Shareholder. The approval by a majority of the Continuing
Directors of any exception to the requirements set forth in
clauses (A) and (B) above shall be effective only if obtained at
a meeting at which a Continuing Director Quorum is present.
(5) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or
other financial assistance
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or any tax credits or other tax advantages provided by the
corporation, whether in anticipation of or in connection with
such Business Combination or otherwise.
(6) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions amending or replacing
such Act, rules or regulations) shall be mailed to all
shareholders of the corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant
to such Act, rules, regulations or subsequent provisions).
3. For the purposes of this Article Sixth:
(a) The term "person" shall mean any individual, firm, partnership,
corporation or other entity.
(b) The term "Interested Shareholder" shall mean any person (other
than the corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee
benefit plan of the corporation or of any Subsidiary or any
trustee of or fiduciary with respect to any such plan when
acting in such capacity) who or which:
(1) is the beneficial owner (as hereinafter defined) of 10% or
more of the outstanding Voting Shares; or
(2) is an Affiliate (as hereinafter defined) of the corporation
and at any time within the two-year period immediately prior to
the date in question was the beneficial owner of 10% or more of
the outstanding Voting Shares; or
(3) is an assignee of or has otherwise succeeded to any
outstanding Voting Shares which were at any time within the
two-year period immediately prior to the date in question
beneficially owned by any Interested Shareholder, if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not
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involving a public offering within the meaning of the Securities
Act of 1933.
(c) A person shall be deemed the "beneficial owner" of any Voting
Shares:
(1) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly;
or
(2) which such person or any of its Affiliates or Associates
has, directly or indirectly, (A) the right to acquire (whether
such right is exercisable immediately or only after the passage
of time), pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) the right to vote
pursuant to any agreement, arrangement or understanding; or
(3) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
Voting Shares.
(d) For the purposes of determining whether a person is an Interested
Shareholder pursuant to subparagraph (b) of this paragraph 3, the
number of Voting Shares deemed to be outstanding shall include shares
deemed owned through application of subparagraph (c) of this paragraph
3 but shall not include any other Voting Shares which may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(e) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule l2b-2 of the General Rules and
Regulations promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as in effect on March 1,
l984.
(f) The term "Subsidiary" means any corporation of which a majority
of any class of equity
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security is owned, directly, or indirectly, by the corporation;
provided, however, that for the purposes of the definition of
Interested Shareholder set forth in subparagraph (b) of this paragraph
3, the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly or
indirectly, by the corporation.
(g) The term "Continuing Director" means any member of the board of
directors of the corporation who is unaffiliated with the Interested
Shareholder and was a member of the board of directors prior to the
time that the Interested Shareholder became an Interested Shareholder,
and any successor of a Continuing Director who is unaffiliated with
the Interested Shareholder and is either recommended or elected to
succeed a Continuing Director by a majority of Continuing Directors,
provided that such recommendation or election shall be effective only
if made at a meeting at which a Continuing Director Quorum is present.
(h) The term "Continuing Director Quorum" means that number of
Continuing Directors constituting at least two-thirds of the whole
authorized number of directors of the corporation, but in any event
not fewer than six Continuing Directors, capable of exercising the
powers conferred upon them under the provisions of these Amended
Articles or the Amended Regulations of the corporation or by law.
(i) The term "Fair Market Value" means: (1) in the case of shares,
the highest closing sale price of a share during the 30-day period
immediately preceding the date in question on the Composite Tape for
New York Stock Exchange-Listed Stocks, or, if the sale price of such
share is not quoted on the Composite Tape, on the New York Stock
Exchange, or, if such shares are not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such shares are listed, or,
if such shares are not listed on any such exchange, the highest
closing bid quotation with respect to a share during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system
then in use, or, if no such quotations are
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available, the fair market value on the date in question of such share
as determined by the board of directors of the corporation in good
faith; and (2) in the case of property other than cash or shares, the
fair market value of such property on the date in question as
determined in good faith by a majority of Continuing Directors,
provided that such determination shall be effective only if made at a
meeting at which a Continuing Director Quorum is present.
(j) The term "Common Shares" shall mean Common Shares of the
corporation or, where appropriate for purposes of subparagraph (b) of
paragraph 2 of this Article Sixth, of Cincinnati Bell Inc. prior to
July 1, 1983.
(k) The term "Preferred Shares" shall mean Voting Preferred Shares,
Non-Voting Preferred Shares and any other class of Preferred Shares
which may from time to time be authorized in or by these Amended
Articles and which by the terms of its issuance is specifically
designated "Preferred Shares" for purposes of this Article Sixth.
(l) In the event of any Business Combination in which the corporation
survives, the phrase "consideration, other than cash, to be received "
as used in subparagraphs (b)(1) and (2) of paragraph 2 of this
Article Sixth shall include Common Shares and/or any other Voting
Shares retained by the holders of such shares.
4. Nothing contained in this Article Sixth shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
5. Notwithstanding any other provisions of these Amended Articles or the
Amended Regulations of the corporation (and notwithstanding that a lesser
percentage may be specified by law, these Amended Articles or the Amended
Regulations of the corporation), the affirmative vote of the holders of at
least 80% of the then outstanding Voting Shares, voting as a single class
at a meeting of shareholders called for such purpose, shall be required to
amend or repeal, or adopt any provisions of these Amended Articles
inconsistent with, this Article Sixth; provided, however, that if the board
of directors of the corporation has recommended such amendment, repeal or
adoption, and if, as of the record date for the
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determination of shareholders entitled to vote thereon, no person is known
by the board of directors to be an Interested Shareholder, then the
affirmative vote of the holders of only two-thirds of the then outstanding
Voting Shares, voting as a single class at a meeting of shareholders called
for such purpose, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article Sixth.
SEVENTH: The corporation, by action of the board of directors and without
action by the shareholders, may purchase its shares of any class for the
purposes and to the extent permitted by law.
EIGHTH: Notwithstanding any provision of the General Corporation Law of
Ohio now or hereafter in effect, no shareholder shall have the right to vote
cumulatively in the election of directors. Without limiting the generality of
the preceding sentence, no shareholder shall have the right at any time in the
election of directors either to give one candidate as many votes as the number
of directors to be elected multiplied by the number of his votes equals or to
distribute his votes on the same principle among two or more candidates.
NINTH: These Amended Articles of Incorporation supersede and take the
place of the existing Amended Articles of Incorporation.
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AMENDED REGULATIONS
CINCINNATI BELL INC.
ARTICLE I - MEETINGS
SECTION 1. ANNUAL MEETING. The annual meeting of shareholders of the
corporation shall be held in the fourth month following the close of the
corporation's fiscal year on such date as the board of directors may from
time to time determine.
SECTION 2. PLACE OF MEETINGS. All meetings of shareholders shall be held at
such place within or without the State of Ohio as may be designated in the
notice of the meeting.
SECTION 3. QUORUM. At all meetings of shareholders the holders of a
majority of the shares issued and outstanding and entitled to vote at such
meeting, present in person or by proxy, shall constitute a quorum, but no
action required by law, the Amended Articles or the Amended Regulations to be
authorized or taken by the holders of a designated proportion of the shares
of any particular class or of each class, may be authorized or taken by a
lesser proportion.
SECTION 4. SPECIAL MEETINGS. Special Meetings of shareholders for any
purpose or purposes may be called by the chairman of the board, by the
president, by the vice president authorized to exercise the authority of the
president in case of the president's absence, death or disability, by
resolution of the directors or by resolution of the holders of not less than
one-half of the outstanding voting power of the corporation.
<PAGE>
ARTICLE II - BOARD OF DIRECTORS
SECTION 1. NUMBER. The number of directors of the corporation, which shall
be not less than nine nor more than seventeen, shall be eleven until
increased or decreased by the affirmative vote of two-thirds of the whole
authorized number of directors or by the affirmative vote of the holders of
at least two-thirds of the outstanding voting power of the corporation voting
as a single class at a meeting of shareholders called for the purpose of
electing directors. No reduction in the number of directors shall have the
effect of shortening the term of any incumbent director.
SECTION 2. MEETINGS. An organization meeting of the board of directors may
be held, without notice, immediately after the annual meeting of shareholders
for the purpose of electing officers, creating an executive committee and
attending to such other business as may properly come before the meeting.
Additional regular meetings shall be held at such times as the board of
directors may from time to time determine.
SECTION 3. PLACE OF MEETINGS. All meetings of the board of directors shall
be held at such place within or without the State of Ohio as may be
designated in the notice of the meeting.
SECTION 4. REMOVAL. Any director may be removed from office, without
assigning cause, by the affirmative vote of the holders of at least
two-thirds of the outstanding voting power of the corporation voting as a
single class at a meeting of shareholders called for such purpose.
<PAGE>
SECTION 5. VACANCIES. Any vacancy on the board of directors, whether
created by an increase in the number of directors, removal of a director,
death or resignation of a director or otherwise, may be filled by the
remaining directors, though less than a majority of the whole authorized
number of directors, by a majority vote, or by the affirmative vote of the
holders of at least two-thirds of the outstanding voting power of the
corporation voting as a single class at a meeting of shareholders called for
such purpose.
ARTICLE III - EXECUTIVE AND OTHER COMMITTEES
SECTION 1. ELECTION AND POWERS. The board of directors shall create an
executive committee of not less than three directors, including the chairman
of the board, if one has been elected, and the president. The board of
directors may appoint one or more directors as alternate members of the
executive committee, who may take the place of any absent member or members
at any meeting of the executive committee. Subject to such limitations as
the board of directors may from time to time prescribe, the executive
committee shall have all the powers of the board of directors in the
intervals between meetings of the board, other than that of filling vacancies
among the directors or in any committee of the directors.
SECTION 2. MEETINGS AND QUORUM. Regular meetings of the executive
committee shall be held at such times as the executive committee may from
time to time determine, and special meetings of the executive committee may
be called by the chairman of the board, if one has been elected, or the
president to be held at any time and place and shall be called when any two
members of the executive committee so request in writing specifying the
purpose of the meeting. A majority of the executive committee shall
constitute a quorum for a meeting, and the act of a majority of the members
of the executive committee present at a meeting at which a quorum is present
shall be the act of the executive committee.
<PAGE>
SECTION 3. RECORDS. The executive committee shall keep a full record of its
proceedings, and all action by the executive committee shall be reported to
the board of directors at its next meeting.
SECTION 4. OTHER COMMITTEES. The board of directors may create such other
standing or special committees, to consist of not less than three directors,
as it deems desirable. Each such committee shall have such powers and
perform such duties as may be delegated to it by the board of directors. A
majority of any such committee shall constitute a quorum for a meeting, and
the act of a majority of the members of the committee present at a meeting at
which a quorum is present shall be the act of the committee.
ARTICLE IV - OFFICERS
SECTION 1. POWERS AND DUTIES. Subject to such limitations as the board of
directors may from time to time prescribe, the officers shall each have such
powers and perform such duties as generally pertain to their respective
offices and such further powers and duties as may be conferred from time to
time by the board of directors or, in the case of all officers other than the
chief executive officer, by the chief executive officer. The president shall
be the chief executive officer except that whenever a chairman of the board
is elected, the board of directors shall designate either the chairman or the
president as the chief executive officer.
SECTION 2. BONDS. Any officer or employee may be required to give bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the board of directors may from time to time determine. The
premium on any such bond or bonds shall be paid by the corporation.
<PAGE>
ARTICLE V - INDEMNIFICATION
OF DIRECTORS AND OFFICERS
The corporation shall, to the full extent permitted by the General
Corporation Law of Ohio, indemnify all persons whom it may indemnify pursuant
thereto.
ARTICLE VI - CERTIFICATES FOR SHARES
If any certificate for shares of the corporation is lost, stolen or
destroyed, a new certificate may be issued upon such terms or under such
rules as the board of directors may from time to time determine or adopt.
ARTICLE VII - SEAL
The seal of the corporation shall be in such form as the board of directors
may from time to time determine.
ARTICLE VIII - ALTERATION,
AMENDMENT OR REPEAL
These Amended Regulations may be altered, amended or repealed only by the
affirmative vote of the holders of at least two-thirds of the outstanding
voting power of the corporation voting as a single class at a meeting of
shareholders called for such purpose, unless such alteration, amendment or
repeal is recommended by the affirmative vote of two-thirds of the whole
authorized number of directors, in which case these Amended Regulations may
be altered, amended or repealed by the affirmative vote of the holders of a
majority of the outstanding voting power of the corporation voting as a
single class at a meeting of shareholders called for such purpose.
<PAGE>
Frost & Jacobs
2500 PNC Center
201 East Fourth Street
Cincinnati OH 45201-5715
513-651-6800
June 3, 1997
Cincinnati Bell Inc.
201 East Fourth Street
Cincinnati, Ohio 45202
Re: Cincinnati Bell Inc. Form S-8 Registration Statement
1997 Long Term Incentive Plan
----------------------------------------------------
Gentlemen:
We are counsel for Cincinnati Bell Inc., an Ohio corporation (the "Company"),
which is named as the registrant in the Registration Statement on Form S-8 which
is being filed on or about June 3, 1997 with the Securities and Exchange
Commission (the "Commission") for the purpose of registering under the
Securities Act of 1933, as amended (the "Act"), 15,000,000 common shares, par
value $1.00 per share (the "Common Shares"), of the Company offered pursuant to
the 1997 Cincinnati Bell Inc. Long Term Incentive Plan (the "Plan").
As counsel for the Company, we have participated in the preparation of the
Registration Statement. In addition, we are generally familiar with the records
and proceedings of the Company. Furthermore, we have examined and relied on the
originals or copies, certified or otherwise identified to our satisfaction, of
corporate records or documents of the Company and such representations of
officers of the Company as we have deemed appropriate.
With respect to the Common Shares registered pursuant to such Registration
Statement as filed and as it may be amended, it is our opinion the Common Shares
when issued pursuant to the Plan (or when issued and paid for pursuant to the
options to be granted pursuant to the Plan) will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion with the Commission.
Very truly yours,
/s/ Frost & Jacobs
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report dated February 14, 1997, on our audits of the
consolidated financial statements and financial statement schedules of
Cincinnati Bell Inc. and subsidiaries as of December 31, 1996 and 1995, and
for each of the three years in the period ended December 31, 1996.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand, L.L.P.
Cincinnati, Ohio
May 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ John F. Barrett
-----------------------------------
JOHN F. BARRETT
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME JOHN F.
BARRETT, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ Phillip R. Cox
-----------------------------------
PHILLIP R. COX
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME PHILLIP R.
COX, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ William A. Friedlander
-----------------------------------
WILLIAM A. FRIEDLANDER
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME WILLIAM A.
FRIEDLANDER, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND
WHO EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ Brian H. Rowe
-----------------------------------
BRIAN H. ROWE
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME BRIAN H.
ROWE, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ David B. Sharrock
-----------------------------------
DAVID B. SHARROCK
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME DAVID B.
SHARROCK, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ Roger L. Howe
-----------------------------------
ROGER L. HOWE
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME ROGER L.
HOWE, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ Robert P. Hummel
-----------------------------------
ROBERT P. HUMMEL
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME ROBERT P.
HUMMEL, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ James D. Kiggen
-----------------------------------
JAMES D. KIGGEN
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME JAMES D.
KIGGEN, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ John T. LaMacchia
-----------------------------------
JOHN T. LAMACCHIA
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME JOHN T.
LAMACCHIA, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ Charles S. Mechem, Jr.
-----------------------------------
CHARLES S. MECHEM, JR.
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME CHARLES S.
MECHEM, JR., TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND
WHO EXECUTED THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HER ATTORNEYS FOR HER AND IN HER NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS SHE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HER HAND THIS 30TH
DAY OF MAY, 1997.
/s/ Mary D. Nelson
-----------------------------------
MARY D. NELSON
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME MARY D.
NELSON, TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO
EXECUTED THE FOREGOING INSTRUMENT, AND SHE DULY ACKNOWLEDGED TO ME THAT SHE
EXECUTED AND DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., AN OHIO CORPORATION (HEREINAFTER REFERRED
TO AS THE "COMPANY"), PROPOSES SHORTLY TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, A REGISTRATION STATEMENT
FOR THE CINCINNATI BELL INC. 1997 LONG TERM INCENTIVE PLAN ON FORM S-8; AND
WHEREAS, THE UNDERSIGNED IS A DIRECTOR OF THE COMPANY;
NOW, THEREFORE, THE UNDERSIGNED HEREBY CONSTITUTES AND APPOINTS JOHN T.
LAMACCHIA, BRIAN C. HENRY, WILLIAM H. ZIMMER III AND WILLIAM D. BASKETT III,
AND EACH OF THEM SINGLY, HIS ATTORNEYS FOR HIM AND IN HIS NAME, PLACE AND
STEAD, AND IN HIS OFFICE AND CAPACITY IN THE COMPANY, TO EXECUTE AND FILE
SUCH REGISTRATION STATEMENT ON FORM S-8, AND THEREAFTER TO EXECUTE AND FILE
ANY AMENDMENTS OR SUPPLEMENTS THERETO, HEREBY GIVING AND GRANTING TO SAID
ATTORNEYS FULL POWER AND AUTHORITY TO DO AND PERFORM ALL AND EVERY ACT AND
THING WHATSOEVER REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES
AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IF PERSONALLY
PRESENT AT THE DOING THEREOF, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEYS MAY OR SHALL LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS HEREUNTO SET HIS HAND THIS 30TH
DAY OF MAY, 1997.
/s/ James F. Orr
-----------------------------------
JAMES F. ORR
DIRECTOR
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
ON THE 30TH DAY OF MAY, 1997, PERSONALLY APPEARED BEFORE ME JAMES F. ORR,
TO ME KNOWN AND KNOWN TO ME TO BE THE PERSON DESCRIBED IN AND WHO EXECUTED
THE FOREGOING INSTRUMENT, AND HE DULY ACKNOWLEDGED TO ME THAT HE EXECUTED AND
DELIVERED THE SAME FOR THE PURPOSES THEREIN EXPRESSED.
WITNESS MY HAND AND OFFICIAL SEAL THIS 30TH DAY OF MAY, 1997.
/s/ Mary Janet Edwards
-----------------------------------
NOTARY PUBLIC
<PAGE>
CINCINNATI BELL INC.
1997 LONG TERM INCENTIVE PLAN
1. PURPOSE.
The purpose of the Cincinnati Bell Inc. 1997 Long Term Incentive Plan
(the "Plan") is to further the long term growth of Cincinnati Bell Inc. (the
"Company") by offering competitive incentive compensation related to long
term performance goals to those employees of the Company and its subsidiaries
who will be largely responsible for planning and directing such growth. The
Plan is also intended as a means of reinforcing the commonality of interest
between the Company's shareholders and the employees who are participating in
the Plan and as an aid in attracting and retaining employees of outstanding
abilities and specialized skills. The Plan shall become effective on the date
on which it is approved by the shareholders of the Company (the "Effective
Date").
2. ADMINISTRATION.
2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board"). The Committee
shall consist of at least three members of the Board (a) who are neither
officers nor employees of the Company, (b) who are "disinterested persons"
within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and who are "outside directors" within the
meaning of section 162(m)(4)(C) of the Internal Revenue Code of 1986, as
amended (the "Code").
2.2 Subject to the limitations of the Plan, the Committee shall have the
sole and complete authority (a) to select from the salaried employees of the
Company and its subsidiaries those employees who shall participate in the
Plan ("Participants"), (b) to make awards in such forms and amounts as it
shall determine and to cancel or suspend awards, (c) to impose such
limitations, restrictions and conditions upon awards as it shall deem
appropriate, (d) to interpret the Plan and to adopt, amend and rescind
administrative guidelines and other rules and regulations relating to the
Plan and (e) to make all other determinations and to take all other actions
necessary or advisable for the proper administration of the Plan.
Determinations of fair market value under the Plan shall be made in
accordance with the methods and procedures established by the Committee. The
Committee's determinations on matters within its authority shall be
conclusive and binding on the Company and all other parties.
2.3 The Committee may delegate to one or more Senior Managers or to one
or more committees of Senior Managers the right to make awards to employees
who are not officers or directors of the Company.
3. TYPES OF AWARDS.
Awards under the Plan may be in any one or more of the following: (a)
stock options, including incentive stock options ("ISOs"), (b) stock
appreciation rights ("SARs"), in tandem with stock options or free-standing,
(c) restricted stock, (d) performance shares and performance units
conditioned upon meeting performance criteria and (e) other awards based in
whole or in part by reference to or otherwise based on Company Common Shares,
$1.00 par value ("Common Shares"), or other securities of the Company or any
of its subsidiaries ("other stock unit awards"). In connection with any award
or any deferred award, payments may also be made representing dividends or
interest or other equivalent. No awards shall be made under the Plan after
ten years from the Effective Date.
4. SHARES SUBJECT TO PLAN.
Subject to adjustment as provided in Section 13 below, two percent (2%)
of the Company's outstanding Common Shares as of the first day of each
calendar year during which the Plan is in effect shall be available for award
under the Plan in such year; provided, however, that for calendar year 1997,
the number of Common Shares available for award under the Plan shall be the
sum of (a) one percent (1%) of the Company's outstanding Common Shares as of
January 1, 1997 plus (b) the number of Common Shares available for award
under the Cincinnati Bell Inc. 1988 Long Term Incentive Plan and the
Cincinnati Bell Inc. 1989 Stock Option Plan (the "Predecessor Plans")
immediately prior to the Effective Date. Common
<PAGE>
4. SHARES SUBJECT TO PLAN. (CONTINUED)
Shares available in any year which are not used for awards under the Plan
shall be available for award in subsequent years. Notwithstanding the
foregoing, subject to adjustment as provided in Section 13 below, the total
number of Common Shares available under the Plan for awards of ISOs shall not
exceed twenty-five percent (25%) of the total number of Common Shares
available for all awards over the ten year life of the Plan and the total
number of Common Shares available for awards under the Plan to any one
Participant shall not exceed ten percent (10%) of the total number of Common
Shares available for all awards over the ten year life of the Plan. In the
future, if another company is acquired, any Common Shares covered by or
issued as result of the assumption or substitution of outstanding grants of
the acquired company shall not be deemed issued under the Plan and shall not
be subtracted from the Common Shares available for grant under the Plan. The
Common Shares deliverable under the Plan may consist in whole or in part of
authorized and unissued shares or treasury shares. If any Common Shares
subject to any award are forfeited, or the award is terminated without
issuance of Common Shares or other consideration, the Common Shares subject
to such awards shall again be available for grant pursuant to the Plan.
5. STOCK OPTIONS.
All stock options granted under the Plan shall be subject to the following
terms and conditions:
5.1 The Committee may, from time to time, subject to the provisions of
the Plan and such other terms and conditions as the Committee may prescribe,
grant to any Participant options to purchase Common Shares, which options may
be options that comply with the requirements for incentive stock options set
forth in section 422 of the Code ("ISOs") or options which do not comply with
such requirements ("NSOs") or both. The grant of an option shall be evidenced
by a signed written agreement ("Stock Option Agreement") containing such
terms and conditions as the Committee may from time to time prescribe.
5.2 The purchase price per Common Share of options granted under the
Plan shall be determined by the Committee but shall not be less than 100% of
the fair market value of the Common Shares on the date the option is granted.
5.3 Unless otherwise prescribed by the Committee in the Stock Option
Agreement, each option granted under the Plan shall be for a period of ten
years, shall be exercisable in whole or in part after the commencement of the
second year of its specified term and may therefore be exercised in whole or
in part before it terminates under the provisions of the Stock Option
Agreement. The Committee shall establish procedures governing the exercise of
options and shall require that written notice of exercise be given and that
the option price be paid in full in cash at the time of exercise. The
Committee may permit a Participant, in lieu of part or all of the cash
payment, to make payment in Common Shares or other property valued at fair
market value on the date of exercise, as partial or full payment of the
option price. As soon as practicable after receipt of each notice and full
payment, the Company shall deliver to the Participant a certificate or
certificates representing the acquired Common Shares.
5.4 Any ISO granted under the Plan shall be exercisable upon the date or
dates specified in the Stock Option Agreement, but not earlier than one year
after the date of grant of the ISO and not later than 10 years after the date
of grant of the ISO, provided that the aggregate fair market value,
determined as of the date of grant, of Common Shares for which ISOs are
exercisable for the first time during any calendar year as to any Participant
shall not exceed the maximum limitations in section 422A of the Code.
Notwithstanding any other previsions of the Plan to the contrary, no
individual will be eligible for or granted an ISO if, at the time the option
is granted, that individual owns (directly or indirectly, within the meaning
of section 424(d) of the Code) stock of the Company possessing more than 10%
of the total combined voting power of all classes of stock of the Company or
of any of its subsidiaries.
6. STOCK APPRECIATION RIGHTS.
6.1 A SAR may be granted free-standing or in tandem with new options or
after the grant of a related option which is not an ISO. The SAR shall
represent the right to receive payment of a sum not to exceed the
<PAGE>
6. STOCK APPRECIATION RIGHTS. (CONTINUED)
amount, if any, by which the fair market value of the Common Shares on the
date of exercise of the SAR (or, if the Committee shall so determine in the
case of any SAR not related to an ISO, any time during a specified period
before the exercise date) exceeds the grant price of the SAR.
6.2 The grant price (which shall not be less than the fair market value
of the Common Shares on the date of the grant) and other terms of the SAR
shall be determined by the Committee.
6.3 Payment of the amount to which a Participant is entitled upon the
exercise of a SAR shall be made in cash, Common Shares or other property or
in a combination thereof, as the Committee shall determine. To the extent
that payment is made in Common Shares or other property, the Common Shares or
other property shall be valued at fair market value on the date of exercise
of the SAR.
6.4 Unless otherwise determined by the Committee, any related option
shall no longer be exercisable to the extent the SAR has been exercised and
the exercise of an option shall cancel the related SAR to the extent of such
exercise.
7. RESTRICTED STOCK.
Common Shares awarded as restricted stock may not be disposed of by the
recipient until certain restrictions established by the Committee lapse.
Recipients of restricted stock are not required to provide consideration
other than the rendering of services or the payment of any minimum amount
required by law, unless the Committee otherwise elects. The Participant shall
have, with respect to Common Shares awarded as restricted stock, all of the
rights of a shareholder of the Company, including the right to vote the
Common Shares, and the right to receive any cash dividends, unless the
Committee shall otherwise determine. Upon termination of employment during
the restricted period, all restricted stock shall be forfeited, subject to
such exceptions, if any, as are authorized by the Committee, as to
termination of employment, retirement, disability, death or special
circumstances.
8. PERFORMANCE SHARES AND UNITS.
8.1 The Committee may award to any Participant Performance Shares and
Performance Units ("Performance Award"). Each Performance Share shall
represent, as the Committee shall determine, one Common Share or other
security. Each Performance Unit shall represent the right of a Participant to
receive an amount equal to the value determined in the manner established by
the Committee at time of award. Recipients of Performance Awards are not
required to provide consideration other than the rendering of service, unless
the Committee otherwise elects.
8.2 Each Performance Award under the Plan shall be evidenced by a signed
written agreement containing such terms and conditions as the Committee may
determine.
8.3 The performance period for each award of Performance Shares and
Performance Units shall be of such duration as the Committee shall establish
at the time of award ("Performance Period"). There may be more than one award
in existence at any one time, and Performance Periods may differ. The
performance criteria for each Performance Period shall be determined by the
Committee.
8.4 The Committee may provide that amounts equivalent to dividends paid
shall be payable with respect to each Performance Share awarded, and that
amounts equivalent to interest at such rates as the Committee may determine
shall be payable with respect to amounts equivalent to dividends previously
credited to the Participant. The Committee may provide that amounts
equivalent to interest at such rates as the Committee may determine shall be
payable with respect to Performance Units.
8.5 Payments of Performance Shares and any related dividends, amounts
equivalent to dividends and amounts equivalent to interest may be made in a
lump sum or in installments, in cash, property or in a combination thereof,
as the Committee may determine. Payment of Performance Units and any related
amounts equivalent to interest may be made in a lump sum or in installments,
in cash, property or in a combination thereof, as the Committee may determine.
<PAGE>
9. OTHER STOCK UNIT AWARDS.
9.1 The Committee is authorized to grant to Participants, either alone
or in addition to other awards granted under the Plan, awards of Common
Shares or other securities of the Company or any subsidiary of the Company
and other awards that are valued in whole or in part by reference to, or are
otherwise based on, Common Shares or other securities of the Company or any
subsidiary of the Company ("other stock unit awards"). Other stock unit
awards may be paid in cash, Common Shares, other property or in a combination
thereof, as the Committee shall determine.
9.2 The Committee shall determine the Participants to whom other stock
unit awards are to be made, the times at which such awards are to be made,
the number of shares to be granted pursuant to such awards and all other
conditions of such awards. The provisions of other stock unit awards need not
be the same with respect to each recipient. The Participant shall not be
permitted to sell, assign, transfer, pledge, or otherwise encumber the Common
Shares or other securities prior to the later of the date on which the Common
Shares or other securities are issued, or the date on which any applicable
restrictions, performance or deferral period lapses. Common Shares (including
securities convertible into Common Shares) and other securities granted
pursuant to other stock unit awards may be issued for no cash consideration
or for such minimum consideration as may be required by applicable law.
Common Shares (including securities convertible into Common Shares) and other
securities purchased pursuant to purchase rights granted pursuant to other
stock unit awards may be purchased for such consideration as the Committee
shall determine, which price shall not be less than the fair market value of
such Common Shares or other securities on the date of grant, unless the
Committee otherwise elects.
10. NONASSIGNABILITY OF AWARDS.
No award granted under the Plan shall be assigned, transferred, pledged
or otherwise encumbered by a Participant, otherwise than (a) by will, (b) by
designation of a beneficiary after death, (c) by the laws of descent and
distribution or (d) to the extent permitted by the Committee, by gift. Each
award shall be exercisable during the Participant's lifetime only by the
Participant or, if permissible under applicable law, by the Participant's
guardian or legal representative or, in the case of a gift permitted by the
Committee, by the recipient of the gift.
11. DEFERRALS OF AWARDS.
The Committee may permit Participants to defer the distribution of all or
part of any award in accordance with such terms and conditions as the
Committee shall establish.
12. PROVISIONS UPON CHANGE OF CONTROL.
In the event of a Change in Control occurring on or after the Effective
Date, the provisions of this Section 12 will supersede any conflicting
provisions of the Plan.
12.1 In the event of a Change in Control, all outstanding stock options
and SARs under Sections 5 and 6 of the Plan shall become exercisable in full
and the restrictions otherwise applicable to any common shares awarded as
restricted stock under Section 7 of the Plan shall lapse; further, unless the
Committee shall revoke such an entitlement prior to a Change in Control, any
optionee who is deemed by the Committee to be a statutory officer ("insider")
for purposes of Section 16 of the 1934 Act shall be entitled to receive in
lieu of exercise of any stock option, to the extent that it is then
exercisable, a cash payment in an amount equal to the difference between the
aggregate price of such option, or portion thereof, and (a) in the event of a
tender offer or similar event, the final offer price per share paid for
Common Shares times the number of Common Shares covered by the option or
portion thereof, or (b) the aggregate value of the Common Shares covered by
the stock option.
In the event of a tender offer in which fewer than all Common Shares
which are validly tendered in compliance with such offer are purchased or
exchanged, then only that portion of the Common Shares covered by a stock
option as results from multiplying such Common Shares by a fraction, the
numerator of which is the number of Common Shares acquired pursuant to the
offer and the denominator of which is the
<PAGE>
12. PROVISIONS UPON CHANGE OF CONTROL. (CONTINUED)
number of Common Shares tendered in compliance with such offer, shall be used
to determine the payment thereupon. To the extent that all or any portion of
a stock option shall be affected by this provision, all or such portion of
the stock option shall be terminated.
12.2 In the event of a Change in Control, a pro rata portion of all
outstanding awards under Sections 8 and 9 of the Plan, whether in the form of
Performance Shares or Units, shall be paid to each Participant within five
business days of such Change in Control. The pro rata portion of such awards
to be paid shall equal the full present value of each such award as of the
first day of the month in which such Change in Control occurs multiplied by a
ratio, the numerator of which shall equal the number of full and partial
months (including the month in which any Change in Control occurs) since the
date of the award and the denominator of which shall equal the number of
months in the applicable performance period.
12.3 For purposes of this Section 12, a "Change in Control" of the
Company means and shall be deemed to occur if:
(a) a tender shall be made and consummated for the ownership of 30% or
more of the outstanding voting securities of the Company;
(b) the Company shall be merged or consolidated with another corporation
and as a result of such merger or consolidation less than 75% of the
outstanding voting securities of the surviving or resulting
corporation shall be owned in the aggregate by the former
shareholders of the Company, other than affiliates (within the
meaning of the 1934 Act) of any party to such merger or
consolidation, as the same shall have existed immediately prior to
such merger or consolidation;
(c) the Company shall sell substantially all of its assets to another
corporation which is not a wholly owned subsidiary;
(d) a person, within the meaning of Section 3(a)(9) or of Section
13(d)(3) of the 1934 Act, shall acquire 20% or more of the
outstanding voting securities of the Company (whether directly,
indirectly, beneficially or of record), or a person, within the
meaning of Section 3(a)(9) or Section 13(d)(3) of the 1934 Act,
controls in any manner the election of a majority of the directors of
the Company; or
(e) within any period of two consecutive years commencing on or after the
effective date of the Plan, individuals who at the beginning of such
period constitute the Board cease for any reason to constitute at
least a majority thereof, unless the election of each director who
was not a director at the beginning of such period has been approved
in advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of the
period. For purposes hereof, ownership of voting securities shall
take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(1)(i) pursuant to the 1934
Act.
12.4 In the event of a Change in Control, the provisions of this Section
12 may not be amended on or subsequent to the Change in Control in any manner
whatsoever which would be adverse to one or more Participants without the
consent of each Participant who would be so affected; provided, however, the
Board may make minor or administrative changes to this Section 12 or changes
to conform to applicable legal requirements.
13. ADJUSTMENTS.
13.1 In the event of any change affecting the Common Shares by reason of
any stock dividend or split, recapitalization, merger, consolidation,
spin-off, combination or exchange of shares or other corporate change, or any
distributions to common shareholders other than cash dividends, the Committee
shall make such substitution or adjustment in the aggregate number or class
of shares which may be distributed
<PAGE>
13. ADJUSTMENTS. (CONTINUED)
under the Plan and in the number, class and option price or other price of
shares subject to the outstanding awards granted under the Plan as it deems
to be appropriate in order to maintain the purpose of the original grant.
13.2 The Committee shall be authorized to make adjustments in
performance award criteria or in the terms and conditions of other awards in
recognition of unusual or non-recurring events affecting the Company or its
financial statements or changes in applicable laws, regulations or accounting
principles. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any award in the manner and to the
extent it shall deem desirable to carry it into effect.
14. BOARD OF DIRECTORS.
Notwithstanding any other provisions hereof to the contrary, the Board
may assume responsibilities otherwise assigned to the Committee and may
amend, alter or discontinue the Plan or any portion thereof at any time,
provided that no such action shall impair the rights of a Participant without
the Participant's consent and provided that no amendment shall be made
without shareholder approval which shall (a) increase the total number of
shares reserved for issuance pursuant to the Plan; (b) change the class of
eligible Participants; or (c) materially increase the benefits under the Plan.
15. WITHHOLDING.
To the extent required by applicable federal, state, local or foreign
law, the recipient of an award under the Plan shall make arrangements
satisfactory to the Company for the satisfaction of any withholding
obligations that arise in connection with the award and the Company shall
have the right to withhold from any cash award the amount necessary, or
retain from any award in the form of Common Shares a sufficient number of
Common Shares, to satisfy the applicable withholding tax obligation. Unless
otherwise provided in the applicable award agreement, a Participant may
satisfy any tax withholding obligation by any of the following means or any
combination thereof: (a) by a cash payment to the Company, (b) by delivering
to the Company Common Shares owned by the Participant or (c) with the consent
of the Committee, by authorizing the Company to retain a portion of the
Common Shares otherwise issuable to the Participant pursuant to the exercise
or vesting of the award.
16. PREDECESSOR PLANS.
The Plan is intended to supersede the Predecessor Plans for all awards
made after the Effective Date. Awards under the Predecessor Plans which are
outstanding on the Effective Date will not be affected by the Plan, provided
that the Committee, in its discretion, may permit transfers by gift of
options granted under the Predecessor Plans, subject to such terms and
conditions as the Committee may prescribe.
