VOTING AGREEMENT
EXHIBIT 2.2
VOTING
AGREEMENT (“Agreement”), dated as of ____________, 2007, by and
between WESBANCO, INC., a West Virginia corporation (“Buyer”), and the
undersigned holder (“Shareholder”) of common shares, without par value
(“Common Stock”), of OAK HILL FINANCIAL, INC., a Ohio corporation (the
“Company”).
WHEREAS,
concurrently with the execution of this Agreement, Buyer, WB Sub, Xxxxxxx Sub
and the Company have entered into an Agreement and Plan of Merger (as such
agreement may be subsequently amended or modified, the “Merger
Agreement”), providing for, among other things, the merger of the Company
with and into Buyer (the “Merger”);
WHEREAS,
the Shareholder beneficially owns and has sole voting power with respect to
the
number of shares of Common Stock, and holds stock options or other rights to
acquire the number of shares of Common Stock indicated opposite the
Shareholder’s name on Schedule 1 attached hereto (as used herein, the
term “Shares” means all shares of Common Stock, whether such shares of
Common Stock are held by the Shareholder on the date of this Agreement or are
subsequently acquired prior to the Expiration Date (as defined in Section 2
below), whether by the exercise of any stock options or otherwise);
WHEREAS,
it is a condition to the willingness of Buyer to enter into the Merger Agreement
that the Shareholder execute and deliver this Agreement; and
WHEREAS,
all capitalized terms used in this Agreement without definition herein shall
have the meanings ascribed to them in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
intending to be legally bound hereby, the Shareholder and Buyer agree as
follows:
1. Agreement
to Vote Shares. The Shareholder agrees that, prior to the
Expiration Date (as defined in Section 2 hereof), at any meeting of the
shareholders of the Company, or any adjournment or postponement thereof, or
in
connection with any written consent of the shareholders of the Company, with
respect to the Merger, the Merger Agreement or any Acquisition Proposal, the
Shareholder shall:
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(a)
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appear
at such meeting or otherwise cause the Shares to be counted as present
thereat for purposes of calculating a quorum;
and
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(b)
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vote
(or cause to be voted), or deliver a written consent (or cause a
consent
to be delivered) covering, all of the Shares that such Shareholder
shall
be entitled to so vote (i) in favor of adoption and approval of the
Merger Agreement and the transactions contemplated thereby, including
the
Merger; (ii) against any action or agreement that would result in a
breach of any covenant, representation or warranty, or any other
obligation or agreement of the Company contained in the Merger Agreement
or of the Shareholder contained in this Agreement, or that would
preclude
fulfillment of a condition under the Merger Agreement to the Company’s and
Buyer’s respective obligations to consummate the Merger; and
(iii) against any Acquisition Proposal, or any agreement or
transaction that is intended, or could reasonably be expected, to
impede,
interfere with, delay, postpone, discourage or adversely affect the
consummation of the Merger or any of the transactions contemplated
by the
Merger Agreement.
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Any
such
vote shall be cast or consent shall be given in accordance with such procedures
relating thereto so as to ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent.
2. Expiration
Date. As used in this Agreement, the term “Expiration
Date” shall mean the earliest to occur of (i) the Effective Time,
(ii) the date the Merger Agreement is terminated pursuant to Article XI
thereof, or (iii) written notice by Buyer to Shareholder of the termination
of this Agreement. Upon termination or expiration of this Agreement,
no party shall have any further obligations or liabilities under this Agreement;
provided, however, that such termination or expiration shall not
relieve any party from liability for any willful breach of this Agreement prior
to the termination or expiration hereof.
3. Agreement
to Retain Shares. The Shareholder shall not, except as
contemplated by this Agreement or the Merger Agreement, directly or indirectly,
sell, assign, transfer, or otherwise dispose of (including, without limitation,
by the creation of a Lien (as defined in Section 4(c) below), or enter into
any contract, option, commitment or other arrangement or understanding with
respect to the sale, transfer, assignment or other disposition of, any Shares
beneficially owned by the Shareholder. Notwithstanding the foregoing,
the Shareholder may make (a) transfers by will or by operation of law, in
which case this Agreement shall bind the transferee, (b) transfers in
connection with estate and charitable planning purposes, including transfers
to
relatives, trusts and charitable organizations, subject to the transferee
agreeing in writing to be bound by the terms of, and perform the obligations
of
the Shareholder under, this Agreement, and (c) transfers as Buyer may
otherwise agree in writing in its sole discretion.
4. Representations
and Warranties of Shareholder. The Shareholder hereby represents
and warrants to Buyer as follows:
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(a)
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the
Shareholder has the complete and unrestricted power and the unqualified
right to enter into and perform the terms of this Agreement, and
no
consent, approval, authorization or filing is required in connection
therewith;
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(b)
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this
Agreement (assuming this Agreement constitutes a valid and binding
agreement of Buyer) is a valid and legally binding agreement with
respect
to the Shareholder, enforceable in accordance with its terms (except
as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws
of
general applicability relating to or affecting creditors’ rights or by
general equity principles);
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(c)
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the
Shareholder beneficially owns the number of Shares indicated opposite
such
Shareholder’s name on Schedule 1, free and clear of any liens, claims,
charges or other encumbrances or restrictions of any kind whatsoever
(“Liens”), and has sole, and otherwise unrestricted, voting and investment
power with respect to such Shares;
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(d)
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the
Shareholder understands that at the Effective Time of the Merger,
(i) each outstanding Share listed on Schedule 1 shall be
automatically cancelled and converted into the right to receive,
subject
to the terms and provisions of the Merger Agreement, (A) 1.256 Buyer
Shares or (B) a cash amount equal to $38.00 per Share (subject to the
provisions of Section 2.03 of the Merger Agreement), and (ii) to
the extent not exercised or otherwise terminated in accordance with
the
terms of the Merger Agreement prior to the Effective Time, each option
to
purchase Shares listed on Schedule 1 shall be, at the Shareholder’s
election, (1) automatically cancelled and converted into the right
to
receive the product of (x) the number of Shares provided for in such
option and (y) the excess, if any, of $38.00 over the exercise price
provided for in such option, as further described in the Merger Agreement
or (2) converted into an Adjusted Option to purchase a number of
Buyer
Shares determined in accordance with Section 2.02(a)(ii) of the Merger
Agreement; and
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(e)
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the
execution and delivery of this Agreement by the Shareholder does
not, and
the performance by the Shareholder of his, her or its obligations
hereunder and the consummation by the Shareholder of the transactions
contemplated hereby will not, violate or conflict with, or constitute
a
default under, any agreement, instrument, contract or other obligation
or
any order, arbitration award, judgment or decree to which the Shareholder
is a party or by which the Shareholder is bound, or any statute,
rule or
regulation to which the Shareholder is subject or, in the event that
the
Shareholder is a corporation, partnership, trust or other entity,
any
bylaw or other organizational document of the
Shareholder.
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5. Irrevocable
Proxy. Subject to the last sentence of this Section 5, by
execution of this Agreement, the Shareholder does hereby appoint Buyer with
full
power of substitution and resubstitution, as the Shareholder’s true and lawful
attorney and irrevocable proxy, to the full extent of the Shareholder’s rights
with respect to the Shares, to vote, if the Shareholder is unable to perform
his, her or its obligations under this Agreement, each of such Shares that
the
Shareholder shall be entitled to so vote with respect to the matters set forth
in Section 1 hereof at any meeting of the shareholders of the Company, and
at any adjournment or postponement thereof, and in connection with any action
of
the shareholders of the Company taken by written consent. The
Shareholder intends this proxy to be irrevocable and coupled with an interest
hereafter until the Expiration Date and hereby revokes any proxy previously
granted by the Shareholder with respect to the
Shares. Notwithstanding anything contained herein to the contrary,
this irrevocable proxy shall automatically terminate upon the Expiration Date
of
this Agreement.
6. No
Solicitation. From and after the date hereof until the Expiration
Date, the Shareholder, in his, her or its capacity as a shareholder of the
Company, shall not, nor shall such Shareholder authorize any partner, officer,
director, advisor or representative of, such Shareholder or any of his, her
or
its affiliates to (and, to the extent applicable to the Shareholder, such
Shareholder shall use reasonable best efforts to prohibit any of his, her or
its
representatives or affiliates to), (a) initiate, solicit, induce or
knowingly encourage, or take any action to facilitate the making of, any
inquiry, offer or proposal which constitutes, or could reasonably be expected
to
lead to, an Acquisition Proposal, (b) participate in any discussions or
negotiations
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regarding
any Acquisition Proposal, or furnish, or otherwise afford access, to any person
(other than Buyer) any information or data with respect to the Company or any
of
its Subsidiaries or otherwise relating to an Acquisition Proposal,
(c) enter into any agreement, agreement in principle or letter of intent
with respect to an Acquisition Proposal, (d) solicit proxies or become a
“participant” in a “solicitation” (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Acquisition Proposal (other than
the
Merger Agreement) or otherwise encourage or assist any party in taking or
planning any action that would compete with, restrain or otherwise serve to
interfere with or inhibit the timely consummation of the Merger in accordance
with the terms of the Merger Agreement, (e) initiate a shareholders’ vote
or action by consent of the Company’s shareholders with respect to an
Acquisition Proposal, or (f) except by reason of this Agreement, become a
member of a “group” (as such term is used in Section 13(d) of the Exchange
Act) with respect to any voting securities of the Company that takes any action
in support of an Acquisition Proposal.
7. Specific
Enforcement. The Shareholder has signed this Agreement intending
to be legally bound thereby. The Shareholder expressly agrees that this
Agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against the
Shareholder. All of the covenants and agreements contained in this
Agreement shall be binding upon, and inure to the benefit of, the respective
parties and their permitted successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be.
8. No
Waivers. No waivers of any breach of this Agreement extended by
Buyer to the Shareholder shall be construed as a waiver of any rights or
remedies of Buyer with respect to any other shareholder of the Company who
has
executed an agreement substantially in the form of this Agreement with respect
to Shares beneficially owned by such shareholder or with respect to any
subsequent breach of the Shareholder or any other such shareholder of the
Company. No waiver of any provisions hereof by either party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall
any
such waiver be deemed a continuing waiver of any provision hereof by such
party.
9. Capacity
as Shareholder. The Shareholder is signing this Agreement solely
in the Shareholder’s capacity as a shareholder of the Company, and not in the
Shareholder’s capacity as a director, officer or employee of the Company or any
of its Subsidiaries or in the Shareholder’s capacity as a trustee or fiduciary
of any employee benefit plan or trust. Notwithstanding anything
herein to the contrary, nothing herein shall in any way restrict a director
and/or officer of the Company in the exercise of his or her fiduciary duties,
consistent with the terms of the Merger Agreement, as a director and/or officer
of the Company or in his or her capacity as a trustee or fiduciary of any
employee benefit plan or trust, or prevent or be construed to create any
obligation on the part of any director and/or officer of the Company or any
trustee or fiduciary of any employee benefit plan or trust from taking any
action in his or her capacity as a director of the Company.
10. Entire
Agreement; Amendments. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified
or
waived, except by an instrument in writing signed by each party
hereto.
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11. Further
Assurances. From time to time and without additional
consideration, the Shareholder shall execute and deliver, or cause to be
executed and delivered, such additional transfers, assignments, endorsements,
proxies, consents and other instruments, and shall take such further actions,
as
Buyer may request for the purpose of carrying out and furthering the intent
of
this Agreement.
12. Severability. If
any term or other provision of this Agreement is determined to be invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all
other conditions and provisions of this Agreement shall nevertheless remain
in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner
to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
13. Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original but all of which together shall constitute one and the same
instrument.
14. Public
Disclosure. The Shareholder shall not issue or cause the
publication of any press release or other public announcement (to the extent
not
previously issued or made in accordance with the Merger Agreement) with respect
to this Agreement, the Merger Agreement or the transactions contemplated by
the
Merger Agreement, without the prior consent of Buyer. The Shareholder
hereby permits Buyer to publish and disclose in any document and/or schedule
filed by Buyer with the SEC such Shareholder’s identity and ownership of Shares
and the nature of such Shareholder’s commitments and obligations pursuant to
this Agreement.
15. Governing
Law. This Agreement shall be governed by the laws of the State of
West Virginia, without giving effect to the principles of conflicts of laws
thereof.
16. No
Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall
not
constitute or be deemed to evidence a contract, agreement, arrangement or
understanding between the parties hereto unless and until (a) the Board of
Directors of the Company has approved, for purposes of any applicable
anti-takeover laws and regulations, and any applicable provision of the
Company’s Articles of Incorporation, the possible acquisition of the Shares by
Buyer pursuant to the Merger Agreement, (b) the Merger Agreement is
executed by all parties thereto, and (c) this Agreement is executed by all
parties hereto.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be
duly
executed as of the day and year first written above.
SHAREHOLDER
Name:
WESBANCO,
INC.
By:
Name:
Title:
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SCHEDULE
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Shareholder
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Shares
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Options
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