forms3.htm
As
filed with the Securities and Exchange Commission on March 6, 2009
Registration
No. 333-_____________
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UNITED
STATES
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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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Form
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
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Peoples
Bancorp Inc.
(Exact
name of registrant
as
specified in its charter)
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Ohio
(State
or other jurisdiction
of
incorporation or organization)
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31-0987416
(I.R.S.
Employer
Identification
No.)
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138
Putnam Street, P.O. Box 738
Marietta,
Ohio 45750-0738
(740)
373-3155
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal
executive
offices)
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Mark
F. Bradley
President
and Chief Executive Officer
Peoples
Bancorp Inc.
138
Putnam Street, P.O. Box 738
Marietta,
Ohio 45750-0738
(740)
373-3155
(Name,
address and telephone number,
including
area code, of agent for service)
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Copies
to:
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Rhonda
L. Mears, Esq.
General
Counsel and Corporate Secretary
Peoples
Bancorp Inc.
138
Putnam Street, P.O. Box 738
Marietta,
Ohio 45750-0738
(740)
373-7723
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Elizabeth
Turrell Farrar, Esq.
Vorys,
Sater, Seymour and Pease LLP
52
East Gay Street
Columbus,
Ohio 43215
(614)
464-5607
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Approximate date of
commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. q
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. q
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. q
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto
that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. q
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. q
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer q Accelerated
filer x Non-accelerated
filer q
Smaller reporting company q
(Do
not check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
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Title
of each Class of Securities
to
be Registered
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Amount
to be Registered
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Proposed
Maximum Offering Price Per Unit
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Fixed
Rate Cumulative Perpetual Preferred Shares, Series A, no par value per
share (1)(2)
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39,000
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$1,000
(1)
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$39,000,000
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$1,532.70
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Depositary
Shares (2)
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—
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—
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—
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—
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Common
Shares, no par value per share (3)
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313,505
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$18.66
(4)
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$5,850,003.30
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$229.91
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Warrant
to Purchase Common Shares, no par value per share (5)
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—
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—
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—
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—
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Total
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$1,762.61
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(1)
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Represents
the liquidation preference amount for each Fixed Rate Cumulative Perpetual
Preferred Share, Series A (the “Series A Preferred Shares”) which were
sold by Peoples Bancorp Inc. (“Peoples”) in a non-public offering to the
United States Department of the Treasury (the “U.S. Treasury”) under its
Troubled Assets Relief Program Capital Purchase
Program. Calculated in accordance with Rule 457(a) under the
Securities Act of 1933, as amended (the “Securities Act”), and includes
such number of additional Series A Preferred Shares, of a currently
indeterminable amount, as may from time to time become issuable by reason
by share splits, share dividends or similar transactions, which Series A
Preferred Shares are registered hereunder pursuant to Rule 416 under the
Securities Act.
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(2)
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In
the event the U.S. Treasury requests that Peoples deposit the Series A
Preferred Shares with a depositary pursuant to a depositary arrangement,
depositary shares evidencing fractional Series A Preferred Shares may be
sold pursuant to this Registration Statement in lieu of whole Series A
Preferred Shares.
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(3)
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The
Common Shares being registered are purchasable upon exercise of the
Warrant to purchase Common Shares being registered and was issued by
Peoples to the U.S. Treasury in a non-public offering concurrent with the
sale of the Series A Preferred Shares as described in footnote
(1). In addition to the number of Common Shares stated in the
table above, there is registered, pursuant to Rule 416 of the Securities
Act, such number of additional Common Shares, of a currently
indeterminable amount, as may from time to time become issuable by reason
of share splits, share dividends or similar transactions and certain
anti-dilution provisions set forth in the Warrant to Purchase Common
Shares.
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(4)
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Estimated
in accordance with Rule 457(g) under the Securities Act and calculated
based on the $18.66 per share exercise price of the Warrant to purchase
Common Shares.
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(5)
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Pursuant
to Rule 457(g) under the Securities Act, no additional fee is payable for
the Warrant to Purchase Common
Shares.
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The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall be come
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The
information in this prospectus is not complete and may be
changed. The securities described in this prospectus cannot be
sold until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
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SUBJECT
TO COMPLETION, DATED MARCH 6, 2009
PROSPECTUS
PEOPLES
BANCORP INC.
39,000
Fixed Rate Cumulative Perpetual Preferred Shares, Series A, No Par
Value
(or
Depositary Shares Evidencing Fractional Interests in Such Fixed
Rate
Cumulative Perpetual Preferred Shares, Series A, No Par Value)
Warrant
to Purchase 313,505 Common Shares, No Par Value
313,505
Common Shares, No Par Value
This
Prospectus relates to the potential resale from time to time by the selling
securityholders of: (1) some or all of 39,000 of our Fixed Rate Cumulative
Perpetual Preferred Shares, Series A, no par value per share, liquidation
preference $1,000 per share (the “Series A Preferred Shares”), or, in the event
such Series A Preferred Shares are deposited with a depositary as described in
this Prospectus, depositary shares evidencing fractional interests in such
Series A Preferred Shares; (2) a warrant (the “Warrant”) to purchase 313,505 of
our common shares, no par value per share (the “Common Shares”); and (3) any
Common Shares issuable from time to time upon exercise of the
Warrant. The Series A Preferred Shares and the Warrant were
originally issued pursuant to the Letter Agreement dated January 30, 2009 (the
“Letter Agreement”), and the related Securities Purchase Agreement — Standard
Terms (the “Securities Purchase Agreement,” and together with the Letter
Agreement, the “UST Agreement”), between Peoples Bancorp Inc. and the United
States Department of the Treasury (the “U.S. Treasury”), in a transaction exempt
from the registration requirements of the Securities Act of 1933, as amended
(the “Securities Act”).
The
selling securityholders who may sell or otherwise dispose of the securities
offered by this Prospectus include the U.S. Treasury and any other holders of
the securities covered by this Prospectus to whom the U.S. Treasury has
transferred its registration rights in accordance with the terms of the UST
Agreement. The selling securityholders may offer the securities from
time to time directly or through underwriters, broker-dealers or agents, and in
one or more public or private transactions and at fixed prices, prevailing
market prices, prices related to prevailing market prices or at negotiated
prices. If these securities are sold through underwriters,
broker-dealers or agents, the selling securityholders will be responsible for
underwriting discounts or commissions or agents’ commissions. We will
not receive any proceeds from the sale of securities by the selling
securityholders.
Neither
the Series A Preferred Shares nor the Warrant is listed on any national
securities exchange, and, unless requested by the U.S. Treasury, we do not
intend to seek such a listing for the Series A Preferred Shares or the
Warrant.
The words
“Peoples,” “Company,” “we,” “our,” “ours” and “us” as used herein refer to
Peoples Bancorp Inc. and its subsidiaries, unless otherwise
stated. The mailing address of our principal executive offices is 138
Putnam Street, P.O. Box 738, Marietta, Ohio 45750-0738; telephone number (740)
373-3155. Our Common Shares are listed on the NASDAQ Global Select
Market (“NASDAQ”) under the symbol “PEBO.” On March 5, 2009, the
closing price for our Common Shares was $7.86.
Investing
in our securities involves risk. We urge you to carefully review the
information contained in this Prospectus under the caption “RISK FACTORS”
beginning on page 4 and other information included or incorporated by reference
in this Prospectus and any prospectus supplement for a discussion of factors you
should carefully consider before you make your investment decision.
___________________________________
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION, NOR ANY STATE SECURITIES COMMISSION NOR
ANY BANK REGULATORY AGENCY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE
SECURITIES ARE NOT DEPOSITS OR ACCOUNTS OR OTHER OBLIGATIONS OF ANY BANK OR
SAVINGS ASSOCIATION AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM OR
ANY OTHER GOVERNMENTAL OR REGULATORY AGENCY OR INSTRUMENTALITY.
____________________________________
The date
of this Prospectus is __________, 2009.
This
Prospectus is part of a Registration Statement we have filed with the Securities
and Exchange Commission (“SEC”) using a “shelf” registration
process. Under this shelf registration process, the selling
securityholders may, from time to time, offer and sell, in one or more
offerings, the securities described in this Prospectus.
When we
use the term “securities” in this Prospectus, we mean any of the securities that
the selling securityholders named in this Prospectus may offer under this
Prospectus, unless we say otherwise. We may provide a prospectus
supplement containing specific information about the terms of a particular
offering by the selling securityholders. The prospectus supplement
may also add, update or change information contained in this
Prospectus. If the information in this Prospectus is inconsistent
with a prospectus supplement, you should rely on the information in the
prospectus supplement. You should carefully read both this Prospectus
and any prospectus supplement. You also should carefully read the
documents incorporated by reference into this Prospectus and the documents we
have referred you to in “WHERE
YOU CAN FIND MORE INFORMATION” for additional information about our
Company, including our financial statements.
The
selling securityholders named in this Prospectus may use this Prospectus to
offer any of the following of our securities from time to time:
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Fixed
Rate Cumulative Perpetual Preferred Shares, Series A, no par value, either
directly or represented by depositary
shares;
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Warrant
to purchase 313,505 of our Common Shares, no par value;
or
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Common
Shares, no par value, issued upon exercise of the
Warrant.
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You
should rely only on the information contained or incorporated by reference into
this Prospectus and any prospectus supplement. We have not, and the
selling securityholders have not, authorized anyone to provide you with any
other information. If you receive any other information, you should
not rely on it. This Prospectus does not constitute an offer to sell,
or a solicitation of an offer to purchase, any of the securities to which this
Prospectus relates in any jurisdiction to or from any person to whom it is
unlawful to make such an offer or solicitation in such
jurisdiction. You should not assume that the information contained in
this Prospectus and, if applicable, any prospectus supplement or any document
incorporated by reference in this Prospectus or any prospectus supplement, is
accurate as of any date other than the date on the front cover of this
Prospectus or on the front cover of the applicable prospectus supplement or
documents or as specifically indicated in the document. Our business,
financial condition, results of operations and prospects may have changed since
that date.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s
public reference room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference room. In addition, our SEC filings are
available to the public at the SEC’s Internet site at http://www.sec.gov. We
also maintain an Internet site (http://www.peoplesbancorp.com)
where information about us and our subsidiaries can be obtained. The
information contained on our Internet site is not part of this
Prospectus.
In this
Prospectus, as permitted by law, we “incorporate by reference” information from
other documents that we file with the SEC. This means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to
be a part of this Prospectus and should be read with the same
care. When we update the information contained in documents that have
been incorporated by reference by making future filings with the SEC, the
information incorporated by reference in this Prospectus is considered to be
automatically updated and superseded. In other words, in case of a
conflict or inconsistency between information contained in this Prospectus and
information incorporated by reference into this Prospectus, you should rely on
the information contained in the document that was filed later.
We incorporate by reference the following documents that we have filed with the
SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
except as noted below:
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·
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Annual
Report on Form 10-K for the fiscal year ended December 31,
2008;
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·
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Current
Reports on Form 8-K filed/furnished on January 12, 2009, January 23, 2009,
January 26, 2009, January 29, 2009, February 2, 2009 and February 27,
2009; and
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·
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The
description of our Common Shares that is contained in
“Item 5. Other Information” of Part II of our Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2003,
together with any subsequent registration statement or report filed for
the purpose of updating such
description.
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We also
incorporate by reference each of the following documents that we will file with
the SEC after the date of this Prospectus until this offering is
completed:
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Any
reports filed under Section 13(a) or Section 13(c) of the
Exchange Act;
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·
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Any
document filed under Section 14 of the Exchange Act;
and
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·
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Any
reports filed under Section 15(d) of the Exchange
Act.
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Pursuant
to General Instruction B of Form 8-K, any information furnished pursuant to
“Item 2.02. Results of Operations and Financial Condition,” or “Item
7.01. Regulation FD Disclosure” of Form 8-K is not deemed to be
“filed” for purposes of Section 18 of the Exchange Act, and we are not
incorporating by reference any information furnished pursuant to Item 2.02 or
Item 7.01 (or former Item 9 or Item 12) of Form 8-K into this
Prospectus.
Statements
contained in this Prospectus as to the contents of any contract, agreement or
other document referred to in this Prospectus do not purport to be complete,
and, where reference is made to the particular provisions of that contract,
agreement or other document, those references are qualified in all respects by
reference to all of the provisions contained in that contract, agreement or
other document. Any statement contained in a document incorporated by
reference, or deemed to be incorporated by reference, into this Prospectus will
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated by reference in this Prospectus modifies or
supersedes that statement. Any such statement so modified or
superseded will not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
We will
provide without charge, upon written or oral request, a copy of any or all of
the documents that are incorporated by reference into this Prospectus (other
than exhibits, unless they are specifically incorporated by reference in the
documents) and a copy of any or all other contracts, agreements or documents
which are referred to in this Prospectus. Requests should be directed
to: Peoples Bancorp Inc., 138 Putnam Street, P.O. Box 738, Marietta,
Ohio 45750-0738, Attention: Rhonda L. Mears, Esq., General Counsel
and Corporate Secretary, telephone number (740) 373-7723.
This
Prospectus contains some forward-looking statements that set forth anticipated
results based on our management’s plans and assumptions. From time to
time, we also provide forward-looking statements in other materials we release
to the public as well as oral forward-looking statements. Such
statements give our current expectations or forecasts of future events and they
do not relate strictly to historical or current facts. We have tried,
wherever possible, to identify such statements by using words such as
“anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,”
“will” and similar expressions in connection with any discussion of future
operating or financial performance.
We cannot
guarantee that any forward-looking statement will be realized, although our
management believes that we have been prudent in our plans and
assumptions. Achievement of future results is subject to risks,
uncertainties and potentially inaccurate assumptions. If known or
unknown risks or uncertainties should materialize, or if underlying assumptions
should prove inaccurate, actual results could differ materially from past
results and those anticipated, estimated or projected. You should
bear this in mind in reading this Prospectus. Factors that might
cause such differences include, but are not limited to:
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Continued
deterioration in the credit quality of Peoples’ loan portfolio could occur
due to a number of factors, such as adverse changes in economic conditions
that impair the ability of borrowers to repay their loans, the underlying
value of the collateral could prove less valuable than otherwise assumed
and assumed cash flows may be worse than expected, which may adversely
impact the provision for loan
losses;
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·
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Competitive
pressures among financial institutions or from non-financial institutions,
which may increase significantly;
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·
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Changes
in the interest rate environment, which may adversely impact interest
margins;
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·
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Changes
in prepayment speeds, loan originations, sale volumes and charge-offs,
which may be less favorable than expected and adversely impact the amount
of interest income generated;
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·
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General
economic conditions and weakening in the real estate market, either
national or in the states in which Peoples and its subsidiaries do
business, which may be less favorable than
expected;
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·
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Political
developments, wars or other hostilities, which may disrupt or increase
volatility in securities markets or other economic
conditions;
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·
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Legislative
or regulatory changes or actions, which may adversely affect the business
of Peoples and its subsidiaries;
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·
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Adverse
changes in the conditions and trends in the financial markets, which may
adversely affect the fair value of securities within Peoples’ investment
portfolio;
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·
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A
delayed or incomplete resolution of regulatory issues that could
arise;
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·
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Our
ability to receive dividends from our
subsidiaries;
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·
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Our
ability to maintain required capital levels and adequate sources of
funding and liquidity;
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·
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Changes
in accounting standards, policies, estimates or practices, which may
impact our reported financial condition or results of
operations;
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·
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The
impact of reputational risk created by these developments on such matters
as business generation and retention, funding and
liquidity;
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·
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The
costs and effects of regulatory and legal developments, including the
outcome of regulatory or other governmental inquiries and legal
proceedings and results of regulatory examinations;
and
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·
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Those
risks and uncertainties included in this Prospectus under the caption
“RISK
FACTORS.”
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We
undertake no obligation publicly to update forward-looking statements, whether
as a result of new information, future events or otherwise. You are
advised, however, to consult any further disclosures we make on related subjects
in our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K filed with or furnished to the
SEC. Also note that we provide cautionary discussion of risks,
uncertainties and possibly inaccurate assumptions relevant to our business in
our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K incorporated by reference herein and in prospectus
supplements and other offering materials. These are factors that,
individually or in the aggregate, management believes could cause our actual
results to differ materially from expected and historical results. We
note these factors for investors as permitted by the Private Securities
Litigation Reform Act of 1995. You should understand that it is not
possible to predict or identify all such factors. Consequently, you
should not consider such disclosures to be a complete discussion of all
potential risks or uncertainties.
An
investment in our securities involves certain risks. You should
carefully consider the following risk factors and other information contained in
this Prospectus and the documents incorporated by reference in this Prospectus,
before making an investment decision. Certain risks related to us and
our business are described under the heading “Item 1A. Risk Factors”
in Part I of our Annual Report on Form 10-K for the fiscal year ended
December 31, 2008. Listed below are a number of additional
risks, including certain risks related to the securities offered by this
Prospectus. The risks discussed below also include forward-looking
statements, and our actual results may differ materially from those discussed in
these forward-looking statements. Risks and uncertainties not
presently known to us or that we currently deem immaterial also may impair our
business operations.
RISKS
RELATING TO PEOPLES AND OUR SUBSIDIARIES
Difficult
Market Conditions And Economic Trends Have Adversely Affected Our Industry And
Our Business.
Negative
developments beginning in the latter half of 2007 and throughout 2008 in the
sub-prime mortgage market and the securitization markets for such loans,
together with substantial volatility in oil prices and other factors, have
resulted in uncertainty in the financial markets in general and a related
general economic downturn, continuing into 2009. Dramatic declines in
the housing market, with decreasing home prices and increasing delinquencies and
foreclosures, have negatively impacted the credit performance of mortgage and
construction loans and resulted in significant write-downs of assets by many
financial institutions. In addition, the value of real estate
collateral supporting many loans has declined and may continue to
decline. General downward economic trends, reduced availability of
commercial credit and increasing unemployment have negatively impacted the
credit performance of commercial and consumer credit, resulting in additional
write-downs. Concerns over the stability of the financial markets and
the economy have resulted in decreased lending by financial institutions to
their customers and to each other. This market turmoil and tightening
of credit has led to increased commercial and consumer deficiencies, lack of
customer confidence, increased market volatility and widespread reduction in
general business activity. Competition among depository institutions
for deposits has increased significantly. Financial institutions have
experienced decreased access to deposits or borrowings. The resulting
economic pressure on consumers and businesses and the lack of confidence in the
financial markets may adversely affect our business, financial condition,
results of operations and the trading price of our Common Shares.
Our
ability to assess the creditworthiness of customers and to estimate the losses
inherent in our credit exposure is made more complex by these difficult market
and economic conditions. As a result of the foregoing factors, there
is a potential for new federal or state laws and regulations regarding lending
and funding practices and liquidity standards, and bank regulatory agencies are
expected to be very aggressive in responding to concerns and trends identified
in examinations. This increased governmental action may increase our
costs and limit our ability to pursue certain business
opportunities. We also may be required to pay even higher Federal
Deposit Insurance Corporation (“FDIC”) premiums than the recently increased
level, because financial institution failures resulting from the depressed
market conditions have depleted and may continue to deplete the deposit
insurance fund and reduce its ratio of reserves to insured
deposits.
A
worsening of these conditions would likely exacerbate the adverse effects of
these difficult market and economic conditions on us, our customers and the
other financial institutions in our market. As a result, we may
experience increases in foreclosures, delinquencies and customer bankruptcies,
as well as more restricted access to funds.
There
Can Be No Assurance That Recent Legislative And Regulatory Initiatives To
Address Difficult Market And Economic Conditions Will Stabilize The U.S. Banking
System.
The
Emergency Economic Stabilization Act of 2008 (“EESA”), which established the
Troubled Assets Relief Program (“TARP”), was signed into law on October 3,
2008. The purpose of TARP is to restore confidence and stability to
the U.S. banking system and to encourage financial institutions to increase
their lending to customers and to each other. As part of TARP, the
U.S. Treasury established the Capital Purchase Program to provide up to $700
billion of funding to eligible financial institutions through the purchase of
capital stock and other financial instruments for the purpose of stabilizing and
providing liquidity to the U.S. financial markets. Under the Capital
Purchase Program, the U.S. Treasury is purchasing equity securities from
participating institutions. On January 30, 2009, we entered
into the UST Agreement with the U.S. Treasury providing for our issuance of the
Series A Preferred Shares and the Warrant, pursuant to the Capital Purchase
Program. The EESA also increased federal deposit insurance on most
deposit accounts from $100,000 to $250,000. This increase is in place
until the end of 2009 and is not covered by deposit insurance premiums paid by
the banking industry.
On
February 17, 2009, President Obama signed the American Recovery and Reinvestment
Act of 2009 (“ARRA”), as a sweeping economic recovery package intended to
stimulate the economy and provide for broad infrastructure, energy, health, and
education needs. There can be no assurance as to the actual impact
that EESA or its programs, including the CPP, and ARRA or its programs, will
have on the national economy or financial markets. The failure of
these significant legislative measures to help stabilize the financial markets
and a continuation or worsening of current financial market conditions could
materially and adversely affect our business, financial condition, results of
operations, access to credit or the trading price of our Common
Shares.
There
have been numerous actions undertaken in connection with or following EESA and
ARRA by the Federal Reserve Board, the U.S. Congress, the U.S. Treasury, the
FDIC, the SEC and others in efforts to address the current liquidity and credit
crisis in the financial industry that followed the sub-prime mortgage market
meltdown that began in late 2007. These measures include: (i)
homeowner relief that encourages loan restructuring and modification; (ii) the
establishment of significant liquidity and credit facilities for financial
institutions and investment banks; (iii) the lowering of the federal funds rate;
(iv) emergency action against short selling practices; (v) a temporary guaranty
program for money market funds; (vi) the establishment of a commercial paper
funding facility to provide back-stop liquidity to commercial paper issuers; and
(vii) coordinated international efforts to address illiquidity and other
weaknesses in the banking sector. The purpose of these legislative and
regulatory actions is to help stabilize the U.S. banking
system. EESA, ARRA and the other regulatory initiatives described
above may not have their desired effects. If the volatility in the
markets continues and economic conditions fail to improve or worsen, our
business, financial condition and results of operations could be materially and
adversely affected.
Current
Levels Of Market Volatility Are Unprecedented.
The
capital and credit markets have been experiencing volatility and disruption for
more than a year. In recent months, the volatility and disruption has
reached unprecedented levels. In some cases, the markets have
produced downward pressure on stock prices and credit availability for certain
issuers without regard to those issuers’ underlying financial
strength. If current levels of market disruption and volatility
continue or worsen, there can be no assurance that we will not experience an
adverse effect, which may be material, on our ability to access capital and on
our business, financial condition and results of operations.
Because
Of Our Participation In The Capital Purchase Program, We Are Subject To Several
Restrictions Including Restrictions On Our Ability To Declare Or Pay Dividends
And Repurchase Our Shares As Well As Restrictions On Compensation Paid To Our
Executive Officers.
Pursuant
to the terms of the UST Agreement Agreement, our ability to declare or pay
dividends on any of our shares is limited. Specifically, we are
unable to declare dividend payments on Common Shares, junior preferred shares or
pari passu preferred
shares if we are in arrears on the payment of dividends on the Series A
Preferred Shares. Further, we are not permitted to increase dividends
on our Common Shares above the amount of the last quarterly cash dividend per
share declared prior to October 14, 2008 ($0.23 per share) without the U.S.
Treasury’s approval until January 30, 2012, unless all of the Series A
Preferred Shares have been redeemed or transferred by the U.S. Treasury to
unaffiliated third parties. In addition, our ability to repurchase our
shares is restricted. The consent of the U.S. Treasury generally is
required for us to make any stock repurchase (other than in connection with the
administration of any employee benefit plan in the ordinary course of business
and consistent with past practice) until January 30, 2012, unless all of the
Series A Preferred Shares have been redeemed or transferred by the U.S. Treasury
to unaffiliated third parties. Further, Common Shares, junior
preferred shares or pari passu
preferred shares may not be repurchased if we are in arrears on the
payment of Series A Preferred Share dividends. Finally, the terms of
the UST Agreement allow the U.S. Treasury to impose additional restrictions,
including those on dividends and including unilateral amendments required to
comply with changes in applicable federal law.
Pursuant
to the terms of the UST Agreement, we adopted the U.S. Treasury’s current
standards for executive compensation and corporate governance for the period
during which the Treasury holds the equity securities issued pursuant to the UST
Agreement, including the Common Shares that may be issued upon exercise of the
Warrant. These standards generally apply to our Chief Executive
Officer, Chief Financial Officer and the three next most highly compensated
senior executive officers. The standards include: (i) ensuring that
incentive compensation plans and arrangements for senior executive officers do
not encourage unnecessary and excessive risks that threaten our value; (ii)
required clawback of any bonus or incentive compensation paid (or under a
legally binding obligation to be paid) to a senior executive officer based on
materially inaccurate financial statements or other materially inaccurate
performance metric criteria; (iii) prohibition on making “golden parachute
payments” to senior executive officers; and (iv) agreement not to claim a
deduction, for federal income tax purposes, for compensation paid to any of the
senior executive officers in excess of $500,000 per year.
The
adoption of ARRA on February 17, 2009 imposed certain new executive compensation
and corporate expenditure limits on all current and future TARP recipients,
including the Company, until the institution has repaid the U.S.
Treasury. The executive compensation standards are more stringent
than those currently in effect under the Capital Purchase Program or those
previously proposed by the U.S. Treasury, but it is yet unclear how these
executive compensation standards will relate to the similar standards announced
by the U.S. Treasury on February 4, 2009, or whether the standards will be
considered effective immediately or only after implementing regulations are
issued by the U.S. Treasury. The new standards include (but are not
limited to): (i) prohibitions on bonuses, retention awards and other incentive
compensation, other than restricted stock grants which do not fully vest during
the TARP period with a value not greater than one-third of an employee’s total
annual compensation; (ii) prohibitions on payments for departure from a company
for any reason, except for payments for services performed or benefits accrued;
(iii) an expanded clawback of bonuses, retention awards, and incentive
compensation if payment is based on materially inaccurate statements of
earnings, revenues, gains or other criteria; (iv) prohibitions on compensation
plans that encourage manipulation of reported earnings; (v) retroactive review
of bonuses, retention awards and other compensation previously provided by TARP
recipients if found by the U.S. Treasury to be inconsistent with the purposes of
TARP or otherwise contrary to public interest; (vi) required establishment of a
company-wide policy regarding “excessive or luxury expenditures,” and; (vii)
inclusion in a participant’s proxy statements for annual shareholder meetings of
a nonbinding “Say on Pay” shareholder vote on the compensation of
executives.
RISKS RELATING TO THE SERIES A
PREFERRED SHARES AND OUR COMMON SHARES
The
Series A Preferred Shares Represent Equity Interests In Peoples And Are
Subordinate To All Of Our Existing And Future
Indebtedness. Regulatory, Statutory And Contractual Restrictions May
Limit Or Prevent Us From Paying Dividends On The Series A Preferred Shares And
Our Common Shares, And The Series A Preferred Shares Place No Limitations On The
Amount Of Indebtedness We And Our Subsidiaries May Incur In The
Future.
The
Series A Preferred Shares are equity interests in Peoples and do not constitute
indebtedness. As such, the Series A Preferred Shares, like our Common
Shares, rank junior to all indebtedness and other non-equity claims on Peoples
with respect to assets available to satisfy claims on Peoples, including in a
liquidation of Peoples. Additionally, unlike indebtedness, where
principal and interest would customarily be payable on specified due dates, in
the case of preferred shares like the Series A Preferred Shares, as with our
Common Shares: (i) dividends are payable only when, as and if authorized
and declared by, our Board of Directors and depend on, among other things, our
results of operations, financial condition, debt service requirements, other
cash needs and any other factors our Board of Directors deems relevant; and
(ii) as an Ohio corporation, under Ohio law, we are subject to restrictions
on payments of dividends out of lawfully available funds. See the discussion
under the captions “DESCRIPTION
OF SERIES A PREFERRED SHARES – Dividends Payable On Series A Preferred
Shares” and “DESCRIPTION
OF COMMON SHARES – Dividends.”
The
Series A Preferred Shares do not limit the amount of debt or other obligations
we or our subsidiaries may incur in the future. Accordingly, we and
our subsidiaries may incur substantial amounts of additional debt and other
obligations that will rank senior to the Series A Preferred Shares or to which
the Series A Preferred Shares will be structurally subordinated.
We are
subject to certain contractual restrictions that could prohibit us from
declaring or paying dividends or making liquidation payments on our Common
Shares or the Series A Preferred Shares. See the immediately
following risk factor.
If
We Defer Payments Of Interest On Our Outstanding Junior Subordinated Deferrable
Interest Debentures Or If Certain Defaults Relating To Those Junior Subordinated
Deferrable Interest Debentures Occur, We Will Be Prohibited From Declaring Or
Paying Dividends Or Distributions On, From Redeeming Or Repurchasing, And From
Making Liquidation Payments With Respect To, The Series A Preferred Shares And
Our Common Shares.
We
previously formed PEBO Capital Trust I for the purpose of issuing
corporation-obligated mandatorily redeemable capital securities (the “Capital
Securities”), with 100% of the common equity in PEBO Capital Trust I owned by
Peoples. The proceeds from the Capital Securities and common equity
were invested in junior subordinated deferrable interest debentures of Peoples
(the “Debentures”). The Debentures held by PEBO Capital Trust I are
its sole assets. Distributions on the Capital Securities are payable
semiannually at a rate per annum equal to the interest rate being earned by PEBO
Capital Trust I on the Debentures.
Under the
provisions of the Debentures, Peoples has the right to defer payment of interest
on the Debentures at any time, or from time to time, for periods not exceeding
five years. If interest payments on the Debentures are deferred, the
dividends on the Capital Securities are also deferred. Peoples has
entered into agreements which, taken collectively, fully and unconditionally
guarantee the Capital Securities subject to the terms of each of the
guarantees. As of December 31, 2008, the outstanding principal
amount of the Debentures was approximately $22,495,000.
The
indenture under which the Debentures were issued, together with the related
guarantee, prohibits us, subject to limited exceptions, from declaring or paying
any dividends or distributions on, or redeeming, repurchasing, acquiring or
making any liquidation payments with respect to, any of our capital stock
(including the Series A Preferred Shares and our Common Shares) at any time
when: (i) there shall have occurred and be continuing an event of default under
the indenture; (ii) we are in default with respect to payment of any obligations
under the related guarantee; or (iii) we have deferred payment of interest on
the Debentures outstanding under that indenture. In that regard, we
are entitled, at our option but subject to certain conditions, to defer payments
of interest on the Debentures from time to time for up to 10 consecutive
semi-annual periods.
Events of
default under the indenture generally consist of our failure to pay interest on
the Debentures outstanding under certain circumstances, our failure to pay any
principal of or premium on such Debentures when due, our failure to comply with
certain covenants under the indenture, and certain events of bankruptcy,
insolvency or liquidation relating to us or any substantial part of our
assets.
As a
result of these provisions, if we were to elect to defer payments of interest on
the Debentures, or if any of the other events described in clauses (i) or (ii)
(set forth above) were to occur, we would be prohibited from declaring or paying
any dividends on the Series A Preferred Shares and our Common Shares, from
redeeming, repurchasing or otherwise acquiring any of the Series A Preferred
Shares or our Common Shares, and from making any payments to holders of the
Series A Preferred Shares or our Common Shares in the event of our liquidation,
which would likely have a material adverse effect on the market value of the
Series A Preferred Shares and our Common Shares. Moreover, without
notice to or consent from the holders of the Series A Preferred Shares or our
Common Shares, we may issue additional series of junior subordinated debt
securities in the future with terms similar to those of our existing Debentures
or enter into other financing agreements that limit our ability to purchase or
to pay dividends or distributions on our capital stock, including the Series A
Preferred Shares and our Common Shares.
The
Prices Of The Series A Preferred Shares And Our Common Shares May Fluctuate
Significantly, And This May Make It Difficult For You To Resell The Series A
Preferred Shares And/Or Common Shares When You Want Or At Prices You Find
Attractive.
There
currently is no market for the Series A Preferred Shares, and we cannot predict
how the Series A Preferred Shares or our Common Shares will trade in the
future. The market value of the Series A Preferred Shares and our
Common Shares will likely continue to fluctuate in response to a number of
factors, most of which are beyond our control.
The
market value of the Series A Preferred Shares and our Common Shares may also be
affected by conditions affecting the financial markets generally, including
price and trading fluctuations. These conditions may result in: (i)
volatility in the level of, and fluctuations in, the market prices of stocks
generally and, in turn, the Series A Preferred Shares and our Common Shares; and
(ii) sales of substantial amounts of the Series A Preferred Shares or our Common
Shares in the market, in each case that could be unrelated or disproportionate
to changes in our operating performance. These broad market
fluctuations may adversely affect the market value of the Series A Preferred
Shares and our Common Shares.
There
May Be Future Sales Of Additional Common Shares Or Preferred Shares Or Other
Dilution Of Our Equity, Which May Adversely Affect The Market Price Of Our
Common Shares Or The Series A Preferred Shares.
We are
not restricted from issuing additional Common Shares or preferred shares,
including any securities that are convertible into or exchangeable for, or that
represent the right to receive, Common Shares or preferred shares or any
substantially similar securities. The per share value of our Common
Shares or the Series A Preferred Shares could decline as a result of sales by us
of a large number of Common Shares or preferred shares or similar securities in
the market or the perception that such sales could occur.
RISKS SPECIFIC TO THE SERIES A
PREFERRED SHARES
An
Active Trading Market For The Series A Preferred Shares Does Not Currently Exist
And May Not Develop.
The
Series A Preferred Shares are not currently listed on any national securities
exchange and we do not anticipate listing the Series A Preferred Shares on a
national securities exchange unless we are requested to do so by the U.S.
Treasury pursuant to the UST Agreement. There can be no assurance
that an active trading market for the Series A Preferred Shares will develop,
or, if developed, that an active trading market will be
maintained. If an active market is not developed or sustained, the
market value and liquidity of the Series A Preferred Shares may be adversely
affected.
The
Series A Preferred Shares May Be Junior In Rights And Preferences To Preferred
Shares We May Issue In The Future.
Subject
to approval by the holders of at least 66 2/3% of the Series A Preferred Shares
then outstanding, voting together as a separate class, we may issue preferred
shares in the future, the terms of which are expressly senior to the Series A
Preferred Shares. The terms of any such future preferred shares
expressly senior to the Series A Preferred Shares may restrict dividend payments
on the Series A Preferred Shares. For example, the terms of any such
senior preferred shares may provide that, unless full dividends for all of our
outstanding preferred shares senior to the Series A Preferred Shares have been
paid for the relevant periods, no dividends will be paid on the Series A
Preferred Shares, and no Series A Preferred Shares may be repurchased, redeemed
or otherwise acquired by us. This could result in dividends on the
Series A Preferred Shares not being paid when contemplated. In
addition, in the event of our liquidation, dissolution or winding-up, the terms
of the senior preferred shares may prohibit us from making payments on the
Series A Preferred Shares until all amounts due to holders of the senior
preferred shares in such circumstances are paid in full.
Holders
Of The Series A Preferred Shares Have Limited Voting Rights.
Until and
unless we are in arrears on our dividend payments on the Series A Preferred
Shares for six quarterly dividend periods, whether or not consecutive, the
holders of the Series A Preferred Shares will have no voting rights except with
respect to certain fundamental changes in the terms of the Series A Preferred
Shares and certain other matters and except as may be required by Ohio
law. If dividends on the Series A Preferred Shares are not paid in
full for six quarterly dividend periods, whether or not consecutive, the total
number of positions on our Board of Directors will automatically increase by two
and the holders of the Series A Preferred Shares, acting as a class with any
other parity securities having similar voting rights, will have the right to
elect two individuals to serve in the new director positions. This
right and the terms of such directors will end when we have paid in full all
accrued and unpaid dividends for all past dividend periods. See the
discussion under the caption
“DESCRIPTION OF SERIES A PREFERRED SHARES – Voting Rights – Election of Two
Directors upon Non-Payment of Dividends.” Based on the
number of current members on our Board of Directors, directors elected by the
holders of the Common Shares would have a controlling majority of the Board and
would be able to take any action approved by them notwithstanding any objection
by the directors elected by the holders of the Series A Preferred
Shares.
If
We Are Unable To Redeem The Series A Preferred Shares After Five Years, The Cost
Of This Capital To Us Will Increase Substantially.
If we are
unable to redeem the Series A Preferred Shares prior to February 15, 2014, the
cost of this capital to us will increase substantially on that date, from 5.0%
per annum to 9.0% per annum. See the discussion under the caption
“DESCRIPTION OF SERIES A
PREFERRED SHARES – Dividends Payable On Series A Preferred
Shares.” Depending on our financial condition at the time,
this increase in the annual dividend rate on the Series A Preferred Shares could
have a material negative effect on our liquidity.
RISK
SPECIFIC TO THE COMMON SHARES
The
Series A Preferred Shares Impact Net Income Available To The Holders Of Our
Common Shares And Earnings Per Common Share, And The Warrant We Issued To The
U.S. Treasury May Be Dilutive To Holders Of Our Common Shares.
The
dividends declared and the accretion of discount on the Series A Preferred
Shares will reduce the net income available to holders of our Common Shares and
our earnings per Common Share. The Series A Preferred Shares will
also receive preferential treatment in the event of liquidation, dissolution or
winding up the Company. Additionally, the ownership interest of the
existing holders of our Common Shares will be diluted to the extent the Warrant
we issued to the U.S. Treasury in conjunction with the sale to the U.S. Treasury
of the Series A Preferred Shares is exercised. The Common Shares
underlying the Warrant represented approximately 2.9% of our Common Shares
outstanding as of March 5, 2009 (including the Common Shares issuable upon
exercise of the Warrant in the total Common Shares
outstanding). Although the U.S. Treasury has agreed not to vote any
of the Common Shares it receives upon exercise of the Warrant, a transferee of
any portion of the Warrant or of any Common Shares acquired upon exercise of the
Warrant is not bound by this restriction.
We are a
financial holding company headquartered in Marietta, Ohio, that offers
diversified financial products and services through our wholly-owned
subsidiaries. Our wholly-owned subsidiaries include Peoples Bank,
National Association (“Peoples Bank”), Peoples Investment Company and PEBO
Capital Trust I. In addition, Peoples Bank also owns Peoples
Insurance Agency, Inc. and PBNA, L.L.C., an asset management
company. Peoples Investment Company also owns Peoples Capital
Corporation, a capital management company. Through our subsidiaries, we
provide a complete line of banking, investment, insurance and trust solutions to
our customers and clients.
Our
primary business activities are conducted through Peoples Bank, a full service
community bank. Peoples Bank was first charted as an Ohio banking
corporation under the name “The Peoples Banking and Trust Company” in Marietta,
Ohio, in 1902 and reorganized as a national banking association under its
current name in 2000. Currently, Peoples Bank operates 47 locations
and 38 ATMs in Ohio, West Virginia and Kentucky.
We were
incorporated under the laws of the State of Ohio, in 1992. Our
principal executive offices are located at 138 Putnam Street, Marietta, Ohio
45750, and our telephone number is (740) 373-3155. Our Internet site
can be accessed at http://www.peoplesbancorp.com. Information
contained on our Internet site does not constitute part of, and is not
incorporated into, this Prospectus.
At
December 31, 2008, we had consolidated total assets of approximately $2.0
billion, total loans of approximately $1.1 billion, total deposits of
approximately $1.4 billion and total shareholders’ equity of approximately $187
million.
RATIOS
OF EARNINGS TO FIXED CHARGES AND PREFERRED SHARE
DIVIDENDS
The
following table shows our ratios of earnings to fixed charges, which includes
our subsidiaries, on a consolidated basis for the periods
indicated:
|
Consolidated
Ratios of Earnings
to
Fixed Charges (1)
|
For
the Twelve Months Ended December 31,
|
|
2008
|
2007
|
2006
|
2005
|
2004
|
|
|
|
|
|
|
|
|
Excluding
deposit interest
|
145.64%
|
204.84%
|
224.89%
|
232.54%
|
232.64%
|
|
|
|
|
|
|
|
|
Including
deposit interest
|
115.87%
|
139.96%
|
152.71%
|
164.23%
|
168.85%
|
|
(1)
|
For
purposes of computing the ratios, earnings consist of income before income
taxes and fixed charges. Fixed charges consist of interest on
borrowings and long-term debt, including/excluding interest on deposits,
and one-third of rental expense, which we believe is representative of the
interest factor.
|
No Series
A Preferred Shares, or any other class of preferred shares, were outstanding
during the years ended December 31, 2008, 2007, 2006, 2005 and 2004 and we did
not pay preferred share dividends during these periods. Therefore,
the ratios of earnings to combined fixed charges and preferred share dividends
are not different from the ratios of earnings to fixed charges presented
above.
We will
not receive any of the proceeds from the sale by the selling securityholders of
the securities offered by this Prospectus or any accompanying prospectus
supplement. If the holder of the Warrant does not elect a cashless
exercise, we may receive proceeds from the exercise of some or all of the
Warrant, which we will use for general corporate purposes. See the
discussion in the section captioned “DESCRIPTION OF WARRANT TO PURCHASE
COMMON SHARES – Exercise of the Warrant.”
Under our
Amended Articles of Incorporation, as amended (the “Articles”), we are
authorized to issue up to 24,000,000 Common Shares and up to 50,000 preferred
shares, no par value per share.
As of
March 5, 2009, we had 10,439,168 Common Shares outstanding and 39,000
Series A Preferred Shares outstanding. See the description of
the Common Shares in the section captioned “DESCRIPTION OF COMMON SHARES”
and the description of the Series A Preferred Shares in the section
captioned “DESCRIPTION OF
SERIES A PREFERRED SHARES.”
The
remaining 11,000 authorized but unissued preferred shares are typically referred
to as “blank check” preferred shares. This term refers to preferred
shares for which the rights and restrictions are determined by the board of
directors of a corporation at the time the preferred shares are
issued. Under our Articles, our Board of Directors has the authority,
without any further shareholder vote or action, to issue the remaining preferred
shares in one or more series, from time to time, with full or limited voting
power, or without voting power, and with all designations, preferences and
relative, participating, optional or other special rights and privileges of, and
qualifications, limitations or restrictions upon, the preferred shares, as may
be provided in the amendment or amendments to our Articles adopted by our Board
of Directors. The authority of our Board of Directors includes, but
is not limited to, the determination or fixing of the following with respect to
preferred shares of any series:
|
·
|
the
division of the preferred shares into series and the designation and
authorized number of preferred shares (up to the number of preferred
shares authorized) in each series;
|
|
·
|
the
dividend rate and whether dividends are to be
cumulative;
|
|
·
|
whether
preferred shares are to be redeemable, and, if so, whether redeemable for
cash, property or rights;
|
|
·
|
the
liquidation rights to which the holders of preferred shares will be
entitled, and the preferences, if
any;
|
|
·
|
whether
the preferred shares will be subject to the operation of a sinking fund,
and, if so, upon what conditions;
|
|
·
|
whether
the preferred shares will be convertible into or exchangeable for shares
of any other class or of any other series of any class of capital stock
and the terms and conditions of the conversion or
exchange;
|
|
·
|
the
voting rights of the preferred shares, which may be full, limited or
denied, except as otherwise required by law and Article SEVENTH of our
Articles; provided that the voting rights of any series of preferred
shares may not be greater than the voting rights of our Common Shares
except to the extent specifically required with respect to any series of
preferred shares which may be designated for issuance to the U.S. Treasury
under the Capital Purchase Program;
|
|
·
|
the
pre-emptive rights, if any, to which the holders of preferred shares will
be entitled and any limitations
thereon;
|
|
·
|
whether
the issuance of any additional shares, or of any shares of any other
series, will be subject to restrictions as to issuance, or as to the
powers, preferences or rights of any of these other series;
and
|
|
·
|
any
other relative, participating, optional or other special rights and
privileges, and qualifications, limitations or
restrictions.
|
The
following is a brief description of the terms of the Series A Preferred Shares
that may be resold by the selling securityholders. This summary does
not purport to be complete in all respects. This description is
subject to and qualified in its entirety by reference to our Articles, including
the Certificate of Amendment by Directors to Articles with respect to the Series
A Preferred Shares, copies of which have been filed with the SEC and are also
available upon request from us.
General
Our Board
of Directors has designated 39,000 of our preferred shares as Series A Preferred
Shares, all of which were issued to the U.S. Treasury in a transaction exempt
from the registration requirements of the Securities Act. The issued
and outstanding Series A Preferred Shares are validly issued, fully paid and
nonassessable.
Dividends
Payable On Series A Preferred Shares
Holders
of Series A Preferred Shares are entitled to receive if, as and when declared by
our Board of Directors or a duly authorized committee of the Board of Directors,
out of assets legally available for payment, cumulative cash dividends at a rate
per annum of 5% per share on a liquidation preference of $1,000 per Series A
Preferred Share from January 30, 2009 to, but excluding, February 15,
2014. From and after February 15, 2014, holders of Series A Preferred
Shares are entitled to receive cumulative cash dividends at a rate per annum of
9% per share on a liquidation preference of $1,000 per Series A Preferred Share
with respect to each Dividend Period thereafter.
Dividends
are payable quarterly in arrears on each February 15, May 15, August 15 and
November 15 (each, a “Dividend Payment Date”), starting with May 15,
2009. If any Dividend Payment Date is not a business day, then the
next business day will be the applicable Dividend Payment Date, and no
additional dividends will accrue as a result of the applicable postponement of
the Dividend Payment Date. The period from and including any Dividend
Payment Date to, but excluding, the next Dividend Payment Date is a “Dividend
Period,” provided that the initial Dividend Period will be the period from and
including January 30, 2009 to, but excluding, May 15,
2009. Dividends payable during any Dividend Period are computed on
the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable on any date prior to the end of a Dividend
Period, and for the initial Dividend Period, will be computed on the basis of a
360-day year consisting of twelve 30-day months, and actual days elapsed over a
30-day month.
Dividends
payable with respect to the Series A Preferred Shares are payable to holders of
record of Series A Preferred Shares on the date that is the 15th
calendar day immediately preceding the applicable Dividend Payment Date or such
other record date as our Board of Directors or any duly authorized committee of
the Board of Directors determines, so long as such record date is not more than
60 nor less than 10 days prior to the applicable Dividend Payment
Date.
If we
determine not to pay any dividend or a full dividend with respect to the Series
A Preferred Shares, we are required to provide written notice to the holders of
Series A Preferred Shares prior to the applicable Dividend Payment
Date.
We are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain adequate capital above
regulatory minimums. The Board of Governors of the Federal Reserve
System (the “Federal Reserve Board”), is authorized to determine, under certain
circumstances relating to the financial condition of a financial holding
company, such as us, that the payment of dividends would be an unsafe or unsound
practice and to prohibit payment of that dividend.
We are
also subject to the contractual restrictions described in the risk factor
captioned “If We Defer
Payments Of Interest On Our Outstanding Junior Subordinated Deferrable Interest
Debentures Or If Certain Defaults Relating To Those Junior Subordinated
Deferrable Interest Debentures Occur, We Will Be Prohibited From Declaring Or
Paying Dividends Or Distributions On, From Redeeming Or Repurchasing, And From
Making Liquidation Payments With Respect To, The Series A Preferred Shares And
Our Common Shares.”
Our
ability to obtain funds for the payment of dividends and for other cash
requirements is largely dependent on the amount of dividends that may be
declared by our subsidiaries. Dividend payments from Peoples Bank are
subject to legal and regulatory limitations, generally based on net income and
retained earnings. The ability of Peoples Bank to pay dividends to us
is also subject to its profitability, financial condition, capital expenditures
and other cash flow requirements and contractual
obligations. Payments of dividends by Peoples Bank may be restricted
at any time at the discretion of the applicable regulatory authorities, if they
deem such dividends to constitute an unsafe and/or an unsound banking
practice.
Priority
of Dividends and Payments on Liquidation
With
respect to the payment of dividends and the amounts to be paid upon liquidation,
the Series A Preferred Shares will rank:
|
·
|
senior
to our Common Shares and any other class or series of stock the terms of
which expressly provide that it ranks junior to the Series A Preferred
Shares as to dividend rights and/or rights on liquidation, dissolution or
winding up of Peoples (“Junior Stock”);
and
|
|
·
|
at
least equally with any other class or series of stock the terms of which
do not expressly provide that it ranks senior or junior to the Series A
Preferred Shares as to dividend rights and/or rights on liquidation,
dissolution or winding up of the Company (“Parity
Stock”).
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So long
as any Series A Preferred Shares remain outstanding, unless all accrued and
unpaid dividends on the Series A Preferred Shares for all prior Dividend Periods
have been paid or are contemporaneously declared and paid in full, no dividend
whatsoever will be paid or declared on our Common Shares, other Junior Stock or
Parity Stock, other than a dividend payable solely in Common
Shares. We and our subsidiaries also may not purchase, redeem or
otherwise acquire for consideration any of our Common Shares, other Junior Stock
or Parity Stock, unless we have declared and paid in full all accrued and unpaid
dividends on the Series A Preferred Shares for all prior Dividend Periods, other
than:
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purchases,
redemptions or other acquisitions of our Common Shares or other Junior
Stock in connection with the administration of our employee benefit plans
in the ordinary course of business (including purchases pursuant to a
publicly announced repurchase plan up to the increase in diluted shares
outstanding resulting from the grant, vesting or exercise of equity-based
compensation to employees) and consistent with past
practice;
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purchases
or other acquisitions by a broker-dealer subsidiary of the Company solely
for the purpose of market-making, stabilization or customer facilitation
transactions in Junior Stock or Parity Stock in the ordinary course of its
business;
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purchases
by a broker-dealer subsidiary of the Company for resale pursuant to an
offering by us of our capital stock that is underwritten by the related
broker-dealer subsidiary;
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any
dividends or distributions of rights or Junior Stock in connection with a
shareholders’ rights plan or redemptions or repurchases of rights pursuant
to any shareholders’ rights plan;
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acquisition
of record ownership of Junior Stock or Parity Stock for the beneficial
ownership of any other person that is not the Company or a subsidiary of
the Company, including as trustee or custodian;
and
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the
exchange or conversion of Junior Stock for or into other Junior Stock or
of Parity Stock for or into other Parity Stock or Junior Stock but only to
the extent that such acquisition is required pursuant to binding
contractual agreements entered into before January 30, 2009 or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for Common Shares.
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If we
repurchase Series A Preferred Shares from a holder other than the U.S. Treasury,
we must offer to repurchase a ratable portion of the Series A Preferred Shares
then held by the U.S. Treasury.
On any
Dividend Payment Date for which full dividends are not paid, or declared and
funds set aside therefor, on the Series A Preferred Shares and any other Parity
Stock, all dividends paid or declared for payment on that Dividend Payment Date
(or, with respect to Parity Stock with a different dividend payment date, on the
applicable dividend date therefor falling within the Dividend Period and related
to the Dividend Payment Date for the Series A Preferred Shares), with respect to
the Series A Preferred Shares and any other Parity Stock, will be declared
ratably among the holders of any such shares who have the right to receive
dividends, in proportion to the respective amounts of the undeclared and unpaid
dividends relating to the Dividend Period.
Subject
to the foregoing, such dividends (payable in cash, securities or other property)
as may be determined by our Board of Directors (or a duly authorized committee
of the Board of Directors) may be declared and paid on our Common Shares and any
other Junior Stock from time to time out of any funds legally available for such
payment, and the holders of Series A Preferred Shares will not be entitled to
participate in any such dividend.
Redemption
The
Series A Preferred Shares may not be redeemed prior to February 15, 2012 unless
we have received aggregate gross proceeds from one or more qualified equity
offerings (as described below) of not less than $9,750,000, which equals 25% of
the aggregate liquidation amount of the Series A Preferred Shares on the date of
issuance to the U.S. Treasury. In such a case, we may redeem the
Series A Preferred Shares, subject to the approval of the Federal Reserve Board,
in whole or in part, upon notice as described below, up to a maximum amount
equal to the aggregate net cash proceeds received by us from such qualified
equity offerings. A “qualified equity offering” is a sale and
issuance for cash by us, to persons other than the Company or our subsidiaries
after January 30, 2009, of perpetual preferred shares, Common Shares or a
combination thereof, that in each case qualify and may be included in our
Tier 1 capital at the time of issuance under the applicable risk-based
capital guidelines of the Federal Reserve Board. Qualified equity
offerings do not include issuances made in consideration for other securities
(e.g., in connection
with a business combination transaction), issuances of trust preferred
securities or other Tier 1 capital, and sales and issuances of Common
Shares and/or perpetual preferred shares made pursuant to agreements or
arrangements entered into, or pursuant to financing plans that were publicly
announced, on or prior to October 13, 2008. After February 15, 2012,
the Series A Preferred Shares may be redeemed at any time, subject to the
approval of the Federal Reserve Board, in whole or in part, subject to notice as
described below.
Notwithstanding
the foregoing, ARRA, which was signed into law on February 17, 2009, provides
that the Secretary of the Treasury shall permit a recipient of funds under TARP,
subject to consultation with the recipient’s appropriate Federal banking agency,
to repay such assistance without regard to whether the recipient has replaced
such funds from any other source or to any waiting period. ARRA
further provides that when the recipient repays such assistance, the Secretary
of the Treasury shall liquidate the Warrant associated with the assistance at
the current market price. While the U.S. Treasury has not yet issued
implementing regulations, it appears that ARRA will permit Peoples, if it so
elects and following consultation with the Federal Reserve Board, to redeem the
Series A Preferred Shares at any time without restriction.
In any
redemption, the redemption price is an amount equal to the per share liquidation
amount plus accrued and unpaid dividends to but excluding the date of
redemption.
The
Series A Preferred Shares will not be subject to any mandatory redemption,
sinking fund or similar provisions. Holders of Series A Preferred
Shares have no right to require the redemption or repurchase of the Series A
Preferred Shares.
If fewer
than all of the outstanding Series A Preferred Shares are to be redeemed, the
Series A Preferred Shares to be redeemed will be selected either pro rata from the holders of
record of Series A Preferred Shares in proportion to the number of Series A
Preferred Shares held by those holders or in such other manner as our Board of
Directors or a duly authorized committee thereof may determine to be fair and
equitable.
We will
mail notice of any redemption of Series A Preferred Shares by first class mail,
postage prepaid, addressed to the holders of record of the Series A Preferred
Shares to be redeemed at their respective last addresses appearing on our
books. This mailing will be at least 30 days and not more than 60
days before the date fixed for redemption. Any notice mailed or
otherwise given as described in this paragraph will be conclusively presumed to
have been duly given, whether or not the holder receives the notice, and failure
duly to give the notice by mail, or any defect in the notice or in the mailing
of the notice, to any holder of Series A Preferred Shares designated for
redemption will not affect the redemption of any other Series A Preferred
Shares. Each notice of redemption will set forth the applicable
redemption date, the redemption price, the place where certificates for Series A
Preferred Shares are to be surrendered for payment of the redemption price, and
the number of Series A Preferred Shares to be redeemed (and, if less than all
Series A Preferred Shares held by the applicable holder, the number of Series A
Preferred Shares to be redeemed from the holder).
Series A
Preferred Shares that are redeemed, repurchased or otherwise acquired by us will
revert to authorized but unissued preferred shares.
We are
also subject to the contractual restrictions described in the risk factor
captioned “If We Defer
Payments Of Interest On Our Outstanding Junior Subordinated Deferrable Interest
Debentures Or If Certain Defaults Relating To Those Junior Subordinated
Deferrable Interest Debentures Occur, We Will Be Prohibited From Declaring Or
Paying Dividends Or Distributions On, From Redeeming Or Repurchasing, And From
Making Liquidation Payments With Respect To, The Series A Preferred Shares And
Our Common Shares.”
Liquidation
Rights
In the
event that we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of Series A Preferred Shares will be entitled to receive an
amount per share equal to the fixed liquidation preference of $1,000 per share,
plus any accrued and unpaid dividends, whether or not declared, to the date of
payment (the “Total Liquidation Amount”). Holders of the Series A
Preferred Shares will be entitled to receive the Total Liquidation Amount out of
our assets that are available for distribution to shareholders, after payment or
provision for payment of our debts and other liabilities but before any
distribution of assets is made to holders of our Common Shares or any other
shares ranking, as to that distribution, junior to the Series A Preferred
Shares.
If our
assets are not sufficient to pay the Total Liquidation Amount in full to all
holders of Series A Preferred Shares and all holders of any shares of
outstanding Parity Stock, the amounts paid to the holders of Series A Preferred
Shares and other shares of Parity Stock will be paid pro rata in accordance with
the respective Total Liquidation Amount for those holders. If the
Total Liquidation Amount per share of Series A Preferred Shares has been paid in
full to all holders of Series A Preferred Shares and the corresponding amounts
payable with respect to other shares of Parity Stock have been paid in full, the
holders of our Common Shares or any other shares ranking, as to such
distribution, junior to the Series A Preferred Shares will be entitled to
receive all of our remaining assets according to their respective rights and
preferences.
For
purposes of the liquidation rights, neither the sale, lease, conveyance,
exchange or transfer of all or substantially all of our property and assets, nor
the consolidation or merger by us with or into any other entity or by another
entity with or into us, will constitute a liquidation, dissolution or winding-up
of our affairs.
We are
also subject to the contractual restrictions described in the risk factor
captioned “If We Defer
Payments Of Interest On Our Outstanding Junior Subordinated Deferrable Interest
Debentures Or If Certain Defaults Relating To Those Junior Subordinated
Deferrable Interest Debentures Occur, We Will Be Prohibited From Declaring Or
Paying Dividends Or Distributions On, From Redeeming Or Repurchasing, And From
Making Liquidation Payments With Respect To, The Series A Preferred Shares And
Our Common Shares.”
Voting
Rights
Except as
indicated below or otherwise required by law, the holders of Series A Preferred
Shares will not have any voting rights.
Election of Two
Directors upon Non-Payment of Dividends
If the
dividends on the Series A Preferred Shares have not been paid for an aggregate
of six quarterly Dividend Periods or more (whether or not consecutive), the
authorized number of directors then constituting our Board of Directors will
automatically be increased by two. Holders of Series A Preferred
Shares, together with the holders of any outstanding Parity Stock with like
voting rights (“Voting Parity Stock”), voting as a single class, will be
entitled to elect the two additional members of our Board of Directors
(“Preferred Stock Directors”) at the next annual meeting (or at a special
meeting called for the purpose of electing the Preferred Stock Directors prior
to the next annual meeting) and at each subsequent annual meeting until all
accrued and unpaid dividends for all past Dividend Periods, including the last
completed Dividend Period, have been paid in full, at which time such right will
terminate with respect to the Series A Preferred Shares, subject to revesting in
the event of each and every subsequent failure to pay dividends in the
circumstances described above. The election of any Preferred Stock
Director is subject to the qualification that the election would not cause us to
violate the corporate governance requirements of NASDAQ (or any other exchange
on which our securities may be listed) that listed companies must have a
majority of independent directors.
Upon the
termination of the right of the holders of Series A Preferred Shares and Voting
Parity Stock to vote for Preferred Stock Directors, as described above, the
Preferred Stock Directors will immediately cease to be qualified as directors,
their term of office will terminate immediately and the number of authorized
directors of Peoples will be reduced by the number of Preferred Stock Directors
that the holders of Series A Preferred Shares and Voting Parity Stock had been
entitled to elect. The holders of a majority of the Series A
Preferred Shares and Voting Parity Stock, voting as a class, may remove any
Preferred Stock Director, with or without cause, and the holders of a majority
of the Series A Preferred Shares and Voting Parity Stock, voting as a class, may
fill any vacancy created by the removal of a Preferred Stock
Director. If the office of a Preferred Stock Director becomes vacant
for any other reason, the remaining Preferred Stock Director may choose a
successor to fill such vacancy for the remainder of the unexpired
term.
Other Voting
Rights
So long
as any Series A Preferred Shares are outstanding, in addition to any other vote
or consent of shareholders required by law or by our Articles, the vote or
consent of the holders of at least 66⅔% of the Series A Preferred Shares at the
time outstanding, voting separately as a single class, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
the purpose, will be necessary for effecting or validating:
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any
amendment or alteration of our Articles to authorize or create or increase
the authorized amount of, or any issuance of, any shares of, or any
securities convertible into or exchangeable or exercisable for shares of,
any class or series of our capital stock ranking senior to the Series A
Preferred Shares with respect to the payment of dividends and/or the
distribution of assets on any liquidation, dissolution or winding up of
the Company;
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any
amendment, alteration or repeal of any provision of our Articles
(including any amendment, alteration or repeal by means of a merger,
consolidation or otherwise, unless no vote on such merger or consolidation
is required by the following paragraph) so as to adversely affect the
rights, preferences, privileges or voting powers of the Series A Preferred
Shares; or
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any
consummation of a binding share exchange or reclassification involving the
Series A Preferred Shares or of a merger or consolidation of Peoples with
another entity, unless: (i) the Series A Preferred Shares remain
outstanding following any such transaction or, if Peoples is not the
surviving entity following such transaction, are converted into or
exchanged for preference securities of the surviving entity or its
ultimate parent; and (ii) such remaining outstanding Series A Preferred
Shares or preference securities have rights, preferences, privileges and
voting powers that are not materially less favorable than the rights,
preferences, privileges or voting powers of the Series A Preferred Shares
immediately prior to the consummation of such transaction, taken as a
whole.
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However,
any increase in the amount of authorized preferred stock, including any increase
in the authorized amount of Series A Preferred Shares necessary to satisfy
preemptive or similar rights granted by the Company to other persons prior to
January 30, 2009, or the creation and issuance, or an increase in the authorized
or issued amount, whether pursuant to pre-emptive or similar rights or
otherwise, of any other series of preferred stock, or any securities convertible
or exchangeable or exercisable for any other series of preferred stock, ranking
equally with and/or junior to Series A Preferred Shares with respect to the
payment of dividends (whether such dividends are cumulative or non-cumulative)
and the distribution of assets upon liquidation, dissolution or winding up of
the Company will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and will not require the affirmative vote or
consent of, the holders of outstanding Series A Preferred Shares.
With
respect to the voting rights of the Series A Preferred Shares, each holder of
Series A Preferred Shares will have one vote for each Series A Preferred Share
on any matter on which holders of Series A Preferred Shares are entitled to
vote.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding Series A Preferred
Shares have been redeemed or called for redemption upon proper notice and
sufficient funds have been set aside by us for the benefit of the holders of
Series A Preferred Shares to effect the redemption.
DESCRIPTION
OF DEPOSITARY SHARES
Pursuant
to the Securities Purchase Agreement, we have agreed, if requested by the U.S.
Treasury, to enter into a depositary arrangement pursuant to which the Series A
Preferred Shares may be deposited and depositary shares, each representing a
fraction of a Series A Preferred Share as specified by the U.S. Treasury, may be
issued. The Series A Preferred Shares would be held by a depositary
(e.g., a bank or trust
company) reasonably acceptable to the U.S. Treasury. If we enter into
such a depository arrangement, the selling securityholders would be offering
depository shares, each representing a fraction of a Series A Preferred Share,
instead of actual whole Series A Preferred Shares. The actual terms
of any depository arrangement would be set forth in a deposit agreement to which
we would be a party, and would be attached as an exhibit to a filing by us that
would be incorporated by reference into this Prospectus.
The
following is a brief description of the terms of the Warrant that may be resold
by the selling securityholders. This summary does not purport to be
complete in all respects. This description is subject to and
qualified in its entirety by reference to the Warrant, a copy of which has been
filed with the SEC and is also available upon request from us.
Common
Shares Subject to the Warrant
The
Warrant is initially exercisable for 313,505 of our Common Shares. If
we complete one or more qualified equity offerings on or prior to December 31,
2009 that result in our receipt of aggregate gross proceeds of not less than
$39,000,000, which is equal to 100% of the aggregate liquidation preference of
the Series A Preferred Shares, the number of Common Shares underlying the
Warrant then held by the selling securityholders will be reduced by 50% to
156,753 Common Shares. The number of Common Shares subject to the
Warrant is subject to the further adjustments described below under the caption
“Adjustments to the
Warrant.”
In
accordance with the terms of the Securities Purchase Agreement, the U.S.
Treasury has represented that it intends to refrain from exercising any voting
rights pertaining to our Common Shares which it may come to own upon exercise of
some or all of the Warrant.
Exercise
of the Warrant
The
initial exercise price applicable to the Warrant is $18.66 per Common Share for
which the Warrant may be exercised. The Warrant may be exercised, in
whole or in part, at any time on or before January 30, 2019 by surrender of the
Warrant and a completed notice of exercise attached as an annex to the Warrant
and the payment of the exercise price for the Common Shares for which the
Warrant is being exercised. The exercise price may be paid either by
the withholding by the Company of such number of Common Shares issuable upon
exercise of the Warrant equal to the value of the aggregate exercise price of
the Warrant determined by reference to the market price of our Common Shares on
the trading day on which the Warrant is exercised or, if agreed to by us and the
warrantholder, by the payment of cash equal to the aggregate exercise
price. If the warrantholder does not exercise the Warrant in its
entirety, the warrantholder will be entitled to receive a new warrant in
substantially identical form for the purchase of that number of Common Shares
equal to the difference between the number of Common Shares subject to the
Warrant and the number of Common Shares as to which the Warrant is
exercised. The exercise price applicable to the Warrant is subject to
the further adjustments described below under the caption “Adjustments to the
Warrant.”
Upon
exercise of the Warrant, certificates for the Common Shares issuable upon
exercise will be issued to the warrantholder. Such Common Shares will
be deemed to be issued as of the close of business on the date on which the
Warrant and the payment of the exercise price are delivered to
Peoples. We will not issue fractional shares upon any exercise of the
Warrant. Instead, the warrantholder will be entitled to a cash
payment equal to the market price of our Common Shares on the last trading day
preceding the exercise of the Warrant less the pro-rated exercise price of the
Warrant for any fractional Common Shares that would have otherwise been issuable
upon exercise date for the Warrant. We will at all times reserve the
aggregate number of Common Shares for which the Warrant may be
exercised. The Common Shares issuable upon exercise of the Warrant
will be listed on NASDAQ.
Rights
As A Shareholder
The
warrantholder will have no rights or privileges of the holders of our Common
Shares, including any voting rights, until (and then only to the extent) the
Warrant has been exercised.
Transferability
The U.S.
Treasury may not transfer a portion of the Warrant with respect to, or exercise
the Warrant for, more than 50% of the Common Shares underlying the Warrant until
the earlier of the date on which we received aggregate gross proceeds from a
qualified equity offering of at least $39,000,000 and December 31,
2009. The Warrant, and all rights under the Warrant, are otherwise
transferable in accordance with applicable securities laws.
Liquidation
Pursuant
to the provisions of ARRA, in the event that we repay all TARP funds received as
a result of our participation in the Capital Purchase Program, the Secretary of
the Treasury will be required to liquidate the Warrant at the current market
price. Currently, the Treasury has not yet issued implementing
regulations regarding such mandatory liquidation provision.
Adjustments
to the Warrant
Adjustments In
Connection With Stock Splits, Subdivisions, Reclassifications And
Combinations
The
number of Common Shares for which the Warrant may be exercised and the exercise
price applicable to the Warrant will be proportionately adjusted in the event we
pay dividends or make distributions of our Common Shares, or subdivide, combine
or reclassify our outstanding Common Shares into a smaller or greater
amount.
Anti-Dilution
Adjustment
Until the
earlier of January 30, 2012 and the date the U.S. Treasury no longer holds the
Warrant (and other than in certain permitted transactions described below, or in
a stock split, subdivision, reclassification or combination as described above),
if we issue any Common Shares (or securities convertible or exchangeable for or
exercisable into Common Shares) without consideration or for consideration that
is less than 90% of the market price of the Common Shares on the last trading
day prior to pricing such Common Shares or convertible securities, then the
number of Common Shares issuable upon exercise of the Warrant and the exercise
price of the Warrant will be adjusted. Permitted transactions that
will not trigger this adjustment include issuances:
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as
consideration for or to fund the acquisition of businesses and/or related
assets;
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in
connection with employee benefit plans and compensation related
arrangements in the ordinary course and consistent with past practice
approved by our Board of Directors;
and
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in
connection with public or broadly marketed offerings and sales of Common
Shares or convertible securities for cash conducted by us or our
affiliates pursuant to registration under the Securities Act, or Rule 144A
thereunder, on a basis consistent with capital-raising transactions by
comparable financial institutions (but not including other private
transactions).
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Other
Distributions
If we
declare any dividends or distributions other than our historical, ordinary cash
dividends (i.e., regular quarterly dividends not in excess of $0.23 per share),
both the number of Common Shares issuable upon exercise of the Warrant and the
exercise price of the Warrant will be adjusted to reflect such dividends or
distributions.
Certain
Repurchases
If we
effect a pro rata
repurchase of Common Shares, both the number of Common Shares issuable upon
exercise of the Warrant and the exercise price of the Warrant will be
adjusted.
Business
Combinations
In the
event of a merger, consolidation, statutory share exchange or similar
transaction involving Peoples and requiring shareholder approval, or a
reclassification of our Common Shares (other than as described above under the
caption “Adjustments In
Connection With Stock Splits, Subdivisions, Reclassifications And
Combinations”),
the warrantholders’ right to receive our Common Shares upon exercise of the
Warrant will be converted into the right to exercise the Warrant for the
transaction consideration that would have been payable to the warrantholder with
respect to the Common Shares for which the Warrant may be exercised, as if the
Warrant had been exercised prior to such merger, consolidation or similar
transaction, or reclassification.
Registered
Sales of the Warrant
The
holders agree to sell the Warrant or any portion thereof under the Registration
Statement of which this Prospectus is a part only beginning 30 days after
notifying us of any such sale, during which 30-day period the U.S. Treasury and
all holders of the Warrant shall take reasonable steps to agree to revisions to
the Warrant to permit a public distribution of the Warrant, including entering
into a warrant agreement and appointing a warrant agent.
DESCRIPTION OF COMMON SHARES
The
following is a brief description of the terms of our Common
Shares. This summary does not purport to be complete in all
respects. This description is subject to and qualified in its
entirety by reference to the relevant provisions of Ohio law, our Articles and
our Code of Regulations, as amended (the “Regulations”), copies of which have
been filed with the SEC and are also available upon request from
us.
General
Under our
Articles, we are authorized to issue up to 24,000,000 Common
Shares. As of March 5, 2009, 10,439,168 Common Shares were
outstanding, 565,151 Common Shares were held by us as treasury shares, and
360,467 Common Shares were reserved for issuance upon the exercise of
outstanding stock options and stock appreciation rights and will be issued, to
the extent of the exercise of any of such stock options, and stock appreciation
rights, from Common Shares held in treasury to the extent available and
otherwise from authorized but unissued Common Shares. The Common
Shares issuable upon exercise of the Warrant, in whole or in part, will be
issued by us from Common Shares held in treasury to the extent available and
otherwise from authorized but unissued Common Shares.
Liquidation
Rights
Each
Common Share entitles the holder thereof to share ratably in our net assets
legally available for distribution to shareholders in the event of our
liquidation, dissolution or winding up, after payment in full of all amounts
required to be paid to creditors or provision for such payment, subject to the
rights of the holders of the Series A Preferred Shares described above under the
captions “DESCRIPTION OF SERIES
A PREFERRED SHARES – Priority of Dividends and Payments on Liquidation”
and “DESCRIPTION OF SERIES A
PREFERRED SHARES – Liquidation Rights.”
We are
also subject to the contractual restrictions described in the risk factor
captioned “If We Defer
Payments Of Interest On Our Outstanding Junior Subordinated Deferrable Interest
Debentures Or If Certain Defaults Relating To Those Junior Subordinated
Deferrable Interest Debentures Occur, We Will Be Prohibited From Declaring Or
Paying Dividends Or Distributions On, From Redeeming Or Repurchasing, And From
Making Liquidation Payments With Respect To, The Series A Preferred Shares And
Our Common Shares.”
Subscription, Conversion and
Redemption Rights
The
holders of Common Shares do not have subscription or conversion rights, and
there are no mandatory redemption provisions applicable to the Common
Shares.
Dividends
As an
Ohio corporation, we may, in the discretion of our Board of Directors, generally
pay dividends to our shareholders out of surplus, however created, but must
notify the shareholders if a dividend is paid out of capital
surplus. Our ability to obtain funds for the payment of dividends and
for other cash requirements largely depends on the amount of dividends that may
be declared and paid by our subsidiaries. Thus, as a practical
matter, any restrictions on the ability of our subsidiaries to pay dividends
will act as restrictions on the amount of funds available for payment of
dividends by us.
Dividend
payments from Peoples Bank are subject to legal and regulatory limitations,
generally based on net income and retained earnings. The ability of
Peoples Bank to pay dividends to us is also subject to its profitability,
financial condition, capital expenditures and other cash flow requirements and
contractual obligations. Payments of dividends by Peoples Bank may be
restricted at any time at the discretion of the applicable regulatory
authorities, if they deem such dividends to constitute an unsafe and/or an
unsound banking practice.
We are
also subject to Federal Reserve Board policies that may, in certain
circumstances, limit our ability to pay dividends. These policies
require, among other things, that we maintain adequate capital above regulatory
minimums. The Federal Reserve Board may also determine, under certain
circumstances relating to our financial condition, that the payment of dividends
would be an unsafe or unsound practice and prohibit the payment
thereof. In addition, the Federal Reserve Board expects us to serve
as a source of strength to Peoples Bank, which may require us to retain capital
for further investments in Peoples Bank, rather than use those funds for
dividends for our shareholders.
The
dividend rights of holders of our Common Shares are also qualified and subject
to the dividend rights of holders of Series A Preferred Shares described
under the caption “DESCRIPTION
OF SERIES A PREFERRED SHARES – Priority of Dividends and Payments on
Liquidation.” In addition, the Securities Purchase Agreement
contains limitations on the payment of dividends on the Common Shares from and
after January 30, 2009 (including with respect to the payment of cash dividends
in excess of $0.23 per share, which is the amount of the last quarterly cash
dividend declared by us prior to October 14, 2008). Prior to the
earlier of: (i) January 30, 2012; and (ii) the date on which the
Series A Preferred Shares have been redeemed in whole or the U.S. Treasury
has transferred the Series A Preferred Shares to unaffiliated third
parties, we may not declare or pay any dividend or make any distribution on our
Common Shares other than:
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regular
quarterly cash dividends not exceeding $0.23 per share;
and
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dividends
payable solely in our Common
Shares,
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without
the consent of the U.S. Treasury.
We are
also subject to the contractual restrictions described in the risk factor
captioned “If We Defer
Payments Of Interest On Our Outstanding Junior Subordinated Deferrable Interest
Debentures Or If Certain Defaults Relating To Those Junior Subordinated
Deferrable Interest Debentures Occur, We Will Be Prohibited From Declaring Or
Paying Dividends Or Distributions On, From Redeeming Or Repurchasing, And From
Making Liquidation Payments With Respect To, The Series A Preferred Shares And
Our Common Shares.”
Number
of Directors
Our
Regulations provide for our Board of Directors to consist of not less than nine
and not more than 15 directors. The number of Peoples directors was
last fixed at 12 directors and currently consists of 12 directors.
Classification of the Board of
Directors
Our
Regulations provide for our Board of Directors to be divided into three classes,
with the term of office of one class expiring each year.
Nomination of
Directors
Shareholders
who wish to nominate an individual for election as a director at an annual
meeting of the shareholders of must comply with our Code of Regulations
regarding shareholder nominations. Shareholder nominations must be
made in writing and delivered or mailed to our Corporate Secretary not less than
14 days or more than 50 days prior to any meeting of shareholders called for the
election of directors. However, if less than 21 days’ notice of the
meeting is given to the shareholders, the nomination must be mailed or delivered
to the Corporate Secretary not later than the close of business on the seventh
day following the day on which the notice of the meeting was mailed to the
shareholders. Each nomination must contain the following information
to the extent known by the nominating shareholder:
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the
name, age, business address and residence address of each proposed
nominee;
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the
principal occupation or employment of each proposed
nominee;
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the
number of common shares beneficially owned by each proposed nominee and by
the nominating shareholder; and
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any
other information required to be disclosed with respect to a nominee for
election as a director under the SEC’s proxy
rules.
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Each
nomination must be accompanied by the written consent of the proposed nominee to
serve as a director of if elected. Nominations not made in accordance
with the above requirements and our Regulations will not be
considered.
Voting Rights
Each
holder of Common Shares has the right to cast one vote for each Common Share
owned on all matters submitted to a vote of shareholders. No holder
of Common Shares is entitled to the right of cumulative voting in the election
of directors. The Articles provide that no holder of shares of any
class of our capital stock is entitled to preemptive rights.
Special Voting
Requirements
Our
Articles contain special voting requirements that may be deemed to have
anti-takeover effects. Specifically, pursuant to Article Seventh of
the Articles, if any three members of our Board of Directors affirmatively votes
against any of the following matters, the affirmative vote of the holders of
shares entitling them to exercise not less than 75% of the voting power of
Peoples entitled to vote thereon shall be required to adopt:
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a
proposed amendment to our Articles;
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proposed
new regulations or an alteration, amendment or repeal of our
regulations;
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an
agreement of merger or consolidation providing for the merger or
consolidation of Peoples with or into one or more other
corporations;
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a
proposed combination or majority share acquisition involving the issuance
of shares of Peoples and requiring shareholder
approval;
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a
proposal to sell, lease, exchange, transfer or otherwise dispose of all or
substantially all of the property and assets of
Peoples;
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a
proposed dissolution of Peoples; or
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a
proposal to fix or change the number of directors by action of the
shareholders.
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The
written objection of a director to any such matter submitted to the President or
Corporate Secretary of Peoples not less than three days before the meeting of
the shareholders at which any such matter is to be considered will be deemed to
be an affirmative vote by such director against such matter.
On
January 30, 2009, we issued 39,000 Series A Preferred Shares and the Warrant to
the U.S. Treasury, which is the initial selling securityholder under this
Prospectus, in a transaction exempt from the registration requirements of the
Securities Act. The U.S. Treasury, or its successors, including
transferees, may from time to time offer and sell, pursuant to this Prospectus
or a supplement to this Prospectus, any or all of the securities they
own. The securities to be offered under this Prospectus for the
account of the selling securityholders are:
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39,000 Series
A Preferred Shares, representing beneficial ownership of 100% of the
Series A Preferred Shares outstanding on the date of this Prospectus or,
in the event the U.S. Treasury requests that we deposit the Series A
Preferred Shares with a depositary in accordance with the Securities
Purchase Agreement, depositary shares evidencing fractional share
interests in such Series A Preferred
Shares;
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the
Warrant to purchase 313,505 of our Common Shares;
and
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313,505
of our Common Shares issuable upon full exercise of the Warrant, which
Common Shares, if issued, would represent beneficial ownership of
approximately 2.9% of our Common Shares outstanding as of March 5, 2009
(including the Common Shares issuable upon exercise of the Warrant in the
total number of Common Shares
outstanding).
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For
purposes of this Prospectus, we have assumed that, after completion of the
offering, none of the securities covered by this Prospectus will be held by the
selling securityholders or affiliates thereof.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. As of the
date hereof, we are not aware that anyone other than the U.S. Treasury has any
voting and investment power with respect to the securities being offered by this
Prospectus.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any
or all of the securities offered by this Prospectus. Because the
selling securityholders may offer all or some of the securities pursuant to this
offering, and because we are unaware of any of the securities being subject to
any agreement, arrangement or understanding, we cannot estimate the number of
the securities that will be held by the selling securityholders after completion
of the offering.
Other
than with respect to the acquisition of the securities, the U.S. Treasury has
not had a material relationship with us.
Information
about the selling securityholders may change over time, and changed information
will be set forth in supplements to this Prospectus if and when
necessary.
The
selling securityholders and their successors, including their transferees, may
sell the securities directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling securityholders or the purchasers of
the securities. These discounts, concessions or commissions as to any
particular underwriter, broker-dealer or agent may be in excess of those
customary in the types of transactions involved.
The
securities may be sold in one or more public or private transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale or at negotiated prices. These sales
may be effected in transactions, which may involve crosses or block
transactions:
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on
any national securities exchange or quotation service on which the
Series A Preferred Shares or the Common Shares may be listed or
quoted at the time of sale, including, as of the date of this Prospectus,
NASDAQ, in the case of the Common
Shares;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
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through
the writing of options, whether the options are listed on an options
exchange or otherwise.
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In
addition, any securities that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
In
connection with the sale of the securities or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers, which
may, in turn, engage in short sales of the Common Shares issuable upon exercise
of the Warrant in the course of hedging the positions they
assume. The selling securityholders may also sell short the Common
Shares issuable upon exercise of the Warrant and deliver Common Shares to close
out short positions, or loan or pledge the Series A Preferred Shares or the
Common Shares issuable upon exercise of the Warrant to broker-dealers that in
turn may sell these securities.
The
aggregate proceeds to the selling securityholders from the sale of the
securities will be the purchase price of the securities less discounts and
commissions, if any.
In
effecting sales, broker-dealers or agents engaged by the selling securityholders
may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
securityholders in amounts to be negotiated immediately prior to the
sale.
In
offering the securities covered by this Prospectus, the selling securityholders
and any broker-dealers who execute sales for the selling securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by
the selling securityholders and the compensation of any broker-dealer may be
deemed to be underwriting discounts and commissions. Selling
securityholders who are “underwriters” within the meaning of
Section 2(a)(11) of the Securities Act will be subject to the prospectus
delivery requirements of the Securities Act and may be subject to certain
statutory and regulatory liabilities, including liabilities imposed pursuant to
Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange
Act.
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states, the
securities may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this Prospectus and to the activities of
the selling securityholders. In addition, we will make copies of this
Prospectus available to the selling securityholders for the purpose of
satisfying the prospectus delivery requirements of the Securities Act, which may
include delivery through the facilities of NASDAQ pursuant to Rule 153 under the
Securities Act.
At the
time a particular offer of securities is made, if required, a prospectus
supplement will set forth the number and type of securities being offered and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
We do not
intend to apply for listing of the Series A Preferred Shares or the
Warrant on any national securities exchange unless requested by the U.S.
Treasury. No assurance can be given as to the liquidity of the
trading market, if any, for the Series A Preferred Shares. Our
Common Shares are listed on NASDAQ and trade under the symbol
“PEBO”.
We have
agreed to indemnify the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act. We
have also agreed, among other things, to bear substantially all expenses
(other than underwriting discounts and selling commissions) in connection with
the registration and sale of the securities covered by this
Prospectus.
The
validity of the securities being offered by this Prospectus is being passed upon
for Peoples by the law firm of Vorys, Sater, Seymour and Pease LLP, Columbus,
Ohio.
The
consolidated financial statements of Peoples appearing in Peoples’ Annual
Reports (Form 10-K) for the year ended December 31, 2008 have been audited by
Ernst & Young LLP, independent registered public accounting firm, as set
forth in their report thereon, included therein and incorporated herein by
reference. Such consolidated financial statements as of December 31,
2008 are incorporated herein by reference in reliance upon such reports given on
the authority of such firm as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the expenses payable by Peoples in connection with
the sale of the securities being registered:
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Registration
Fee – Securities and Exchange Commission
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$1,762.61
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Legal
Fees and Expenses
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$15,000.00
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Accounting
Fees and Expenses
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$10,000.00
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Printing
Expenses and Postage
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$1,000.00
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Miscellaneous
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$5,000.00
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Total
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$32,762.61
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All of
the above amounts, other than the SEC registration fee, are estimates
only.
Item
15. Indemnification of Directors and
Officers.
(a) Ohio
General Corporation Law
Section 1701.13(E)
of the Ohio Revised Code grants corporations broad powers to indemnify
directors, officers, employees and agents. Section 1701.13(E)
provides:
(E) (1) A
corporation may indemnify or agree to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, other than an action by or in the right of the corporation, by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney’s fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A
corporation may indemnify or agree to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending, or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney’s fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any of the
following:
(a) Any
claim, issue, or matter as to which such person is adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation
unless, and only to the extent that, the court of common pleas or the court in
which such action or suit was brought determines, upon application, that,
despite the adjudication of liability, but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court shall deem
proper;
(b) Any
action or suit in which the only liability asserted against a director is
pursuant to section 1701.95 of the Revised Code.
(3) To
the extent that a director, trustee, officer, employee, member, manager, or
agent has been successful on the merits or otherwise in defense of any action,
suit, or proceeding referred to in division (E)(1) or (2) of this section,
or in defense of any claim, issue, or matter therein, he shall be indemnified
against expenses, including attorney’s fees, actually and reasonably incurred by
him in connection with the action, suit, or proceeding.
(4) Any
indemnification under division (E)(1) or (2) of this section, unless
ordered by a court, shall be made by the corporation only as authorized in the
specific case, upon a determination that indemnification of the director,
trustee, officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
division (E)(1) or (2) of this section. Such determination shall
be made as follows:
(a) By
a majority vote of a quorum consisting of directors of the indemnifying
corporation who were not and are not parties to or threatened with the action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section;
(b) If
the quorum described in division (E)(4)(a) of this section is not obtainable or
if a majority vote of a quorum of disinterested directors so directs, in a
written opinion by independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be indemnified within
the past five years;
(d) By
the court of common pleas or the court in which the action, suit, or proceeding
referred to in division (E)(1) or (2) of this section was
brought.
Any
determination made by the disinterested directors under division (E)(4)(a) or by
independent legal counsel under division (E)(4)(b) of this section shall be
promptly communicated to the person who threatened or brought the action or suit
by or in the right of the corporation under division (E)(2) of this section,
and, within ten days after receipt of such notification, such person shall have
the right to petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
(5) (a) Unless
at the time of a director’s act or omission that is the subject of an action,
suit, or proceeding referred to in division (E)(1) or (2) of this section,
the articles or the regulations of a corporation state, by specific reference to
this division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director in an
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney’s fees, incurred by a director in defending the action, suit,
or proceeding shall be paid by the corporation as they are incurred, in advance
of the final disposition of the action, suit, or proceeding, upon receipt of an
undertaking by or on behalf of the director in which he agrees to do both of the
following:
(i) Repay
such amount if it is proved by clear and convincing evidence in a court of
competent jurisdiction that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the corporation or
undertaken with reckless disregard for the best interests of the
corporation;
(ii) Reasonably
cooperate with the corporation concerning the action, suit, or
proceeding.
(b) Expenses,
including attorney’s fees, incurred by a director, trustee, officer, employee,
member, manager, or agent in defending any action, suit, or proceeding referred
to in division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final disposition of the
action, suit, or proceeding, as authorized by the directors in the specific
case, upon receipt of an undertaking by or on behalf of the director, trustee,
officer, employee, member, manager, or agent to repay such amount, if it
ultimately is determined that he is not entitled to be indemnified by the
corporation.
(6) The
indemnification authorized by this section shall not be exclusive of, and shall
be in addition to, any other rights granted to those seeking indemnification
under the articles, the regulations, any agreement, a vote of shareholders or
disinterested directors, or otherwise, both as to action in their official
capacities and as to action in another capacity while holding their offices or
positions, and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a
person.
(7) A
corporation may purchase and maintain insurance or furnish similar protection,
including, but not limited to, trust funds, letters of credit, or
self-insurance, on behalf of or for any person who is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
this section. Insurance may be purchased from or maintained with a person in
which the corporation has a financial interest.
(8) The
authority of a corporation to indemnify persons pursuant to division (E)(1) or
(2) of this section does not limit the payment of expenses as they are
incurred, indemnification, insurance, or other protection that may be provided
pursuant to divisions (E)(5), (6), and (7) of this
section. Divisions (E)(1) and (2) of this section do not create
any obligation to repay or return payments made by the corporation pursuant to
division (E)(5), (6), or (7).
(9) As
used in division (E) of this section, “corporation” includes all
constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as he would
if he had served the new or surviving corporation in the same
capacity.
(b) Peoples
Bancorp Inc. Code of Regulations
Our Code
of Regulations contains the following provisions with respect to the
indemnification of directors and officers:
ARTICLE
FIVE
INDEMNIFICATION
AND INSURANCE
Section
5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action threatened or instituted by or in the
right of the corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee or agent of
another corporation (domestic or foreign, nonprofit or for profit), partnership,
joint venture, trust or other enterprise, against expenses (including, without
limitation, attorneys’ fees, filing fees, court reporters’ fees and transcript
costs), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, he had no reasonable cause to believe his conduct was unlawful. A
person claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for indemnification, to
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal matter, to have had no reasonable cause to believe his conduct was
unlawful, and the termination of any action, suit or proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section
5.02. Court-Approved Indemnification. Anything
contained in the Regulations or elsewhere to the contrary notwithstanding:
(A) the
corporation shall not indemnify any officer or director of the corporation who
was a party to any completed action or suit instituted by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee or agent of another corporation (domestic or foreign, nonprofit or for
profit), partnership, joint venture, trust or other enterprise, in respect of
any claim, issue or matter asserted in such action or suit as to which he shall
have been adjudged to be liable for acting with reckless disregard for the best
interests of the corporation or misconduct (other than negligence) in the
performance of his duty to the corporation unless and only to the extent that
the Court of Common Pleas of Washington County, Ohio or the court in which such
action or suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances of the case, he
is fairly and reasonably entitled to such indemnity as such Court of Common
Pleas or such other court shall deem proper; and
(B) the
corporation shall promptly make any such unpaid indemnification as is determined
by a court to be proper as contemplated by this Section 5.02.
Section
5.03. Indemnification for Expenses. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding,
to the extent that an officer or director of the corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to in Section 5.01, or in defense of any claim, issue or matter therein, he
shall be promptly indemnified by the corporation against expenses (including,
without limitation, attorneys’ fees, filing fees, court reporters’ fees and
transcript costs) actually and reasonably incurred by him in connection
therewith.
Section
5.04. Determination Required. Any indemnification
required under Section 5.01 and not precluded under Section 5.02 shall be made
by the corporation only upon a determination that such indemnification of the
officer or director is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum consisting of
directors of the corporation who were not and are not parties to, or threatened
with, any such action, suit or proceeding, or (B) if such a quorum is not
obtainable or if a majority of a quorum of disinterested directors so directs,
in a written opinion by independent legal counsel other than an attorney, or a
firm having associated with it an attorney, who has been retained by or who has
performed services for the corporation, or any person to be indemnified, within
the past five years, or (C) by the shareholders, or (D) by the Court of Common
Pleas of Washington County, Ohio or (if the corporation is a party thereto) the
court in which such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this Section 5.04 at
any time [including, without limitation, any time before, during or after the
time when any such determination may be requested of, be under consideration by
or have been denied or disregarded by the disinterested directors under division
(A) or by independent legal counsel under division (B) or by the shareholders
under division (C) of this Section 5.04]; and no failure for any reason to make
any such determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under division
(C) of this Section 5.04 shall be evidence in rebuttal of the presumption
recited in Section 5.01. Any determination made by the disinterested directors
under division (A) or by independent legal counsel under division (B) of this
Section 5.04 to make indemnification in respect of any claim, issue or matter
asserted in an action or suit threatened or brought by or in the right of the
corporation shall be promptly communicated to the person who threatened or
brought such action or suit, and within ten (10) days after receipt of such
notification such person shall have the right to petition the Court of Common
Pleas of Washington County, Ohio or the court in which such action or suit was
brought, if any, to review the reasonableness of such
determination.
Section
5.05. Advances for Expenses. Expenses (including,
without limitation, attorneys’ fees, filing fees, court reporters’ fees and
transcript costs) incurred in defending any action, suit or proceeding referred
to in Section 5.01 shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding to or on behalf of the officer or
director promptly as such expenses are incurred by him, but only if such officer
or director shall first agree, in writing, to repay all amounts so paid in
respect of any claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on the merits
or otherwise:
(A) if
it shall ultimately be determined as provided in Section 5.04 that he is not
entitled to be indemnified by the corporation as provided under Section 5.01;
or
(B) if,
in respect of any claim, issue or other matter asserted by or in the right of
the corporation in such action or suit, he shall have been adjudged to be liable
for acting with reckless disregard for the best interests of the corporation or
misconduct (other than negligence) in the performance of his duty to the
corporation, unless and only to the extent that the Court of Common Pleas of
Washington County, Ohio or the court in which such action or suit was brought
shall determine upon application that, despite such adjudication of liability,
and in view of all the circumstances, he is fairly and reasonably entitled to
all or part of such indemnification.
Section
5.06. Article Five Not Exclusive. The
indemnification provided by this Article Five shall not be exclusive of, and
shall be in addition to, any other rights to which any person seeking
indemnification may be entitled under the Articles or the Regulations or any
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be an
officer or director of the corporation and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
Section
5.07. Insurance. The corporation may purchase and
maintain insurance or furnish similar protection, including but not limited to
trust funds, letters of credit, or self-insurance, on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, trustee, officer,
employee, or agent of another corporation (domestic or foreign, nonprofit or for
profit), partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
obligation or the power to indemnify him against such liability under the
provisions of this Article Five. Insurance may be purchased from or maintained
with a person in which the corporation has a financial interest.
Section
5.08. Certain Definitions. For purposes of this
Article Five, and as examples and not by way of limitation:
(A) A
person claiming indemnification under this Article Five shall be deemed to have
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 5.01, or in defense of any claim, issue or
other matter therein, if such action, suit or proceeding shall be terminated as
to such person, with or without prejudice, without the entry of a judgment or
order against him, without a conviction of him, without the imposition of a fine
upon him and without his payment or agreement to pay any amount in settlement
thereof (whether or not any such termination is based upon a judicial or other
determination of the lack of merit of the claims made against him or otherwise
results in a vindication of him); and
(B) References
to an “other enterprise” shall include employee benefit plans; references to a
“fine” shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the
corporation” shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interests of the corporation” within the meaning
of that term as used in this Article Five.
Section
5.09. Venue. Any action, suit or proceeding to
determine a claim for indemnification under this Article Five may be maintained
by the person claiming such indemnification, or by the corporation, in the Court
of Common Pleas of Washington County, Ohio. The corporation and (by
claiming such indemnification) each such person consent to the exercise of
jurisdiction over its or his person by the Court of Common Pleas of Washington
County, Ohio in any such action, suit or proceeding.
Peoples
has purchased insurance coverage under policies that insure directors and
officers against certain liabilities that might be incurred by them in their
capacities as directors and officers.
The
exhibits filed (unless otherwise noted) as a part of this Registration Statement
are as follows:
|
Exhibit
Number
|
Description
|
|
4.1
|
Amended
Articles of Incorporation of Peoples Bancorp Inc. (as filed with the Ohio
Secretary of State on May 3, 1993) (incorporated herein by reference to
Exhibit 3(a) to the Registration Statement of Peoples on Form 8-B filed
July 20, 1993 (File No. 0-16772)).
|
|
|
|
|
4.2
|
Certificate
of Amendment to the Amended Articles of Incorporation of Peoples Bancorp
Inc. (as filed with the Ohio Secretary of State on April 22, 1994)
(incorporated herein by reference to Exhibit 3(a)(2) to Peoples’ Annual
Report on Form 10-K for the fiscal year ended December 31, 1997 (File No.
0-16772) (“Peoples’ 1997 Form 10-K”)).
|
|
|
|
|
4.3
|
Certificate
of Amendment to the Amended Articles of Incorporation of Peoples Bancorp
Inc. (as filed with the Ohio Secretary of State on April 9, 1996)
(incorporated herein by reference to Exhibit 3(a)(3) to Peoples’ 1997 Form
10-K).
|
|
|
|
|
4.4
|
Certificate
of Amendment to the Amended Articles of Incorporation of Peoples Bancorp
Inc. (as filed with the Ohio Secretary of State on April 23, 2003)
(incorporated herein by reference to Exhibit 3(a) to Peoples’ Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2003 (File
No. 0-16772) (“Peoples’ March 31, 2003 Form 10-Q”)).
|
|
|
|
|
4.5
|
Certificate
of Amendment by Shareholders or Members to the Amended Articles of
Incorporation of Peoples Bancorp Inc. (as filed with the Ohio Secretary of
State on January 22, 2009) (incorporated herein by reference to
Exhibit 3.1 to Peoples’ Current Report on Form 8-K dated January 22,
2009 and filed on January 23, 2009) (File No.
0-16772)).
|
|
|
|
|
4.6
|
Certificate
of Amendment by Directors or Incorporators to Articles filed with the
Secretary of State of the State of Ohio on January 28, 2009, evidencing
adoption of amendments by the Board of Directors of Peoples Bancorp Inc.
to Article FOURTH of Amended Articles of Incorporation to establish
express terms of Fixed Rate Cumulative Perpetual Preferred Shares, Series
A, each without par value, of Peoples Bancorp Inc. (incorporated herein by
reference to Exhibit 3.1 to Peoples’ Current Report on Form 8-K dated
and filed on February 2, 2009 (File No. 0-16772) (“Peoples’ February 2,
2009 Form 8-K”)).
|
|
|
|
|
4.7
|
Code
of Regulations of Peoples Bancorp Inc. (incorporated herein by reference
to Exhibit 3(b) to Peoples’ Registration Statement on Form 8-B filed July
20, 1993 (File No. 0-16772)).
|
|
|
|
|
4.8
|
Certificate
of Amendment to the Code of Regulations of Peoples Bancorp Inc. regarding
adoption of amendments to Sections 1.03, 1.04, 1.05, 1.06, 1.08, 1.10,
2.03(C), 2.07, 2.08, 2.10 and 6.02 of the Code of Regulations of Peoples
Bancorp Inc. by shareholders on April 10, 2003 (incorporated herein by
reference to Exhibit 3(c) to Peoples’ March 31, 2003 Form
10-Q).
|
|
|
|
|
4.9
|
Certificate
of Amendment to the Code of Regulations of Peoples Bancorp Inc. regarding
adoption of amendments to Sections 3.01, 3.03, 3.04, 3.05, 3.06, 3.07,
3.08 and 3.11 of the Code of Regulations of Peoples Bancorp Inc. by
shareholders on April 8, 2004 (incorporated herein by reference to
Exhibit 3(a) to Peoples’ Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2004 (File No. 0-16772)).
|
|
|
|
|
4.10
|
Certificate
regarding adoption of amendments to Sections 2.06, 2.07, 3.01 and 3.04 of
Peoples Bancorp Inc.’s Code of Regulations by the shareholders on April
13, 2006 (incorporated herein by reference to Exhibit 3.1 to Peoples’
Current Report on Form 8-K dated and filed on April 14, 2006 (File No.
0-16772)).
|
|
|
|
|
4.11
|
Indenture,
dated as of April 20, 1999, between Peoples Bancorp Inc. and Wilmington
Trust Company, as Debenture Trustee, relating to Junior Subordinated
Deferrable Interest Debentures (incorporated herein by reference to
Exhibit 4.1 to the Registration Statement on Form S-4 filed on June 22,
1999 by Peoples Bancorp Inc. and PEBO Capital Trust I (Registration No.
333-81251)).
|
|
Exhibit
Number
|
Description
|
|
4.12
|
Amended
and Restated Declaration of Trust of PEBO Capital Trust I, dated and
effective as of April 20, 1999 (incorporated herein by reference to
Exhibit 4.5 to the Registration Statement on Form S-4 filed on June 22,
1999 by Peoples Bancorp Inc. and PEBO Capital Trust I (Registration No.
333-81251)).
|
|
|
|
|
4.13
|
Series
B Capital Securities Guarantee Agreement, dated as of September 23,
1999, between Peoples Bancorp Inc. and Wilmington Trust Company, as
Guarantee Trustee, relating to Series B 8.62% Capital Securities
(incorporated herein by reference to Exhibit 4(i) to Peoples’ Annual
Report on Form 10-K for the fiscal year ended December 31, 1999 (File No.
0-16772)).
|
|
|
|
|
4.14
|
Letter
Agreement, dated January 30, 2009, including Securities Purchase Agreement
– Standard Terms attached thereto as Exhibit A, between Peoples Bancorp
Inc. and the United States Department of the Treasury (incorporated herein
by reference to Exhibit 10.1 to Peoples’ February 2, 2009 Form 8-K) [NOTE:
Annex A to Securities Purchase Agreement is not included therewith; filed
as Exhibit 3.1 to Peoples’ February 2, 2009 Form 8-K and incorporated
by reference at Exhibit 4.6 to this Registration
Statement].
|
|
|
|
|
4.15
|
Warrant
to purchase 313,505 Shares of Common Stock (common shares) of Peoples
Bancorp Inc., issued to the United States Department of the Treasury on
January 30, 2009 (incorporated herein by reference to Exhibit 4.1 to
Peoples’ February 2, 2009 Form 8-K).
|
|
|
|
|
5.1
|
Opinion
of Vorys, Sater, Seymour and Pease LLP as to the validity of the
securities to be registered (filed herewith).
|
|
|
|
|
12.1
|
Statement
of ratios of earnings to fixed charges (filed
herewith).
|
|
|
|
|
23.1
|
Consent
of Ernst & Young LLP (filed herewith).
|
|
|
|
|
23.2
|
Consent
of Vorys, Sater, Seymour and Pease LLP is contained in
Exhibit 5.1
|
|
|
|
|
24
|
Powers
of Attorney (filed herewith).
|
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
1. To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs (i), (ii) and (iii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
2. That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
4. That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(a) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(b) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
5. That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(a) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(b) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(c) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(d) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
6. That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefits plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
7. Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Marietta, State of Ohio, on March 6, 2009.
|
|
|
|
PEOPLES
BANCORP INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/
MARK F. BRADLEY |
|
|
|
Name:
|
Mark
F. Bradley
|
|
|
|
Title:
|
President
and Chief Executive
Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on March 6,
2009.
|
Signature
|
|
Title
|
|
|
|
|
|
/s/ Mark F.
Bradley
|
|
President,
Chief Executive Officer and Director
|
|
Mark
F. Bradley
|
|
|
|
|
|
|
|
/s/ Edward G.
Sloane
|
|
Executive
Vice President, Chief Financial Officer and Treasurer
|
|
Edward
G. Sloane
|
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
/s/ Carl L. Baker,
Jr. *
|
|
Director
|
|
Carl
L. Baker, Jr.
|
|
|
|
|
|
|
|
/s/ George W.
Broughton *
|
|
Director
|
|
George
W. Broughton
|
|
|
|
|
|
|
|
/s/ Frank L.
Christy *
|
|
Director
|
|
Frank
L. Christy
|
|
|
|
|
|
|
|
/s/ Wilford D.
Dimit
*
|
|
Director
|
|
Wilford
D. Dimit
|
|
|
|
|
|
|
|
/s/ Richard
Ferguson
*
|
|
Chairman
of the Board and Director
|
|
Richard
Ferguson
|
|
|
|
|
|
|
|
/s/ David L.
Mead
*
|
|
Director
|
|
David
L. Mead
|
|
|
|
|
|
|
|
/s/ Robert W.
Price *
|
|
Director
|
|
Robert
W. Price
|
|
|
|
|
|
|
|
/s/ Theodore P.
Sauber
*
|
|
Director
|
|
Theodore
P. Sauber
|
|
|
|
|
|
|
|
/s/ Paul T.
Theisen *
|
|
Vice
Chairman of the Board and Director
|
|
Paul
T. Theisen
|
|
|
|
|
|
|
|
/s/ Joseph H.
Wesel *
|
|
Director
|
|
Joseph
H. Wesel
|
|
|
|
|
|
|
|
/s/ Thomas J.
Wolf *
|
|
Director
|
|
Thomas
J. Wolf
|
|
|
|
*
|
The
above-named directors of the Registrant sign this Registration Statement
on Form S-3 by Mark F. Bradley, their attorney-in-fact, pursuant to Powers
of Attorney signed by the above-named directors, which Powers of Attorney
are filed with this Registration Statement on Form S-3 as exhibits, in the
capacities indicated and on the 6th day of March, 2009.
|
|
|
|
|
By:
|
/s/ Mark F.
Bradley
Mark
F. Bradley
President
and Chief Executive Officer
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
4.1
|
Amended
Articles of Incorporation of Peoples Bancorp Inc. (as filed with the Ohio
Secretary of State on May 3, 1993) (incorporated herein by reference to
Exhibit 3(a) to the Registration Statement of Peoples Bancorp Inc.
(“Peoples”) on Form 8-B filed July 20, 1993 (File No.
0-16772)).
|
|
|
|
|
4.2
|
Certificate
of Amendment to the Amended Articles of Incorporation of Peoples Bancorp
Inc. (as filed with the Ohio Secretary of State on April 22, 1994)
(incorporated herein by reference to Exhibit 3(a)(2) to Peoples’ Annual
Report on Form 10-K for the fiscal year ended December 31, 1997 (File No.
0-16772) (“Peoples’ 1997 Form 10-K”)).
|
|
|
|
|
4.3
|
Certificate
of Amendment to the Amended Articles of Incorporation of Peoples Bancorp
Inc. (as filed with the Ohio Secretary of State on April 9, 1996)
(incorporated herein by reference to Exhibit 3(a)(3) to Peoples’ 1997 Form
10-K).
|
|
|
|
|
4.4
|
Certificate
of Amendment to the Amended Articles of Incorporation of Peoples Bancorp
Inc. (as filed with the Ohio Secretary of State on April 23, 2003)
(incorporated herein by reference to Exhibit 3(a) to Peoples’ Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2003 (File
No. 0-16772) (“Peoples’ March 31, 2003 Form 10-Q”)).
|
|
|
|
|
4.5
|
Certificate
of Amendment by Shareholders or Members to the Amended Articles of
Incorporation of Peoples Bancorp Inc. (as filed with the Ohio Secretary of
State on January 22, 2009) (incorporated herein by reference to
Exhibit 3.1 to Peoples’ Current Report on Form 8-K dated January 22,
2009 and filed on January 23, 2009) (File No.
0-16772)).
|
|
|
|
|
4.6
|
Certificate
of Amendment by Directors or Incorporators to Articles filed with the
Secretary of State of the State of Ohio on January 28, 2009, evidencing
adoption of amendments by the Board of Directors of Peoples Bancorp Inc.
to Article FOURTH of Amended Articles of Incorporation to establish
express terms of Fixed Rate Cumulative Perpetual Preferred Shares, Series
A, each without par value, of Peoples Bancorp Inc. (incorporated herein by
reference to Exhibit 3.1 to Peoples’ Current Report on Form 8-K dated
and filed on February 2, 2009 (File No. 0-16772) (“Peoples’ February 2,
2009 Form 8-K”)).
|
|
|
|
|
4.7
|
Code
of Regulations of Peoples Bancorp Inc. (incorporated herein by reference
to Exhibit 3(b) to Peoples’ Registration Statement on Form 8-B filed July
20, 1993 (File No. 0-16772)).
|
|
|
|
|
4.8
|
Certificate
of Amendment to the Code of Regulations of Peoples Bancorp Inc. regarding
adoption of amendments to Sections 1.03, 1.04, 1.05, 1.06, 1.08, 1.10,
2.03(C), 2.07, 2.08, 2.10 and 6.02 of the Code of Regulations of Peoples
Bancorp Inc. by shareholders on April 10, 2003 (incorporated herein by
reference to Exhibit 3(c) to Peoples’ March 31, 2003 Form
10-Q).
|
|
|
|
|
4.9
|
Certificate
of Amendment to the Code of Regulations of Peoples Bancorp Inc. regarding
adoption of amendments to Sections 3.01, 3.03, 3.04, 3.05, 3.06, 3.07,
3.08 and 3.11 of the Code of Regulations of Peoples Bancorp Inc. by
shareholders on April 8, 2004 (incorporated herein by reference to
Exhibit 3(a) to Peoples’ Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2004 (File No. 0-16772)).
|
|
|
|
|
4.10
|
Certificate
regarding adoption of amendments to Sections 2.06, 2.07, 3.01 and 3.04 of
Peoples Bancorp Inc.’s Code of Regulations by the shareholders on April
13, 2006 (incorporated herein by reference to Exhibit 3.1 to Peoples’
Current Report on Form 8-K dated and filed on April 14, 2006 (File No.
0-16772)).
|
|
|
|
|
4.11
|
Indenture,
dated as of April 20, 1999, between Peoples Bancorp Inc. and Wilmington
Trust Company, as Debenture Trustee, relating to Junior Subordinated
Deferrable Interest Debentures (incorporated herein by reference to
Exhibit 4.1 to the Registration Statement on Form S-4 filed on June 22,
1999 by Peoples Bancorp Inc. and PEBO Capital Trust I (Registration No.
333-81251)).
|
|
|
|
|
4.12
|
Amended
and Restated Declaration of Trust of PEBO Capital Trust I, dated and
effective as of April 20, 1999 (incorporated herein by reference to
Exhibit 4.5 to the Registration Statement on Form S-4 filed on June 22,
1999 by Peoples Bancorp Inc. and PEBO Capital Trust I (Registration No.
333-81251)).
|
|
Exhibit
Number
|
Description
|
|
4.13
|
Series
B Capital Securities Guarantee Agreement, dated as of September 23,
1999, between Peoples Bancorp Inc. and Wilmington Trust Company, as
Guarantee Trustee, relating to Series B 8.62% Capital Securities
(incorporated herein by reference to Exhibit 4(i) to Peoples’ Annual
Report on Form 10-K for the fiscal year ended December 31, 1999 (File No.
0-16772)).
|
|
|
|
|
4.14
|
Letter
Agreement, dated January 30, 2009, including Securities Purchase Agreement
– Standard Terms attached thereto as Exhibit A, between Peoples Bancorp
Inc. and the United States Department of the Treasury (incorporated herein
by reference to Exhibit 10.1 to Peoples’ February 2, 2009 Form 8-K) [NOTE:
Annex A to Securities Purchase Agreement is not included therewith; filed
as Exhibit 3.1 to Peoples’ February 2, 2009 Form 8-K and incorporated
by reference at Exhibit 4.6 to this Registration
Statement].
|
|
|
|
|
4.15
|
Warrant
to purchase 313,505 Shares of Common Stock (common shares) of Peoples
Bancorp Inc., issued to the United States Department of the Treasury on
January 30, 2009 (incorporated herein by reference to Exhibit 4.1 to
Peoples’ February 2, 2009 Form 8-K).
|
|
|
|
|
5.1
|
Opinion
of Vorys, Sater, Seymour and Pease LLP as to the validity of the
securities to be registered (filed herewith).
|
|
|
|
|
12.1
|
Statement
of ratios of earnings to fixed charges (filed
herewith).
|
|
|
|
|
23.1
|
Consent
of Ernst & Young LLP (filed herewith).
|
|
|
|
|
23.2
|
Consent
of Vorys, Sater, Seymour and Pease LLP is contained in
Exhibit 5.1
|
|
|
|
|
24.1
|
Powers
of Attorney (filed herewith).
|