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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES
OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g)
OF THE SECURITIES EXCHANGE ACT OF 1934
OAK HILL FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
OHIO 31-1010517
(State of incorporation or organization) (I.R.S. Employer Identification No.)
14621 State Route 93
Jackson, Ohio 45640
(614) 286-3283
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each Class Name of each Exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Preferred Stock Purchase Rights NASDAQ National Market
Securities to be registered pursuant to Section 12(g) of the Act: None
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Item 1. Description of Registrant's Securities to be Registered.
- --------------------------------------------------------------------------------
On December 9, 1997 the Board of Directors of Oak Hill Financial, Inc.
(the "Company") authorized and declared a dividend of one preferred stock
purchase right (a "Right") for each share of common stock, without par value, of
the Company (the "Common Shares"). The dividend is payable on February 16, 1998
(the "Record Date") to the holders of record of Common Shares as of the close of
business on such date.
The following is a brief description of the Rights. It is intended to
provide a general description only and is subject to the detailed terms and
conditions of a Rights Agreement (the "Rights Agreement") dated as of January
23, 1998, by and between the Company and Fifth Third Bank as Rights Agent (the
"Rights Agent").
1. Common Share Certificates Representing Rights
Until the Distribution Date (as defined in Section 2 below), (a) the
Rights shall not be exercisable, (b) the Rights shall be attached to and trade
only together with the Common Shares and (c) the stock certificates representing
Common Shares shall also represent the Rights attached to such Common Shares.
Common Share certificates issued after the Record Date and prior to the
Distribution Date shall contain a notation incorporating the Rights Agreement by
reference.
2. Distribution Date
The "Distribution Date" is the earliest of (a) the occurrence of a
Triggering Event (as defined in Section 1(jj) of the Rights Agreement), or (b)
the tenth business day (or such later date as may be determined by action of the
Board of Directors of the Company prior to the occurrence of the Triggering
Event) following the date of commencement of, or the first disclosure of the
intent to commence a tender or exchange offer by any Person (other than the
Company or certain related entities, and with certain additional exceptions) if
upon consummation of such tender offer or exchange such Person could be the
beneficial owner of 15% or more of the then outstanding Common Shares (including
any such date which is after the date of the Rights Agreement and prior to the
issuance of the Rights). In calculating the percentage of outstanding Common
Shares that are beneficially owned by any person, such person shall be deemed to
beneficially own any Common Shares issuable upon the exercise, exchange or
conversion of any options, warrants or other securities beneficially owned by
such person; provided, however, that such Common Shares issuable upon such
exercise shall not be deemed outstanding for the purpose of calculating the
percentage of Common Shares that are beneficially owned by any other person.
Notwithstanding the foregoing, no person shall be deemed an "Acquiring Person"
until such person becomes the beneficial owner of a percentage of the then
outstanding Common Shares that is at least 1% more than the percentage of the
outstanding Common Shares beneficially owned by such person on January 23, 1998.
In addition, if, after January 23, 1998, any person becomes the beneficial owner
of at least 15% of the then outstanding Common Shares as a result of share
purchases by the Company, then such person
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shall not be deemed an "Acquiring Person" until such person thereafter acquires
beneficial ownership of, in the aggregate, a number of additional Common Shares
equal to 1% or more of the then outstanding Common Shares.
Upon the close of business on the Distribution Date, the Rights shall
separate from the Common Shares, Right certificates shall be issued and the
Rights shall become exercisable to purchase Preferred Shares as described in
Section 5 below.
3. Issuance of Right Certificates
As soon as practicable following the Distribution Date, separate
certificates representing only Rights shall be mailed to the holders of record
of Common Shares as of the close of business on the Distribution Date, and such
separate Right certificates alone shall represent such Rights from and after the
Distribution Date.
4. Expiration of Rights
The Rights shall expire on January 23, 2008 unless earlier redeemed.
5. Exercise of Rights
Unless the Rights have expired or been redeemed or exchanged, they may
be exercised, at the option of the holders, pursuant to paragraphs (a), (b) or
(c) below. No Right may be exercised more than once or pursuant to more than one
of such paragraphs. From and after the first event of the type described in
paragraphs (b) or (c) below, each Right that is beneficially owned by an
Acquiring Person or that was attached to a Common Share that is subject to an
option beneficially owned by an Acquiring Person shall be void.
(a) Right to Purchase Preferred Shares.
From and after the close of business on the
Distribution Date, each Right (other than a Right that has become void)
shall be exercisable to purchase one one-hundredth of a share of Series
A Junior Participating Preferred Stock, par value $.01 per share, of
the Company (the "Preferred Shares"), at an exercise price of $90
(Ninety dollars) (the "Exercise Price"). The Preferred Shares are
nonredeemable and, unless otherwise provided in connection with the
creation of a subsequent series of preferred stock, are subordinate to
any other series of the Company's preferred stock, whether issued
before or after the issuance of the Preferred Shares. The Preferred
Shares may not be issued except upon the exercise of Rights. The holder
of a Preferred Share is entitled to receive when, as and if declared,
the greater of (i) a preferential annual dividend of $1.00 per
Preferred Share ($.01 per one one-hundredth of a Preferred Share); or
(ii) cash and non-cash dividends in an amount equal to 100 times the
dividends declared on each Common Share. In the event of liquidation,
the holders of Preferred Shares shall be entitled to receive a
liquidation payment in an amount
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equal to the greater of (1) $1.00 per Preferred Share ($.01 per one
one-hundredth of a Preferred Share), plus all accrued and unpaid
dividends and distributions on the Preferred Shares, or (2) an amount
equal to 100 times the aggregate amount to be distributed per Common
Share. Each Preferred Share has 100 votes, voting together with the
Common Shares. In the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, the holder of a
Preferred Share shall be entitled to receive 100 times the amount
received per Common Share. The rights of the Preferred Shares as to
dividends, voting and liquidation preferences are protected by
antidilution provisions. It is anticipated that the value of one
one-hundredth of a Preferred Share should approximate the value of one
Common Share; or (ii) cash and non-cash dividends in an amount equal to
100 times the dividends declared on each Common Share.
(b) Right to Purchase Common Shares of the Company.
From and after the close of business on the tenth
business day following the Triggering Event, each Right (other than a
Right that has become void) shall be exercisable to purchase, at the
Exercise Price (initially $90), Common Shares with a market value equal
to two times the Exercise Price.
(c) Right to Purchase Common Stock of a Successor Corporation.
If, on or after the Triggering Event, (i) the Company
is acquired in a merger or other business combination in which the
Company is not the surviving corporation, (ii) the Company is the
surviving corporation in a merger or other business combination in
which all or part of the outstanding Common Shares are changed into or
exchanged for stock or assets of another person or (iii) 50% or more of
the Company's consolidated assets or earning power are sold (other than
in transactions in the ordinary course of business), then each Right
(other than a Right that has become void) shall thereafter be
exercisable to purchase, at the Exercise Price (initially $90), shares
of common stock of the surviving corporation or purchaser,
respectively, with an aggregate market value equal to two times the
Exercise Price.
6. Adjustments to Prevent Dilution
The Exercise Price, the number of outstanding Rights and the number of
Preferred Shares or Common Shares issuable upon exercise of the Rights are
subject to adjustment from time to time as set forth in the Rights Agreement in
order to prevent dilution.
7. Cash Paid Instead of Issuing Fractional Securities
No fractional securities shall be issued upon exercise of a Right
(other than fractions of Preferred Shares that are integral multiples of one
one-hundredth of a Preferred Share and that may, at the election of the Company,
be evidenced by depositary receipts) and in lieu thereof, an
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adjustment in cash shall be made based on the market price of such securities on
the last trading date prior to the date of exercise.
8. Redemption
At any time prior to the earlier of (a) the occurrence of a Triggering
Event, or (b) the Expiration Date, the Board of Directors may, at its option,
direct the Company to redeem the Rights in whole, but not in part, at a price of
$0.01 per Right (the "Redemption Price"), and the Company shall so redeem the
Rights; provided, however, that any redemption after there is an Acquiring
Person shall also require the approval of a majority of those directors of the
Company who were directors prior to such date. Immediately upon such action by
the Board of Directors (the date of such action is the "Redemption Date"), the
right to exercise Rights shall terminate and the only right of the holders of
Rights thereafter shall be to receive the Redemption Price.
9. Exchange
At any time after the Triggering Event and prior to the first date
thereafter upon which an Acquiring Person shall be the beneficial owner of 50%
or more of the outstanding Common Shares, the Board of Directors may, at its
option, direct the Company to exchange all, but not less than all, of the then
outstanding Rights for Common Shares at an exchange ratio per Right equal to one
Common Share per Right on such Date (the "Exchange Ratio"), and the Company
shall so exchange the Rights. Immediately upon such action by the Board of
Directors, the right to exercise Rights shall terminate and the only right of
the holders of Rights thereafter shall be to receive a number of Common Shares
equal to the Exchange Ratio.
10. No Shareholder Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, shall have no
rights as a Shareholder of the Company (other than rights resulting from such
holder's ownership of Common Shares), including, without limitation, the right
to vote or to receive dividends.
11. Amendment of Rights Agreement
The Board of Directors may, at any time prior to the Distribution Date,
without the approval of any holder of Rights, direct the Company and the Rights
Agent to supplement or amend any provision of the Rights Agreement in any
manner, whether or not such supplement or amendment is adverse to any holder of
Rights, and the Company and the Rights Agent shall so supplement or amend such
provision. From and after the Distribution Date, the Company may amend the
Rights Agreement without the approval of any holders of the Rights Certificates
or the Rights Agent (i) to cure any ambiguity or to correct or supplement any
provision contained in the Rights Agreement which may be defective or
inconsistent with any other provision of the Rights Agreement or (ii) to make
any other provisions in regard to matters or questions arising under the Rights
Agreement which the Company may deem necessary or desirable and which shall not
adversely affect the
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interests of the holders of the Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person).
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Item 2. Exhibits
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Attached hereto as an exhibit and incorporated herein by reference is
the Rights Agreement dated as of January 23, 1998, by and between the Company
and Fifth Third Bank, as Rights Agent, and which includes as Exhibit A thereto
the Third Amended and Restated Articles of Incorporation, as Exhibit B
thereto the form of Right Certificate and, as Exhibit C thereto the
Summary of Rights.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed by on its behalf by the undersigned, thereto duly authorized.
OAK HILL FINANCIAL, INC.
/s/ John D. Kidd
---------------------------------
By: John D. Kidd
Chairman of the Board and Chief
Executive Officer
Dated: January 23, 1998
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EXHIBIT INDEX
EXHIBIT NO.
4.1 Rights Agreement dated as of January 23, 1998 by and between the
Company and Fifth Third Bank, as Rights Agent, and which includes as Exhibit A
thereto the Third Amended and Restated Articles of Incorporation, as Exhibit B
thereto the form of Right Certificate and, as Exhibit C thereto the Summary of
Rights.
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Exhibit 4.1
RIGHTS AGREEMENT
Dated as of January 23, 1998
Between
OAK HILL FINANCIAL, INC.
and
THE FIFTH THIRD BANK
as Rights Agent
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 8
Section 3. Issue of Rights and Right Certificates 8
Section 4. Form of Right Certificates 10
Section 5. Execution, Countersignature and Registration 10
Section 6. Transfer, Split-Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost, Stolen Right Certificates 10
Section 7. Exercise of Rights; Expiration Date of Right 11
Section 8. Cancellation and Destruction of Right Certificate 13
Section 9. Reservation and Availability of Preferred Shares 13
Section 10. Preferred Shares Record Date 14
Section 11. Adjustment of Number and Kind of Shares and the Purchase Price;
Adjustment of Number of Rights 14
Section 12. Certificate of Adjustment 19
Section 13. Consolidation, Merger or Sale or Transfer of Major Part of Assets 19
Section 14. Additional Covenants 21
Section 15. Fractional Rights and Fractional Shares 22
Section 16. Rights of Action 23
Section 17. Transfer and Ownership of Rights and Right Certificates 23
Section 18. Right Certificate Holder Not Deemed a Stockholder 24
</TABLE>
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<TABLE>
<S> <C>
Section 19. Concerning the Rights Agent 24
Section 20. Merger or Consolidation or Change of Rights Agent 24
Section 21. Duties of Rights Agent 25
Section 22. Change of Rights Agent 27
Section 23. Issuance of Additional Rights and Right Certificates 28
Section 24. Redemption and Termination 28
Section 25. Exchange of Rights 29
Section 26. Notice of Certain Events 29
Section 27. Notices 30
Section 28. Supplements and Amendments 31
Section 29. Successors 31
Section 30. Benefits of This Rights Agreement; Determinations and Actions by the
Board of Directors, etc. 31
Section 31. Severability 32
Section 32. Governing Law 32
Section 33. Counterparts 32
Section 34. Descriptive Headings 32
Exhibit A Third Amended and Restated Articles of Incorporation
Exhibit B Form of Right Certificate
Exhibit C Summary of Rights
</TABLE>
ii
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RIGHTS AGREEMENT
This is a RIGHTS AGREEMENT dated as of January 23, 1998, between OAK
HILL FINANCIAL, INC., an Ohio corporation (the "Company"), and THE FIFTH THIRD
BANK, an Ohio banking association, as Rights Agent (the "Rights Agent").
RECITALS
--------
The Board of Directors of the Company has authorized and declared a
dividend of one Right (as hereinafter defined) for each share of common stock,
without par value of the Company (the "Common Stock") outstanding on February
16, 1998, (the "Record Date"), and has authorized the issuance of one Right (as
such number may hereafter be adjusted pursuant to the provisions of this Rights
Agreement) with respect to each share of Common Stock that shall become
outstanding between the Record Date and the earliest of the Distribution Date,
the Redemption Date and the Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued with respect to shares of
Common Stock that shall become outstanding after the Distribution Date and prior
to the earlier of the Redemption Date and the Expiration Date in accordance with
the provisions of Section 23 of this Rights Agreement. Each Right shall
initially represent the right to purchase one one-hundredth (1/100th) of a share
of Series A Junior Participating Preferred Stock of the Company, having the
powers, designation, preferences, rights, qualifications, limitations and
restrictions set forth in its Third Amended Articles of Incorporation.
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
AGREEMENT
---------
Section 1. Certain Definitions. For purposes of this Rights Agreement,
the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Common Shares then outstanding, but shall
not include (i) the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any of its Subsidiaries or any Person holding Common
Shares for or pursuant to the terms of any such employee benefit plan, or (ii)
any Person who became the Beneficial Owner of 15% or more of the Common Shares
prior to January 23, 1998 (an "Existing Owner"); provided, however, that if an
Existing Owner shall, after such date and at a time when such Existing Owner is
the beneficial owner of 15% or more of the Common Shares then outstanding,
become the Beneficial Owner of additional Common Shares representing more than
1% of the Common Shares, then such Existing Owner shall be deemed an "Acquiring
Person." Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the which, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 15% or more of the Common Shares
then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares then outstanding by reason
of share
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purchases by the Company and shall after such share purchases by the Company and
at a time when such Person is the Beneficial Owner of 15% or more of the Common
Shares then outstanding become the Beneficial Owner of additional Common Shares
representing more than 1% of the Common Shares, then such Person shall be deemed
to be an "Acquiring Person." Notwithstanding the foregoing, if the Board of
Directors determines in good faith that a Person would otherwise be an
"Acquiring Person," as defined pursuant to this paragraph, has become such
inadvertently, and such Person divests as promptly as practicable a sufficient
number of Common Shares so that such Person would no longer be an "Acquiring
Person," as defined pursuant to this paragraph, then such Person shall not be
deemed an "Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate", when used with reference to any
Person, shall have the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date of this Rights Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own" and have "beneficial ownership, of, any securities:
(i) which such Person or any of such Person's Affiliates or
Associates is deemed to "beneficially own" within the meaning of Rule
13d-3 of the General Rules and Regulations under the Exchange Act, as
in effect on the date of this Rights Agreement;
(ii) which such Person or any of such Person's Affiliates or
Associates has (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 (written or oral), or upon
the exercise of conversion rights, exchange rights, rights (other than
Rights issuable under this Rights Agreement), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, securities tendered
pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange thereunder;
or (B) the right to-vote pursuant to any agreement, arrangement or
understanding (written or oral); provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding (written or
oral) to vote such security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (written or oral), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy or consent as described in
clause (B) of subparagraph (ii) of this paragraph (c)) or disposing of
any securities of the Company.
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Notwithstanding the foregoing, nothing contained in this paragraph (c) shall
cause a Person ordinarily engaged in business as an underwriter of securities to
be the "Beneficial Owner" of, or to "beneficially own", any securities acquired
through such Person's participation in a bona fide firm commitment underwriting
of such securities pursuant to an underwriting agreement with the Company for
such period of time as shall be determined by the Board of Directors of the
Company.
(d) "Book Value", when used with reference to Common Shares issued by
any Person, shall mean the amount of equity of such Person applicable to each
Common Share, determined (i) in accordance with generally accepted accounting
principles in effect on the date as of which such Book Value is to be
determined, (ii) using all the consolidated assets and all the consolidated
liabilities of such Person on the date as of which such Book Value is to be
determined, except that no value shall be included in such assets for goodwill
arising from consummation of a Business Combination, and (iii) after giving
effect to (A) the exercise of all rights, options and warrants to purchase such
Common Shares (other than the Rights), and the conversion of all securities
convertible into such Common Shares, at an exercise or conversion price, per
Common Share, which is less than such Book value before giving effect to such
exercise or conversion, (B) all dividends and other distributions on the capital
stock of such Person declared prior to the date as of which such Book Value is
to be determined and to be paid or made after such date and (C) any other
agreement, arrangement or understanding (written or oral), or transaction or
other action, prior to the date as of which such Book Value is to be determined
which would have the effect of thereafter reducing such Book Value.
(e) "Business Combination" shall have the meaning set forth in Section
13(a).
(f) "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the State of Ohio
are authorized or obligated by law or executive order to close.
(g) "Close of Business," on any given date shall mean 5:00 p.m.,
Jackson, Ohio time, on such date; provided, however, that, if such date is not a
Business Day, "Close of Business" shall mean 5:00 p.m., Jackson, Ohio time, on
the next succeeding Business Day.
(h) "Common Shares", when used with reference to the Company prior to a
Business Combination, shall mean the shares of Common Stock of the Company or
any other shares of capital stock of the Company into which the Common Stock
shall be reclassified or changed. "Common Shares", when used with reference to
any Person (other than the Company prior to a Business Combination), shall mean
shares of capital stock of such Person (if such Person is a corporation) of any
class or series, or units of equity interests in such Person (if such Person is
not a corporation) of any class or series, the terms of which do not limit (as a
fixed amount and not merely in proportional terms) the amount of dividends or
income payable or distributable on such class or series or the amount of assets
distributable on such class or series upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person and do not provide that
such class or series is subject to redemption at the option of such Person, or
any shares of capital stock or units of equity
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interests into which the foregoing shall be reclassified or changed; provided,
however, that, if at any time there shall be more than one such class or series
of capital stock or equity interests of such Person, "Common Shares" of such
Person shall include all such classes and series substantially in the proportion
of the total number of shares or other units of each such class or series
outstanding at such time.
(i) "Common Stock" shall mean the common stock, without par value, of
the Company.
(j) "Company" shall have the meaning set forth in the heading of this
Rights Agreement; provided, however, that, if there is a Business Combination,
"Company" shall have the meaning set forth in Section 13(b).
(k) "Continuing Director" shall mean (i) any member of the Board of
Directors, who, while such person is a member of the Board of Directors, is not
an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or Associate, and
was a member of the Board prior to the date of this Agreement, or (ii) any
Person who after the date of this Agreement becomes a member of the Board of
Directors and who, while such Person is a member of the Board of Directors, is
not an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or
a representative of an Acquiring Person or of any such Affiliate or Associate,
if such Person's nomination for election or election to the Board of Directors
is recommended or approved by a majority of the Continuing Directors, or (iii)
any Person who subsequently becomes a member of the Board of Directors who,
while such Person is a member of the Board of Directors, is not an Acquiring
Person, or an Affiliate or Associate of an Acquiring Person, or a representative
of an Acquiring Person or of any such Affiliate or Associate, if such Person's
election to the Board of Directors is solely the result of a proxy solicitation
made pursuant to a publicly-filed Schedule 14A or any comparable or successor
form under the Exchange Act.
(l) The terms "control," "controlling" and "controlled" when used with
reference to any Person shall mean the power to direct the management and
policies of such Person, directly or indirectly, by or through stock ownership,
agency or otherwise, or pursuant to or in connection with an agreement,
arrangement or understanding (written or oral) with one or more other Persons by
or through stock ownership, agency or otherwise.
(m) "Distribution Date" shall have the meaning set forth in Section
3(b).
(n) "Equivalent Shares" shall mean Preferred Shares and any other class
or series of capital stock of the Company which is entitled to participate in
dividends and other distributions, including distributions upon the liquidation,
dissolution or winding up of the Company, on a proportional basis with the
Common Shares. In calculating the number of any class or series of Equivalent
Shares for purposes of Section 11, the number of shares, or fractions of a
share, of such class or series of capital stock that is entitled to the same
dividend or distribution as a whole Common Share shall be deemed to be one
share.
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(o) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
in effect on the date in question, unless otherwise specifically provided in
this Rights Agreement.
(p) "Expiration Date" shall mean January 23, 2008.
(q) "Major Part" when used with reference to the assets of the Company
and its Subsidiaries as of any date shall mean assets (i) having a fair market
value aggregating 50% or more of the total fair market value of all the assets
of the Company and its Subsidiaries (taken as a whole) as of the date in
question, (ii) accounting for 50% or more of the total value (net of
depreciation and amortization) of all the assets of the Company and its
Subsidiaries (taken as a whole), as would be shown on a consolidated or combined
balance sheet of the Company and its Subsidiaries as of the date in question,
prepared in accordance with generally accepted accounting principles then in
effect, or (iii) accounting for 50% or more of the total amount of net income of
the Company and its Subsidiaries (taken as a whole), as would be shown on a
consolidated or combined statement of income of the Company and its Subsidiaries
for the period of 12 months ending on the last day of the Company's monthly
accounting period next preceding the date in question, prepared in accordance
with generally accepted accounting principles then in effect.
(r) "Market Value", when used with reference to Common Shares or
Equivalent Shares on any date, shall be deemed to be the average of the daily
closing prices, per share, of such Common Shares or Equivalent Shares for the
period which is the shorter of (1) 30 consecutive Trading Days immediately prior
to the date in question and (2) the number of consecutive Trading Days beginning
on the date of the first public announcement of the event requiring a
determination of the Market Value and ending on the Trading Day immediately
prior to the record date of such event or, if no such record date is applicable
to such event, the Trading Day on which the determination of Market Value is
required to be made; provided, however, that, in the event that the Market Value
of such Common Shares or Equivalent Shares is to be determined in whole or in
part during a period following the announcement by the issuer of such Common
Shares or Equivalent Shares of any dividend, distribution or other action of the
type described in paragraph (a), (b), (c) or (d) of Section 11 that would
require an adjustment thereunder, then, and in each such case, the Market Value
of such Common Shares or Equivalent Shares shall be appropriately adjusted to
reflect the effect of such action on the market price of such Common Shares or
Equivalent Shares. The closing price for each Trading Day shall be the last sale
price, regular way, or, in case no such sale takes place on such Trading Day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to a security listed or admitted to trading on a national securities exchange
or, if such security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or, if on any such Trading Day the
applicable securities are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in such securities selected by the Board of Directors of the
Company. If on any such Trading Day no market maker is making a market in such
securities, the closing price
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<PAGE> 9
of such securities on such Trading Day shall be deemed to be the fair value of
such securities as determined in good faith by the Board of Directors of the
Company (whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent, the holders of Rights and
all other Persons).
(s) The term "outstanding", when used with reference to the Common
Shares, shall mean the outstanding Common Shares as set forth in the most recent
filing by the Company with the Securities and Exchange Commission or any later
announcement by the Company that has been publicly disseminated at the time of
determination, and when used with reference to Rights, shall include the Rights
associated with outstanding Common Shares and the Rights evidenced by Rights
Certificates.
(t) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, trustee, unincorporated organization or other
entity.
(u) "Preferred Shares, shall mean shares of Series A Junior
Participating Preferred Stock of the Company. Any reference in this Rights
Agreement to Preferred Shares shall be deemed to include any authorized fraction
of a Preferred Share, unless the context otherwise requires.
(v) "Principal Party" shall mean the Surviving Person in a Business
Combination; provided, however, that, if such Surviving Person is a direct or
indirect Subsidiary of any other Person, "Principal Party" shall mean the Person
which is the ultimate parent of such Surviving Person and which is not itself a
Subsidiary of another Person. In the event the ultimate parent of such Surviving
Person is controlled by two or more Persons, "Principal Party" shall mean that
Person that is immediately controlled by such two or more Persons.
(w) "Purchase Price" with respect to each Right shall mean $90.00, as
such amount may from time to time be adjusted as provided herein, and shall be
payable in lawful money of the United States of America. All references herein
to the Purchase Price shall mean the Purchase Price as in effect at the time in
question.
(x) "Record Date" shall mean February 16, 1998.
(y) "Redemption Date" shall have the meaning set forth in Section
24(a).
(z) "Redemption Price" shall mean the price required to be paid upon
the redemption of the Rights as provided in Section 24(a).
(aa) "Registered Common Shares" shall mean Common Shares which are, as
of the date of consummation of a Business Combination, and have been,
continuously during the preceding 12 months, registered under Section 12 of the
Exchange Act.
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<PAGE> 10
(bb) "Right Certificate" shall mean a certificate evidencing a Right in
substantially the form attached as Exhibit A.
(cc) "Rights" shall mean the rights to purchase Preferred Shares
(and/or other shares of capital stock, securities or property) as provided in
this Rights Agreement.
(dd) "Rights Agent" shall have the meaning set forth in Section 2.
(ee) "Securities Act" shall mean the Securities Act of 1933, as in
effect on the date in question, unless otherwise specifically provided in this
Rights Agreement.
(ff) "Subsidiary" shall mean a Person, a majority of the total
outstanding Voting Power of which is owned, directly or indirectly, by another
Person or by one or more other Subsidiaries of such other Person or by such
other Person and one or more other Subsidiaries of such other Person.
(gg) "Summary of Rights" shall have the meaning set forth in Section
3(c).
(hh) "Surviving Person" shall mean (1) the Person which is the
continuing or surviving Person in a consolidation or merger specified in clause
(i) or (ii) of Section 13(a), or (2) the Person to which the Major Part of the
assets of the Company and its Subsidiaries is sold, leased, exchanged or
otherwise transferred in a transaction specified in clause (iii) of Section
13(a); provided, however, that, if the Major Part of the assets of the Company
and its Subsidiaries is sold, leased, exchanged or otherwise transferred in one
or more related transactions specified in clause (iii) of Section 13(a) to more
than one Person, the "Surviving Person" in such case shall mean the Person that
acquired assets of the Company and/or its Subsidiaries with the greatest fair
market value in such transaction or transactions.
(ii) "Trading Day" shall mean a day on which the principal national
securities exchange on which any shares or Rights, as the case may be, are
listed or admitted to trading is open for the transaction of business or, if the
shares or Rights in question are not listed or admitted to trading on any
national securities exchange, a Business Day.
(jj) A "Triggering Event" shall be deemed to occur immediately upon a
Person becoming an Acquiring Person.
(kk) "Voting Power", when used with reference to the capital stock of,
or units of equity interests in, any Person, shall mean the power under ordinary
circumstances (and not merely upon the happening of a contingency) to vote in
the election of directors of such Person (if such Person is a corporation) or to
participate in the management and control of such Person (if such Person is not
a corporation).
Unless otherwise stated, Section and Exhibit references made herein are
to Sections or Exhibits, as the case may be, of this Rights Agreement.
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<PAGE> 11
Section 2. Appointment of Rights Agent. The Company hereby appoints The
Fifth Third Bank as the Rights Agent to act as agent for the Company and the
holders of the Rights (who prior to the Distribution Date shall also be the
holders of the Common Shares) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint one or more co-Rights Agents as it may deem necessary
or desirable (the term "Rights Agent" being used herein to refer, collectively,
to the Rights Agent together with any such co-Rights Agents). In the event the
Company appoints one or more co-Rights Agents, the respective duties of the
Rights Agent and any co-Rights Agents shall be as the Company shall determine.
Section 3. Issue of Rights and Right Certificates. (a) One Right shall
be associated with each Common Share outstanding on the Record Date, each
additional Common Share that shall become outstanding between the Record Date
and the Distribution Date, and each additional Common Share with which Rights
are issued after the Distribution Date as provided in Section 23; provided,
however, that if the outstanding Rights are reduced to fractions of Rights
pursuant to Section 11(a), the appropriate fractional Rights determined pursuant
to such Section shall thereafter be associated with each Common Share
outstanding at such time.
(b) Until the earlier of (i) the occurrence of a Triggering Event and
(ii) the date which is the 10th Business Day (or such later date as may be
determined by action of the Board of Directors of the Company prior to the
occurrence of a Triggering Event) after the day of the commencement of, or first
public disclosure of the intent to commence, a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any of its Subsidiaries, or any Person holding
Common Shares for or pursuant to the terms of any such employee benefit plan)
for outstanding Common Shares, if upon consummation of such tender or exchange
offer such Person could be the Beneficial Owner of 15% or more of the
outstanding Common Shares (including any such date which is after the date of
this Rights Agreement and prior to the issuance of the Rights) (the earlier of
such dates referred to in the preceding clauses (i) or (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be evidenced by the
certificates for Common Shares registered in the names of the holders thereof
and not by separate Right Certificates, and (y) the Rights, including the right
to receive Right Certificates as herein provided, will be transferable only in
connection with the transfer of Common Shares. Subject to paragraph (e) of this
Section 3, as soon a practicable after the Distribution Date and after
notification by the Company, the Rights Agent will send at the Company's
expense, by first-class, postage prepaid mail, to each record holder of Common
Shares as of the Distribution Date, at the address of such holder shown on the
records of the Company, a Right Certificate evidencing one whole Right for each
Common Share held by such record holder. As of and after the Distribution Date,
the Rights will be evidenced solely by such Right Certificates.
(c) On or prior to the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights to Purchase
Preferred Shares, in substantially the form attached as Exhibit B (the "Summary
of Rights"), by first-class, postage prepaid mail, to each record holder of
Common Shares as of the Close of Business on the Record Date at the address of
such holder
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<PAGE> 12
shown on the records of the Company. With respect to certificates for Common
Shares outstanding as of the Record Date, until the Distribution Date, the
Rights associated with the Common Shares represented by such certificates shall
be evidenced by such certificates for the Common Shares, together with a copy of
the Summary of Rights, and the registered holders of the Common Shares shall
also be the registered holders of the associated Rights. Until the earliest of
the Distribution Date, the Redemption Date and the Expiration Date, the
surrender for transfer of any of the certificates for the Common Shares
outstanding on the Record Date, with or without a copy of the Summary of Rights,
shall also constitute the transfer of the Rights associated with the Common
Shares represented thereby.
(d) Certificates issued for Common Shares after the Record Date
(including, without limitation, upon transfer or exchange of outstanding Common
Shares), but prior to the earliest of the Distribution Date, the Redemption Date
and the Expiration Date, shall have printed on, written on or otherwise affixed
to them the following legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement dated as of
January 23, 1998, as it may be amended from time to time (the "Rights
Agreement"), between OAK HILL FINANCIAL, INC. (the "Company") and The
Fifth Third Bank, as Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will
be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt
of a written request therefor. Rights beneficially owned by Acquiring
Persons or their Affiliates or Associates (as such terms are defined in
the Rights Agreement) and by any subsequent holder of such Rights are
null and void.
With respect to such certificates containing the foregoing legend, until the
earliest of the Distribution Date, the Redemption Date and the Expiration Date,
the Rights associated with the Common Shares represented by such certificates
shall be evidenced by such certificates alone, and the surrender for transfer of
any such certificate shall also constitute the transfer of the Rights associated
with the Common Shares represented thereby.
(e) Notwithstanding any other provision of this Rights Agreement, (i)
no Right Certificate shall be issued pursuant to paragraph (b) of this Section 3
or Section 23 that represents Rights known by the Company to be beneficially
owned by an Acquiring Person or any Affiliate or Associate of an Acquiring
Person, (ii) no Right Certificate shall be issued at any time upon the transfer
of any Right to an Acquiring Person or Person known by the Company to be an
Affiliate or an Associate of an Acquiring Person or to any Person known by the
Company to be a nominee of such Acquiring Person, Affiliate or Associate, and
(iii) no Right Certificate shall be issued pursuant to Section 6 upon transfer,
exchange, replacement or adjustment of any Right Certificate that would
9
<PAGE> 13
not have been issued pursuant to this paragraph (e) had the Company known that
the Rights represented by such Right Certificate had previously been
beneficially owned by an Acquiring Person or any Affiliate or Associate of an
Acquiring Person.
Section 4. Form of Right Certificates. The Right Certificates (and the
form of election to purchase and form of assignment and the forms of
certification to be printed on the reverse side thereof) shall be in
substantially the form set forth as Exhibit A and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Rights Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to the provisions of
Sections 11 and 23, the Right Certificates, whenever issued, shall be dated as
of the Distribution Date, and on their face shall entitle the holders thereof to
purchase such number of Preferred Shares as shall be set forth therein for the
Purchase Price set forth therein.
Section 5. Execution, Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company by the Chairman of the
Board, the President or any Vice President of the Company, either manually or by
facsimile signature, and have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. The Right Certificates
shall be manually countersigned by the Rights Agent and shall not be valid or
obligatory for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates may nevertheless
be countersigned by the Rights Agent and issued and delivered by the Company
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer
of the Company.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office in Jackson, Ohio, books for
registration and transfer of the Right Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced by each of the Right Certificates,
the certificate number of each of the Right Certificates and the date of each of
the Right Certificates.
Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost, Stolen Right Certificates. (a) Subject
to the provisions of Sections 3(e) and 7(f), at any time after the Distribution
Date, and at or prior to the earlier of the Redemption Date and the Expiration
Date, any Right Certificate or Right Certificates may be transferred, split up,
combined or exchanged for another Right Certificate or Right Certificates
evidencing a whole number of
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<PAGE> 14
Rights, entitling the registered holder to purchase a like number and kind of
Preferred Shares and/or other shares of capital stock or securities or property
issuable upon the exercise of the Rights as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Right Certificate
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the principal office of the Rights Agent in
Jackson, Ohio; provided, however, that neither the Rights Agent nor the Company
shall be obligated to take any action whatsoever with respect to the transfer of
any Right Certificate surrendered for transfer until the registered holder shall
have completed and signed the certification contained in the form of assignment
on the reverse side of such Right Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall, subject to Sections 3(e)
and 7(f), countersign and deliver to the Person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a valid Right Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and, at the Company's
request, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company will issue a new
Right Certificate of like tenor and deliver such new Right Certificate to the
Rights Agent for delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Expiration Date of Rights. (a) Subject
to Section 7(f) and except as otherwise provided in this Rights Agreement, each
Right shall entitle the registered holder thereof, upon the exercise thereof as
provided herein, to purchase, for the Purchase Price, at any time after the
Distribution Date and at or prior to the earlier of (i) the Close of Business on
the expiration date, and (ii) the Redemption Date, one one-hundredth (1/100th)
of a Preferred Share, subject to adjustment from time to time as provided in
Sections 11 and 13.
(b) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
any part constituting one or more whole Rights at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent in Jackson, Ohio, together
with payment of the Purchase Price for the Preferred Shares as to which the
Rights are exercised, at or prior to the earlier of (i) the Expiration Date and
(ii) the Redemption Date.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the Preferred
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<PAGE> 15
Shares to be purchased together with an amount equal to any applicable transfer
tax, in lawful money of the United States of America, in cash or by certified
check or money order payable to the order of the Company, the Rights Agent shall
thereupon promptly (i) either (A) requisition from any transfer agent of the
Preferred Shares (or make available, if the Rights Agent is the transfer agent)
certificates for the number of Preferred Shares to be purchased, and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to deposit fractions of
Preferred Shares with a depository agent under a depository arrangement,
requisition from any transfer agent of the Preferred Shares (or make available,
if the Rights Agent is the transfer agent) certificates for the number of whole
Preferred Shares to be purchased, and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, and requisition from the
depository agent depository receipts representing the number of one
one-hundredths (1/100ths) of a Preferred Share to be purchased (in which case
certificates for the Preferred Shares to be represented by such receipts shall
be deposited by the transfer agent with the depository agent), and the Company
will direct the depository agent to comply with all such requests, (ii) when
appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 15(b), (iii)
promptly after receipt of such certificates and/or depository receipts, cause
the same to be delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt promptly deliver such cash to
or upon the order of the registered holder of such Right Certificate.
(d) Upon the exercise by a registered holder of any Right Certificate
of Rights pursuant to Section 11(e)(i), the Rights Agent shall make a notation
on the Rights Certificate that the Rights represented by such Right Certificate
are no longer exercisable pursuant to Section 11(e)(i) of the Rights Agreement
and shall return the Rights Certificate to the Company. Such right shall
continue to represent all other rights under this Rights Agreement including
rights pursuant to Section 13(a).
(e) In case the registered holder of any Right Certificate shall
exercise fewer than all the Rights evidenced thereby, a new Right Certificate
evidencing the number of whole Rights remaining unexercised shall be issued by
the Rights Agent (who shall make the notation thereon required by Section 7(d)
if appropriate) and delivered to or upon the order of the registered holder of
such Right Certificate, registered in such names or names as may be designated
by such holder.
(f) Notwithstanding anything in this Rights Agreement to the contrary,
any Rights that are or were, at any time on or after the Distribution Date,
beneficially owned by an Acquiring Person or any Affiliate or Associate of an
Acquiring Person shall be null and void and the holder of any such Right
(including any subsequent holder), whether or not a Right Certificate shall have
been issued evidencing such Rights, shall not have any right to exercise any
such Right under this Rights Agreement.
(g) Notwithstanding anything in this Rights Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder of any Right Certificates upon the
occurrence of any purported exercise as set forth in this Section
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<PAGE> 16
7 unless such registered holder shall have (i) completed and signed the
certification contained in the form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such exercise and (ii)
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any Right Certificate purchased or acquired by the Company.
The Rights Agent shall deliver all cancelled Right Certificates to the Company.
Section 9. Reservation and Availability of Preferred Shares. (a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares, free from
preemptive rights or any right of first refusal, a number of Preferred Shares
sufficient to permit the exercise in full of all outstanding Rights.
(b) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Preferred Shares delivered upon exercise
of Rights shall, at the time of delivery of the certificates for such Preferred
Shares (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable shares.
(c) If and for so long as the Company's Common Shares are listed on any
national securities exchange, included in the NASDAQ National Market System or
otherwise quoted on NASDAQ, the Company covenants and agrees to use its best
efforts to cause, from and after such time as the Rights become exercisable, all
Preferred Shares reserved for issuance upon exercise of Rights to be listed on
such exchange, included in the NASDAQ National Market System or otherwise quoted
on NASDAQ, as the case may be, upon official notice of issuance upon such
exercise.
(d) The Company further covenants and agrees that it will pay when due
and payable any and all Federal and state transfer taxes and charges which may
be payable in respect of the issuance or delivery of Right Certificates or of
any Preferred Shares upon the exercise of the Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a Person other than, or in
respect of the issuance or delivery of certificates for the Preferred Shares in
a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or deliver any
certificates for Preferred Shares upon the exercise of any Rights until any such
tax shall have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
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<PAGE> 17
Section 10. Preferred Shares Record Date. Each Person in whose name any
certificate for Preferred Shares is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Preferred
Shares represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and any applicable transfer taxes) was made;
provided, however, that, if the date of such surrender and payment is a date
upon which the Preferred Shares transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day on which the
Preferred Shares transfer books of the Company are open.
Section 11. Adjustment of Number and Kind of Shares and the Purchase
Price; Adjustment of Number of Rights. The number and kind of shares subject to
purchase upon the exercise of each Right, the Purchase Price and the number of
outstanding Rights are subject to adjustment from time to time as provided in
this Section 11.
(a) If at any time after the date of this Rights Agreement and prior to
the Distribution Date the Company shall (i) declare or pay a dividend, or make a
distribution, on the outstanding Common Shares payable in Common Shares, (ii)
subdivide (by stock split or otherwise) or split the outstanding Common Shares
into a larger number of Common Shares (other than as aforesaid) or (iii) combine
(by reverse stock split or otherwise) the outstanding Common Shares into a
smaller number of Common Shares, then, in each such case, (1) the number of
Preferred Shares issuable upon exercise of each Right at the time of the record
date for such dividend or distribution or the effective date of such subdivision
or combination shall be adjusted so that the number of Preferred Shares
thereafter issuable upon exercise of each Right shall equal the result obtained
by multiplying the number of Preferred Shares issuable upon exercise of each
Right immediately prior to such time by a fraction, the numerator of which shall
be the total number of Rights outstanding immediately prior to such time and the
denominator of which shall be the total number of Rights outstanding immediately
following such time (before giving effect to the provisions of Section 15(a) or
any provisions for the elimination of fractional Common Shares made in
connection with any such dividend, distribution or subdivision), and (2) the
Purchase Price in effect at such time shall be adjusted so that the Purchase
Price thereafter shall equal the result obtained by multiplying the Purchase
Price in effect immediately prior to such time by the fraction referred to in
the preceding clause (1). If at any time after the date of this Rights Agreement
and prior to the Distribution Date the Company shall combine (by reverse stock
split or otherwise) the outstanding Common Shares into a smaller number of
Common Shares, then, in addition to, and prior to, the adjustments made pursuant
to the preceding sentence, in each such case, each of the Rights outstanding at
the time of the effective date of such combination shall be reduced to that
fraction of a Right (calculated to the nearest one ten-thousandth (1/10,000th)
of a Right) equal to the result obtained by multiplying each such Right by a
fraction, the numerator of which shall be the total number of Common Shares
outstanding immediately following such time (before giving effect to any
provisions for the elimination of fractional Common Shares made in connection
with such combination) and the denominator of which shall be the total number of
Common Shares outstanding immediately prior to such time and, subject to the
provisions of Section 15(a), the fractional Rights held by each holder
14
<PAGE> 18
of Rights shall be allocated to the Common Shares outstanding immediately
following such time and held by such holder in such manner as shall result in
one whole Right being associated with each Common Share.
(b) If at any time after the date of this Rights Agreement the Company
shall (i) declare or pay a dividend, or make a distribution, on the outstanding
Preferred Shares payable in Preferred Shares, (ii) subdivide (by stock split or
otherwise) or split the outstanding Preferred Shares into a larger number of
Preferred Shares (other than as aforesaid), (iii) combine (by reverse stock
split or otherwise) the outstanding Preferred Shares into a smaller number of
Preferred Shares or (iv) issue any shares of its capital stock in a
reclassification or change of the outstanding Preferred Shares (including any
such reclassification or change in connection with a merger in which the Company
is the continuing or surviving corporation), then, in each such case, the number
and kind of shares of capital stock issuable upon the exercise of each Right at
the time of the record date for such dividend or distribution or the effective
date of such subdivision, combination or reclassification shall be adjusted so
that the holder of any Right exercised after such time shall be entitled to
receive, for the Purchase Price, the aggregate number and kind of shares of
capital stock which such holder would have owned and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification if such
holder had exercised such Right immediately prior to such time.
(c) If at any time after the date of this Rights Agreement the Company
shall fix a record date for the issuance of rights, options or warrants (other
than the Rights) to holders of Common Shares or of any class or series of
Equivalent Shares generally entitling such holders (for a period expiring within
45 calendar days after such record date) to subscribe for or purchase Common
Shares or Equivalent Shares (or securities convertible into Common Shares or
Equivalent Shares) at a price per share (or having a conversion price per share,
if a security convertible into Common Shares or Equivalent Shares) less than the
Market Value of such Common Shares or Equivalent Shares on such record date,
then, in each such case, each Right outstanding immediately prior to such record
date shall thereafter evidence the right to purchase, for the Purchase Price,
that number of Preferred Shares obtained by multiplying the number of Preferred
Shares issuable upon exercise of a Right immediately prior to such record date
by a fraction, the numerator of which shall be the number of Common Shares and
Equivalent Shares (if any) outstanding on such record date plus the number of
additional Common Shares or Equivalent Shares, as the case may be, to be offered
for subscription or purchase (or into which the convertible securities so to be
offered are initially convertible) and the denominator of which shall be the
total number of Common Shares and Equivalent Shares (if any) outstanding on such
record date plus the number of Common Shares or Equivalent Shares, as the case
may be, which the aggregate offering price of the total number of Common Shares
or Equivalent Shares, as the case may be, so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at such Market Value. In case such subscription price may be paid in a
consideration, part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent. Common Shares and Equivalent Shares owned by or
held for the account of the Company or any Subsidiary of the Company shall not
be deemed outstanding for the purpose of any such
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<PAGE> 19
computation. Such adjustment shall be made successively whenever such a record
date is fixed; and, in the event that such rights, options or warrants are not
so issued, each Right shall be adjusted to evidence the right to receive that
number of Preferred Shares which such Right would have entitled the holder to
receive, for the Purchase Price, if such record date had not been fixed.
(d) If at any time after the date of this Rights Agreement the Company
shall fix a record date for the making of a distribution to holders of the
Common Shares or of any class or series of Equivalent Shares generally
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) or of
evidences of indebtedness, assets (other than regular quarterly cash dividends),
securities (other than Common Shares, in the case of a distribution to holders
of the Common Shares, or Preferred Shares, in the case of a distribution to
holders of the Preferred Shares) or rights, options or warrants
(excluding those referred to in Section 11(c) and the Rights), then, in each
such case, each Right outstanding immediately prior to such record date shall
thereafter evidence the right to purchase, for the Purchase Price, that number
of Preferred Shares obtained by multiplying the number of Preferred Shares
issuable upon exercise of a Right immediately prior to such record date by a
fraction, the numerator of which shall be the Market Value of the Common Shares
or Equivalent Shares, as the case may be, on the record date and the denominator
of which shall be the Market Value of the Common Shares or Equivalent Shares, as
the case may be, on such record date less the fair market value (as determined
in good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of the portion of
the cash, evidences of indebtedness, assets or securities so to be distributed
or of such rights, options or warrants applicable to one Common Share or
Equivalent Share, as the case may be. Such adjustments shall be made
successively whenever such a record date is fixed; and, in the event that such
distribution is not so made, each Right shall be adjusted to evidence the right
to receive that number of Preferred Shares which such Right would have entitled
the holder to receive, for the Purchase Price, if such record date had not been
fixed.
(e) (i) Upon the occurrence of a Triggering Event, each holder of a
Right, except as provided in Section 7(f) and below, shall thereafter have a
right to receive, upon exercise thereof for the Purchase Price in accordance
with the terms of this Rights Agreement, such number of Preferred Shares as
shall equal the result obtained by multiplying the Purchase Price by a fraction,
the numerator of which is the number of Preferred Shares for which a Right is
then exercisable and the denominator of which is 50% of the Market Value of the
Common Shares on the date of the occurrence of such Triggering Event. The
Company covenants and agrees to use its best efforts, if a Triggering Event has
occurred, to:
(A) prepare and file a registration statement under
the Securities Act, on an appropriate form, with respect to
the Preferred Shares purchasable upon exercise of the Rights;
(B) cause such registration statement to become
effective as soon as practicable after the occurrence of such
Triggering Event;
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<PAGE> 20
(C) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date;
and
(D) qualify or register the Preferred Shares
purchasable upon exercise of the Rights under the blue sky or
securities laws of such jurisdictions as may be necessary or
appropriate as soon as practicable after the occurrence of
such Triggering Event.
The Company may temporarily suspend, for a period of time not to exceed
90 calendar days after the occurrence of a Triggering Event, the exercisability
of the Rights in order to prepare and file such registration statement and
permit it to become effective; provided, however, that no such suspension shall
remain effective, and the Rights shall, without any further action by the
Company, become exercisable, immediately upon the effectiveness of such
registration statement. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended and shall issue a further public announcement at such time
as the suspension is no longer in effect. Notwithstanding any provision of this
Rights Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification under the blue sky or securities
laws of such jurisdiction shall not have been obtained or the exercise of the
Rights shall not be permitted under applicable law.
(ii) If an event occurs which would require an adjustment
under both subparagraph (e)(i) of this Section 11 and paragraph (a),
(b), (c) or (d) of this Section 11, the adjustment provided for in
paragraph (a), (b), (c) or (d) of this Section 11 shall be in addition
to, and shall be made prior to, any adjustment required pursuant to
subparagraph (e)(i)of this Section 11.
(f) All calculations under this Section 11 shall be made to the nearest
one ten-thousandth (1/10,000th) of a share.
(g) If, as a result of an adjustment made pursuant to paragraph (b) of
this Section 11, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock, securities or property of the
Company other than Preferred Shares, thereafter the number of such other shares,
securities or property so receivable upon exercise of any Right shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Shares contained in
paragraphs (a) through (e), inclusive, and (1) of this Section 11 and the
provisions of Sections 7, 9, 10, 13 and 15 with respect to the Preferred Shares
shall apply on like terms to any such other shares, securities or property.
(h) All Rights originally issued by the Company subsequent to any
adjustment made to the amount of Preferred Shares or other shares of capital
stock, securities or property relating to a Right shall evidence the right to
purchase, for the Purchase Price, the adjusted number and kind of shares of
capital stock, securities or property purchasable from time to time hereunder
upon the exercise of the Rights, all subject to further adjustment as provided
herein.
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<PAGE> 21
(i) Irrespective of any adjustment or change in the Purchase Price or
the number of Preferred Shares or number or kind of other shares of capital
stock, securities or property issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue to express the
terms which were expressed in the initial Right Certificates issued hereunder.
(j) In any case in which this Section 11 shall require that an
adjustment be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event the issuing to the
holder of any Right exercised after such record date the Preferred Shares and/or
other shares of capital stock, securities or property, if any, issuable upon
such exercise over and above the Preferred Shares and/or other shares of capital
stock, securities or property, if any, issuable before giving effect to such
adjustment; provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder's right to
receive such additional shares of capital stock, securities or property upon the
occurrence of the event requiring such adjustment.
(k) After the occurrence of a Business Combination the number of Common
Shares thereafter receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Shares contained in
this Section 11 and in Sections 7, 9, 10, 13 and 15.
(l) In the event the Company shall not have sufficient authorized and
unissued Preferred Shares to permit the exercise in full of the Rights in
accordance with this Rights Agreement, the Company shall take all such action as
may be necessary to authorize additional Preferred Shares for issuance upon
exercise of the Rights; provided, however, that if the Company is unable to
cause the authorization of additional Preferred Shares within 60 days after the
occurrence of the adjustment or other event resulting in such insufficiency,
then the Company, after giving effect to the exercise, on a pro rata basis and
subject to Section 7(f), of all Rights that may then be exercised without
authorizing additional Preferred Shares, to the extent necessary and permitted
by applicable law and any agreements or instruments in effect prior to the
Distribution Date to which the Company is a party, shall, in the following order
of priority and in each case taking into account the effects of the preceding
clauses, (A) upon due exercise of a Right, accept an amount of cash, in lieu of
the Purchase Price, equal to the Purchase Price less the Market Value of the
Preferred Shares which otherwise would have been issuable upon the exercise of
such Right pursuant to this Rights Agreement, but, in no event, an amount of
cash less than the aggregate par value of the Preferred Shares to be issued upon
the exercise of such Right, (B) upon due exercise of a Right, issue equity
securities having an aggregate fair market value equal to the Market Value of
the Preferred Shares which otherwise would have been issuable upon the exercise
of such Right pursuant to this Rights Agreement or (C) upon due exercise of a
Right, distribute a combination of Common Shares, Equivalent Shares, cash and/or
other equity and/or debt securities and/or other property having an aggregate
fair market value equal to the Market Value of the Preferred Shares which
otherwise would have been issuable upon the exercise of such Right pursuant to
this Rights Agreement. To the extent that any legal or contractual restrictions
(pursuant to agreements or instruments in effect prior to the Distribution Date
to which the Company is a party) prevent the Company from paying,
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<PAGE> 22
issuing and/or distributing the full amount payable, issuable and/or
distributable in accordance with the foregoing sentence, the Company shall pay,
issue and/or distribute to holders of the Rights as to which such payments,
issuances and/or distributions are being made all amounts, securities and/or
property which are not then restricted on a pro rata basis and shall thereafter
continue to make payments, issuances and/or distributions on a pro rata basis as
such payments, issuances and/or distributions become permissible under such
legal or contractual restrictions until such payments, issuances and/or
distributions have been paid in full.
Section 12. Certificate of Adjustment. Whenever an adjustment is made
as provided in Section 11 or Section 13 of this Rights Agreement, the Company
shall (a) promptly prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Preferred Shares
and/or other shares of capital stock, securities or property issuable upon the
exercise of the Rights a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with Section 26. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Major Part of
Assets. (a) In the event that following a Triggering Event any transaction
specified in the following clauses (i), (ii) or (iii) of this Section 13(a)
(each such transaction being herein referred to as a "Business Combination")
shall be consummated:
(i) the Company shall consolidate with, or merge with and
into, any other Person;
(ii) any Person shall consolidate with the company or merge
with and into the Company and, in connection with such merger, all or
part of the Common Shares shall be changed into or exchanged for
capital stock or other securities of the Company or of any other Person
or cash or any other property; or
(iii) the Company shall sell, lease, exchange or otherwise
transfer or dispose of (or one or more of its Subsidiaries shall sell,
lease, exchange or otherwise transfer or dispose of), in one or more
transactions, the Major Part of the assets of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons, then,
in each such case, proper provision shall be made so that each holder
of a Right, except as provided in Section 7(f), shall thereafter have
the right to receive, upon the exercise thereof for the Purchase Price
in accordance with the terms of this Rights Agreement, the securities
specified below:
(A) If the Principal Party in such Business
Combination has Registered Common Shares outstanding, each
Right shall thereafter represent the right to receive, upon
the exercise thereof at the Purchase Price in accordance with
the terms of this Rights Agreement, such number of Registered
Common Shares of such Principal Party, free and clear of all
liens, encumbrances or other adverse claims, as
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<PAGE> 23
shall have an aggregate Market Value on the date of such
Business Combination equal to the result obtained by
multiplying the Purchase Price by two.
(B) If the Principal Party in such Business
Combination does not have Registered Common Shares
outstanding, each Right shall thereafter represent the right
to receive, upon the exercise thereof at the Purchase Price in
accordance with the terms of this Rights Agreement, at the
election of the holder of such Right at the time of the
exercise thereof:
(1) such number of Common Shares of the
Surviving Person in such Business Combination as
shall have an aggregate Book Value immediately after
giving effect to such Business Combination equal to
the result obtained by multiplying the Purchase Price
by two;
(2) such number of Common Shares of the
Principal Party in such Business Combination (if the
Principal Party is not also the Surviving Person in
such Business Combination) as shall have an aggregate
Book Value immediately after giving effect to such
Business Combination equal to the result obtained by
multiplying the Purchase Price by two; or
(3) if the Principal Party in such Business
Combination is an Affiliate of one or more Persons
which has Registered Common Shares outstanding, such
number of Registered Common Shares of whichever of
such Affiliates of the Principal Party has Registered
Common Shares with the greatest aggregate Market
Value on the date of consummation of such Business
Combination as shall have an aggregate Market Value
on the date of such Business Combination equal to the
result obtained by multiplying the Purchase Price by
two.
All Common Shares of any Person for which any Right may be exercised after
consummation of a Business Combination as provided in this Section 13(a) shall,
when issued upon exercise thereof in accordance with this Rights Agreement, be
validly issued, fully paid and nonassessable and free of preemptive rights,
rights of first refusal or any other restrictions or limitations on the transfer
or ownership thereof.
(b) After consummation of any Business Combination (i) each issuer of
Common Shares for which Rights may be exercised as set forth in paragraph (a) of
this Section 13, shall be liable for, and shall assume, by virtue of such
Business Combination, all the obligations and duties of the Company pursuant to
this Rights Agreement, (ii) the term "Company" shall thereafter be deemed to
refer to each such issuer, (iii) each such issuer shall take such steps in
connection with such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its Common Shares thereafter deliverable upon the exercise of
the Rights, and (iv) the number of Common Shares of each such issuer thereafter
receivable upon exercise of any Right shall be subject to adjustment from time
to time in a manner
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<PAGE> 24
and on terms as nearly equivalent as practicable to the provisions with respect
to the Preferred Shares contained in Sections 7, 9, 10, 11 and 15 and in this
Section 13.
(c) The Company shall not consummate any Business Combination unless
each issuer of Common Shares for which Rights may be exercised, as set forth in
paragraph (a) of this Section 13, shall have sufficient authorized Common Shares
that have not been issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and unless prior thereto:
(i) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common Shares of
such issuer purchasable upon exercise of the Rights, shall be effective
under the Securities Act; and
(ii) the Company and each such issuer shall have:
(A) executed and delivered to the Rights Agent a
supplemental agreement providing for the obligation of such
issuer to issue Common Shares upon the exercise of Rights in
accordance with the terms set forth in paragraphs (a) and (b)
of this Section 13 and further providing that such issuer, at
its own expense, will:
(1) use its best efforts to cause a
registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the
Common Shares of such issuer purchasable upon
exercise of the Rights, to remain effective (with a
prospectus at all times meeting the requirements of
the Securities Act) until the Expiration Date; and
(2) use its best efforts to qualify or
register the Rights and the Common Shares of such
issuer purchasable upon exercise of the Rights under
the blue sky or securities laws of such jurisdictions
as may be necessary or appropriate;
(B) furnished to the Rights Agent an opinion of
independent counsel stating that such supplemental agreement
is a valid, binding and enforceable agreement of such issuer;
and
(C) filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants setting
forth the number of Common Shares of such issuer which may be
purchased upon the exercise of each Right after the
consummation of such Business Combination.
(d) The rights granted to a holder of Rights under this Section 13
shall be in addition to the rights granted under Section 11 and shall survive
any exercise of Rights under Section 11; and the provisions of this Section 13
shall apply to successive Business Combinations.
Section 14. Additional Covenants. (a) Notwithstanding any other
provision of this Rights Agreement, no adjustment to the number of Preferred
Shares (or fractions of a share) or other shares of capital stock, securities or
property for which a Right is exercisable, the Purchase Price or the number of
Rights outstanding or associated with each Common Share or any similar or other
adjustment shall be made or be effective if such adjustment would have the
effect of reducing or limiting the benefits the holders of the Rights would have
had absent such adjustment, including,
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<PAGE> 25
without limitation, the benefits under Sections 11 and 13, unless the terms of
this Rights Agreement are amended so as to preserve such benefits.
(b) The Company covenants and agrees that it shall not effect any
Business Combination if (i) at the time of or immediately after such Business
Combination, there are outstanding any rights, options, warrants or other
instruments or securities of any Person which is a party to such Business
Combination which would eliminate or diminish the benefits intended to be
afforded by the Rights, or (ii) prior to, simultaneously with or immediately
after such Business Combination, the Principal Party or any other issuer of
Common Shares for which Rights may be exercised after such Business Combination
shall have distributed, or proposed to distribute, Rights then or previously
owned by such Principal Party or other issuer or any of their respective
Affiliates and Associates.
(c) The Company covenants and agrees that, after the Distribution Date,
except as permitted by Section 27, it will not take (or permit any Subsidiary of
the Company to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will reduce or otherwise limit the
benefits the holders of the Rights would have had absent such action, including,
without limitation, the benefits under Sections 11 and 13.
(d) In the event the nature of the organization of any Person (or an
Affiliate or Associate of any such Person) shall preclude or limit the
acquisition of Common Shares of such Person upon exercise of the Rights as
required by Section 13(a) as a result of a Business Combination, it shall be a
condition to such Business Combination that such Person (or an Affiliate or
Associate of any such Person) shall take such steps (including, but not limited
to, a reorganization) as may be necessary to assure that the benefits intended
to be derived under Section 13 upon the exercise of the Rights are assured to
the holders thereof.
Section 15. Fractional Rights and Fractional Shares. (a) In lieu of
issuing fractions of Rights to any holder of Common Shares, to the extent that
fractions of Rights otherwise issuable pursuant to the last sentence of Section
11(a) cannot be aggregated with other fractions of Rights held by such holder in
such manner as shall result in one whole Right being associated with each Common
Share held by such holder after the operation of such sentence, the Company
shall pay to such holder an amount, rounded up to the nearest whole cent, equal
to the total fractional amount of Rights otherwise so issuable multiplied by the
Redemption Price as of the time of the adjustment required by such sentence.
Such payment shall be made in cash or by check mailed to the last address of
such holder as it appears on the registry books of the Rights Agent.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions that are integral multiples of one one-hundredth of
a Preferred Share) upon exercise of the Rights or to issue certificates which
evidence fractions of Preferred Shares (other than fractions that are integral
multiples of one one-hundredth of a Preferred Share). Fractions of Preferred
Shares in integral multiples of one one-hundredth of a Preferred Share may, at
the election of the Company, be evidenced by depository receipts pursuant to an
appropriate agreement between the Company and a depository selected by it,
provided that such agreement shall provide that the holders of such
22
<PAGE> 26
depository receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Preferred Shares represented
by such depository receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-hundredth of a Preferred Share, the Company shall
pay to the registered holders of Rights Certificates at the time such Rights are
exercised, as herein provided, an amount in cash equal to the same fraction of
the current market value of one Preferred Share. For purposes of this Section
15(b), the current market value of a Preferred Share (or Common Share) shall be
the closing price of a Preferred Share (or Common Share) as determined pursuant
to the second and third sentences of Section 1(r) for the Trading Day
immediately prior to the date of such exercise.
(c) Except in the case of fractional shares, the holder of a Right by
the acceptance of the Right expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right except as provided in
this Section 15.
Section 16. Rights of Action. (a) All rights of action in respect of
this Rights Agreement, excepting the rights of action given to the Rights Agent
under Section 19, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of any Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of any Common Shares), may, in such holder's own behalf and
for such holder's own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise act in respect
of, such holder's right to exercise the Rights evidenced by such Right
Certificate (or, prior to the Distribution Date, of such Common Shares) in the
manner provided in such Right Certificate and in this Rights Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Rights Agreement and shall be entitled to
specific performance of the obligations of any Person under, and injunctive
relief against actual or threatened violations of the obligations of any Person
subject to, this Rights Agreement.
(b) Any holder of Rights who prevails in an action to enforce the
provisions of this Rights Agreement shall be entitled to recover the reasonable
costs and expenses, including attorneys' fees, incurred in such action.
Section 17. Transfer and Ownership of Rights and Right Certificates.
(a) Prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of the Common Shares.
(b) After the Distribution Date, the Right Certificates will be
transferable, subject to Sections 3(e) and 7(f), only on the registry books of
the Rights Agent if surrendered at the principal office of the Rights Agent,
duly endorsed or accompanied by a proper instrument of transfer.
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<PAGE> 27
(c) The Company and the Rights Agent may deem and treat the Person in
whose name a Right Certificate (or, prior to the Distribution Date, the
associated certificate for Common Shares) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated certificate for
Common Shares made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
Section 18. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote or receive
dividends or be deemed, for any purpose, the holder of the Preferred Shares or
of any other shares of capital stock or securities of the Company which may at
any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights of a
stockholder of the Company, including, without limitation, any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 25), or to receive dividends or other distributions or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 19. Concerning the Rights Agent. (a) The Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by it
hereunder and from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Rights Agreement and the exercise and performance of its
duties hereunder. The Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability or expense, incurred without
gross negligence, bad faith or wilful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Rights Agreement, including the costs and
expenses of defending against any claim of liability arising therefrom, directly
or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Rights Agreement in reliance upon any Right
Certificate or certificate for Common Shares or Preferred Shares or for any
other shares of capital stock or securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 20. Merger or Consolidation or Change of Rights Agent. (a) Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the stock
24
<PAGE> 28
transfer or corporate trust business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Rights Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 22. In
case, at the time such successor Rights Agent shall succeed to the agency
created by this Rights Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and, in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and, in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Rights Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Rights Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter (including, without limitation, the identity of any Acquiring Person) be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
President, any Vice President, the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
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(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Rights Agreement or in the
Right Certificates (except as to its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Rights Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Rights Agreement or in any Right
Certificate; nor shall it be responsible for any change in exercisability of the
Rights (including any Rights becoming null and void pursuant to Section 7(f)
hereof) or any adjustment required under the provisions of Section 11 or 13 or
any other provision or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any
such adjustment (except with respect to the exercise of Rights evidenced by
Right Certificates after actual notice of any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares, Common Shares or other
shares of capital stock or securities to be issued pursuant to this Rights
Agreement or any Right Certificate or as to whether any Preferred Shares, Common
Shares or other shares of capital stock or securities will, when so issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver, or cause to be performed, executed, acknowledged and delivered, all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, any Vice President, the
Secretary or the Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties and it shall not be liable
for any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer, or as a result of such officer's failure
to provide such instructions.
(h) The Rights Agent and any stockholder, director, officer or employee
of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company (or of any other Person the securities of which may be
issuable upon the exercise of the Rights) or become pecuniarily interested in
any transaction in which the Company (or any such other Person) may be
interested, or contract with or lend money to the Company (or any such other
Person) or otherwise act as fully and freely as though it were not the Rights
Agent under this Rights Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
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<PAGE> 30
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct provided reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of the duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification from such risk or liability is not reasonably assured
to it.
Section 22. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Rights
Agreement upon 30 calendar days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares, the Preferred Shares and/or any other
shares of capital stock or securities issuable upon the exercise of the Rights
by registered or certified mail, and to the holders of the Right Certificates by
first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 calendar days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each transfer agent
of the Common Shares, the Preferred Shares and/or any other shares of capital
stock or securities issuable upon the exercise of the Rights by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30
calendar days after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the Company), then the
registered holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States (or
of any state of the United States so long as such corporation is authorized to
conduct a stock transfer or corporate trust business in the State of Ohio or the
State of New York) which is authorized under such laws to exercise stock
transfer or corporate trust powers and is subject to supervision or examination
by Federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $5,000,000. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares, the
Preferred Shares and/or any other shares of capital stock or securities issuable
upon the exercise of the Rights, and mail a notice thereof in writing to the
registered holders of the Right Certificates.
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<PAGE> 31
Failure to give any notice provided for in this Section 22, however, or any
defect therein shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
Section 23. Issuance of Additional Rights and Right Certificates.
Notwithstanding any of the provisions of this Rights Agreement or of the Right
Certificates to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of
Directors to reflect any adjustment or change made in accordance with the
provisions of this Rights Agreement. In addition, in connection with the
issuance or sale of Common Shares following the Distribution Date and prior to
the earlier of the Redemption Date and the Expiration Date, the Company (a)
shall, with respect to Common Shares so issued or sold pursuant to the exercise
of stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities, notes or debentures issued by
the Company, and (b) may, in any other case, if deemed necessary or appropriate
by the Board of Directors of the Company, issue Right Certificates representing
the appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) the Company shall not be obligated to issue any such
Right Certificates if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Right Certificate
would be issued, and (ii) no such Right Certificate shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu
of the issuance thereof.
Section 24. Redemption and Termination. (a) (i) The Board of Directors
of the Company may, at its option and provided that such action is authorized by
a majority of Continuing Directors, at any time prior to the earlier of (A) the
occurrence of a Triggering Event and (B) the Expiration Date, order the
redemption of all, but not fewer than all, the then outstanding Rights at a
Redemption Price of $.01 per Right, which amount shall be appropriately adjusted
to reflect any dividend or distribution of Common Shares, and any subdivision,
split or combination of outstanding Common Shares, after the date of this Rights
Agreement which results in a change in the number of outstanding Rights (the
date of such redemption and such redemption price being hereinafter referred to
as the "Redemption Date" and the "Redemption Price", respectively), and the
Company, at its option, may pay the Redemption Price either in cash or Common
Shares or other shares of capital stock or securities of the Company deemed by
its Board of Directors, in the exercise of its sole discretion, to be at least
equivalent in value to the Redemption Price.
(ii) The Board of Directors of the Company may, at its option
and provided that such action is authorized by a majority of Continuing
Directors, also order the redemption of all, but not fewer than all, the then
outstanding Rights at the Redemption Price following the occurrence of a
Triggering Event but prior to the occurrence of a Business Combination in
connection with a Business Combination in which all holders of Common Shares are
treated alike and not involving (other than as a holder of Common Shares being
treated like all other such holders) an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or any other Person in which such
28
<PAGE> 32
Acquiring Person, Affiliate or Associate has any interest, or any other person
acting directly or indirectly on behalf of, or in association with, any such
Acquiring Person, Affiliate or Associate.
(b) In the case of a redemption under Section 24 (a)(i), immediately
upon the date set forth in a resolution of the Board of Directors of the Company
ordering the redemption of the Rights, evidence of which shall have been filed
with the Rights Agent, and without any further action or notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price. In the case of a redemption
under Section 24 (a)(ii), evidence of which shall have been filed with the
Rights Agent, the right to exercise the Rights will terminate and the Rights
will represent only the right to receive the Redemption Price only after the
expiration of a period of 60 days, or such other period as the Board of
Directors of the Company may determine, following the date the Rights became
exercisable pursuant to Section 11 (e)(i); and the Company shall promptly give
public notice of any such redemption. Within 10 Business Days after the action
of the Board of Directors of the Company ordering the redemption of the Rights,
the Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. The notice, if mailed in the
manner herein provided, shall be conclusively presumed to have been duly given,
whether or not the holder of Rights receives such notice. In any case, failure
to give such notice by mail, or any defect in the notice, to any particular
holder of Rights shall not affect the sufficiency of the notice to other holders
of Rights.
Section 25. Exchange of Rights. (a) At any time after the Triggering
Date and prior to the first date thereafter upon which an Acquiring Person,
together with all Affiliates and Associates of such Acquiring Person, shall be
the Beneficial Owner of 50% or more of the Voting Shares then outstanding, the
Board of Directors of the Company may, at its option, except as provided in
Section 7(f) hereof, authorize and direct the exchange of all, but not less than
all, of the then outstanding Rights for Common Shares at an exchange ratio (the
"Exchange Ratio") equal to one Common Share per Right on such date.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the exchange of the Rights pursuant to
subsection (a) of this Section 25, or at such time and date thereafter as it may
specify, and without any further action and without any notice, the right to
exercise Rights shall terminate and the only right thereafter of the holders of
Rights shall be to receive a number of Common Shares equal to the Exchange
Ratio. Within 10 Business Days after the date of such action, the Company shall
give notice of such exchange to the holders of Rights by mailing such notice to
all holders of Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, if prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares. Any notice that is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives such notice, but neither the failure to give any such notice nor any
defect therein shall affect the legality or validity of such exchange. Each such
notice of exchange shall state the method by which the Rights will be exchanged
for Common Shares.
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<PAGE> 33
Neither the Company nor any of its Affiliates or Associates may, directly or
indirectly, redeem, acquire or purchase for value any Rights in any manner other
than (i) as specifically set forth in Section 24 hereof, (ii) as specifically
set forth in this Section 25 or (iii) in connection with the purchase of Common
Shares prior to the earlier of the date of the first Triggering Event or the
date of the first Business Combination.
(c) In any exchange pursuant to this Section 25, the Company, at its
option, may substitute (i) cash, (ii) other equity securities of the Company
(including, but not limited to, Common Share Equivalents), (iii) debt securities
of the Company, (iv) other property or (v) any combination of the foregoing for
the Common Shares exchangeable for Rights, as appropriately adjusted. Subject to
Section 7(f) hereof, in the event that the Company takes any action pursuant to
this Section 25, such action shall apply uniformly to all outstanding Rights.
Section 26. Notice of Certain Events. (a) In case the Company shall
propose (i) to take any action of the type described in paragraph (a), (b), (c)
or (d) of Section 11 that would require an adjustment thereunder, (ii) to effect
any Business Combination or (iii) to effect the liquidation, dissolution or
winding up of the Company, then, in any such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 27, a notice of
such proposed action, which notice shall specify any record date for the
purposes of determining any participation therein by the holders of the
Preferred Shares and/or other shares of capital stock or securities issuable
upon the exercise of the Rights, or the date on which such action is to take
place and the date of any participation therein by the holders of the Preferred
Shares and/or other shares of capital stock or securities issuable upon the
exercise of the Rights, if any such date is to be fixed, and such notice shall
be so given at least 20 calendar days prior to any such record date, the taking
of such action or the date of participation therein by the holders of the
Preferred Shares and/or other shares of capital stock or securities issuable
upon the exercise of the Rights, whichever shall be the earliest.
(b) In case a Triggering Event shall occur, then the Company shall, as
soon as practicable thereafter, give to each holder of a Right Certificate, in
accordance with Section 27, a notice of the occurrence of such Triggering Event,
which notice shall specify such Triggering Event and the consequences of such
Triggering Event to holders of Rights under Section 11(e).
Section 27. Notices. Notices or demands authorized by this Rights
Agreement to be given or made by the Rights Agent or by the holder of any Right
or Right Certificate to or on the Company shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
OAK HILL FINANCIAL, INC.
14621 State Route 93
Jackson, Ohio 45640
Attention: Chief Executive Officer
30
<PAGE> 34
Subject to the provisions of Section 22 of this Rights Agreement, any notice or
demand authorized by this Rights Agreement to be given or made by the Company or
by the holder of any Right or Right Certificate to or on the Rights Agent shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
THE FIFTH THIRD BANK
Number 1090D2
38 Fountain Square Plaza
Cincinnati, Ohio 45202
Attention: Richard Grzymajlo
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to or on any holder of a Right or Right
Certificate shall be sufficiently given or made if, and shall be deemed to have
been given or made when, sent by first-class mail, postage prepaid, addressed to
such holder at the address of such holder as shown on the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Common Shares. Neither any failure nor any delay on the
part of the Company or the Rights Agent in giving any notice or making any
demand hereunder shall operate as a waiver of any right, power or privilege of
the Company or the Rights Agent, as applicable hereunder.
Section 28. Supplements and Amendments. At any time prior to the
Distribution Date, the Board of Directors of the Company may, provided that such
action is authorized by a majority of Continuing Directors, supplement or amend
any provision of this Rights Agreement (including, without limitation, the date
on which the Distribution Date shall occur", the time during which the Rights
may be redeemed pursuant to Section 24, any provision of the Certificate of
Designation or the Purchase Price) without the approval of any holder of the
Rights or the Rights Agent. From and after the Distribution Date and subject to
applicable law, the Company may amend this Rights Agreement without the approval
of any holders of Right Certificates or the Rights Agent (i) to cure any
ambiguity or to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provision of this Rights Agreement
or (ii) to make any other provisions in regard to matters or questions arising
hereunder which the Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Right Certificates (other than
an Acquiring Person or an Affiliate or Associate of an Acquiring Person).
Section 29. Successors. All the covenants and provisions of this Rights
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 30. Benefits of This Rights Agreement; Determinations and
Actions by the Board of Directors, etc. (a) Nothing in this Rights Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Right Certificates (and,
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<PAGE> 35
prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Rights Agreement; but this Rights Agreement shall be
for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares).
(b) The Board of Directors of the Company shall have the exclusive
power and authority to administer this Rights Agreement and to exercise all
rights and powers specifically granted to the Board of Directors of the Company
or to the Company, or as may be necessary or advisable in the administration of
this Rights Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Rights Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Rights Agreement (including, without limitation, a determination to redeem or
not redeem the Rights or to amend this Rights Agreement and a determination of
whether a Triggering Event has occurred).
Section 31. Severability.
(a) If any term, provision, covenant or restriction of this Rights
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Rights Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
(b) If legal counsel to the Company delivers to the Company a written
opinion to the effect that, as a result of changes in any applicable federal or
Ohio law, any term, provision, covenant or restriction of this Agreement may be
invalid, void or unenforceable, then, notwithstanding any other provision of
this Agreement, the Company and the Rights Agent may amend this Agreement to
modify, revise or delete such term, provision, covenant or restriction to the
extent necessary to comply with such law as so changed.
Section 32. Governing Law. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Ohio and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and performed entirely within such State.
Section 33. Counterparts. This Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Rights Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions of
this Rights Agreement.
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<PAGE> 36
In Witness Whereof, the parties hereto have caused this Rights
Agreement to be executed by their respective officers hereunto duly authorized
as of the day and year first above written.
Attest: OAK HILL FINANCIAL, INC.
/s/ Tim Bishsel By: /s/ John D. Kidd
- ------------------------------ ------------------------------
H. Tim Bichsel, Secretary John D. Kidd, President
Attest: THE FIFTH THIRD BANK
/s/ Kerry Byrne By: /s/ Dana S. Hushak
- ------------------------------ ------------------------------
Kerry Byrne Dana S. Hushak
Vice President Vice President
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<PAGE> 37
EXHIBIT A
THIRD AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
OAK HILL FINANCIAL, INC.
(the "Corporation")
(as amended on December 9, 1997)
FIRST: The name of said corporation shall be Oak Hill Financial, Inc.
SECOND: The place in Ohio where its principal office is to be located is the
City of Jackson, Jackson County.
THIRD: The purposes for which it is formed are:
To acquire by purchase, exchange or share or otherwise, hold, sell, assign,
pledge, dispose of and otherwise deal in and with shares of stock, shares,
bonds, debentures, notes, or other obligations issued by any national banking
association, state bank, savings bank, trust company or other company or
corporation to the extent permitted by the Bank Holding Company Act of 1956, as
amended from time to time, and to possess and exercise in respect thereof any
and all rights, powers and privileges of individual holders;
To furnish advice and services including, without limitation, management and
banking services, with or without charge, to national banking associations,
state banks, savings banks, trust companies or other companies or corporations;
To engage in any business or activity for which corporations may be formed under
Sections 1701.01 to 1701.98, inclusive, of the Revised Code of Ohio.
FOURTH: Subject to the provisions of this Article FOURTH, the total number of
shares of all classes of stock which the Corporation shall have the authority to
issue is 8,000,000 shares consisting of (i) 5,000,000 shares of Common Stock,
without par value (the "Common Stock); (ii) 1,500,000 shares of Voting Preferred
Stock, $.01 par value (the "Voting Preferred Stock"); and (iii) 1,500,000 shares
of Non-Voting Preferred Stock, $.01 par value (the "Non-Voting Preferred
Stock"). The stated capital of the Corporation at any time shall be equal to the
number of outstanding shares of all classes of stock multiplied by the par value
of each such share.
<PAGE> 38
A. Common Stock.
The holders of the Common Stock are entitled at all items to one vote for each
share and to such dividends as the Board of Directors may in its discretion from
time to time legally declare, subject, however, to the voting and dividend
rights, if any, of the holders of the Voting Preferred Stock and the Non-Voting
Preferred Stock. In the event of any liquidation, dissolution or winding up of
the Corporation, the remaining assets of the Corporation after the payment of
all debts and necessary expenses shall be distributed among the holders of the
Common Stock pro rata in accordance with their respective holdings, subject,
however, to the rights of the holders of the Voting Preferred Stock and the
Non-Voting Preferred Stock then outstanding. The Common Stock is subject to all
of the terms and provisions of the Voting Preferred Stock and the Non-Voting
Preferred Stock as fixed by the Board of Directors as hereinafter provided.
B. Voting Preferred Stock
The Board of Directors is hereby expressly authorized to adopt amendments to the
Articles of Incorporation to provide for the issuance of one or more series of
Voting Preferred Stock, to establish from time to time the number of shares to
be included in each such series, to fix the designation, powers, preferences and
rights of the shares of each such series and any qualifications, limitations or
restrictions thereof, including without limitation the following, and the shares
of each series may vary from the shares of any other series in the following
respects:
(a) the division of such shares into series and the designation
and authorized number of shares of each series;
(b) the dividend rate on the shares;
(c) the dates of payment of dividends, whether the dividends shall
be cumulative and, if cumulative, the date from which
dividends shall accumulate;
(d) the redemption price or prices for the particular series, if
redeemable, and the terms and conditions of such redemption;
(e) sinking fund requirements, if any;
(f) the preference, if any, of the shares of such series in the
event of any voluntary or involuntary liquidation, dissolution
or winding up of affairs of the Corporation;
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<PAGE> 39
(g) the right, if any, of the shares of such series to be
converted into shares of any other series or class and the
terms and conditions of such conversion; and
(h) any other relative rights, preferences and limitations of that
series.
The holders of Voting Preferred Stock shall be entitled at all times to one vote
for each share, voting as a class. Voting Preferred Stock redeemed or otherwise
acquired by the Corporation shall assume the status of authorized but unissued
Voting Preferred Stock and shall be unclassified as to series and may
thereafter, subject to the provisions of this Article 6, as it may be amended,
be reissued in the same manner as other authorized but unissued Voting Preferred
Stock.
C. Non-Voting Preferred Stock
The Board of Directors is hereby expressly authorized to adopt amendments to the
Articles of Incorporation to provide for the issuance of one or more series of
NonVoting Preferred Stock, and to establish from time to time the number of
shares to be included in each such series, to fix the designation, powers,
preferences and rights of the shares of each such series and any qualifications,
limitations or restrictions thereof, including without limitation the following,
and the shares of each series may vary from the shares of any other series in
the following respects:
(a) the division of such shares into series and the designation
and authorized number of shares of each series;
(b) the dividend rate on the shares;
(c) the dates of payment of dividends, whether the dividends shall
be cumulative and, if cumulative, the date from which
dividends shall accumulate;
(d) the redemption price or prices for the particular series, if
redeemable, and the terms and conditions of such redemption;
(e) sinking fund requirements, if any;
(f) the preference, if any, of the shares of such series in the
event of any voluntary or involuntary liquidation, dissolution
or winding up of affairs of the Corporation;
(g) the right, if any, of the shares of such series to be
converted into shares of any other series or class and the
terms and conditions of such conversion; and
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<PAGE> 40
(h) any other relative rights, preferences and limitations of that
series.
Except as otherwise required by law, no holders of Non-Voting Preferred Stock
shall be entitled to vote on any matter submitted to the shareholders of the
Corporation. Non-Voting Preferred Stock redeemed or otherwise acquired by the
Corporation shall assume the status of authorized but unissued Non-Voting
Preferred Stock and shall be unclassified as to series and may thereafter,
subject to the provisions of this Article FOURTH, as it may be amended, be
reissued in the same manner as other authorized but unissued Non-Voting
Preferred Stock.
D. Series A Junior Participating Preferred Shares
There shall be created out of the authorized number of shares of Voting
Preferred Stock of the Corporation a series of Voting Preferred Stock designated
as Series A Junior Participating Preferred Stock (the "Series A Preferred
Stock"), to consist of 100,000 shares, without par value, of which the
preferences and relative and other rights, and the qualifications, limitations
or restrictions thereof, shall be (in addition to those set forth elsewhere in
this Article FOURTH) as follows:
1. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in
preference to the holders of shares of Common Stock, without
par value, of the Corporation (the "Common Stock") and of any
other junior stock of the Corporation that may be outstanding,
shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the tenth 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 share or fraction of a
share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (i)
$0.25 per share ($1.00 per annum), 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 shares of Common Stock, or a subdivision
of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since
the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event that the Corporation
shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a
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<PAGE> 41
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into
a greater or lesser number of shares of Common Stock, then and
in each such event, the amount to which the holder of each
share of Series A Preferred Stock was entitled immediately
prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (a)
of this Section 1 immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided, however, that in
the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $0.25 per share ($1.00
per annum) on the Series A Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Preferred Stock, 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 shares of Series A
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of
which cases such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall cumulate but shall not bear
interest. Dividends paid on the shares of Series A Preferred
Stock 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. The Board of Directors may fix
a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
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<PAGE> 42
2. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle the
holder thereof to 100 votes (and each one one-hundredth of a
share of Series A Preferred Stock shall entitle the holder
thereof to one vote) on all matters submitted to a vote of the
shareholders of the Corporation. In the event that the
Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then and
in each such event, the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event, and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided in the Third Amended and
Restated Articles of Incorporation of the Corporation or by
law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock shall vote together as one
class on all matters submitted to a vote of shareholders of
the Corporation.
(c) In addition, the holders of shares of Series A Preferred
Stock shall have the following special voting rights:
(i) In the event that at any time dividends on Series
A Preferred Stock, whenever accrued and whether or
not consecutive, shall not have been paid or declared
and a sum sufficient for the payment thereof set
aside, in an amount equivalent to six quarterly
dividends on all shares of Series A Preferred Stock
at the time outstanding, then and in each such event,
the holders of shares of Series A Preferred Stock and
each other series of preferred stock now or hereafter
issued that shall be accorded such class voting right
by the Board of Directors and that shall have the
right to elect one director (or, in the event any
such other series is entitled to a greater number of
directors, such number of directors, which shall be
cumulative with and not in addition to the director
provided for herein, such director or directors being
hereinafter referred to as "Special Directors") as
the result of a prior or subsequent
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<PAGE> 43
default in payment of dividends on such series (each
such other series being hereinafter called "Other
Series of Preferred Stock"), voting separately as a
class without regard to series, shall be entitled to
elect the Special Director at the next annual meeting
of shareholders of the Corporation, in addition to
the directors to be elected by the holders of all
shares of the Corporation entitled to vote for the
election of directors, and the holders of all shares
(including the Series A Preferred Stock) otherwise
entitled to vote for directors, voting separately as
a class, shall be entitled to elect the remaining
members of the Board of Directors, provided that the
Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, shall not have
the right to elect more than one Special Director (in
addition to any Special Director to which the holders
of any Other Series of Preferred Stock are then
entitled). Such special voting right of the holders
of shares of Series A Preferred Stock may be
exercised until all dividends in default on the
Series A Preferred Stock shall have been paid in full
or declared and funds sufficient therefor set aside,
and when so paid or provided for, such special voting
right of the holders of shares of Series A Preferred
Stock shall cease, but subject always to the same
provisions for the vesting of such special voting
rights in the event of any such future dividend
default or defaults.
(ii) At any time after such special voting rights
shall have so vested in the holders of shares of
Series A Preferred Stock, the Chairman of the Board,
President, or Chief Executive Officer of the
Corporation may, and upon the written request of the
holders of record of 10% or more in number of the
shares of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding addressed
to the President at the principal executive office of
the Corporation shall, call a special meeting of the
holders of shares of Preferred Stock so entitled to
vote, for the election of the Special Directors to be
elected by them as herein provided, to be held within
60 days after such call and at the place and upon the
notice provided by law and in the Code of Regulations
for the holding of meetings of shareholders;
provided, however, that the Chairman of the Board,
President, or Chief Executive Officer shall not be
required to call such special meeting in the case of
any such request received less than 90 days before
the date fixed for any annual meeting of
shareholders, and if in such case such special
meeting is not called or held, the
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<PAGE> 44
holders of shares of Preferred Stock so entitled to
vote shall be entitled to exercise the special voting
rights provided in this paragraph at such annual
meeting. If any such special meeting required to be
called as above provided shall not be called by the
Chairman of the Board, President, or Chief Executive
Officer within 30 days after receipt of any such
request, then the holders of record of 10% or more in
number of the shares of Series A Preferred Stock and
each Other Series of Preferred Stock then outstanding
may designate in writing one of their number to call
such meeting, and the person so designated may, at
the expense of the Corporation, call such meeting to
be held at the place and upon the notice given by
such person, and for that sole purpose shall have
access to the stock books of the Corporation. No such
special meeting and no adjournment thereof shall be
held on a date later than 60 days before the annual
meeting of shareholders. If, at any meeting so called
or at any annual meeting held while the holders of
shares of Series A Preferred Stock have the special
voting rights provided for in this paragraph, the
holders of not less than 10% of the aggregate voting
power of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding are
present in person or by proxy, which percentage shall
be sufficient to constitute a quorum for the election
of additional directors as herein provided, the then
authorized number of directors of the Corporation
shall be increased by the number of Special Directors
to be elected, as of the time of such special meeting
or the time of the first such annual meeting held
while such holders have special voting rights and
such quorum is present, and the holders of shares of
Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, shall be entitled
to elect the Special Director or Directors so
provided for. If the directors of the Corporation are
then divided into classes under provisions of the
Third Amended and Restated Articles of Incorporation
of the Corporation or the Code of Regulations, the
Special Director or Directors shall belong to each
class of directors in which a vacancy is created as a
result of such increase in the authorized number of
directors. If the foregoing expansion of the size of
the Board of Directors shall not be valid under
applicable law, then the holders of shares of Series
A Preferred Stock and of each Other Series of
Preferred Stock, voting as a class, shall be
entitled, at the meeting of shareholders at which
they would otherwise have voted, to elect a Special
Director or Directors to fill any then existing
vacancies on the Board of Directors, and shall
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<PAGE> 45
additionally be entitled, at such meeting and each
subsequent meeting of shareholders at which directors
are elected, to elect all of the directors then being
elected until by such class vote the appropriate
number of Special Directors has been so elected.
(iii) Upon the election at such meeting by the
holders of shares of Series A Preferred Stock and
each Other Series of Preferred Stock, voting as a
class, of the Special Director or Directors they are
entitled so to elect, the persons so elected,
together with such persons as may be directors or as
may have been elected as directors by the holders of
all shares (including Series A Preferred Stock)
otherwise entitled to vote for directors, shall
constitute the duly elected directors of the
Corporation. Each Special Director so elected by
holders of shares of Series A Preferred Stock and
each Other Series of Preferred Stock, voting as a
class, shall serve until the next annual meeting or
until their respective successors shall be elected
and qualified, or if any such Special Director is a
member of a class of directors under provisions
dividing the directors into classes, each such
Special Director shall serve until the annual meeting
at which the term of office of such Special
Director's class shall expire or until such Special
Director's successor shall be elected and shall
qualify, and at each subsequent meeting of
shareholders at which the directorship of any Special
Director is up for election, said special class
voting rights shall apply in the reelection of such
Special Director or in the election of such Special
Director's successor; provided, however, that
whenever the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock shall
be divested of the special rights to elect one or
more Special Directors as above provided, the terms
of office of all persons elected as Special
Directors, or elected to fill any vacancies resulting
from the death, resignation, or removal of Special
Directors shall forthwith terminate (and the number
of directors shall be reduced accordingly).
(iv) If, at any time after a special meeting of
shareholders or an annual meeting of shareholders at
which the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock,
voting as a class, have elected one or more Special
Directors as provided above, and while the holders of
shares of Series A Preferred Stock and each Other
Series of Preferred Stock shall be entitled so to
elect one or more Special Directors, the number of
Special Directors who have
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<PAGE> 46
been so elected (or who by reason of one or more
resignations, deaths or removals have succeeded any
Special Directors so elected) shall by reason of
resignation, death or removal be reduced the vacancy
in the Special Directors may be filled by any one or
more remaining Special Director or Special Directors.
In the event that such election shall not occur
within 30 days after such vacancy arises, or in the
event that there shall not be incumbent at least one
Special Director, the Chairman of the Board,
President, or Chief Executive Officer of the
Corporation may, and upon the written request of the
holders of record of 10% or more in number of the
shares of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding addressed
to the Secretary at the principal office of the
Corporation shall, call a special meeting of the
holders of shares of Series A Preferred Stock and
each Other Series of Preferred Stock so entitled to
vote, for an election to fill such vacancy or
vacancies, to be held within 60 days after such call
and at the place and upon the notice provided by law
and in the Code of Regulations for the holding of
meetings of shareholders; provided, however, that the
Chairman of the Board, President, or Chief Executive
Officer shall not be required to call such special
meeting in the case of any such request received less
than 90 days before the date fixed for any annual
meeting of shareholders, and if in such case such
special meeting is not called, the holders of shares
of Preferred Stock so entitled to vote shall be
entitled to fill such vacancy or vacancies at such
annual meeting. If any such special meeting required
to be called as above provided shall not be called by
the Chairman of the Board, President, or Chief
Executive Officer within 30 days after receipt of any
such request, then the holders of record of 10% or
more in number of the shares of Series A Preferred
Stock and each Other Series of Preferred Stock then
outstanding may designate in writing one of their
number to call such meeting, and the person so
designated may, at the expense of the Corporation,
call such meeting to be held at the place and upon
the notice above provided, and for that purpose shall
have access to the stock books of the Corporation; no
such special meeting and no adjournment thereof shall
be held on a date later than 60 days before the
annual meeting of shareholders.
(d) Nothing herein shall prevent the directors or shareholders
from taking any action to increase the number of authorized
shares of Series A Preferred Stock, or increasing the number
of authorized
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<PAGE> 47
shares of Preferred Stock of the same class as the Series A
Preferred Stock or the number of authorized shares of Common
Stock, or changing the par value of the Common Stock or
Preferred Stock, or issuing options, warrants or rights to any
class of stock of the Corporation as authorized by the Third
Amended and Restated Articles of Incorporation of the
Corporation, as they may hereafter be amended.
(e) Except as set forth herein, holders of shares of Series A
Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are
entitled to vote as set forth in the Third Amended and
Restated Articles of Incorporation of the Corporation or by
law) for taking any corporate action.
3. Certain Restrictions.
(a) Whenever any dividends or other distributions payable on
the Series A Preferred Stock as provided in paragraph 1 hereof
are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been
paid in full, the Corporation shall not, directly or
indirectly:
(i) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series
A Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid
ratably on shares of the Series A Preferred Stock and
all such parity stock 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;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series A
Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of
any stock of the Corporation ranking junior (either
as to dividends or
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<PAGE> 48
upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares
of stock ranking on a parity with the Series A
Preferred Stock, 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, directly or indirectly, any shares of stock of
the Corporation unless the Corporation could, under paragraph
(a) of this paragraph 3, purchase or otherwise acquire such
shares at such time and in such manner.
4. Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of preferred
stock, without designation as to series, and may be reissued as part of any
series of preferred stock created by resolution or resolutions of the Board of
Directors (including Series A Preferred Stock), subject to the conditions and
restrictions on issuance set forth herein.
5. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made to:
(a) the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have
received the greater of (i) $1.00 per share ($0.001 per one
one-hundredth of a share), plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, or (ii) an aggregate
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount
to be distributed per share to holders of shares of Common
Stock; or
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<PAGE> 49
(b) the holders of shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except distributions
made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
In the event that the Corporation shall at any time declare or
pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of
Common Stock, then and in each such event, the aggregate
amount to which the holder of each share of Series A Preferred
Stock was entitled immediately prior to such event under the
proviso in clause (a) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event, and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
6. Consolidation, Merger, etc. In the event that the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, or otherwise changed, then and in
each such event, the shares of Series A Preferred Stock 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 stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event that the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then and in each such event, the amount
set forth in the preceding sentence with respect to the exchange or change of
shares of Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event, and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
7. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable. Notwithstanding the foregoing, the Corporation may acquire shares of
Series A Preferred Stock in any other manner permitted by law or the Third
Amended and Restated Articles of Incorporation of the Corporation.
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<PAGE> 50
8. Rank. Unless otherwise provided in the Third Amended and Restated
Articles of Incorporation of the Corporation or an amendment of the Articles of
Incorporation relating to a subsequent series of preferred stock of the
Corporation, the Series A Preferred Stock shall rank junior to all other series
of the Corporation's preferred stock as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up, and senior to
the Common Stock of the Corporation.
9. Amendment. The Third Amended and Restated Articles of Incorporation
of the Corporation shall not be amended in any manner that would materially and
adversely alter or change the powers, preferences or special rights of the
Series A Preferred Stock without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single series.
10. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share (in one one-hundredths (1/100) of a share and integral
multiples thereof) that shall entitle the holder thereof, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of shares of Series A Preferred Stock.
FIFTH: The Board of Directors of the Corporation shall have the power to cause
the Corporation from time to time and at any time to purchase, hold, sell,
transfer or otherwise deal with (A) shares of any class or series issued by it,
(B) any security or other obligation of the Corporation which may confer upon
the holder thereof the right to convert the same into shares of any class or
series authorized by the Articles, and (C) any security or other obligation
which may confer upon the holder thereof the right to purchase shares of any
class or series authorized by the Articles. The Corporation shall have the right
to repurchase, if and when any shareholder desires to sell, or on the happening
of any event is required to sell, shares of any class or series issued by the
Corporation. The authority granted in this Article FIFTH of these Articles shall
not limit the plenary authority of the Directors to purchase, hold, sell,
transfer or otherwise deal with shares of any class or series, or other
securities or obligations issued by the Corporation or authorized by its
Articles.
SIXTH. The number and qualification of directors of the Corporation shall be
fixed from time to time by its Code of Regulations. The number of directors may
be increased or decreased as therein provided but the number thereof shall in no
event be less than six. The Board of Directors shall be divided into two classes
as nearly equal in number as the then total number of directors constituting the
whole board permits, with the term of office of one class expiring each year. At
the first annual meeting of stockholders, directors of Class I shall be elected
to hold office for a term expiring at the next succeeding annual meeting, and
directors of Class II shall be elected to hold office for a term expiring at the
Third succeeding annual meeting. In no event shall there be less than three
directors per class. Subject to the foregoing,
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<PAGE> 51
at each annual meeting of stockholders the successors to the class of directors
whose terms shall then expire shall be elected to hold office for a term
expiring at the second succeeding annual meeting. In the event of any increase
in the number of directors of the Corporation, all classes of directors shall be
increased as equally as possible. In the event of any decrease in the number of
directors of the Corporation, all classes of directors shall be decreased as
equally as possible. No reduction in number of directors shall of itself have
the effect of shortening the term of an incumbent director.
SEVENTH: No holders of shares of the corporation shall have any pre-emptive
right to subscribe for or to purchase any shares of the corporation of any
class, whether now or hereafter authorized.
EIGHTH: The provisions of Section 1701.831 of the Revised Code of Ohio, as may
be amended from time to time, relating to control share acquisitions shall be
applicable to this Corporation.
NINTH: Notwithstanding any provision of Chapter 1701 of the Ohio Revised Code,
now or hereafter in effect, no shareholder shall have the right to vote
cumulatively in the election of directors.
TENTH: The provisions of Chapter 1704 of the Ohio Revised Code, now or hereafter
in effect, shall be applicable to this Corporation.
ELEVENTH: These Third Amended and Restated Articles of Incorporation take the
place and supersede the existing Second Amended and Restated Articles of
Incorporation.
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<PAGE> 52
EXHIBIT B
(Form of Right Certificate]
Certificate No. R- _________________ Rights
NOT EXERCISABLE AFTER JANUARY 23, 2008, OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS ARE NULL AND VOID.
Right Certificate
OAK HILL FINANCIAL, INC.
This certifies that _________________________, or ____________________
registered assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement dated as of __________, 1998,
as amended from time to time, (the "Rights Agreement"), between OAK HILL
FINANCIAL, Inc., a corporation (the "Company"), and THE FIFTH THIRD BANK, an
Ohio banking association, as Rights Agent (the "Rights Agent"), unless the
Rights evidenced hereby shall have been previously redeemed by the Company, to
purchase from the Company at any time after the Distribution Date (as defined in
the Rights Agreement) and prior to 5:00 p.m., Jackson, Ohio time, on January 23,
2008 (the "Expiration Date"), at the principal office of the Rights Agent in
Jackson, Ohio, one one-hundredth (1/100th) of a fully paid, nonassessable share
of Series A Junior Participating Preferred Stock of the Company (the "Preferred
Shares"), at a purchase price of $________ per one one-hundredth (1/100th) of
a share (the "Purchase Price") payable in cash, upon presentation and surrender
of this Right Certificate with the Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares, securities or
property which may be purchased upon exercise of each Right evidenced by this
Right Certificate, as set forth above, are the Purchase Price and the number and
kind of shares which may be so purchased as of ______________, 1998. As provided
in the Rights Agreement, the Purchase Price and the number and kind of shares,
securities or property which may be purchased
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<PAGE> 53
upon the exercise of each Right evidenced by this Right Certificate are subject
to modification and adjustment upon the happening of certain events.
If the Rights evidenced by this Right Certificate are or were at any
time on or after the Distribution Date beneficially owned by an Acquiring Person
or an Affiliate or Associate of an Acquiring Person, (as such terms are defined
in the Rights Agreement) such Rights shall be null and void and the holder of
any such Right (including any subsequent holder) shall not have any right to
exercise any such Right.
This Right Certificate is subject to all the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent and are also available from the Company upon written request.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent in Jackson, Ohio, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date, evidencing Rights entitling the holder to purchase a like aggregate number
of Preferred Shares, securities or property as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Right Certificate may be redeemed by the Company at its option at a
redemption price (in cash or shares of Common Stock or other securities of the
Company deemed by the Board of Directors to be at least equivalent in value) of
$.01 per Right (which amount shall be subject to adjustment as provided in the
Rights Agreement) at any time prior to the earlier of (i) the occurrence of a
Triggering Event (as defined in the Rights Agreement) and (ii) the Expiration
Date.
The Company may, but shall not be required to, issue fractions of
Preferred Shares or distribute certificates which evidence fractions of
Preferred Shares upon the exercise of any Right or Rights evidenced hereby. In
lieu of issuing fractional shares, the Company may elect to make a cash payment
as provided in the Rights Agreement for certain fractions of a share or to issue
certificates or utilize a depository arrangement as provided in the terms of the
Rights Agreement and the Preferred Shares.
No holder, as such, of this Right Certificate shall be entitled to vote
or receive dividends or be deemed, for any purpose, the holder of the Preferred
Shares or of any other shares of capital stock, securities or property of the
Company which may at any time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or
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<PAGE> 54
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company, including, without limitation, any right to
vote for the election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting stockholders (except
as provided in the Rights Agreement), or to receive dividends or other
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised in accordance with
the provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of:
Attest: OAK HILL FINANCIAL, INC.
By:
- ------------------------------- -------------------------------
[Name]: [Name]:
[Title]: [Title]:
Countersigned:
,
- -------------------------------
as Rights Agent,
By:
---------------------------
Authorized Signature
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<PAGE> 55
[On Reverse Side of Right Certificate]
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed by the registered holder if such holder desires
to exercise the Rights represented by this Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise Rights __________
represented by this Right Certificate to purchase the Preferred Shares (or other
shares of capital stock, securities or property) issuable upon the exercise of
such Rights and requests that certificates for such Preferred Shares (or other
shares of capital stock, securities or property) be issued in the name of:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Please insert social security or other identifying number: _____________________
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of such
Rights shall be registered in the name of and delivered to:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Please insert social security or other identifying number: _____________________
Dated:____________________, 19__
-------------------------------
Signature
Signature Guaranteed:
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<PAGE> 56
CERTIFICATION
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Right Certificate are [ ] are not [ ]
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated:____________________, 19__
-------------------------------
Signature
Signature Guaranteed:
NOTICE
------
The signature on the foregoing Form of Election to Purchase and
Certification must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
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<PAGE> 57
(On Reverse Side of Right Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Rights represented by this Right
Certificate.)
FOR VALUE RECEIVED ________________________________________ hereby
sells, assigns and transfers unto _____________________________________________
(Please print name and address of transferee)
_______________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _______________________ Attorney,
to transfer the within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated:____________________, 19__
-------------------------------
Signature
Signature Guaranteed:
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<PAGE> 58
CERTIFICATION
-------------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated:____________________, 19__
-------------------------------
Signature
Signature Guaranteed:
NOTICE
------
The signature on the foregoing Form of Assignment and Certification
must correspond to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change whatsoever.
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<PAGE> 59
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
SERIES A PARTICIPATING PREFERRED STOCK
OF OAK HILL FINANCIAL, INC.
On January 23, 1998, the Board of Directors of OAK HILL FINANCIAL, INC.
(the "Company") declared a dividend of one Right for each outstanding share of
Common Stock, without par value of the Company (the "Common Shares"). The Rights
are scheduled to be issued to the holders of record of Common Shares outstanding
on February 16, 1998, and with respect to Common Shares issued thereafter until
the Distribution Date (as defined below) and, in certain circumstances, with
respect to Common Shares issued after the Distribution Date. Each Right, when it
becomes exercisable as described below, will entitle the registered holder to
purchase from the Company one one-hundredth (1/100th) of a share of Series A
Junior Participating Preferred Stock of the Company (the "Preferred Shares") at
a price of $90 (the "Purchase Price"). The description and terms of the Rights
are set forth in a Rights Agreement dated as of January 23, 1998 (the "Rights
Agreement"), between the Company and The Fifth Third Bank, as Rights Agent (the
"Rights Agent").
Until the earlier of (i) the date on which a person or group (including
any affiliate or associate of such person or group) has acquired, or obtained
the right to acquire, beneficial ownership of 15% or more of the outstanding
Common Shares (such person or group being called an "Acquiring Person" and the
occurrence of such event being called the "Triggering Event") and (ii) the 10th
business day (or such later date as the Board of Directors may determine) after
the commencement of", or first public disclosure of the intent to commence, a
tender or exchange offer for outstanding Common Shares which would result in the
offeror becoming the beneficial owner of 15% or more of the outstanding Common
Shares (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced by the certificates for Common Shares registered in the
names of the holders thereof (which certificates for Common Shares shall also be
deemed to be Right Certificates, as defined below) and not by separate Right
Certificates. Therefore, until the Distribution Date, the Rights will be
transferred with and only with the Common Shares.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ('Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date (and to each initial record holder of certain Common Shares
originally issued after the Distribution Date), and such separate Right
Certificates alone will thereafter evidence the Rights.
The Rights are not exercisable until the Distribution Date and will
expire on January 23, 2008 (the "Expiration Date"), unless earlier redeemed by
the Company as described below.
<PAGE> 60
The number of Preferred Shares or other securities or property issuable
upon exercise of a Right is subject to adjustment as provided in the Rights
Agreement from time to time in the event of (i) the declaration of a stock
dividend payable in Preferred Shares or a subdivision, combination or
reclassification of the Preferred Shares, (ii) the issuance of certain rights,
options or warrants to holders of Common Shares or Equivalent Shares (as defined
in the Rights Agreement) to subscribe for or purchase Common Shares or
Equivalent Shares at a price per share less than the then-current market value
of such Common Shares or Equivalent Shares or (iii) the distribution to holders
of Common Shares or Equivalent Shares of evidences of indebtedness, assets
(other than regular quarterly cash dividends) or securities or rights, options
or warrants (other than those referred to above). The Purchase Price and the
number of Preferred Shares or other securities or property issuable upon
exercise of the Rights are subject to adjustment as provided in the Rights
Agreement from time to time in the event of the declaration of a stock dividend
on the Common Shares payable in Common Shares or a subdivision or combination of
the Common Shares prior to the Distribution Date. In the event of a combination
of the outstanding Common Shares into a smaller number of Common Shares prior to
the Distribution Date, the number of Rights associated with each outstanding
Common Share will be proportionately reduced and provision will be made for a
cash payment in the case of certain fractions of Rights.
The Preferred Shares are authorized to be issued in certain authorized
fractions. The Company may, but is not required to, issue fractions of shares
upon the exercise of Rights, and, in lieu of fractional shares, the Company may
issue certificates or utilize a depository arrangement as provided by the terms
of the Preferred Shares and, in the case of certain fractions, may make a cash
payment based on the market price of such shares.
In the event of a Triggering Event, the Rights will entitle each holder
of a Right to purchase, for the Purchase Price, that number of Preferred Shares
equivalent to the number of Common Shares which at the time of the transaction
would have a market value of twice the Purchase Price.
In the event the Company is acquired in a merger or other business
combination or 50% or more of its assets or assets representing 50% or more of
its earning power are sold, leased, exchanged or otherwise transferred (in one
or more transactions) to a publicly traded corporation, each Right will entitle
its holder to purchase, for the Purchase Price, that number of common shares of
such corporation which at the time of the transaction would have a market value
of twice the Purchase Price. In the event the Company is acquired in a merger or
other business combination or 50% or more of its assets or assets representing
50% or more of the earning power of the Company are sold, leased, exchanged or
otherwise transferred (in one or more transactions) to an entity that is not a
publicly traded corporation, each Right will entitle its holder to purchase, for
the Purchase Price, at such holder's option, (i) that number of shares of such
entity (or, at such holder's option, of the surviving corporation in such
acquisition, which could be the Company) which at the time of the transaction
would have a book value of twice the Purchase Price or (ii) if such entity has
an affiliate which has publicly traded common shares, that number of common
shares of such
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<PAGE> 61
affiliate which at the time of the transaction would have a market value of
twice the Purchase Price.
Any Rights that are or were, at any time on or after the Distribution
Date, beneficially owned by an Acquiring Person (or any affiliate or associate
of an Acquiring Person) will be null and void and any holder of any such Right
(including any subsequent holder) will be unable to exercise any such Right.
At any time prior to the earlier of (i) a Triggering Event and (ii) the
Expiration Date, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price (in cash or Common Shares or other securities
of the Company deemed by the Board of Directors to be at least equivalent in
value) of $.01 per Right (the "Redemption Price"). The Board of Directors may
also redeem the then outstanding Rights in whole, but not in part, at the
Redemption Price provided that such redemption is in connection with a merger or
other business combination transaction or series of transactions involving the
Company in which all holders of Common Shares are treated alike but not
involving an Acquiring Person.
Upon electing to redeem the Rights, the Company shall make an
announcement thereof, and, upon the effective date of the redemption, the right
to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
At any time prior to the Distribution Date, the Company may, without
the approval of any holder of the Rights or the Rights Agent, supplement or
amend any provision of the Rights Agreement (including the date on which the
Distribution Date shall occur, the time during which the Rights may be redeemed,
the terms of the Preferred Shares, or the Purchase Price). After the
Distribution Date, the Company may amend the Rights Agreement without the
approval of any holders of the Rights or the Rights Agent (i) to cure any
ambiguity or to correct or supplement any provision contained in the Rights
Agreement which may be defective or inconsistent with any other provision of the
Rights Agreement or (ii) to make any other provisions in regard to matters or
questions arising under the Rights Agreement which the Company may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Rights (other than an Acquiring Person or an affiliate or associate
of an Acquiring Person).
A copy of the Rights Agreement, including the terms of the Preferred
Shares, will be filed with the Securities and Exchange Commission as an Exhibit
to a Registration Statement on Form 8-A. A copy of the Rights Agreement is
available free of charge from the Company upon written request. This summary
description of the Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Agreement, which is incorporated herein
by reference.
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