F.N.B. CORPORATION FORM S-4
As filed with the Securities and Exchange Commission on
February 3, 2006
Registration
No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
F.N.B. CORPORATION
(Exact name of registrant as specified in its charter)
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Florida |
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6711 |
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25-1255406 |
(State or other jurisdiction of
incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification No.) |
One F.N.B. Boulevard
Hermitage, Pennsylvania 16148
(724) 981-6000
(Address, including zip code, and telephone number,
including area code, of Registrants principal executive
offices)
Stephen J. Gurgovits
President and Chief Executive Officer
F.N.B. Corporation
One F.N.B. Boulevard
Hermitage, Pennsylvania 16148
(724) 981-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
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Frederick W. Dreher, Esq.
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Clinton W. Kemp, Esq. |
John W. Kauffman, Esq.
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Jeffrey P. Waldron, Esq. |
Duane Morris LLP
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Stevens & Lee P.C. |
30 South
17th Street
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25 N. Queen Street, Suite 602 |
Philadelphia, PA 19103
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Lancaster, PA 17608 |
(215) 979-1234
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(717) 291-1031 |
Approximate date of commencement of proposed sale of the
securities to the public: upon the effective date of the
merger of The Legacy Bank with and into Registrants wholly
owned subsidiary.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) 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. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
Title of Each Class of |
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Amount |
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Offering |
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Aggregate |
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Registration |
Securities to be Registered |
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to be Registered(1) |
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Price per Unit |
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Offering Price |
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Fee |
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Common Stock, $.01 par value
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4,290,000 shares |
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N/A |
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$17.00(2) |
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$7,803.51 |
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(1) |
Reflects the estimated maximum number of shares of the
Registrants common stock that may be issued in connection
with the proposed merger of The Legacy Bank with and into the
Registrants wholly owned subsidiary. |
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(2) |
Computed, in accordance with Rules 457(c) and 457(f)(1), as
the product of (x) the average of the high and low prices
of the common stock of The Legacy Bank as reported on
January 31, 2006 multiplied by (y) the estimated
maximum number of shares of The Legacy Bank common stock to be
received by the Registrant in exchange for the securities
registered hereby. |
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 become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this proxy statement/ prospectus is not complete
and may be changed. We may not issue the shares of FNB common
stock to be issued in connection with the merger described in
this proxy statement/ prospectus until the registration
statement filed with the SEC 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. Any representation to the contrary is a
criminal
offense.
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SUBJECT TO
COMPLETION, DATED FEBRUARY 3, 2006
MERGER PROPOSAL YOUR VOTE IS VERY IMPORTANT
Our board of directors has approved an agreement to merge with
F.N.B. Corporation. If the merger is completed, our shareholders
will receive merger consideration of one share of FNB common
stock (NYSE:FNB) for each Legacy share, cash or a combination of
FNB common stock and cash, subject to pro ration because the
amount of stock consideration is fixed at 2,468,845 shares.
The value of the merger consideration will fluctuate with the
value of FNB stock.
We cannot complete the merger unless our shareholders approve
the merger agreement. We will hold a special meeting of our
shareholders to vote on the merger agreement. Your vote is
important, whether or not you plan to attend our
shareholders meeting, please take the time to submit your
proxy with voting instructions in accordance with the
instructions provided in this proxy statement/ prospectus. The
place, date and time of our special meeting is as follows:
March , 2006
10:00 a.m., local time
The accompanying proxy statement/ prospectus gives you detailed
information about our special meeting, the merger agreement, the
transactions contemplated thereby and related matters. We
recommend that you read these materials carefully, including the
considerations discussed under Risk Factors
beginning on page 43 and the appendices hereto, which
include the merger agreement. You can also obtain
information about FNB from documents it has filed with the
Securities and Exchange Commission and information about Legacy
from documents it has filed with the Federal Deposit Insurance
Corporation.
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Sincerely, |
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George H. Groves, |
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Chairman and Chief Executive Officer |
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Legacy Bank |
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved the FNB common
stock to be issued under this proxy statement/ prospectus or
determined if this proxy statement/ prospectus is accurate or
adequate. Any representation to the contrary is a criminal
offense.
Shares of FNB common stock are not savings or deposit accounts
or other obligations of any bank or savings association, and
they are not insured by the Federal Deposit Insurance
Corporation or any other governmental entity.
The date of this proxy statement/ prospectus
is ,
2006, and it is first being mailed or otherwise delivered to our
shareholders on or
about ,
2006.
2600 Commerce Drive
Harrisburg, Pennsylvania 17110
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE
HELD ,
2006
NOTICE IS HEREBY GIVEN that a special meeting of shareholders of
The Legacy Bank will be held at 10:00 a.m., local time,
on , ,
2006
at ,
Pennsylvania ,
for the following purposes, all of which are more completely set
forth in the accompanying proxy statement/ prospectus:
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(1) To consider and vote upon a proposal to approve and
adopt the Agreement and Plan of Merger, dated as of
December 21, 2005, among F.N.B. Corporation
(FNB), First National Bank of Pennsylvania
(FNB Bank) and us pursuant to which we will merge
with and into FNB Bank as described in the accompanying proxy
statement/ prospectus and you will be entitled to receive cash
or shares of FNB common stock or a combination of both; |
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(2) To consider and vote upon a proposal to grant
discretionary authority to adjourn the special meeting if
necessary to permit further solicitation of proxies if there are
not sufficient votes at the time of our special meeting to
approve and adopt the merger agreement; and |
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(3) To transact such other business as may be properly
presented for action at our special meeting and any adjournment,
postponement or continuation of our special meeting. |
Our board of directors has fixed the close of business
on ,
2006 as the record date for the determination of our
shareholders entitled to notice of, and to vote at, our special
meeting and any adjournment, postponement or continuation of our
special meeting. A list of our shareholders entitled to vote at
our special meeting will be available for examination by any
shareholder for any purpose related to our special meeting
during normal business hours for ten days prior to our special
meeting at our offices at 2600 Commerce Drive, Harrisburg,
Pennsylvania 17110.
This notice also constitutes notice of your right to dissent
from the merger and, upon compliance with the requirements of
the National Bank Act to receive the appraised fair value of
your shares. A copy of the relevant sections of the Bank Act
regarding appraisal rights is included as Appendix C to the
accompanying proxy statement/ prospectus.
You are requested to complete, sign and return the enclosed
proxy card in the envelope provided, whether or not you expect
to attend our special meeting in person. If you attend our
special meeting and wish to vote in person, you may withdraw
your proxy and vote in person.
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By Order of the Board of Directors, |
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George H. Groves, |
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Chairman and Chief Executive Officer |
Harrisburg, Pennsylvania
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2006
PLEASE COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD
IN THE POSTAGE-PAID ENVELOPE WHETHER OR NOT YOU PLAN TO ATTEND
OUR SPECIAL MEETING.
ADDITIONAL INFORMATION
This proxy statement/ prospectus incorporates important business
and financial information about FNB from other documents that
are not included in or delivered with this proxy statement/
prospectus. You can obtain documents incorporated by reference
in this proxy statement/ prospectus, other than certain exhibits
to those documents, by requesting them in writing or by
telephone from FNB at the following address:
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F.N.B. Corporation |
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Attn: Corporate Secretary |
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One F.N.B. Boulevard |
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Hermitage, Pennsylvania 16148 |
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(724) 981-6000 |
You will not be charged for any documents you request. Our
shareholders requesting documents from FNB should do so
by ,
2006 in order to receive them before our special meeting.
See Where You Can Find More Information on
page .
TABLE OF CONTENTS
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iii |
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F-1 |
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APPENDICES:
ii
QUESTIONS AND ANSWERS ABOUT THE MERGER AND OUR SPECIAL
MEETING
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Q. |
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What matters will be considered at our special meeting? |
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A. |
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At our special meeting, our shareholders will be asked to vote
for a proposal to approve and adopt the merger agreement whereby
we will merge with and into FNB Bank. We sometimes refer to this
proposal as the merger proposal in this proxy
statement/ prospectus. Our shareholders will also be asked to
vote for a proposal to grant discretionary authority to adjourn
our special meeting, if necessary, to solicit additional proxies
if we have not received sufficient votes to approve the merger
at the time of our special meeting. We sometimes refer to this
proposal as the adjournment proposal in this proxy
statement/ prospectus. |
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What will I receive upon consummation of the merger? |
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Upon consummation of the merger, you will have the right to
elect to receive the following, subject to possible proration,
in exchange for each share of our common stock: |
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one share of FNB common stock; or |
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$18.40 in cash. |
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What is the recommendation of our board of directors? |
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Our board of directors has unanimously determined that the
merger is fair to you and in the best interests of our
shareholders and us and unanimously recommends that you vote for
the merger proposal and the adjournment proposal. |
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In making this determination, our board of directors considered
the opinion of Griffin Financial Group, LLC, or
Griffin, our independent financial advisor, as to
the fairness from a financial point of view of the FNB shares
and cash you will receive pursuant to the merger agreement. Our
board of directors also reviewed and evaluated the terms and
conditions of the merger agreement and the merger with the
assistance of our independent legal counsel. |
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What was the opinion of our financial advisor? |
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Griffin presented an opinion to our board of directors to the
effect that, as of December 21, 2005 and based upon the
assumptions made by Griffin, the matters it considered and the
limitations of its review as set forth in its opinion, the
merger consideration provided for in the merger agreement is
fair to Legacy from a financial point of view. |
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What do I need to do now? |
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After you carefully read this proxy statement/ prospectus and
decide how you want to vote on the merger proposal and the
adjournment proposal, you should complete, date and sign your
proxy card and mail it in the enclosed return envelope as soon
as possible so that your shares may be represented at our
special meeting, even if you plan to attend our special meeting
and vote in person. |
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Why is my vote important? |
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Pennsylvania law and our articles of incorporation require the
affirmative vote of the holders of not less than two-thirds of
our outstanding common stock in order to approve and adopt the
merger proposal. Therefore, if you fail to vote or abstain from
voting on the merger proposal, it will have the same effect as a
vote against the merger proposal. |
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How do I vote in person? |
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If you are a stockholder of record, attend our special meeting
and wish to vote in person, we will give you a ballot when you
arrive at our special meeting. |
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How do I vote my shares if they are held in street name? |
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If you are not a holder of record but you are a beneficial
holder, meaning that your shares are registered in a name
other than your own, such as a street name, you must either
direct the holder of record of your shares as to how you want
your shares to be voted or obtain a proxy from the holder of
record so that you may vote yourself. |
iii
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What if I fail to instruct my broker? |
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Brokers may not vote shares of our common stock that they hold
for the benefit of another person either for or against the
approval of the merger proposal without specific instructions
from the person who beneficially owns those shares. Therefore,
if your shares are held by a broker and you do not give your
broker instructions on how to vote your shares, this will have
the same effect as voting against the approval of the merger
proposal. |
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May I vote electronically over the internet or by
telephone? |
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If your shares are registered in the name of a bank or broker,
you may be eligible to vote your shares electronically over the
internet or by telephone. Many banks and brokerage firms
participate in the ADP Investor Communications Services online
program. This program provides eligible shareholders who receive
a paper copy of this proxy statement/ prospectus the opportunity
to vote via the internet or by telephone. If your bank or
brokerage firm is participating in ADPs program, your
proxy card will provide the instructions. If your proxy card
does not reference internet or telephone information, please
complete and mail the proxy card in the enclosed self-addressed,
postage paid envelope. |
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May I change my vote after I have mailed my signed proxy? |
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Yes. You may revoke your proxy at any time before the vote is
taken at our special meeting. If you have not voted through a
bank, broker, nominee or other holder of record, you may revoke
your proxy by: |
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submitting written notice of revocation to our
corporate secretary prior to the voting of that proxy at our
special meeting; |
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submitting a properly executed proxy with a later
date; or |
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voting in person at our special meeting. |
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However, simply attending our special meeting without voting
will not revoke an earlier proxy. |
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If your shares are held in the name of a bank, broker, nominee
or other holder of record, you should follow the instructions of
the bank, broker, nominee or other holder of record regarding
the revocation of proxies. |
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If you voted your shares by telephone or internet, you can
revoke your prior telephone or internet vote by recording a
different vote, or by signing and returning a proxy card dated
as of a date that is later than your last telephone or internet
vote. |
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When do you expect to complete the merger? |
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A. |
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We anticipate that we will obtain all necessary regulatory
approvals to consummate the merger in the second quarter of
2006. However, we cannot assure you when or if the merger will
occur. We must first obtain the approval of our shareholders at
our special meeting and we and FNB must obtain the requisite
regulatory approvals. |
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Should I send my stock certificates now? |
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A. |
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No. Holders of our common stock should not submit their
Legacy stock certificates for exchange until they receive the
transmittal instructions and an election form from the exchange
agent. |
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What rights do I have to dissent from the merger? |
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If you do not vote in favor of the merger proposal and you
comply precisely with the applicable procedural requirements,
the Bank Act entitles you to receive the appraised value of your
shares. You must carefully and precisely follow the applicable
procedures under the Bank Act in order to exercise your
appraisal rights. A complete copy of the relevant section of the
Bank Act regarding appraisal rights is included in this proxy
statement/ prospectus as Appendix C. The fair value of your
shares as determined in an appraisal rights proceeding may be
more or less than the merger consideration you are entitled to
receive from FNB under the merger agreement. |
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Who can help answer my questions? |
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A. |
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If you have additional questions about the merger or would like
additional copies of this proxy statement/ prospectus, please
call Melissa Tyrrell at (717) 441-3400, extension 107. |
iv
SUMMARY
This summary highlights selected information from this proxy
statement/ prospectus. While this summary describes the material
aspects you should consider in your evaluation of the merger
agreement and the merger, it does not contain all of the
information that is important to you. We encourage you to read
carefully this entire proxy statement/ prospectus and its
appendices as well as the other documents to which we refer in
order to fully understand the merger. See Where You Can
Find More Information on
page . In this summary, we
have included page references to direct you to a more detailed
description of the matters described in this summary.
Throughout this proxy statement/ prospectus, we,
us, our or Legacy refer to
The Legacy Bank, Legacy Trust refers to The Legacy
Trust Company, FNB refers to F.N.B. Corporation,
FNB Bank refers to First National Bank of
Pennsylvania, FNBs banking subsidiary, and you
refers to the shareholders of Legacy.
The Parties
Legacy (Page )
The Legacy Bank is a Pennsylvania state-chartered bank that
began operations in September 1999. Legacy serves a niche market
of small and middle-market businesses and professionals and uses
a business model predicated on convenient delivery of banking
products and services (ATM networks, courier service, telephone
banking, online banking and banking by appointment) by
experienced bankers through our branch system and alternate
delivery channels that supplement our branch locations. In
addition, through its wholly owned subsidiary, The Legacy Trust
Company, Legacy provides asset management services, including
personal trust and estate planning, retirement and employee
benefit planning and investment management. The vision of
management is for Legacy to be recognized for its superior
service, innovative products and services, professionalism and
integrity. Management believes that Legacys purpose is not
to sell products and services to customers; rather, through
comprehensive needs analysis, it is to construct solutions to
our customers needs by offering a wide range of commercial
banking and asset management services. Legacys philosophy
is to focus on the needs of the customer and building a
relationship with that customer. Legacy has eight offices that
are located in Harrisburg, Camp Hill, Hazleton, Shenandoah,
Drums, McAdoo, Pottsville and Williamsport. The Legacy Trust
Company has two offices that are located in Harrisburg and
Pottsville.
The principal executive office of Legacy is located at 2600
Commerce Drive, Harrisburg, Pennsylvania 17110. Legacys
telephone number is (717) 441-3400 and its website address
is www.thelegacybankonline2.com.
FNB and FNB Bank
(Pages - )
FNB is a $5.6 billion financial services holding company
headquartered in Hermitage, Pennsylvania. FNB provides a broad
range of financial services to its customers through FNB Bank
and FNBs insurance agency, consumer finance and trust
company subsidiaries. FNB Bank has 146 banking offices in
Western Pennsylvania and Eastern Ohio and maintains six
insurance agency locations. Regency Finance, FNBs consumer
finance subsidiary, has 22 offices in Pennsylvania, 15 offices
in Ohio and 16 offices in Tennessee. Another FNB subsidiary,
First National Trust Company, has approximately
$1.2 billion of assets under management.
The principal executive offices of FNB and FNB Bank are located
at One F.N.B. Boulevard, Hermitage, Pennsylvania 16148.
FNBs telephone number is (724) 981-6000 and its
website address is www.fnbcorporation.com.
1
Our Special Meeting
Date, Time, Place and Purpose of our Special Meeting
(Page )
Our special meeting will be held
at ,
Pennsylvania ,
at 10:00 a.m., local time,
on , ,
2006.
At our special meeting you will be asked to:
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Consider and vote upon a proposal to approve and adopt the
Agreement and Plan of Merger, dated as of December 21,
2005, among FNB, FNB Bank and us, pursuant to which we will
merge with and into FNB Bank as described in this proxy
statement/ prospectus; |
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Consider and vote upon a proposal to grant discretionary
authority to adjourn our special meeting if necessary to permit
further solicitation of proxies if there are not sufficient
votes at the time of our special meeting to approve and adopt
the merger agreement; and |
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Transact such other business as may be properly presented for
action at our special meeting or any adjournment, postponement
or continuation of our special meeting. |
Record Date; Quorum; Outstanding Common Stock Entitled to
Vote (Page )
Our board of directors has established the close of business
on ,
2006 as the record date for determining holders of shares of our
common stock entitled to vote at our special meeting. You will
not be entitled to vote at our special meeting if you are not a
shareholder of record as of the close of business
on ,
2006.
Each share of our common stock is entitled to one vote. On the
record
date, shares
of our common stock were entitled to vote at our special meeting.
The presence, in person or by properly executed proxy, of the
holders of at least a majority of our common stock issued and
outstanding on the record date is necessary to constitute a
quorum at our special meeting. Abstentions will be counted for
the purpose of determining whether a quorum is present. There
must be a quorum in order for the vote on the merger proposal to
occur.
Required Vote
(Pages - )
Under Pennsylvania law, the Bank Act and our articles of
incorporation, the merger proposal must receive the affirmative
vote of the holders of not less than two-thirds of the
outstanding shares of our common stock. The affirmative vote of
the holders of a majority of the outstanding shares of our
common stock present in person or by proxy at our special
meeting is required to approve the proposal to grant
discretionary authority to adjourn our special meeting.
As of the record date, our directors and executive officers and
their affiliates beneficially
owned shares
of our common stock, or
approximately % of our shares
entitled to vote at our special meeting. In addition, as of the
record date, FNB
owned shares
of our common stock, or
approximately % of the shares
entitled to vote at our special meeting, and FNBs
directors and executive officers and their affiliates owned an
aggregate
of shares
of our common stock as of the record date, or
approximately % of our shares
entitled to vote at our special meeting.
Our board of directors believes that the merger is in the best
interests of our shareholders and us and unanimously recommends
that you vote for the merger proposal and for the adjournment
proposal.
Solicitation (Page )
We will pay for the costs of our special meeting and for the
mailing of this proxy statement/ prospectus to our shareholders.
We and FNB will share equally the costs of printing this proxy
statement/ prospectus and the filing fee paid to the Securities
and Exchange Commission, or the SEC.
2
In addition to soliciting proxies by mail, our directors,
officers and employees may also solicit proxies in person or by
telephone or e-mail,
but will not be specially compensated for doing so.
We have engaged Regan & Associates, Inc. to assist us
in the solicitation of proxies and will pay them a fee of $8,000
for their services.
The Merger
Certain Effects of the Merger
(Pages - )
Upon consummation of the merger:
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Each share of our common stock will automatically be converted
into the right to receive, at your election, subject to the
allocation provisions in the merger agreement: |
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one share of FNB common stock; or |
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$18.40 in cash. |
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We will cease to exist as a separate legal entity and all of our
operations will be conducted by FNB and FNB Bank; and |
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The holders of our common stock will no longer have any interest
in us, including in any of our future growth or earnings. |
Following consummation of the merger, FNB and its shareholders
will be the only beneficiaries of any future growth or earnings,
but will also bear all of the future risk of any decrease in the
value of our business.
Recommendation of Our Board of Directors
(Pages - )
Our board of directors has unanimously determined that the terms
of the merger agreement and the merger are fair to and in the
best interests of our shareholders and us. Our board of
directors unanimously recommends that you vote FOR
the merger proposal and FOR the adjournment proposal.
Stock Options, Warrants and Convertible Debentures
(Pages - )
The merger agreement provides that, at the effective time of the
merger, each outstanding option and warrant to purchase our
common stock will cease to represent a right to purchase our
common stock and will be converted automatically into a right to
purchase that number of shares of FNB common stock equal to the
number of shares of our common stock subject to the option or
warrant at a price equal to the pre-merger exercise price of the
option or warrant.
The merger agreement further provides that, at the effective
time of the merger, each outstanding Legacy convertible
subordinated capital note, or Legacy Note, will
cease to be convertible into Legacy common stock and will
automatically become convertible into that number of shares of
FNB common stock equal to the number of our shares of common
stock into which the Legacy Note is currently convertible at a
conversion price equal to the pre-merger conversion price. FNB
has also agreed to execute a supplemental indenture relating to
the Legacy Notes.
Opinion of Griffin as Our Financial Advisor
(Pages - )
Griffin, our financial advisor in connection with the merger,
delivered its written fairness opinion to our board of directors
that, as of December 21, 2005, and based upon and subject
to the factors and assumptions set forth in its opinion, the
merger consideration is fair to Legacy, from a financial point
of view.
Appendix B to this proxy statement/ prospectus sets forth
the full text of the Griffin opinion, which sets forth the
assumptions made, the procedures followed, the matters
considered and the limitations on the review undertaken by
Griffin in connection with its opinion. Griffin provided its
opinion for the information and assistance of our board of
directors in connection with its consideration of the merger.
The Griffin opinion is
3
not a recommendation as to how you should vote with respect to
the merger or any related matter. We encourage you to read the
opinion in its entirety. Pursuant to an engagement letter
between Griffin and us, we agreed to pay Griffin a fee,
approximately of
which has been paid and
approximately of
which is payable upon completion of the merger.
Interests of Our Directors and Executive Officers in the
Merger
(Pages - )
In considering our board of directors recommendation that
you vote FOR the merger proposal, you should be
aware that certain of our executive officers and directors have
interests in the merger that are different from, or in addition
to, your interests as a shareholder. These interests relate to
or arise from, among other things:
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the continued indemnification of our current directors and
executive officers under the merger agreement and providing
these individuals with directors and officers errors
and omissions insurance; |
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the execution of an employment agreement between FNB Bank and
each of George H. Groves, our Chairman and Chief Executive
Officer, who will serve as Chairman of FNBs Harrisburg
Region; Thomas W. Lennox, our President, who will serve as
President of FNBs Harrisburg Region, and Joseph L. Paese,
the President and Chief Executive Officer of Legacy Trust, who
will serve as Market Executive of Wealth Management of
FNBs Harrisburg Region. |
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the receipt of change of control payments by certain of our
senior officers; |
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the members of our board of directors will be offered an
opportunity to serve as members of an advisory board for
FNBs Harrisburg region for which service they will receive
fees, and the advisory board would have the power to enforce
specifically certain covenants in the merger agreement; and |
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one member of our board of directors, George H. Groves, will be
appointed to FNB Banks board of directors. |
Conditions to the Merger
(Pages - )
Currently, we expect to complete the merger in the second
quarter of 2006. However, as more fully described in this proxy
statement/ prospectus and in the merger agreement, the
completion of the merger depends on a number of conditions being
satisfied or, where legally permissible, waived. These
conditions include, among others:
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approval of the merger proposal by the holders of not less than
two-thirds of our outstanding common stock; |
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the receipt of all regulatory approvals needed to complete the
merger, including the approval of the Office of the Comptroller
of the Currency, or the OCC, the Board of Governors
of the Federal Reserve System, or the Federal Reserve
Board, and the furnishing of appropriate notices to the
Pennsylvania Department of Banking, or the
Department; |
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the absence of any law or injunction that would effectively
prohibit the merger; and |
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the receipt of legal opinions from FNBs and our legal
counsel as to the tax treatment of the merger. |
We cannot be certain when, or if, the conditions to the merger
will be satisfied or waived, or that the merger will be
completed.
Termination of the Merger Agreement
(Pages - )
We may agree to terminate the merger agreement before completing
the merger, even after our shareholders approve the merger
proposal, if the termination is approved by our board of
directors and the board of directors of FNB.
4
Either FNB or we may terminate the merger agreement, even after
our shareholders approve the merger proposal under certain
circumstances, if certain conditions have not been met, such as:
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failure to obtain the necessary regulatory approvals for the
merger; |
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the other partys material breach of a representation,
warranty, covenant or agreement, provided the terminating party
is not then in material breach of any of its representations,
warranties, covenants or agreements; |
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failure to complete the merger by September 30, 2006,
unless the reason the merger has not been consummated by that
date is a breach of the merger agreement by the party seeking to
terminate the merger agreement; or |
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failure of the holders of not less than two-thirds of our
outstanding common stock to approve the merger proposal,
provided we are not in material breach of our obligations to
have our board of directors recommend approval of the merger
proposal and to take all reasonable lawful actions to solicit
such shareholder approval. |
FNB may terminate the merger agreement at any time prior to our
special meeting if we have:
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breached our obligation not to initiate, solicit or encourage,
or take any action to facilitate, another proposal to acquire
us, participate in any discussions or negotiations relating to
another proposal to acquire us or, except as permitted by and
subject to certain terms of, the merger agreement, to enter into
an agreement relating to a proposal to acquire us on terms and
conditions superior to those in the merger agreement or approve,
recommend or enter into any agreement relating to another
proposal to acquire us; |
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failed to have our board of directors recommend approval of the
merger proposal to our shareholders or our board of directors
shall have changed such recommendation, except as permitted by
the merger agreement with respect to a proposal to acquire us on
terms and conditions superior to those in the merger agreement; |
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our board of directors shall have recommended approval of
another proposal to acquire us; or |
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failed to call and hold our special meeting. |
We may terminate the merger agreement if the average closing
price of FNB common stock during a specified period before
receipt of the last required regulatory approval of the merger
is less than $14.38 and FNB common stock underperforms the
Nasdaq Bank Index by 20% and FNB does not elect to increase the
exchange ratio as provided in the merger agreement.
Except as provided below with respect to termination fees and
expenses and the parties respective confidentiality
obligations, none of the parties will have any liability or
obligation other than liabilities for damages incurred by a
party as a result of another partys willful breach of any
of its respective representations, warranties, covenants or
agreements contained in the merger agreement.
Expenses; Termination Fee
(Page and
Page )
The merger agreement provides that we will pay FNB a
break-up fee of
$3,000,000 if:
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we terminate the merger agreement in order to enter into an
agreement relating to an acquisition transaction that has terms
superior to those of the merger agreement from the perspective
of our shareholders; |
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FNB terminates the merger agreement because we have breached our
obligation not to solicit superior proposals, we have failed to
hold our special meeting or our board of directors has not
recommended approval of the merger proposal or has changed its
recommendation or has recommended that we enter into an
agreement relating to another proposal to acquire us; |
5
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the merger agreement is terminated following the commencement of
a tender or exchange offer for 25% or more of our common stock
and our board of directors fails to send a statement to our
shareholders recommending rejection of that offer within
10 days after the offer has been made; or |
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FNB or we terminate the merger agreement because |
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our shareholders did not approve the merger proposal; |
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a proposal to acquire us is made after December 21, 2005
and is not withdrawn prior to termination of the merger
agreement; and |
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within 18 months thereafter we are acquired by that third
party or other specified events occur. |
Appraisal Rights
(Pages - )
If you do not vote in favor of approval of the merger proposal,
and you fulfill the other procedural requirements, the Bank Act
entitles you to receive the appraised value of your shares. You
must carefully and precisely follow the applicable procedures in
order to be entitled to appraisal rights. A copy of the
provisions of the Bank Act applicable to appraisal rights is
included as Appendix C to this proxy statement/ prospectus.
Material Federal Income Tax Consequences of the Merger
(Pages - )
We expect the merger to qualify as a tax-free reorganization for
United States federal income tax purposes. In general, this
means that our shareholders who receive FNB common stock will
not recognize any gain or loss on the exchange of their common
stock in the merger, except to the extent they receive cash
instead of fractional shares in addition to FNB common stock.
Our shareholders who receive all cash in exchange for their
Legacy common stock in the merger will recognize gain or loss to
the extent the cash received exceeds, or is less than, their tax
basis in their stock. Our shareholders who receive a combination
of cash and FNB common stock, including those who receive a
combination as a result of prorations under the merger
agreement, will realize gain to the extent that the amount of
cash received plus the value of the FNB common stock received
exceeds their tax basis in the Legacy common stock. Our
shareholders who receive a combination of cash and FNB common
stock will recognize gain, but not loss, in an amount equal to
the lesser of the amount of the gain realized or the amount of
the cash received.
Dividends
(Pages - )
During 2005, FNB paid cash dividends on its common stock
totaling $0.925 per share. Based on the 1.0 share
exchange ratio and FNBs current dividend rate, holders of
our common stock would experience an anticipated annual dividend
of $0.94 per share, an increase of $0.94 per share per
year. Although FNB has no current plan or intention to increase
its dividend rate, FNBs board of directors may, subject to
applicable law, change its dividend rate in the future.
FNBs ability to pay dividends on its common stock is
subject to various legal and regulatory limitations.
Certain Differences in Rights of Shareholders
(Page - )
When the merger is completed, the rights of our shareholders who
receive FNB common stock will be governed by Florida law and
FNBs articles of incorporation and by-laws rather than
Pennsylvania law and our articles of incorporation and by-laws.
Future FNB Acquisitions
(Page )
As part of its growth strategy, FNB may acquire other bank or
financial services institutions to expand or strengthen its
market position. Risks associated with this strategy are
described in Risk Factors.
Comparative Market Prices and Dividends
(Pages - )
FNB common stock is listed on the New York Stock Exchange under
the symbol FNB. Prices for our common stock are
quoted on the OTC Bulletin Board of the National
Association of Securities Dealers under
6
the symbol LBOH. The table on
page lists the quarterly
price range of FNB common stock and our common stock since 2004
as well as the quarterly cash dividends FNB has paid. The
following table shows the closing price of FNB common stock and
our common stock as reported on December 20, 2005, the last
trading day before we announced the merger, and
on ,
2006, the last practicable trading day before the date of this
proxy statement/ prospectus. This table also shows the implied
value of the merger consideration proposed for each share of
Legacy common stock, which we calculated by multiplying the
closing price of FNB common stock on those dates by 1.0 (the
exchange ratio in the merger).
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Implied Value | |
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of One Share of | |
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FNB Common Stock | |
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Legacy Common Stock | |
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Legacy Common Stock | |
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December 20, 2005
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$ |
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$ |
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$ |
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,
2006
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$ |
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$ |
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$ |
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The market price of FNB common stock may change at any time.
Consequently, the total dollar value of the FNB common stock
that you will be entitled to receive as a result of the merger
may be significantly higher or lower than its current value.
Questions and Additional Information
(Page )
If you have questions about the merger or how to submit your
proxy card, or if you need additional copies of this proxy
statement/ prospectus or the enclosed proxy card, please call
Melissa Tyrrell at (717) 441-3400, extension 107.
7
SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF FNB
Set forth below are highlights from FNBs consolidated
financial data as of and for the years December 31, 2000
through 2004 and FNBs unaudited consolidated financial
data as of and for the nine months ended September 30, 2004
and 2005. The results of operations for the nine months ended
September 30, 2005 are not necessarily indicative of the
results of operations for the full year or any other interim
period. FNB management prepared the unaudited information on the
same basis as it prepared FNBs audited consolidated
financial statements. In the opinion of FNBs management,
this information reflects all adjustments, consisting only of
normal recurring adjustments, necessary for a fair presentation
of this data for these periods. You should read this information
in conjunction with FNBs consolidated financial statements
and related notes included in FNBs Annual Report on
Form 10-K for the
year ended December 31, 2004 and FNBs Quarterly
Report on
Form 10-Q for the
nine months ended September 30, 2005 which are incorporated
by reference in this proxy statement/ prospectus and from which
this information is derived. See Where You Can Find More
Information on page .
Selected Consolidated Historical Financial Data of FNB
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Nine Months Ended | |
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September 30, | |
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Year Ended December 31, | |
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2005 | |
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2004 | |
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2004 | |
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2003 | |
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2002 | |
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2001 | |
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2000 | |
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(Dollars in thousands, except per share amounts) | |
Summary of Earnings Data:
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Interest income
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$ |
219,531 |
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$ |
187,442 |
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$ |
254,448 |
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$ |
257,019 |
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$ |
275,853 |
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$ |
301,638 |
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$ |
300,514 |
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Interest expense
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78,380 |
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61,702 |
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84,390 |
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86,990 |
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98,372 |
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134,984 |
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136,775 |
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Net interest income
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141,151 |
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125,740 |
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170,058 |
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170,029 |
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177,481 |
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166,654 |
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163,739 |
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Provision for loan losses
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8,465 |
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11,812 |
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16,280 |
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17,155 |
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13,624 |
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26,727 |
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12,393 |
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Net interest income after provision for loan losses
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132,686 |
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113,928 |
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153,778 |
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152,874 |
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163,857 |
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139,927 |
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151,346 |
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Non-interest income
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55,537 |
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56,940 |
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78,141 |
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68,155 |
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66,145 |
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52,015 |
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43,704 |
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Non-interest expense
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116,555 |
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103,970 |
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142,587 |
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185,025 |
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185,003 |
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149,259 |
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136,248 |
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Income before income taxes
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71,668 |
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66,898 |
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89,332 |
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36,004 |
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44,999 |
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42,683 |
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58,802 |
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Income taxes
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21,131 |
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20,915 |
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27,537 |
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8,966 |
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13,728 |
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10,914 |
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16,649 |
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Income from continuing operations
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50,537 |
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45,983 |
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61,795 |
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27,038 |
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31,271 |
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31,769 |
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42,153 |
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Earnings from discontinued operations, net of taxes
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31,751 |
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32,064 |
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21,216 |
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19,755 |
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Net income
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$ |
50,537 |
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$ |
45,983 |
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$ |
61,795 |
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$ |
58,789 |
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$ |
63,335 |
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$ |
52,985 |
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$ |
61,908 |
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Per Share Data(1):
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Basic earnings per share:
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Continuing operations
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$ |
0.91 |
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$ |
0.99 |
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$ |
1.31 |
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$ |
0.58 |
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$ |
0.68 |
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$ |
0.71 |
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$ |
0.94 |
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Discontinued operations
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0.69 |
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0.69 |
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0.48 |
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0.44 |
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Net income
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0.91 |
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0.99 |
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1.31 |
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1.27 |
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1.37 |
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1.19 |
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1.38 |
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Diluted earnings per share:
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Continuing operations
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0.90 |
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|
0.98 |
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1.29 |
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0.57 |
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0.67 |
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0.70 |
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0.92 |
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Discontinued operations
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0.68 |
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|
0.68 |
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|
|
0.47 |
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|
|
0.43 |
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Net income
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|
0.90 |
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|
|
0.98 |
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|
|
1.29 |
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|
|
1.25 |
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|
|
1.35 |
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|
|
1.17 |
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|
|
1.35 |
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Dividends paid
|
|
|
0.69 |
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|
|
0.69 |
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|
|
0.92 |
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|
0.93 |
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|
|
0.81 |
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|
|
0.68 |
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|
0.61 |
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Book value per share at period end(2)
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8.26 |
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5.56 |
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|
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6.47 |
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|
|
13.10 |
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|
|
12.93 |
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|
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12.37 |
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10.87 |
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Average number of shares outstanding:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
55,260,092 |
|
|
|
46,326,420 |
|
|
|
47,180,471 |
|
|
|
46,080,966 |
|
|
|
46,012,908 |
|
|
|
44,289,772 |
|
|
|
44,748,338 |
|
|
Diluted
|
|
|
55,981,672 |
|
|
|
47,155,413 |
|
|
|
48,012,339 |
|
|
|
46,972,863 |
|
|
|
47,073,785 |
|
|
|
45,385,495 |
|
|
|
45,690,289 |
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended | |
|
|
|
|
September 30, | |
|
Year Ended December 31, | |
|
|
| |
|
| |
|
|
2005 | |
|
2004 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands, except per share amounts) | |
Statement of Condition Data
(at end of period): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
$ |
5,703,659 |
|
|
$ |
4,733,542 |
|
|
$ |
5,027,009 |
|
|
$ |
8,308,310 |
|
|
$ |
7,090,232 |
|
|
$ |
6,488,383 |
|
|
$ |
6,126,792 |
|
Assets of discontinued operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,751,136 |
|
|
|
2,735,204 |
|
|
|
2,202,004 |
|
|
|
2,125,737 |
|
Net loans
|
|
|
3,704,603 |
|
|
|
3,173,584 |
|
|
|
3,338,994 |
|
|
|
3,213,058 |
|
|
|
3,188,223 |
|
|
|
3,061,936 |
|
|
|
2,980,248 |
|
Deposits
|
|
|
3,922,220 |
|
|
|
3,424,477 |
|
|
|
3,598,087 |
|
|
|
3,439,510 |
|
|
|
3,304,105 |
|
|
|
3,338,913 |
|
|
|
3,227,249 |
|
Short-term borrowings
|
|
|
523,926 |
|
|
|
345,879 |
|
|
|
395,106 |
|
|
|
232,966 |
|
|
|
255,370 |
|
|
|
209,912 |
|
|
|
177,580 |
|
Long-term debt
|
|
|
726,845 |
|
|
|
639,113 |
|
|
|
636,209 |
|
|
|
584,808 |
|
|
|
400,056 |
|
|
|
276,802 |
|
|
|
198,907 |
|
Liabilities of discontinued operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,386,021 |
|
|
|
2,467,123 |
|
|
|
2,022,538 |
|
|
|
1,954,863 |
|
Total Shareholders equity(2)
|
|
|
467,028 |
|
|
|
259,529 |
|
|
|
324,102 |
|
|
|
606,909 |
|
|
|
598,596 |
|
|
|
572,407 |
|
|
|
503,422 |
|
Significant Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average assets(2)
|
|
|
1.22 |
% |
|
|
1.31 |
% |
|
|
1.29 |
% |
|
|
0.74 |
% |
|
|
0.93 |
% |
|
|
0.84 |
% |
|
|
1.03 |
% |
Return on average equity(2)
|
|
|
15.55 |
|
|
|
25.23 |
|
|
|
23.54 |
|
|
|
9.66 |
|
|
|
10.97 |
|
|
|
9.81 |
|
|
|
12.28 |
|
Ratio of average equity to average assets(2)
|
|
|
7.85 |
|
|
|
5.21 |
|
|
|
5.50 |
|
|
|
7.66 |
|
|
|
8.51 |
|
|
|
8.58 |
|
|
|
8.42 |
|
Dividend payout ratio(2)
|
|
|
76.91 |
|
|
|
69.60 |
|
|
|
70.36 |
|
|
|
72.90 |
|
|
|
59.03 |
|
|
|
52.81 |
|
|
|
45.36 |
|
|
|
(1) |
Per share amounts for 2003, 2002, 2001 and 2000 have been
restated for the common stock dividend declared on
April 28, 2003. |
|
(2) |
Effective January 1, 2004, FNB spun-off its Florida
operations into a separate, independent public company. As a
result of the spin-off, the Florida operations prior years
earnings have been classified as discontinued operations on
FNBs consolidated income statements and the assets and
liabilities related to the discontinued operations have been
disclosed separately on FNBs consolidated balance sheets
for prior years. In addition, the book value at period end,
stockholders equity, the return on average assets ratio,
the return on average equity ratio and the dividend payout ratio
for prior years include the discontinued operations. |
9
SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF LEGACY
Set forth below are highlights from Legacys consolidated
financial data as of and for the years December 31, 2000
through 2004 and Legacys unaudited consolidated financial
data as of and for the nine months ended September 30, 2004
and 2005. The results of operations for the nine months ended
September 30, 2005 are not necessarily indicative of the
results of operations of Legacy for the full year. Legacy
management prepared the unaudited information on the same basis
as it prepared Legacys audited consolidated financial
statements. In the opinion of Legacys management, this
information reflects all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of this
data for these periods. You should read this information in
conjunction with Legacys consolidated financial statements
and related notes included in Legacys Annual Report on
Form 10-K for the
year ended December 31, 2004, and Legacys Quarterly
Reports on
Form 10-Q for the
nine months ended September 30, 2005 which are included
elsewhere in this proxy statement/ prospectus and from which
this information is derived. See Where You Can Find More
Information on page and
Index to Legacy Financial Statements on page F-1.
Selected Consolidated Historical Financial Data of Legacy
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended | |
|
|
|
|
September 30, | |
|
Year Ended December 31, | |
|
|
| |
|
| |
|
|
2005 | |
|
2004 | |
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands, except per share amounts) | |
Summary of Earnings Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
$ |
14,501 |
|
|
$ |
11,964 |
|
|
$ |
16,269 |
|
|
$ |
13,775 |
|
|
$ |
7,535 |
|
|
$ |
5,867 |
|
|
$ |
2,969 |
|
Interest expense
|
|
|
5,923 |
|
|
|
3,947 |
|
|
|
5,516 |
|
|
|
5,009 |
|
|
|
3,715 |
|
|
|
3,248 |
|
|
|
1,677 |
|
Net interest income
|
|
|
8,578 |
|
|
|
8,017 |
|
|
|
10,753 |
|
|
|
8,766 |
|
|
|
3,820 |
|
|
|
2,619 |
|
|
|
1,292 |
|
Provision for loan losses
|
|
|
350 |
|
|
|
798 |
|
|
|
1,115 |
|
|
|
428 |
|
|
|
540 |
|
|
|
502 |
|
|
|
330 |
|
Net interest income after provision for loan losses
|
|
|
8,228 |
|
|
|
7,219 |
|
|
|
9,638 |
|
|
|
8,338 |
|
|
|
3,280 |
|
|
|
2,117 |
|
|
|
962 |
|
Non-interest income
|
|
|
1,885 |
|
|
|
1,684 |
|
|
|
2,383 |
|
|
|
1,602 |
|
|
|
745 |
|
|
|
525 |
|
|
|
75 |
|
Non-interest expense
|
|
|
8,279 |
|
|
|
7,959 |
|
|
|
10,497 |
|
|
|
9,228 |
|
|
|
4,253 |
|
|
|
3,843 |
|
|
|
2,601 |
|
Income (loss) before income taxes
|
|
|
1,834 |
|
|
|
944 |
|
|
|
1,524 |
|
|
|
712 |
|
|
|
(228 |
) |
|
|
(1,201 |
) |
|
|
(1,564 |
) |
Income taxes
|
|
|
570 |
|
|
|
(621 |
) |
|
|
(831 |
) |
|
|
(317 |
) |
|
|
(485 |
) |
|
|
(81 |
) |
|
|
|
|
Net income (loss)
|
|
$ |
1,264 |
|
|
$ |
1,565 |
|
|
$ |
2,355 |
|
|
$ |
1,029 |
|
|
$ |
257 |
|
|
$ |
(1,120 |
) |
|
$ |
(1,564 |
) |
Per Share Data(1):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$ |
0.35 |
|
|
$ |
0.44 |
|
|
$ |
0.66 |
|
|
$ |
0.37 |
|
|
$ |
0.19 |
|
|
$ |
(0.89 |
) |
|
$ |
(1.53 |
) |
|
Diluted
|
|
|
0.34 |
|
|
|
0.43 |
|
|
|
0.64 |
|
|
|
0.37 |
|
|
|
0.19 |
|
|
|
(0.89 |
) |
|
|
(1.53 |
) |
Dividends paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book value per share at period end
|
|
|
10.35 |
|
|
|
10.00 |
|
|
|
10.17 |
|
|
|
9.54 |
|
|
|
7.35 |
|
|
|
6.84 |
|
|
|
7.54 |
|
Average number of shares outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
3,603,000 |
|
|
|
3,574,000 |
|
|
|
3,582,000 |
|
|
|
2,785,000 |
|
|
|
1,337,000 |
|
|
|
1,258,000 |
|
|
|
1,025,000 |
|
|
Diluted
|
|
|
3,722,000 |
|
|
|
3,679,000 |
|
|
|
3,685,000 |
|
|
|
2,802,000 |
|
|
|
1,342,000 |
|
|
|
1,258,000 |
|
|
|
1,025,000 |
|
Statement of Condition Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(at end of period):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
$ |
382,139 |
|
|
$ |
319,571 |
|
|
$ |
338,590 |
|
|
$ |
305,486 |
|
|
$ |
151,405 |
|
|
$ |
106,501 |
|
|
$ |
53,145 |
|
Net loans
|
|
|
279,998 |
|
|
|
244,487 |
|
|
|
249,019 |
|
|
|
226,155 |
|
|
|
108,090 |
|
|
|
84,365 |
|
|
|
39,615 |
|
Deposits
|
|
|
288,236 |
|
|
|
246,287 |
|
|
|
244,464 |
|
|
|
240,080 |
|
|
|
124,778 |
|
|
|
92,077 |
|
|
|
40,656 |
|
Short-term borrowings
|
|
|
7,575 |
|
|
|
7,000 |
|
|
|
23,425 |
|
|
|
10,187 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
48,442 |
|
|
|
28,530 |
|
|
|
32,500 |
|
|
|
19,285 |
|
|
|
16,000 |
|
|
|
5,000 |
|
|
|
3,000 |
|
Total stockholders equity
|
|
|
36,513 |
|
|
|
36,030 |
|
|
|
36,725 |
|
|
|
33,872 |
|
|
|
9,890 |
|
|
|
8,882 |
|
|
|
9,051 |
|
Significant Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average assets
|
|
|
0.47 |
% |
|
|
0.68 |
% |
|
|
0.76 |
% |
|
|
0.39 |
% |
|
|
0.21 |
% |
|
|
(1.40 |
)% |
|
|
(4.14 |
)% |
Return on average equity
|
|
|
4.54 |
|
|
|
6.03 |
|
|
|
6.69 |
|
|
|
4.06 |
|
|
|
2.68 |
|
|
|
(12.56 |
) |
|
|
(20.41 |
) |
Ratio of average equity to average assets
|
|
|
10.39 |
|
|
|
11.34 |
|
|
|
11.30 |
|
|
|
9.65 |
|
|
|
7.80 |
|
|
|
11.16 |
|
|
|
20.28 |
|
Dividend payout ratio
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
SELECTED CONSOLIDATED UNAUDITED PRO FORMA FINANCIAL
INFORMATION
The following table sets forth information about FNBs
financial condition and results of operations, including per
share data and financial ratios, after giving effect to the
October 7, 2005 merger of North East Bancshares, Inc.
(North East) and February 18, 2005 merger of
NSD Bancorp, Inc. (NSD) both with and into FNB and
the merger of Legacy with and into FNB Bank. This information is
called pro forma financial information in this proxy statement/
prospectus. The table shows the information as if the mergers
had become effective on September 30, 2005, in the case of
balance sheet data, and on January 1, 2004, in the case of
income statement data. This pro forma information assumes that
the mergers are accounted for using the purchase method of
accounting and represents a current estimate based on available
information about FNBs and Legacys results of
operations. See Accounting Treatment on
page . The pro forma financial
information includes adjustments to record the assets and
liabilities of North East and Legacy at their estimated fair
value and is subject to further adjustment as additional
information becomes available and as further analyses are
completed. The pro forma income statements do not include any
amount for merger-related costs that will be incurred to combine
the operations of Legacy with those of FNB. These charges will
be recorded based on the nature and timing of the integration.
This table should be read in conjunction with, and is qualified
in its entirety by, the historical financial statements,
including the notes thereto, of Legacy and FNB included in or
incorporated by reference in this proxy statement/ prospectus.
See Where You Can Find More Information on
page .
The pro forma financial information, while helpful in
illustrating the combined financial condition and results of
operations of North East, NSD, Legacy, and FNB once the merger
with Legacy is completed under a particular set of assumptions,
does not reflect the impact of possible revenue enhancements,
expense efficiencies and asset dispositions, among other
possibilities, that may occur as a result of the mergers and,
accordingly, does not attempt to predict future results. The pro
forma financial information also does not necessarily reflect
what the combined historical results of operations of North
East, Legacy and FNB would have been had they been merged during
these periods.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of September 30, 2005 | |
|
|
| |
|
|
|
|
Pro Forma | |
|
FNB Pro | |
|
|
|
Pro Forma | |
|
Pro Forma | |
|
|
FNB | |
|
North East | |
|
Adjustments | |
|
Forma | |
|
Legacy | |
|
Adjustments | |
|
Combined | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands, except per share amounts) | |
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and equivalents
|
|
$ |
123,459 |
|
|
$ |
8,501 |
|
|
$ |
(168 |
) |
|
$ |
131,792 |
|
|
$ |
5,955 |
|
|
$ |
389 |
G |
|
$ |
138,136 |
|
|
Investment securities
|
|
|
1,333,477 |
|
|
|
3,529 |
|
|
|
|
|
|
|
1,337,006 |
|
|
|
70,541 |
|
|
|
|
|
|
|
1,407,547 |
|
|
Loans, net of unearned income
|
|
|
3,754,861 |
|
|
|
49,925 |
|
|
|
731 |
|
|
|
3,805,517 |
|
|
|
283,252 |
|
|
|
1,825 |
A |
|
|
4,090,594 |
|
|
Allowance for loan losses
|
|
|
(50,258 |
) |
|
|
(1,820 |
) |
|
|
|
|
|
|
(52,078 |
) |
|
|
(3,254 |
) |
|
|
|
|
|
|
(55,332 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loans
|
|
|
3,704,603 |
|
|
|
48,105 |
|
|
|
731 |
|
|
|
3,753,439 |
|
|
|
279,998 |
|
|
|
1,825 |
|
|
|
4,035,262 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premises and equipment
|
|
|
83,506 |
|
|
|
5,269 |
|
|
|
|
|
|
|
88,775 |
|
|
|
5,510 |
|
|
|
|
|
|
|
94,285 |
|
|
Goodwill
|
|
|
185,985 |
|
|
|
|
|
|
|
8,437 |
|
|
|
194,422 |
|
|
|
6,481 |
|
|
|
29,749 |
C |
|
|
230,652 |
|
|
Other intangibles
|
|
|
23,998 |
|
|
|
27 |
|
|
|
83 |
|
|
|
24,108 |
|
|
|
1,384 |
|
|
|
3,341 |
B |
|
|
28,833 |
|
|
Other assets
|
|
|
248,631 |
|
|
|
1,140 |
|
|
|
|
|
|
|
249,771 |
|
|
|
12,270 |
|
|
|
574 |
|
|
|
262,615 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$ |
5,703,659 |
|
|
$ |
66,571 |
|
|
$ |
9,083 |
|
|
$ |
5,779,313 |
|
|
$ |
382,139 |
|
|
$ |
35,878 |
|
|
$ |
6,197,330 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
$ |
3,922,220 |
|
|
$ |
59,778 |
|
|
$ |
48 |
|
|
$ |
3,982,046 |
|
|
$ |
288,236 |
|
|
$ |
(403 |
)E |
|
$ |
4,269,879 |
|
|
Borrowings
|
|
|
1,250,771 |
|
|
|
290 |
|
|
|
32 |
|
|
|
1,251,093 |
|
|
|
56,017 |
|
|
|
20,407 |
F,G |
|
|
1,327,517 |
|
|
Other liabilities
|
|
|
63,640 |
|
|
|
141 |
|
|
|
|
|
|
|
63,781 |
|
|
|
1,373 |
|
|
|
6,418 |
D,H |
|
|
71,572 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
5,236,631 |
|
|
|
60,209 |
|
|
|
80 |
|
|
|
5,296,920 |
|
|
|
345,626 |
|
|
|
26,422 |
|
|
|
5,668,968 |
|
Shareholders equity
|
|
|
467,028 |
|
|
|
6,362 |
|
|
|
9,003 |
|
|
|
482,393 |
|
|
|
36,513 |
|
|
|
9,456 |
I |
|
|
528,362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and shareholders equity
|
|
$ |
5,703,659 |
|
|
$ |
66,571 |
|
|
$ |
9,083 |
|
|
$ |
5,779,313 |
|
|
$ |
382,139 |
|
|
$ |
35,878 |
|
|
$ |
6,197,330 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Book value per share
|
|
$ |
8.26 |
|
|
$ |
43.83 |
|
|
|
|
|
|
$ |
8.41 |
|
|
$ |
10.35 |
|
|
|
|
|
|
$ |
8.83 |
|
Shares outstanding
|
|
|
56,520,245 |
|
|
|
145,168 |
|
|
|
717,526 |
|
|
|
57,382,939 |
|
|
|
3,527,322 |
|
|
|
(1,058,197 |
) |
|
|
59,852,064 |
|
Capital ratios
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tangible equity/tangible assets
|
|
|
4.68 |
% |
|
|
9.52 |
% |
|
|
|
|
|
|
4.75 |
% |
|
|
7.65 |
% |
|
|
|
|
|
|
4.53 |
% |
|
Leverage capital ratio
|
|
|
7.01 |
% |
|
|
9.38 |
% |
|
|
|
|
|
|
7.05 |
% |
|
|
7.90 |
% |
|
|
|
|
|
|
6.70 |
% |
See Notes to Selected Consolidated Unaudited Pro Forma Financial
Information
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months Ended September 30, 2005 | |
|
|
| |
|
|
|
|
Pro Forma | |
|
FNB | |
|
|
|
Pro Forma | |
|
Pro Forma | |
|
|
FNB | |
|
North East | |
|
Adjustments | |
|
Pro Forma | |
|
Legacy | |
|
Adjustments | |
|
Combined | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands, except per share amounts) | |
Total interest income
|
|
$ |
219,531 |
|
|
$ |
2,935 |
|
|
$ |
(108 |
) |
|
$ |
222,358 |
|
|
$ |
14,501 |
|
|
$ |
(1,027 |
)A |
|
$ |
235,832 |
|
Total interest expense
|
|
|
78,380 |
|
|
|
703 |
|
|
|
(27 |
) |
|
|
79,056 |
|
|
|
5,923 |
|
|
|
1,832 |
E,F,G |
|
|
86,811 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest income
|
|
|
141,151 |
|
|
|
2,232 |
|
|
|
(81 |
) |
|
|
143,302 |
|
|
|
8,578 |
|
|
|
(2,859 |
) |
|
|
149,021 |
|
Provision for loan losses
|
|
|
8,465 |
|
|
|
(47 |
) |
|
|
|
|
|
|
8,418 |
|
|
|
350 |
|
|
|
|
|
|
|
8,768 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest income after provision for loan losses
|
|
|
132,686 |
|
|
|
2,279 |
|
|
|
(81 |
) |
|
|
134,884 |
|
|
|
8,228 |
|
|
|
(2,859 |
) |
|
|
140,253 |
|
Non-interest income
|
|
|
55,537 |
|
|
|
469 |
|
|
|
|
|
|
|
56,006 |
|
|
|
1,885 |
|
|
|
|
|
|
|
57,891 |
|
Non-interest expense
|
|
|
116,555 |
|
|
|
3,178 |
|
|
|
6 |
|
|
|
119,739 |
|
|
|
8,279 |
|
|
|
501 |
B |
|
|
128,519 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
71,668 |
|
|
|
(430 |
) |
|
|
(87 |
) |
|
|
71,151 |
|
|
|
1,834 |
|
|
|
(3,360 |
) |
|
|
69,625 |
|
Income taxes
|
|
|
21,131 |
|
|
|
|
|
|
|
(30 |
) |
|
|
21,101 |
|
|
|
570 |
|
|
|
(1,176 |
)J |
|
|
20,495 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$ |
50,537 |
|
|
$ |
(430 |
) |
|
$ |
(57 |
) |
|
$ |
50,050 |
|
|
$ |
1,264 |
|
|
$ |
(2,184 |
) |
|
$ |
49,130 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$ |
0.91 |
|
|
$ |
(2.96 |
) |
|
|
|
|
|
$ |
0.89 |
|
|
$ |
0.35 |
|
|
|
|
|
|
$ |
0.84 |
|
|
Diluted
|
|
$ |
0.90 |
|
|
$ |
(2.96 |
) |
|
|
|
|
|
$ |
0.88 |
|
|
$ |
0.34 |
|
|
|
|
|
|
$ |
0.83 |
|
Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average assets
|
|
|
1.22 |
% |
|
|
(0.86 |
)% |
|
|
|
|
|
|
1.19 |
% |
|
|
0.47 |
% |
|
|
|
|
|
|
1.10 |
% |
|
Return on average equity
|
|
|
15.55 |
% |
|
|
(8.59 |
)% |
|
|
|
|
|
|
14.86 |
% |
|
|
4.54 |
% |
|
|
|
|
|
|
13.26 |
% |
|
Dividend payout ratio
|
|
|
76.91 |
% |
|
|
|
|
|
|
|
|
|
|
77.66 |
% |
|
|
|
|
|
|
|
|
|
|
79.11 |
% |
See Notes to Selected Consolidated Unaudited Pro Forma Financial
Information
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, 2004 | |
|
|
| |
|
|
|
|
Pro Forma | |
|
FNB | |
|
|
|
Pro Forma | |
|
Pro Forma | |
|
|
FNB | |
|
NSD | |
|
North East | |
|
Adjustments | |
|
Pro Forma | |
|
Legacy | |
|
Adjustments | |
|
Combined | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands, except per share amounts) | |
Total interest income
|
|
$ |
254,448 |
|
|
$ |
25,699 |
|
|
$ |
3,642 |
|
|
$ |
(380 |
) |
|
$ |
283,409 |
|
|
$ |
16,269 |
|
|
$ |
(1,369 |
)A |
|
$ |
298,309 |
|
Total interest expense
|
|
|
84,390 |
|
|
|
10,175 |
|
|
|
757 |
|
|
|
(1,081 |
) |
|
|
94,241 |
|
|
|
5,516 |
|
|
|
2,446 |
E,F,G |
|
|
102,203 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest income
|
|
|
170,058 |
|
|
|
15,524 |
|
|
|
2,885 |
|
|
|
701 |
|
|
|
189,168 |
|
|
|
10,753 |
|
|
|
(3,815 |
) |
|
|
196,106 |
|
Provision for loan losses
|
|
|
16,280 |
|
|
|
436 |
|
|
|
849 |
|
|
|
|
|
|
|
17,565 |
|
|
|
1,115 |
|
|
|
|
|
|
|
18,680 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest income after provision for loan losses
|
|
|
153,778 |
|
|
|
15,088 |
|
|
|
2,036 |
|
|
|
701 |
|
|
|
171,603 |
|
|
|
9,638 |
|
|
|
(3,815 |
) |
|
|
177,426 |
|
Non-interest income
|
|
|
78,141 |
|
|
|
5,399 |
|
|
|
643 |
|
|
|
|
|
|
|
84,183 |
|
|
|
2,383 |
|
|
|
|
|
|
|
86,566 |
|
Non-interest expense
|
|
|
142,587 |
|
|
|
14,567 |
|
|
|
3,699 |
|
|
|
872 |
|
|
|
161,725 |
|
|
|
10,497 |
|
|
|
667 |
B |
|
|
172,889 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
89,332 |
|
|
|
5,920 |
|
|
|
(1,020 |
) |
|
|
(171 |
) |
|
|
94,061 |
|
|
|
1,524 |
|
|
|
(4,482 |
) |
|
|
91,103 |
|
Income taxes
|
|
|
27,537 |
|
|
|
1,603 |
|
|
|
|
|
|
|
(60 |
) |
|
|
29,080 |
|
|
|
(831 |
) |
|
|
(1,568 |
) |
|
|
26,681 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$ |
61,795 |
|
|
$ |
4,317 |
|
|
$ |
(1,020 |
) |
|
$ |
(111 |
) |
|
$ |
64,981 |
|
|
$ |
2,355 |
|
|
$ |
(2,914 |
) |
|
$ |
64,422 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings (loss) per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$ |
1.31 |
|
|
$ |
1.27 |
|
|
$ |
(7.03 |
) |
|
|
|
|
|
$ |
1.20 |
|
|
$ |
0.66 |
|
|
|
|
|
|
$ |
1.14 |
|
|
Diluted
|
|
$ |
1.29 |
|
|
$ |
1.25 |
|
|
$ |
(7.03 |
) |
|
|
|
|
|
$ |
1.18 |
|
|
$ |
0.64 |
|
|
|
|
|
|
$ |
1.12 |
|
Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average assets
|
|
|
1.29 |
% |
|
|
0.85 |
% |
|
|
(1.36 |
)% |
|
|
|
|
|
|
1.18 |
% |
|
|
0.76 |
% |
|
|
|
|
|
|
1.11 |
% |
|
Return on average equity
|
|
|
23.54 |
% |
|
|
10.91 |
% |
|
|
(13.89 |
)% |
|
|
|
|
|
|
15.97 |
% |
|
|
6.69 |
% |
|
|
|
|
|
|
14.57 |
% |
|
Dividend payout ratio
|
|
|
70.36 |
% |
|
|
68.54 |
% |
|
|
|
|
|
|
|
|
|
|
71.46 |
% |
|
|
|
|
|
|
|
|
|
|
72.08 |
% |
NOTES TO THE UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
|
|
|
Note A Basis of Pro Forma
Presentation |
The following tables set forth information about FNBs
financial condition and results of operations, including per
share data and financial ratios, after giving effect to the
October 7, 2005 merger of North East Bancshares, Inc.
(North East) and February 18, 2005 merger of
NSD Bancorp, Inc. (NSD) both with and into FNB, and
the merger of Legacy with and into FNB Bank. This information is
called pro forma financial information in this proxy statement/
prospectus. The table shows the information as if the mergers
had become effective on September 30, 2005, in the case of
balance sheet data, and on January 1, 2004, in the case of
income statement data.
The estimated purchase price of $63,786,000 for Legacy is
based on 30% cash payout at $18.40 per share and 70%
conversion of shares into FNB stock using an exchange ratio of
one to one. The per share price value for FNB common stock was
$17.95, which was the average of the closing prices of FNB
common stock for the period commencing 4 trading days before,
and ending 4 trading days after December 21, 2005, the date
of the merger agreement. The purchase price does not contemplate
the potential conversion of $4,442,500 in outstanding
convertible subordinated debentures of Legacy at $12.50 per
share into 355,400 shares of FNB common stock as they are
convertible only at the election of the holder.
The merger will be accounted for using the purchase method of
accounting; accordingly, FNBs cost to acquire Legacy will
be allocated to the assets acquired (including identifiable
intangible assets) and liabilities assumed from Legacy at their
respective fair values on the date the merger is completed. This
table should be read in conjunction with, and is qualified in
its entirety by, the historical financial statements, including
the
13
notes thereto, of Legacy and FNB included in or incorporated by
reference in this proxy statement/ prospectus. See Where
You Can Find More Information on
page .
The unaudited pro forma condensed combined financial information
includes estimated adjustments to record the assets and
liabilities of Legacy at their respective fair values and
represents managements estimates based on available
information. The pro forma adjustments included herein may be
revised as additional information becomes available and as
additional analysis are performed. The final allocation of the
purchase price will be determined after the merger is completed
and after completion of a final analysis to determine the fair
values of Legacys tangible, and identifiable intangible,
assets and liabilities as of the closing date. Accordingly, the
final purchase accounting adjustments and integration charges
may be materially different from the pro forma adjustments
presented in this document. Increases or decreases in the fair
value of the net assets, commitments, contracts and other items
of Legacy as compared to the information shown in this document
may change the amount of the purchase price allocated to
goodwill and other assets and liabilities and may impact the
statement of income due to adjustments in yield and/or
amortization of the adjusted assets or liabilities.
The unaudited pro forma condensed consolidated financial
information presented in this document does not necessarily
indicate the results of operations or the combined financial
position that would have resulted had the merger been completed
at the beginning of the applicable period presented, does not
reflect the impact of possible revenue enhancements, expense
efficiencies or asset dispositions, and is not indicative of the
results of operations in future periods or the future financial
position of the combined company.
|
|
|
Note B Pro Forma Adjustments |
The unaudited pro forma combined financial information for the
merger includes the pro forma balance sheet as of
September 30, 2005 assuming the merger was completed on
September 30, 2005. The pro forma income statements for the
nine months ended September 30, 2005 and the year ended
December 31, 2004 were prepared assuming the merger was
completed on January 1, 2004.
The unaudited pro forma condensed combined financial information
reflects the issuance of 2,469,125 shares of FNB common
stock with an aggregate value of $44,315,000 and the conversion
of approximately 406,100 Legacy stock options and warrants with
a value of approximately $2,720,000 at September 30 2005.
Substantially all of the Legacy stock options and warrants are
vested and will be converted into FNB stock options. Common
stock used in the exchange was valued as discussed in
Note A above.
14
The allocation of the purchase price follows:
|
|
|
|
|
|
Cash, assuming 30% of Legacy shares paid at $18.40 per share
|
|
$ |
19,471,000 |
|
Value of Legacy shares converted at an exchange ratio of one to
one
|
|
|
44,315,000 |
|
Incremental direct costs associated with transaction
|
|
|
4,086,000 |
|
Fair value of outstanding employee and non-employee stock options
|
|
|
2,720,000 |
|
|
|
|
|
|
Total cost of acquisition
|
|
|
70,592,000 |
|
Legacy net assets acquired:
|
|
|
|
|
Stockholders equity
|
|
|
36,513,000 |
|
Elimination of recorded goodwill and other intangibles, net of
deferred taxes
|
|
|
(7,381,000 |
) |
|
|
|
|
|
Legacys tangible book value
|
|
|
29,132,000 |
|
Estimated adjustments to reflect assets acquired and liabilities
assumed at fair value:
|
|
|
|
|
|
Total fair value adjustments
|
|
|
8,046,000 |
|
|
Associated deferred income taxes
|
|
|
(2,816,000 |
) |
|
|
|
|
|
Fair value of net assets acquired
|
|
|
34,362,000 |
|
|
|
|
|
Goodwill resulting from the merger
|
|
$ |
36,230,000 |
|
|
|
|
|
The pro forma adjustments included in the unaudited pro forma
condensed combined financial information are as follows:
|
|
|
(A) Adjustment to fair value of the loan portfolio. The
adjustment will be recognized over the estimated remaining life
of the loan portfolio. The impact of the adjustment was to
decrease interest income by approximately $1,027,000 and
$1,369,000 for the nine months ended September 30, 2005 and
the year ended December 31, 2004, respectively. |
|
|
(B) Adjustment to write off historical Legacy core deposit
intangible and to record intangible assets (other than goodwill)
resulting from the merger based on estimated fair values.
Management is studying the nature, amount and amortization
method of various possible identified intangibles. The
adjustments reflected herein are based on current assumptions
and valuations, which are subject to change. For purposes of the
pro forma adjustments shown here, the estimated fair value of
the intangibles is $4,725,000 and consists of a core deposit
intangible of $4,125,000 and a trust customer list of $600,000.
It is estimated that the core deposit intangible and customer
list will be amortized on an accelerated basis over
10 years. Material changes are possible when our analysis
is completed. The net impact of the adjustment was to increase
non-interest expense by approximately $501,000 and $667,000 for
the nine months ended September 30, 2005 and the year ended
December 31, 2004, respectively. |
|
|
(C) Adjustment to write off historical Legacy goodwill and
record goodwill created as a result of the merger. |
|
|
(D) Adjustment to record the deferred tax liability created
as a result of the fair value adjustments using FNBs
statutory tax rate of 35%. |
|
|
(E) Adjustment to fair value of time deposit liabilities
based on current interest rates for similar instruments. The
adjustment will be recognized over the estimated remaining term
of the related deposit liability. The impact of the adjustment
was to increase interest expense by approximately $330,000 and
$443,000 for the nine months ended September 30, 2005 and
the year ended December 31, 2004, respectively. |
15
|
|
|
(F) Adjustment to fair value of outstanding long-term debt
instruments. The adjustment will be recognized over the
remaining life of the long-term debt instruments. The impact of
the adjustment was to increase interest expense by $454,000 and
$605,000 for the nine months ended September 30, 2005 and
the year ended December 31, 2004, respectively. |
|
|
(G) Adjustment to reflect the anticipated issuance of
long-term debt totaling $21,500,000 to cover the 30% cash
portion of Legacy shares acquired. The impact of the debt
issuance was to increase interest expense by $1,048,000 and
$1,398,000 for the nine months ended September 30, 2005 and
the year ended December 31, 2004, respectively. |
|
|
(H) Adjustment to reflect the liability for incremental
direct costs associated with the merger. These costs include
accountant and attorney fees, investment banker services, payout
of employee contracts and severance payments to displaced Legacy
personnel. These liabilities have been recorded pursuant to
EITF 95-3, Recognition of Liabilities in Connection
with a Purchase Business Combination. |
|
|
(I) Adjustment to eliminate Legacys historical
shareholders equity, the adjustment reflects the issuance
of FNB common stock and the conversion of Legacys stock
options into FNB stock options. |
|
|
(J) Adjustment to record the tax effect of the pro forma
adjustments using FNBs statutory tax rate of 35%. |
|
|
(K) Weighted average shares were calculated using the
historical weighted average shares outstanding of Legacy and
FNB, adjusted using the exchange ratio, to the equivalent shares
of FNB common stock, for the year ended December 31, 2004
and the nine months ended September 30, 2005. Earnings per
share data have been computed based on the combined historical
income of Legacy and FNB and the impact of purchase accounting
adjustments. |
The pro forma adjustments for North East and NSD are as follows:
The adjustment to fair value for loans, deposits and borrowings
for North East as of September 30, 2005 were $731,000,
$48,000 and $32,000, respectively.
The impact of the North East fair value adjustments for the nine
months ended September 30, 2005 on loans was to decrease
interest income by $108,000 and on deposits and borrowings was
to decrease interest expense by $27,000. The impact of the North
East fair value adjustment on the core deposit intangible was to
increase non-interest
expense by $6,000 for the nine months ended September 30,
2005.
The impact of the North East and NSD fair value adjustments the
year ended December 31, 2004 on loans was to decrease
interest income by $380,000 and on deposits and borrowings was
to decrease interest expense by $1,081,000. The impact of the
North East and NSD fair value adjustment on the core deposit
intangible was to increase
non-interest expense by
$872,000 for the year ended December 31, 2004.
|
|
|
Note C Merger Related Charges and
Benefits |
In connection with the merger, a plan is being developed to
integrate FNB and Legacys operations. The total
integration costs have not yet been determined and have not been
included in the pro forma adjustments. The specific details of
these plans will continue to be refined over the next several
months. Currently, our merger integration team is assessing the
two companies operations, including information systems,
premises, equipment, benefit plans, service contracts and
personnel to determine optimum strategies to realize additional
cost savings.
16
MANAGEMENTS DISCUSSION AND ANALYSIS OF
LEGACYS FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The following discussion provides managements analysis of
Legacys financial condition and results of operations for
the nine month periods ended September 30, 2005 and 2004
and for the years ended December 31, 2004, 2003 and 2002.
The Legacy financial statements and accompanying notes included
elsewhere in this proxy statement/ prospectus are an integral
part of this discussion and should be read in conjunction with
it. Legacy is referred to as the Bank in this
section.
Critical Accounting Estimates
|
|
|
Allowance for Loan Losses |
The allowance for loan losses is based on managements
ongoing evaluation of the loan portfolio and reflects an amount
considered by management to be its best estimate of known and
inherent losses in the portfolio. Management considers a variety
of factors when establishing the allowance, such as the impact
of current economic conditions, diversification of the loan
portfolios, delinquency statistics, results of loan review and
related classifications, and historic loss rates. In addition,
certain individual loans which management has identified as
problematic are specifically provided for, based upon an
evaluation of the borrowers perceived ability to pay, the
estimated adequacy of the underlying collateral and other
relevant factors. In addition, regulatory authorities, as an
integral part of their examinations, periodically review the
allowance for loan losses. They may require additions to the
allowance based upon their judgments about information available
to them at the time of examination. Although provisions have
been established and segmented by type of loan, based upon
managements assessment of their differing inherent loss
characteristics, the entire allowance for loan losses is
available to absorb loan losses in any category.
Management uses significant estimates to determine the allowance
for loan losses. Since the allowance for loan losses is
dependent, to a great extent, on conditions that may be beyond
the Banks control, it is at least reasonably possible that
managements estimate of the allowance for loan losses and
actual results could differ in the near term.
The costs of acquired banks or branches in excess of the fair
value of net assets at the acquisition date are recorded as
goodwill. Goodwill is not amortized, but is tested at least
annually for impairment. Other identifiable intangible assets
are amortized over their estimated useful lives.
As a result of this accounting treatment, operating results are
significantly impacted by the amount of purchase price that is
allocated to goodwill versus amortizable assets,
managements assessment of impairment, and for amortizable
assets, the useful lives, which are subjective in nature and
require management to make certain estimates and assumptions.
Deferred tax assets and liabilities are recognized for the
future tax consequences attributable to differences between the
financial statement carrying amounts of existing assets and
liabilities and their respective tax bases, as well as operating
loss carry forwards. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are
expected to be recovered or settled.
The benefit to the Bank of operating loss carryforwards and
future deductible items exceeds future taxable items at
September 30, 2005 and December 31, 2004, resulting in
the recognition of a net deferred tax asset. A valuation
allowance is established against deferred tax assets when in the
judgment of management, it is more likely than not that such
deferred tax assets will not be realizable based on the expected
level of taxable income through the expiration date of the
operating losses. Managements judgment about the level of
future taxable income is dependent to a great extent on matters
that may be beyond the Banks control.
17
Therefore, it is at least reasonably possible that
managements judgment about the need for a valuation
allowance for deferred taxes could change in the near term.
The Bank follows the disclosure requirements of Statement of
Financial Accounting Standards (SFAS) No. 123,
Accounting for Stock-Based Compensation.
Accordingly, no compensation expense for option grants has been
recognized in the financial statements of the Bank. If
compensation expense for stock options had been recognized:
(i) net income for the nine months ended September 30,
2005 would have been reduced by $233,000 from $1,264,000 to
$1,031,000 and diluted earnings per share would have been
reduced from $.34 to $.28 for the nine month period ended
September 30, 2005, and (ii) net income for the year
2004 would have been reduced by $194,000 from $2,355,000 to
$2,161,000 and diluted earnings per share for the year 2004
would have been reduced from $.64 to $.59.
The Bank calculates the compensation cost of the options by
using the Black-Scholes method to determine the fair value of
the options granted. In calculating the fair value of the
options, the Bank makes assumptions regarding the risk-free rate
of return, the expected volatility of the Banks common
stock and the expected life of the options. These assumptions
impact the compensation cost of the options and the pro-forma
impact to net income. Effective January 1, 2006, the
compensation cost of certain option grants will require expense
recognition according to the terms of SFAS No. 123R,
Accounting for Stock-Based Compensation. Management
expects the adoption of SFAS No. 123R to have an
insignificant impact on the Banks financial condition and
results of operations.
Management has determined that it operates in only one segment,
commercial banking.
NINE MONTHS ENDED SEPTEMBER 30, 2005 AND 2004
Results of Operations
The Bank posted net income of $1,264,000 for the nine months
ended September 30, 2005 as compared to $1,565,000 for the
same period in 2004. Net income per dilutive share was $0.34 in
2005 as compared to $.43 in 2004. The primary component of the
decrease was the recognition of income tax expense of $570,000
in 2005 versus an income tax benefit of $621,000 recorded in
2004 as accumulated net operating loss deductions were fully
utilized by the end of 2004.
Net interest income is the difference between interest income
earned on loans and investment securities and the interest
expense incurred on deposits and borrowings, and is the
Banks primary revenue source. Net interest income is
affected by the changes in asset and liability volume, the
changes in the relative mix of individual asset and liability
components, and the interest rate environment.
Average earning assets were $332.5 million for the nine
month period ended September 30, 2005, an increase of
$42.5 million or 14.7% over the 2004 average balance of
$290.0 million. The increase in 2005 came primarily from
strong commercial loan growth during the twelve months ended
September 30, 2005. Average interest-bearing deposits grew
to $249.5 million for the nine month period ended
September 30, 2005, up from $207.9 million in 2004.
The deposit growth came primarily in time deposits and, to a
lesser extent, savings and money market deposits.
18
Primarily as a result of the balance sheet growth noted above,
net interest income increased $561,000 or 7.0% to $8,578,000 for
the nine month period ended September 30, 2005, up from
$8,017,000 in 2004. However, the net interest margin ratio
declined to 3.47% in 2005 from 3.64% in 2004 primarily due to
the flattening of the market interest rate curve following
Federal Reserve short-term rate increases totaling 3.0% since
June, 2004. The Table following this paragraph presents the
Banks average asset and liability balances, interest
income and expense amounts, and related interest yield and cost
percentages for the nine-month periods ended September 30,
2005 and 2004.
TABLE Distribution of Interest Bearing Assets and
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30, | |
|
|
| |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
Average | |
|
|
|
Average | |
|
Average | |
|
|
|
Average | |
|
|
Balance | |
|
Interest | |
|
Rate | |
|
Balance | |
|
Interest | |
|
Rate | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal funds sold
|
|
$ |
1,240 |
|
|
$ |
30 |
|
|
|
3.19 |
% |
|
$ |
717 |
|
|
$ |
4 |
|
|
|
0.75 |
% |
|
Short term investments
|
|
|
22 |
|
|
|
0 |
|
|
|
0.00 |
% |
|
|
22 |
|
|
|
2 |
|
|
|
13.02 |
% |
|
Investments
|
|
|
62,516 |
|
|
|
1,739 |
|
|
|
3.72 |
% |
|
|
54,194 |
|
|
|
1,368 |
|
|
|
3.37 |
% |
|
Loans
|
|
|
268,698 |
|
|
|
12,773 |
|
|
|
6.36 |
% |
|
|
235,093 |
|
|
|
10,590 |
|
|
|
5.94 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest earning assets
|
|
|
332,476 |
|
|
|
14,542 |
|
|
|
5.85 |
% |
|
|
290,026 |
|
|
|
11,964 |
|
|
|
5.45 |
% |
Allowance for loan losses
|
|
|
(3,327 |
) |
|
|
|
|
|
|
|
|
|
|
(3,485 |
) |
|
|
|
|
|
|
|
|
Cash and due from banks
|
|
|
5,601 |
|
|
|
|
|
|
|
|
|
|
|
4,836 |
|
|
|
|
|
|
|
|
|
Other assets
|
|
|
23,566 |
|
|
|
|
|
|
|
|
|
|
|
14,349 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL ASSETS
|
|
$ |
358,316 |
|
|
|
|
|
|
|
|
|
|
$ |
305,726 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Shareholders Equity: |
|
Deposits:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Demand
|
|
$ |
11,048 |
|
|
$ |
41 |
|
|
|
0.50 |
% |
|
$ |
11,198 |
|
|
$ |
48 |
|
|
|
0.53 |
% |
|
|
Savings
|
|
|
74,168 |
|
|
|
1,070 |
|
|
|
1.93 |
% |
|
|
63,020 |
|
|
|
411 |
|
|
|
0.87 |
% |
|
|
Time
|
|
|
164,308 |
|
|
|
3,764 |
|
|
|
3.06 |
% |
|
|
133,718 |
|
|
|
2,672 |
|
|
|
3.18 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
249,524 |
|
|
|
4,875 |
|
|
|
2.61 |
% |
|
|
207,936 |
|
|
|
3,131 |
|
|
|
1.99 |
% |
|
Short term borrowings
|
|
|
7,333 |
|
|
|
163 |
|
|
|
2.97 |
% |
|
|
7,738 |
|
|
|
81 |
|
|
|
1.40 |
% |
|
Long term borrowings
|
|
|
27,401 |
|
|
|
716 |
|
|
|
3.45 |
% |
|
|
20,661 |
|
|
|
556 |
|
|
|
3.54 |
% |
|
Convertible subordinated debenture
|
|
|
4,499 |
|
|
|
169 |
|
|
|
5.02 |
% |
|
|
4,763 |
|
|
|
179 |
|
|
|
5.02 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest bearing liabilities
|
|
|
288,757 |
|
|
|
5,923 |
|
|
|
2.74 |
% |
|
|
241,098 |
|
|
|
3,947 |
|
|
|
2.17 |
% |
Demand deposits
|
|
|
30,838 |
|
|
|
|
|
|
|
|
|
|
|
28,062 |
|
|
|
|
|
|
|
|
|
Other liabilities
|
|
|
1,503 |
|
|
|
|
|
|
|
|
|
|
|
1,887 |
|
|
|
|
|
|
|
|
|
Shareholders equity
|
|
|
37,218 |
|
|
|
|
|
|
|
|
|
|
|
34,679 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND SHAREHOLDERS EQUITY
|
|
$ |
358,316 |
|
|
|
|
|
|
|
|
|
|
$ |
305,726 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Spread
|
|
|
|
|
|
|
|
|
|
|
3.11 |
% |
|
|
|
|
|
|
|
|
|
|
3.28 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Margin (Tax Equivalent)
|
|
|
|
|
|
$ |
8,619 |
|
|
|
3.47 |
% |
|
|
|
|
|
$ |
8,017 |
|
|
|
3.64 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax-equivalent adjustment
|
|
|
|
|
|
|
(41 |
) |
|
|
|
|
|
|
|
|
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Spread as reported
|
|
|
|
|
|
$ |
8,578 |
|
|
|
|
|
|
|
|
|
|
$ |
8,017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note: Average loans include non-accrual loans.
19
|
|
|
Provision for Loan Losses |
The Banks loan loss provision totaled $350,000 for the
nine month period ended September 30, 2005 as compared to
$798,000 in 2004. As noted previously, the bank adjusts the
provision for loan losses periodically as considered necessary
to maintain the allowance for loan losses at a level deemed
sufficient to meet the risk characteristics existing in the loan
portfolio. Refer to the Asset Quality and
Allowance for Loan Losses sections for additional
information.
Non-interest income totaled $1,885,000 for the nine month period
ended September 30, 2005, an increase of $201,000 or 11.9%
from $1,684,000 for the comparable 2004 period. Asset management
fees increased $126,000 or 20.8% and net deposit and loan fee
income increased $49,000. Also, the Bank recorded BOLI income
totaling $213,000 in 2005 as compared to $0 in 2004. The 2004
period included a $196,000 gain on the sale of two branches.
Non-interest expenses were $8,279,000 for the nine month period
ended September 30, 2005 as compared to $7,959,000 for the
comparable prior year. Salaries and employee benefits were up
$407,000 primarily due to key staffing enhancements as well as
benefit cost increases and normal merit raises. Other expenses
also increased $296,000 primarily due to increased loan and
deposit account servicing costs associated with strong portfolio
growth. Offsetting these increases were decreases in occupancy
and equipment and data processing expense associated with the
sale of two branches in June 2004 and cost savings in
advertising and marketing.
The Bank recorded income tax expense of $570,000 for the nine
month period ended September 30, 2005 resulting in an
effective income tax rate of 31.1% on income before taxes of
$1,834,000. This compared to an income tax benefit of $621,000
for 2004, which resulted in an effective tax benefit of 65.8% on
income before taxes of $944,000. As noted previously, the
relative change occurred in the Banks tax position as
accumulated net operating loss deductions were fully utilized by
the end of 2004. Also, during 2005, the Banks effective
tax rate was below the statutory federal tax rate of 34%
primarily due to the effect of tax-exempt income from municipal
bond investments and bank owned life insurance investments.
Financial Condition
The Banks total assets increased $43.5 million or
12.8% to $382.1 million at September 30, 2005 from
$338.6 million on December 31, 2004.
The securities portfolio provides supplemental revenue and
liquidity to the Bank, as well as collateral for deposits of
local government entities and borrowings at the Federal Home
Loan Bank. Securities purchases and sales are governed by
an investment policy which includes liquidity, interest rate
sensitivity, and credit risk standards. In accordance with the
investment policy, management emphasizes long-term objectives,
while prudently managing near-term interest rate risk,
liquidity, and overall balance sheet strategies.
Total balances in the securities portfolio were
$70.5 million and $63.1 million at September 30,
2005 and December 31, 2004, respectively. The balance at
September 30, 2005 includes $17.1 million in
bank-qualified municipal bonds that were acquired during the
second and third quarters of 2005 to enhance the Banks tax
efficiency. The Bank funded the bond acquisitions primarily with
repayments from other securities, excess cash, and certificates
of deposits.
20
Net loans totaled $280.0 million on September 30,
2005, an increase of $31.0 million or 16.6% on an
annualized basis from $249.0 million on December 31,
2004. The Bank continues to experience strong loan demand and
believes this success accrues from the efforts of its
highly-experienced and skilled lending professionals, its focus
on target markets and customer segments, and its attractive
array of competitive products and rates.
The loan portfolio represented 73.3% and 73.5% of total assets
on September 30, 2005 and December 31, 2004,
respectively. The loan portfolio is composed of commercial
loans, residential loans, and consumer loans. The commercial
loan portfolio represented 78.2% and 78.5% of total loans as of
September 30, 2005 and December 31, 2004,
respectively, and is comprised of lines of credit, equipment
loans, real estate loans for various purposes and working
capital loans. A significant portion of commercial loans are
secured by real estate. Residential mortgages comprised 11.3%
and 10.4% of the loan portfolio as of September 30, 2005
and December 31, 2004, respectively and include primarily
loans secured by in-market real estate. As of September 30,
2005 and December 31, 2004, respectively, consumer and
other loans represented 10.5% and 11.1% of total loans. Consumer
and other loans include direct installment loans for purposes
such as vehicle purchases, debt consolidations, home
improvements, and other personal needs. Home equity loans are
also a part of the consumer loan portfolio. The Bank does not
engage in foreign lending nor does it engage in speculative real
estate and land development lending. The primary areas of
lending are Dauphin, Cumberland, Lycoming, Luzerne, and
Schuylkill Counties of Pennsylvania and contiguous areas.
Assets that are classified as non-performing include loans on
non-accrual, loans accruing interest that are past due by
90 days or more, and real estate and other assets which
have been foreclosed upon and are in the process of liquidation.
As of September 30, 2005, non-accrual loans totaled
$1,192,000 as compared to $1,037,000 on December 31, 2004.
Non-accrual loans to total loans were .42% and .41% on
September 30, 2005 and December 31, 2004,
respectively. Accruing loans, past due 90 days or more were
$208,000 on September 30, 2005 and $42,000 at
December 31, 2004. There were no real estate and other
assets which have been foreclosed upon and are in the process of
liquidation on September 30, 2005 or December 31, 2004.
The Banks loan charge-offs totaled $627,000 during the
nine months ended September 30, 2005 as compared to
$491,000 for the comparable period in 2004. The 2005 charge-offs
related primarily to specific reserves previously recorded on
certain non-performing loans. This charge-off activity, in
conjunction with other factors including improved general
economic trends that favorably affected the Banks estimate
of inherent losses in the loan portfolio, resulted in a
reduction of the allowance, particularly when expressed as a
percentage of loans. Improved market economic trends and other
factors favorably influencing losses inherent in the portfolio
resulted in less required provision expense for loan losses for
the nine months ended September 30, 2005 versus the
comparable period in 2004.
21
|
|
|
Allowance for Loan Losses |
|
|
|
|
|
|
|
|
|
|
|
|
As of or for the | |
|
As of or for the | |
|
|
Nine Months Ended | |
|
Nine Months Ended | |
|
|
September 30, 2005 | |
|
September 30, 2004 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Allowance for loan losses, beginning balance
|
|
$ |
3,461 |
|
|
$ |
3,430 |
|
Less charge-offs:
|
|
|
|
|
|
|
|
|
Commercial and commercial real estate
|
|
|
617 |
|
|
|
369 |
|
Residential real estate
|
|
|
|
|
|
|
|
|
Consumer
|
|
|
10 |
|
|
|
122 |
|
|
|
|
|
|
|
|
|
Total charge offs
|
|
|
627 |
|
|
|
491 |
|
Plus recoveries:
|
|
|
|
|
|
|
|
|
Commercial and commercial real estate
|
|
|
9 |
|
|
|
35 |
|
Residential real estate
|
|
|
|
|
|
|
|
|
Consumer
|
|
|
|
|
|
|
3 |
|
|
|
|
|
|
|
|
|
Total recoveries
|
|
|
9 |
|
|
|
38 |
|
|
|
|
|
|
|
|
Net loans charged off
|
|
|
618 |
|
|
|
453 |
|
Provision for loan losses
|
|
|
350 |
|
|
|
798 |
|
Purchase (sale) of loans
|
|
|
61 |
|
|
|
(310 |
) |
|
|
|
|
|
|
|
Balance at end of year
|
|
$ |
3,254 |
|
|
$ |
3,465 |
|
|
|
|
|
|
|
|
Average total loans
|
|
$ |
268,698 |
|
|
$ |
235,093 |
|
|
|
|
|
|
|
|
Allowance for loan losses to period end total loans
|
|
|
1.15 |
% |
|
|
1.40 |
% |
Allowance for loan losses to non-performing loans
|
|
|
232.4 |
% |
|
|
319.1 |
% |
Net charge-offs to average loans, annualized
|
|
|
0.31 |
% |
|
|
0.26 |
% |
Based on all relevant information available, management believes
the allowance for loan losses as stated at September 30,
2005 is adequate to cover estimated loan losses inherent in the
loan portfolio, but there can be no assurance that the allowance
will prove to be adequate or that significant additions to the
allowance will not be required. While management feels that the
Banks allowance for loan losses is adequate based on
information currently available, future adjustments may be
necessary due to changes in economic conditions or changes in
managements assumptions.
Funding Sources
Deposits are the Banks primary source of funding for its
loan and investment portfolios. Total deposits increased
$43.8 million or 23.8% on an annualized basis during the
nine months ended September 30, 2005. The deposit growth
for the nine months ended September 30, 2005 came primarily
in the Banks time deposit, savings and money market
deposit portfolios. Also, $13.8 million of deposits were
acquired with the April, 2005 purchase of the McAdoo branch.
Borrowings remain an important source of funding and serve to
support the Banks balance sheet management. The Bank has a
total of $12.0 million available for borrowing in
short-term lines of credit established with six banks as of
September 30, 2005, of which no amounts were outstanding at
September 30, 2005 and December 31, 2004. The Bank had
short-term borrowings totaling $7.6 million and
$23.4 million from the Federal Home Loan Bank at
September 30, 2005, and December 31, 2004,
respectively. Long-term borrowings consist of advances from the
Federal Home Loan Bank, which totaled $44.0 million and
22
$28.0 million at September 30, 2005 and
December 31, 2004, respectively. During 2005, the Bank
refinanced short-term balances totaling $15.8 million on a
net basis with long-term FHLB advances to partially reduce the
increase in borrowed interest costs that would occur if
short-term interest rates continue to rise. Convertible
subordinated debentures were $4.4 million and
$4.5 million as of September 30, 2005 and
December 31, 2004, respectively. The debentures are
convertible by the holders into common stock.
The Banks total shareholders equity was
$36.5 million at September 30, 2005, a decrease from
$36.7 million at December 31, 2004. During the nine
months ended September 30, 2005, equity decreases from
treasury stock purchases totaling $1.6 million and an
additional $.2 million after-tax loss in the value of
securities available for sale offset equity increases of
$1.3 million from net income and $.3 million from
stock compensation plan activity and subordinated debenture
conversions. Regarding the Banks share repurchase plan
announced in April, 2005, 109,627 shares were acquired as
of September 30, 2005 at an average cost of $14.25 per
share. As of September 30, 2005, 70,373 shares remain
available for repurchase of the 180,000 shares authorized
for repurchase under the plan during the twelve month period
commencing May, 2005 and ending May, 2006. The Bank has no other
share repurchase plans that have expired or terminated.
The Bank maintains regulatory capital ratios in excess of the
thresholds defined as Well Capitalized, pursuant to
the Federal Deposit Insurance Corporation Improvement Act of
1991. There are no conditions or events that management believes
have occurred that would change the Well Capitalized
rating.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To be Well | |
|
|
|
|
|
|
|
|
Capitalized Under | |
|
|
|
|
Capital Adequacy | |
|
Prompt Corrective | |
|
|
Actual Capital | |
|
Purposes | |
|
Action Provisions | |
|
|
| |
|
| |
|
| |
|
|
Amount | |
|
Ratio | |
|
Amount | |
|
Ratio | |
|
Amount | |
|
Ratio | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
September 30, 2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital to risk-weighted assets
|
|
$ |
36,767 |
|
|
|
12.8% |
|
|
$ |
22.977 |
|
|
|
8.0% |
|
|
$ |
28,721 |
|
|
|
10.0% |
|
|
Tier I capital to risk-weighted assets
|
|
$ |
29,070 |
|
|
|
10.1% |
|
|
$ |
11,488 |
|
|
|
4.0% |
|
|
$ |
17,233 |
|
|
|
6.0% |
|
|
Tier I capital to average assets
|
|
$ |
29,070 |
|
|
|
7.9% |
|
|
$ |
14,714 |
|
|
|
4.0% |
|
|
$ |
18,393 |
|
|
|
5.0% |
|
December 31, 2004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital to risk-weighted assets
|
|
$ |
37,698 |
|
|
|
14.7% |
|
|
$ |
20,573 |
|
|
|
8.0% |
|
|
$ |
25,717 |
|
|
|
10.0% |
|
|
Tier I capital to risk-weighted assets
|
|
$ |
29,980 |
|
|
|
11.7% |
|
|
$ |
10,287 |
|
|
|
4.0% |
|
|
$ |
15,430 |
|
|
|
6.0% |
|
|
Tier I capital to average assets
|
|
$ |
29,980 |
|
|
|
9.4% |
|
|
$ |
12,762 |
|
|
|
4.0% |
|
|
$ |
15,952 |
|
|
|
5.0% |
|
The Banks ability to generate funds needed to support loan
demand and deposit withdrawals is monitored by the Asset and
Liability Management Committee (ALCO). As part of this process,
the Bank has established several liquidity-related policy limits
and ALCO monitors the Banks actual results against these
thresholds as indicated in the following table:
|
|
|
|
|
|
|
|
|
As of | |
|
|
|
|
September 30, | |
|
Policy |
|
|
2005 | |
|
Limitation |
|
|
| |
|
|
Loans divided by deposits
|
|
|
98.3 |
% |
|
Less than 110.0% |
Investments divided by deposits
|
|
|
24.5 |
% |
|
Less than 50.0% |
Borrowed funds divided by loans
|
|
|
18.2 |
% |
|
Less than 50.0% |
Loans divided by capital
|
|
|
7.8 Times |
|
|
Less than 10 times |
23
As noted in the table, the Banks liquidity measures were
within policy limitations as of September 30, 2005. Also,
at September 30, 2005, the Bank could borrow an additional
$87.0 million from the Federal Home Loan Bank.
|
|
|
Off Balance Sheet Arrangements |
The Bank is a party to financial instruments with off-balance
sheet risk in the normal course of business to meet the
financing needs of its customers. These financial instruments
include commitments to extend credit and standby letters of
credit. Standby letters of credit commit the Bank to make
payments on behalf of customers when certain specified future
events occur. Such commitments involve, to varying degrees,
elements of credit and interest rate risk in excess of the
amount recognized in the balance sheet.
The Banks exposure to credit loss in the event of
nonperformance by the other party to the financial instrument
for letters of credit and commitments to extend credit is
represented by the contractual amount of those instruments.
The Bank uses the same credit policies in making commitments and
conditional obligations as it does for on-balance sheet
instruments.
The following financial instruments were outstanding whose
contract amounts represent credit risk:
|
|
|
|
|
|
|
|
|
|
|
September 30, | |
|
December 31, | |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Commitments to grant loans
|
|
$ |
21,792 |
|
|
$ |
20,760 |
|
Unfunded commitments under lines of credit
|
|
|
65,764 |
|
|
|
50,020 |
|
Unfunded letters of credit
|
|
|
2,331 |
|
|
|
2,741 |
|
|
|
|
|
|
|
|
|
|
$ |
89,887 |
|
|
$ |
73,521 |
|
|
|
|
|
|
|
|
Many of these commitments are expected to expire without being
drawn upon. The amounts do not necessarily represent future cash
requirements and are expected to be funded without impairing
liquidity.
Quantitative and Qualitative Disclosures About Market
Risk
The Banks material market risk exposure in the course of
its normal business operations is exposure to interest rate
risk. The Bank has no foreign currency exchange risk, no
commodity price risk or material equity price risk. Financial
instruments, which are sensitive to changes in market interest
rates, include fixed and variable-rate loans, fixed income
securities, mortgage backed securities, collateralized mortgage
obligations, interest-bearing deposits and other borrowings. All
interest rate risk arises in connection with financial
instruments entered into for purposes other than trading.
|
|
|
Interest Rate Sensitivity |
An important element of both earnings performance and proper
liquidity management is the maintenance of an appropriate
balance between rate-sensitive assets and rate-sensitive
liabilities. Interest rate sensitivity analysis is the
measurement of the vulnerability of net interest income to
changes in the level of rates. To manage this risk, the Bank
regularly forecasts its exposure to rate changes and monitors
its performance so that appropriate and timely actions may be
taken.
As of September 30, 2005, the Bank is in an asset sensitive
position with assets maturing or repricing within one year
exceeding liabilities that mature or reprice in one year by
approximately $29.0 million. On a cumulative basis,
interest sensitive assets as a percentage of interest sensitive
liabilities are 119.9% within a one-year period. There can be no
assurance that the Banks assets and liabilities will
behave as estimated due to the inherent uncertainty of the
assumptions employed.
24
ALCO reviews net interest income simulation and gap results
monthly to ensure that the related risk profile is appropriate
in light of managements view of current and expected
business conditions. ALCO considers the nature of the
Banks strategies and activities, its past performance, and
the level of earnings and capital available to absorb potential
losses. Management considers and implements actions in the
normal course of business to adjust the Banks profile
accordingly. Management reports to the Board of Directors
monthly on interest rate risk analysis results and related
business activities.
Years Ended December 31, 2004, 2003 AND 2002
Results Of Operations
The Bank posted net income of $2,355,000 in 2004, an increase of
$1,326,000 or 128.9% over 2003 net income of $1,029,000.
Net income for 2003 increased $772,000 or 300.4% over net income
of $257,000 in 2002. The net income per basic share increased
$.29 per share or 78.4% to $.66 per share in 2004
compared to an increase of $.18 per share or 94.7% to $0.37
in 2003 from $.19 in 2002. These changes are due primarily to
the merger of Northern State Bank (NSB) in January
2003, the purchase of three branches in September 2003, the sale
of two branches in 2004, an increase in net interest income, and
an increase in non-interest income, partially offset by an
increase in non-interest expenses.
On February 25, 2004, the Bank and First Citizens National
Bank, a wholly owned subsidiary of Citizens Financial Services,
Inc., entered into a Branch Purchase and Deposit Assumption
Agreement pursuant to which First Citizens National Bank
purchased the Banks Sayre branch office and Towanda branch
office, both located in Bradford County. The transaction
included equipment and loan and deposit accounts of the two
branches. The transaction closed in June of 2004. The
transaction decreased loans by $28.5 million, deposits by
$20.4 million, and goodwill and other intangible assets by
$698,000. The Bank recognized a $196,000 gain on the sale.
In order to expand its market presence the Bank signed an
agreement to purchase the McAdoo, Pennsylvania branch of
Harleysville National Bank, a wholly-owned subsidiary of
Harleysville National Corporation on December 17, 2004. The
purchase of this branch will include the assumption of
approximately $14.6 million in deposits as well as the
purchase of approximately $5.5 million of certain loans and
other assets. The transaction is subject to regulatory approval
and is expected to be consummated early in the second quarter of
2005. The acquisition is expected to be accretive to the Bank
immediately by increasing revenue, and to a lesser extent,
expenses. The transaction will not have a significant impact on
liquidity.
Average earning assets increased $44 million in 2004 to
$293.9 million from $249.9 million in 2003, which
increased $130.7 million or 109.6% over the 2002 average
balance of $119.2 million (see Table 1). The principal
reasons for the increase in 2004 were strong loan growth, and
the purchase of $15.5 million in residential mortgages,
partially offset by the sale of two branches. Strong loan
growth, the NSB merger and branch purchases were the principal
reasons for the increase in 2003. Despite unsettled national
economic conditions, the Harrisburg, Williamsport and Hazleton
markets have shown encouraging loan demand and economic
stability. The Bank sold two branches in June of 2004 with
$28.5 million of loans. The Bank received
$65.5 million of net loans from the NSB merger and
$23.9 million from the purchase of branches in 2003.
Average loans totaled $239.9 million in 2004, an increase
of $44.3 million from $195.6 million in 2003, compared
to $97.8 million in 2002. The Bank continues to be
successful at generating credit relationships in its target
market.
Average investments were $53.3 million in 2004 compared to
$50.4 million in 2003 and $13.1 million in 2002. The
$37.3 million or 284.9% increase in average investments in
2003 was largely attributable to the merger of NSB, the
investment of funds received from the branch purchases and
leveraged borrowings.
Average interest-bearing deposits grew to $211.5 million in
2004, up from $190.0 million in 2003 and $96.9 million
in 2002. The Bank received $70.1 million of
interest-bearing deposits from the NSB merger, acquired
$51.8 million of interest-bearing deposits from the
purchase of branches in September 2003 and sold
25
$20.4 million in deposits in June of 2004. Absent the
branch purchases and sale, average deposits declined in 2004
compared to 2003 as the Bank repositioned the balance sheet to
improve its net interest margin.
Average short-term borrowings decreased to $7.8 million in
2004 from $9.4 million in 2003. Average long-term
borrowings grew to $22.3 million from $16.1 million in
2003 and $7.8 million in 2002. In preparation for the
September 2003 branch purchase, the bank began to utilize
short-term borrowing capabilities in order to effectively
utilize the cash received in the transaction. The bank utilizes
long-term borrowings as an alternative to deposits when
advantageous. In the third quarter of 2003 the bank issued
$4.8 million of five percent convertible subordinated
debentures which accounted for the $4.7 million increase in
2004 and the $1.1 million increase in average convertible
subordinated debentures in 2003 from 2002.
TABLE 1 Distribution of Interest Bearing Assets
and Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
Average | |
|
|
|
Average | |
|
Average | |
|
|
|
Average | |
|
Average | |
|
|
|
Average | |
|
|
Balance | |
|
Interest | |
|
Rate | |
|
Balance | |
|
Interest | |
|
Rate | |
|
Balance | |
|
Interest | |
|
Rate | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal funds sold
|
|
$ |
662 |
|
|
$ |
6 |
|
|
|
0.85% |
|
|
$ |
3,505 |
|
|
$ |
42 |
|
|
|
1.18% |
|
|
$ |
2,302 |
|
|
$ |
36 |
|
|
|
1.58% |
|
|
Short term investments
|
|
|
22 |
|
|
|
2 |
|
|
|
1.52% |
|
|
|
375 |
|
|
|
5 |
|
|
|
1.47% |
|
|
|
5,977 |
|
|
|
105 |
|
|
|
1.75% |
|
|
Investments
|
|
|
53,283 |
|
|
|
1,851 |
|
|
|
3.47% |
|
|
|
50,403 |
|
|
|
1,680 |
|
|
|
3.33% |
|
|
|
13,095 |
|
|
|
664 |
|
|
|
5.07% |
|
|
Loans
|
|
|
239,895 |
|
|
|
14,410 |
|
|
|
6.01% |
|
|
|
195,606 |
|
|
|
12,048 |
|
|
|
6.16% |
|
|
|
97,833 |
|
|
|
6,730 |
|
|
|
6.88% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest earning assets
|
|
|
293,862 |
|
|
|
16,269 |
|
|
|
5.54% |
|
|
|
249,889 |
|
|
|
13,775 |
|
|
|
5.51% |
|
|
|
119,207 |
|
|
|
7,535 |
|
|
|
6.32% |
|
|
Allowance for loan losses
|
|
|
(3,506 |
) |
|
|
|
|
|
|
|
|
|
|
(2,701 |
) |
|
|
|
|
|
|
|
|
|
|
(1,155 |
) |
|
|
|
|
|
|
|
|
|
Cash and due from banks
|
|
|
4,919 |
|
|
|
|
|
|
|
|
|
|
|
5,884 |
|
|
|
|
|
|
|
|
|
|
|
2,952 |
|
|
|
|
|
|
|
|
|
|
Other assets
|
|
|
15,601 |
|
|
|
|
|
|
|
|
|
|
|
10,494 |
|
|
|
|
|
|
|
|
|
|
|
1,769 |
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL ASSETS
|
|
$ |
310,876 |
|
|
|
|
|
|
|
|
|
|
$ |
263,566 |
|
|
|
|
|
|
|
|
|
|
$ |
122,773 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Shareholders Equity: |
|
Deposits:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Demand
|
|
$ |
12,250 |
|
|
$ |
65 |
|
|
|
0.53% |
|
|
$ |
10,762 |
|
|
|
73 |
|
|
|
0.68% |
|
|
$ |
5,582 |
|
|
$ |
53 |
|
|
|
0.94% |
|
|
|
Savings
|
|
$ |
64,325 |
|
|
|
659 |
|
|
|
1.03% |
|
|
|
71,743 |
|
|
|
814 |
|
|
|
1.13% |
|
|
|
29,978 |
|
|
|
605 |
|
|
|
2.02% |
|
|
|
Time
|
|
|
134,885 |
|
|
|
3,645 |
|
|
|
3.20% |
|
|
|
107,509 |
|
|
|
3,295 |
|
|
|
3.69% |
|
|
|
61,346 |
|
|
|
2,681 |
|
|
|
4.37% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
211,460 |
|
|
|
4,369 |
|
|
|
2.07% |
|
|
|
190,014 |
|
|
|
4,182 |
|
|
|
2.20% |
|
|
|
96,906 |
|
|
|
3,339 |
|
|
|
3.45% |
|
|
Short term borrowings
|
|
|
7,814 |
|
|
|
125 |
|
|
|
1.60% |
|
|
|
9,379 |
|
|
|
126 |
|
|
|
1.34% |
|
|
|
3 |
|
|
|
0 |
|
|
|
1.72% |
|
|
Long term borrowings
|
|
|
22,279 |
|
|
|
789 |
|
|
|
3.48% |
|
|
|
16,108 |
|
|
|
641 |
|
|
|
3.93% |
|
|
|
7,790 |
|
|
|
376 |
|
|
|
4.76% |
|
|
Convertible subordinated debentures
|
|
|
4,703 |
|
|
|
233 |
|
|
|
4.96% |
|
|
|
1,104 |
|
|
|
60 |
|
|
|
5.42% |
|
|
|
|
|
|
|
|
|
|
|
0.00% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest bearing liabilities
|
|
|
246,256 |
|
|
|
5,516 |
|
|
|
2.24% |
|
|
|
216,605 |
|
|
|
5,009 |
|
|
|
2.31% |
|
|
|
104,699 |
|
|
|
3,715 |
|
|
|
3.55% |
|
|
Demand deposits
|
|
|
27,679 |
|
|
|
|
|
|
|
|
|
|
|
19,633 |
|
|
|
|
|
|
|
|
|
|
|
7,812 |
|
|
|
|
|
|
|
|
|
|
Other liabilities
|
|
|
1,823 |
|
|
|
|
|
|
|
|
|
|
|
1,898 |
|
|
|
|
|
|
|
|
|
|
|
686 |
|
|
|
|
|
|
|
|
|
|
Shareholders Equity:
|
|
|
35,118 |
|
|
|
|
|
|
|
|
|
|
|
25,430 |
|
|
|
|
|
|
|
|
|
|
|
9,576 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND SHAREHOLDERS EQUITY
|
|
$ |
310,876 |
|
|
|
|
|
|
|
|
|
|
$ |
263,566 |
|
|
|
|
|
|
|
|
|
|
$ |
122,773 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Spread
|
|
|
|
|
|
|
|
|
|
|
3.30% |
|
|
|
|
|
|
|
|
|
|
|
3.20% |
|
|
|
|
|
|
|
|
|
|
|
2.77% |
|
Net Interest Margin
|
|
|
|
|
|
$ |
10,753 |
|
|
|
3.67% |
|
|
|
|
|
|
$ |
8,766 |
|
|
|
3.52% |
|
|
|
|
|
|
$ |
3,820 |
|
|
|
3.22% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note: |
Average loans include non-accrual loans. |
26
TABLE 2 Analysis of Changes in Net Interest
Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, | |
|
|
| |
|
|
2004 Versus 2003 | |
|
2003 Versus 2002 | |
|
|
Due to Change in | |
|
Due to Change in | |
|
|
| |
|
| |
|
|
Volume | |
|
Rate | |
|
Total | |
|
Volume | |
|
Rate | |
|
Total | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Interest Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal funds sold
|
|
$ |
(33 |
) |
|
$ |
(3 |
) |
|
$ |
(36 |
) |
|
$ |
19 |
|
|
$ |
(13 |
) |
|
$ |
6 |
|
|
Short term investments
|
|
|
(5 |
) |
|
|
2 |
|
|
|
(3 |
) |
|
|
(98 |
) |
|
|
(2 |
) |
|
|
(100 |
) |
|
Investments
|
|
|
96 |
|
|
|
75 |
|
|
|
171 |
|
|
|
1,890 |
|
|
|
(874 |
) |
|
|
1,016 |
|
|
Loans
|
|
|
2,728 |
|
|
|
(366 |
) |
|
|
2,362 |
|
|
|
6,726 |
|
|
|
(1,408 |
) |
|
|
5,318 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Interest Income
|
|
|
2,786 |
|
|
|
(292 |
) |
|
|
2,494 |
|
|
|
8,537 |
|
|
|
(2,297 |
) |
|
|
6,240 |
|
Interest Expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
|
(472 |
) |
|
|
285 |
|
|
|
(187 |
) |
|
|
(3,208 |
) |
|
|
2,365 |
|
|
|
(843 |
) |
|
Short-term borrowings
|
|
|
21 |
|
|
|
(20 |
) |
|
|
1 |
|
|
|
(161 |
) |
|
|
35 |
|
|
|
(126 |
) |
|
Long-term borrowings
|
|
|
(242 |
) |
|
|
94 |
|
|
|
(148 |
) |
|
|
(396 |
) |
|
|
131 |
|
|
|
(265 |
) |
|
Convertible subordinated debentures
|
|
|
(195 |
) |
|
|
22 |
|
|
|
(173 |
) |
|
|
|
|
|
|
(60 |
) |
|
|
(60 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Interest Expense
|
|
|
(888 |
) |
|
|
381 |
|
|
|
(507 |
) |
|
|
(3,765 |
) |
|
|
2,471 |
|
|
|
(1,294 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Income
|
|
$ |
1,898 |
|
|
$ |
89 |
|
|
$ |
1,987 |
|
|
$ |
4,772 |
|
|
$ |
174 |
|
|
$ |
4,946 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note: |
The change in interest income/expense associated with changes in
both volume and rate has been allocated to each in proportion to
the change directly attributed to volume or rate. |
Primarily as a result of the above mentioned balance sheet
growth, net interest income increased $1,987,000 or 22.7% to
$10,753,000 in 2004 from $8,766,000 in 2003 despite a continued
low rate environment. Net interest income increased $4,946,000
or 129.5% in 2003 from $3,820,000 in 2002 despite a continued
low rate environment. The net interest margin continued to
increase in 2004 to 3.67%, up from 3.52% in 2003 and 3.22% in
2002. Interest rates continued to decline in 2002 and 2003 due
to aggressive monetary action initiated by the Federal Reserve
and began rising in 2004 as the market anticipated the Federal
Reserve raising rates and the economy showed signs of a modest
recovery. The lower interest rate environment put downward
pressure on the Banks net interest margin as
interest-bearing liabilities repriced at a slower pace than
interest-earning assets. The Bank took this opportunity to
reposition the balance sheet in order to take advantage of the
lower rate environment and increase net interest margin.
Specifically, the Bank began to reduce its reliance on
higher-costing time deposits as a percentage of total
liabilities in order to ease the pressure on net interest margin
caused by falling interest rates.
|
|
|
Provision for Loan Losses |
In 2004, the Banks loan loss provision increased to
$1,115,000 a change of $687,000 or 160.5% from 2003. The
increase in loan loss provision in 2004 was principally due to
the continued growth of the loan portfolio, net charge offs in
2004, the maturity of the loan portfolio and changes in the
credit quality of the portfolio. In 2004 the Bank experienced
$774,000 in net loan charge offs, primarily on commercial and
commercial real estate loans. In 2003, the Banks loan loss
provision decreased $112,000 or 20.7% from 2002, to $428,000.
Net charge offs were $312,000 in 2003 and $222,000 in 2002.
27
TABLE 3 Non-interest Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Asset management fees
|
|
$ |
815 |
|
|
$ |
624 |
|
|
$ |
401 |
|
Service charges on deposit accounts
|
|
|
569 |
|
|
|
458 |
|
|
|
158 |
|
Service charges on loans
|
|
|
340 |
|
|
|
250 |
|
|
|
153 |
|
Securities gains
|
|
|
|
|
|
|
183 |
|
|
|
27 |
|
Loan sale gains
|
|
|
416 |
|
|
|
82 |
|
|
|
1 |
|
Branch sale gains
|
|
|
196 |
|
|
|
|
|
|
|
|
|
Other
|
|
|
47 |
|
|
|
5 |
|
|
|
5 |
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
2,383 |
|
|
$ |
1,602 |
|
|
$ |
745 |
|
|
|
|
|
|
|
|
|
|
|
Non-interest income rose $781,000 or 48.8% in 2004 when compared
to 2003 due primarily to increases in asset management fees,
gain on the sale of loans and the sale of two branches in 2004
and increased $857,000 or 115.0% in 2003 compared to 2002. Asset
management fees increased $191,000 or 30.6% in 2004 and $223,000
or 55.6% in 2003. The Legacy Trust Company provides asset
management, trust, employee benefit plan administration and
investment services. Assets under management totaled
$118,999,000 at December 31, 2004, $89,481,000 at
December 31, 2003, and $69,186,000 at December 31,
2002.
Service charges on deposit accounts increased $111,000 or 24.2%
to $569,000 in 2004 compared to an increase of $300,000 or
189.9% in 2003 due to increases in deposit balances attributable
to the acquisition of NSB and three additional branches.
Service charges on loans increased $90,000 or 36.0% in 2004
compared to a $97,000 increase or 63.4% in 2003 due to increases
in loan production, the purchase of $15.5 million of loans
in 2004 and the acquisition of NSB and three additional branches.
No security gains were recognized in 2004. Securities gains of
$183,000 in 2003 were a result of securities being called and
sales of securities to better position the Bank. The gains of
$27,000 in 2002 were a result of calls on certain callable
investment securities.
Gain on sale of loans increased $334,000 or 407.3% in 2004 due
to the sale of small business loans. Gain on sale of loans
increased to $82,000 in 2003 due also to the sale of small
business loans.
The Bank recognized a $196,000 gain on the sale of two branches
in 2004.
Other income increased $42,000 or 840.0% in 2004 due primarily
to the income generated from the $4.5 million investment in
bank owned life insurance in September, 2004. Other income did
not change from 2002 to 2003.
TABLE 4 Non-interest Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Salaries and employee benefits
|
|
$ |
5,277 |
|
|
$ |
4,549 |
|
|
$ |
2,249 |
|
Occupancy and equipment
|
|
|
1,243 |
|
|
|
1,138 |
|
|
|
486 |
|
Data processing
|
|
|
1,055 |
|
|
|
872 |
|
|
|
361 |
|
Advertising, marketing and business development
|
|
|
205 |
|
|
|
280 |
|
|
|
180 |
|
Professional services
|
|
|
314 |
|
|
|
331 |
|
|
|
140 |
|
Other
|
|
|
2,403 |
|
|
|
2,058 |
|
|
|
837 |
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
10,497 |
|
|
$ |
9,228 |
|
|
$ |
4,253 |
|
|
|
|
|
|
|
|
|
|
|
28
Non-interest expenses of $10,497,000 increased by 13.8% or
$1,269,000 in 2004 principally due to the growth in the deposit
and loan portfolios. In 2003, non-interest expense rose to
$9,228,000 or 117.0%. The Bank acquired NSB and three branches
in 2003, which contributed to the significant increase during
2003.
Salary and benefit costs increased $728,000 or 16.0% to
$5,277,000 in 2004 due primarily to the growth in the deposit
and loan portfolios and increased benefit costs. In 2003, such
costs rose to $4,549,000 from $2,249,000 in 2002 principally due
to the acquisition of NSB and the three branches in 2003. The
Bank had 87, 94 and 34 full time equivalent employees at
December 31, 2004, 2003 and 2002, respectively. Merit
increases, as well as increases in benefit costs were consistent
with local trends in 2004 and 2003. The significant increases in
the Banks health insurance rates for 2004 and 2003 were
also consistent with local and industry trends.
Occupancy and equipment expense rose to $1,243,000 in 2004, an
increase from $1,138,000 in 2003 and $486,000 in 2002. The
increase was due primarily to the acquisition of NSB in 2003,
which added three branches, and the acquisition of three
additional branches in 2003. The increase was partially offset
in 2004 by the sale of two branches. The Bank had 8, 9 and
2 full service branches at the end of 2004, 2003 and 2002,
respectively, and opened a loan production office in 2004. The
Legacy Trust Company also had 2, 3 and 1 offices at the end
of 2004, 2003 and 2002, respectively.
Data processing increased $183,000 or 21.0% to $1,055,000 in
2004 from $872,000 in 2003 due primarily to the acquisition of
the three branches late in 2003 and partially offset by the sale
of two branches in 2004. In 2003, there was an increase of
$511,000 or 141.6% to $872,000 as a result of the acquisition of
NSB and the purchase of the three branches.
Advertising, marketing and business development costs were
$205,000 in 2004, $280,000 in 2003, and $180,000 in 2002. The
Bank began marketing in newly acquired markets in 2003 resulting
in the significant increase in the 2003 expense.
Professional services decreased $17,000 or 5.1% to $314,000 in
2004 from $331,000 in 2003, which represented an increase of
$191,000 or 136.4% from 2002. The decrease in 2004 was due in
part to hiring of an in-house general counsel late in 2003. The
increase in 2003 was primarily due to increased costs associated
with internal and external auditing services, investment
advisors and consulting costs. The Bank continues to outsource
certain services, such as internal audit and compliance to third
parties. The Bank believes that there is significant benefit
from the experience, knowledge and resources of these third
party providers compared to what can be provided internally.
Other expenses rose $345,000 or 16.8% to $2,403,000 in 2004 from
$2,058,000 in 2003 and $837,000 in 2002. The 2004 increase was
due primarily to the full year of expense of the acquisitions
occurring in 2003 and partially offset by the sale of two
branches during the year. The 2003 increase was caused by the
purchase of NSB in January of 2003 and the three additional
branches purchased in September 2003. The significant increases
in 2003 were chiefly in office supplies, printing costs, travel,
telephones, postage, core deposit intangible amortization and
processing of checks. Most of these were associated with the
growth in the balance sheet and conversion costs in 2003.
A tax benefit of $831,000, $317,000, and $485,000 was recognized
in 2004, 2003 and 2002, respectively. The tax benefit was
recognized to the extent that the resultant deferred tax asset
was expected to be utilized in the following year.
Beginning in 2005, the Bank is expected to recognize income tax
expense at an effective tax rate of approximately 31%.
29
Financial Condition
The Banks total assets increased $33.1 million or
10.8% in 2004, to $338.6 million from $305.5 million
in 2003. The Bank sold two branches in June of 2004 with
$28.5 million of loans and $20.4 million in deposits.
The Banks loan and deposit portfolios continued to grow in
2004 despite this sale. In August and December of 2004, the Bank
purchased $10.3 million and $5.2 million of
residential mortgages, respectively.
The investment securities portfolio provides a substantial
revenue stream to the Bank, which is second only to the loan
portfolio. In addition, investment securities provide liquidity,
as well as collateral for deposits of local government entities
and borrowings at the Federal Home Loan Bank and the
Federal Reserve. Investment securities purchases and sales are
supported by a policy which includes liquidity, interest rate
sensitivity, and credit risk standards. In addition, the
investment policy emphasizes long-term objectives, while
providing the flexibility to prudently manage near-term interest
rate risk, liquidity, and overall balance sheet strategies.
Management monitors the earnings performance, liquidity,
duration and quality of the securities portfolio and manages
interest rate risk for the Bank according to the Investment and
Asset Liability Policies.
TABLE 5 Investment Securities
The following table shows the total investment securities
portfolio consisting of the fair value of the available-for-sale
securities and amortized cost for the
held-to-maturity
securities owned as of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Investment Securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities
|
|
$ |
563 |
|
|
$ |
583 |
|
|
$ |
591 |
|
U.S. Government agency obligations
|
|
|
20,516 |
|
|
|
12,473 |
|
|
|
4,600 |
|
Mortgage-backed securities
|
|
|
20,236 |
|
|
|
24,865 |
|
|
|
16,858 |
|
Collateralized mortgage obligations
|
|
|
17,823 |
|
|
|
15,392 |
|
|
|
2,934 |
|
Corporate and other debt securities
|
|
|
667 |
|
|
|
748 |
|
|
|
754 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
59,805 |
|
|
|
54,061 |
|
|
|
25,737 |
|
Federal Home Loan Bank stock
|
|
|
2,878 |
|
|
|
1,538 |
|
|
|
833 |
|
Marketable equity securities
|
|
|
428 |
|
|
|
85 |
|
|
|
55 |
|
|
|
|
|
|
|
|
|
|
|
|
Total investment securities
|
|
$ |
63,111 |
|
|
$ |
55,684 |
|
|
$ |
26,625 |
|
|
|
|
|
|
|
|
|
|
|
Available for Sale (Fair Value)
|
|
$ |
51,098 |
|
|
$ |
43,184 |
|
|
$ |
26,625 |
|
Held to Maturity (Amortized Cost)
|
|
|
12,013 |
|
|
|
12,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total investment securities
|
|
$ |
63,111 |
|
|
$ |
55,684 |
|
|
$ |
26,625 |
|
|
|
|
|
|
|
|
|
|
|
Total balances in the investment portfolio at year-end were
$63,111,000 in 2004, $55,684,000 in 2003, and $26,625,000 in
2002. The investment portfolio grew by 13.3% in 2004 due to
leveraged borrowings. The Bank purchased $23.4 million and
had maturities of $5.2 million of debt securities in 2004.
In 2003, the investment portfolio grew generally because of the
purchase of the three new branches and the acquisition of NSB.
The Bank purchased $62.0 million, acquired
$14.8 million from NSB, and had maturities of
$18.9 million of debt securities in 2003. The purchase of
investments was the approach taken to provide maximum interest
rate spread opportunities. Maturities were chosen to best fit
the anticipated growth in the loan portfolio. Investments
purchased reflect the Banks strategic goals of quality,
liquidity, and income production. Emphasizing this strategy, the
investment portfolio components showing the most growth are:
30
U.S. Government agency obligations and collateralized
mortgage obligations. The agency obligations, mortgage-backed
securities and collateralized mortgage obligations generally
supply some of the liquidity needs through interest payments and
return of principal.
The following table sets forth the maturity distribution and
weighted average yields of the investment portfolio as of
December 31, 2004. The weighted average yields are
calculated on the basis of the carrying value of the securities
and their related interest income adjusted for the amortization
of premium and accretion of discount.
TABLE 6 Investment Securities Maturity and
Interest Sensitivity
The following table sets forth the maturity of the amortized
cost of the debt securities portfolio as of December 31,
2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
After Five | |
|
|
|
|
|
|
|
|
|
|
|
|
Within | |
|
Wtd. | |
|
After One | |
|
Wtd. | |
|
but | |
|
Wtd. | |
|
|
|
Wtd. | |
|
|
|
Wtd. | |
|
|
One | |
|
Avg. | |
|
but Within | |
|
Avg. | |
|
Within | |
|
Avg. | |
|
After | |
|
Avg. | |
|
|
|
Avg. | |
|
|
Year | |
|
Yield | |
|
Five Years | |
|
Yield | |
|
Ten Years | |
|
Yield | |
|
Ten Years | |
|
Yield | |
|
Total | |
|
Yield | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
U.S. Treasury securities
|
|
$ |
|
|
|
|
0.0% |
|
|
$ |
552 |
|
|
|
4.4% |
|
|
$ |
|
|
|
|
0.0% |
|
|
$ |
|
|
|
|
0.0% |
|
|
$ |
552 |
|
|
|
4.4% |
|
U.S. Government agency obligations
|
|
|
1,508 |
|
|
|
2.1% |
|
|
|
17,541 |
|
|
|
3.1% |
|
|
|
1,510 |
|
|
|
4.2% |
|
|
|
|
|
|
|
0.0% |
|
|
|
20,559 |
|
|
|
3.1% |
|
Mortgage-backed securities (includes CMOs)
|
|
|
|
|
|
|
0.0% |
|
|
|
3,269 |
|
|
|
3.8% |
|
|
|
6,668 |
|
|
|
3.9% |
|
|
|
28,281 |
|
|
|
4.0% |
|
|
|
38,218 |
|
|
|
4.0% |
|
Corporate and other debt securities
|
|
|
25 |
|
|
|
6.9% |
|
|
|
|
|
|
|
0.0% |
|
|
|
|
|
|
|
0.0% |
|
|
|
750 |
|
|
|
9.3% |
|
|
|
775 |
|
|
|
9.2% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,533 |
|
|
|
2.2% |
|
|
$ |
21,362 |
|
|
|
3.2% |
|
|
$ |
8,178 |
|
|
|
4.0% |
|
|
$ |
29,031 |
|
|
|
4.1% |
|
|
$ |
60,104 |
|
|
|
3.7% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total loans outstanding on December 31, 2004 were
$252,480,000 compared with $229,585,000 on the same date in
2003. The loan portfolio represented 74.6% and 75.2% of the
total assets on December 31, 2004 and 2003, respectively.
The loan portfolio is composed of commercial loans, residential
loans, and consumer loans. The commercial portfolio represents
78.5% of the total portfolio as of December 31, 2004 and is
comprised of lines of credit, equipment loans, and real estate
loans for various purposes, including working capital. A
significant portion of commercial loans are secured by real
estate. Residential mortgages comprise only 10.4% of the loan
portfolio. The consumer portfolio makes up the remaining 11.1%
of the portfolio. Included in the consumer portfolio are direct
installment loans for purposes such as vehicle purchases, debt
consolidations, home improvements, and other personal needs.
Home equity loans are also a part of the consumer portfolio. The
Bank does not engage in foreign lending nor does it engage in
speculative real estate and land development lending. The
primary areas of lending are Dauphin, Cumberland, Lycoming,
Luzerne, and Schuylkill Counties, Pennsylvania and those areas
which border those counties.
31
TABLE 7 Loan Portfolio
The following table sets forth the composition of the
Banks loan portfolio on the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Commercial and commercial real estate
|
|
$ |
198,185 |
|
|
$ |
186,231 |
|
|
$ |
89,319 |
|
|
$ |
71,065 |
|
|
$ |
34,755 |
|
Residential Real Estate
|
|
|
26,174 |
|
|
|
17,261 |
|
|
|
4,130 |
|
|
|
4,560 |
|
|
|
1,700 |
|
Consumer
|
|
|
27,854 |
|
|
|
25,948 |
|
|
|
15,763 |
|
|
|
9,477 |
|
|
|
3,474 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross Loans
|
|
|
252,213 |
|
|
|
229,440 |
|
|
|
109,212 |
|
|
|
85,102 |
|
|
|
39,929 |
|
Net deferred loan costs
|
|
|
267 |
|
|
|
145 |
|
|
|
178 |
|
|
|
245 |
|
|
|
166 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Loans
|
|
|
252,480 |
|
|
|
229,585 |
|
|
|
109,390 |
|
|
|
85,347 |
|
|
|
40,095 |
|
Allowance for loan losses
|
|
|
(3,461 |
) |
|
|
(3,430 |
) |
|
|
(1,300 |
) |
|
|
(982 |
) |
|
|
(480 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
249,019 |
|
|
$ |
226,155 |
|
|
$ |
108,090 |
|
|
$ |
84,365 |
|
|
$ |
39,615 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loan growth in 2004 was $22.9 million or 10.0%, which
consisted of a decrease of $28.5 million from the sale of
two branches, the purchase of $15.5 million of residential
mortgages, and internal growth comprised primarily of higher
commercial and consumer loan activity. Total loans grew
substantially in 2003 as a result of $65.5 million from the
acquisition of NSB and $23.9 million from the purchase of
the three branches. The Bank encourages loan demand by
continuing to focus on its target market.
TABLE 8 Loan Maturity and Interest Sensitivity
The following table sets forth the maturity and interest
sensitivity of the commercial loan portfolio as of
December 31, 2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
After One | |
|
|
|
|
|
|
Within | |
|
but Within | |
|
After | |
|
|
|
|
One Year | |
|
Five Years | |
|
Five Years | |
|
Total | |
|
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Commercial and commercial real estate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable
|
|
$ |
44,246 |
|
|
$ |
16,510 |
|
|
$ |
52,626 |
|
|
$ |
113,382 |
|
|
Fixed
|
|
|
6,920 |
|
|
$ |
24,650 |
|
|
|
53,233 |
|
|
|
84,803 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
51,166 |
|
|
$ |
41,160 |
|
|
$ |
105,859 |
|
|
$ |
198,185 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32
TABLE 9 Non-accrual, Past Due and Restructured
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Non-accrual loans
|
|
$ |
1,037 |
|
|
$ |
1,161 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Accruing loans, past due 90 days or more
|
|
|
42 |
|
|
|
195 |
|
|
|
127 |
|
|
|
592 |
|
|
|
|
|
Restructured loans
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-performing loans
|
|
|
1,079 |
|
|
|
1,356 |
|
|
|
127 |
|
|
|
592 |
|
|
|
|
|
Foreclosed assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-performing assets
|
|
$ |
1,079 |
|
|
$ |
1,356 |
|
|
$ |
127 |
|
|
$ |
592 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income recognized on cash basis on non-accrual loans
|
|
$ |
|
|
|
$ |
48 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Interest that would have been recognized according to
contractual terms
|
|
$ |
67 |
|
|
$ |
66 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-performing loans to total loans
|
|
|
0.43 |
% |
|
|
0.59 |
% |
|
|
0.12 |
% |
|
|
0.69 |
% |
|
|
0.00 |
% |
|
Non-performing assets to total loans and other real estate owned
|
|
|
0.43 |
% |
|
|
0.59 |
% |
|
|
0.12 |
% |
|
|
0.69 |
% |
|
|
0.00 |
% |
Allowance for loan loss to total non-performing loans
|
|
|
320.8 |
% |
|
|
252.9 |
% |
|
|
1023.6 |
% |
|
|
165.9 |
% |
|
|
0.0 |
% |
As of December 31, 2004, there were $1,037,000 of
non-accrual loans. The balance consisted of ten commercial and
commercial real estate loans, the largest of which had a balance
of $420,000. As of December 31, 2003, there was $1,161,000
of non-accrual loans comprised of thirteen commercial and
commercial real estate loans. The $592,000 in 90 days past
due for 2001 consisted of one loan as to which the USDA
guaranteed principal and interest. This loan was paid off in
full in 2002. Loans reported as impaired under FASB Statement of
Financial Accounting Standards No. 114 include all
non-accrual loans and those loans identified by management where
non-compliance with loan terms in the future is deemed probable.
As of December 31, 2004, $4.2 million of impaired
loans were outstanding and a valuation allowance of
$1.3 million was established for these loans. Substantially
all impaired loans are commercial loans with impairment measured
by the fair value of collateral.
|
|
|
Allowance for Loan Losses |
The allowance for loan losses is established through provisions
for loan losses charged to earnings. Loans deemed to be
uncollectible are charged against the allowance for loan losses
when management believes the uncollectibility of the loan
balance is confirmed. Subsequent recoveries, if any, are
credited to the allowance.
The allowance for loan losses is maintained at a level
considered adequate to provide for losses that can be reasonably
anticipated. Managements periodic evaluation of the
adequacy of the allowance is based on known and inherent risks
in the portfolio, adverse situations that may affect the
borrowers ability to repay, the estimated value of any
underlying collateral, composition of the loan portfolio,
current economic conditions, the results of regulatory
examinations, and other relevant factors. This evaluation is
inherently subjective as it requires material estimates that may
be susceptible to significant change, including the amounts and
timing of future cash flows expected to be received on impaired
loans.
The allowance consists of specific and general components. The
specific component relates to loans that are classified as
doubtful, substandard, or special mention. For such loans that
are also classified as impaired, an allowance is established
when the discounted cash flows (or collateral value or
observable market price) of the impaired loan is lower than the
carrying value of that loan. The general component covers
non-classified
33
loans and is based on historical loss experience of similar
institutions, adjusted for qualitative factors. Loss experience
of similar institutions is used because of the limited
charge-off history of the Bank.
A loan is considered impaired when, based on current information
and events, it is probable that the Bank will be unable to
collect the scheduled payments of principal or interest when due
according to the contractual terms of the loan agreement.
Factors considered by management in determining impairment
include payment status, collateral value and the probability of
collecting scheduled principal and interest payments when due.
Loans that experience insignificant payment delays and payment
shortfalls generally are not classified as impaired. Management
determines the significance of payment delays and payment
shortfalls on a case-by-case basis, taking into consideration
all of the circumstances surrounding the loan and the borrower,
including the length of the delay, the reasons for the delay,
the borrowers prior payment record and the amount of the
shortfall in relation to the principal and interest owed.
Impairment is measured on a loan by loan basis for commercial
and commercial real estate loans by either the present value of
expected future cash flows discounted at the loans
effective interest rate, the loans observable market
price, or the fair value of the collateral if the loan is
collateral dependent.
Large groups of smaller balance homogeneous loans are
collectively evaluated for impairment. Accordingly, the Bank
does not separately identify individual consumer and residential
loans for impairment disclosures. Based on all relevant
information available, management believes the allowance for
loan losses as stated at December 31, 2004 is adequate to
cover potential loan losses arising from the loan portfolio, but
there can be no assurance that the allowance will prove to be
adequate or that significant additions to the allowance will not
be required.
TABLE 10 Summary of Loan Loss Experience
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
|
|
(In thousands) | |
|
|
|
|
Allowance for loan losses, beginning balance
|
|
$ |
3,430 |
|
|
$ |
1,300 |
|
|
$ |
982 |
|
|
$ |
480 |
|
|
$ |
150 |
|
Less charge-offs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial and commercial real estate
|
|
|
685 |
|
|
|
336 |
|
|
|
222 |
|
|
|
|
|
|
|
|
|
Consumer
|
|
|
127 |
|
|
|
11 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total charge-offs
|
|
|
812 |
|
|
|
347 |
|
|
|
222 |
|
|
|
|
|
|
|
|
|
Plus recoveries:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial and commercial real estate
|
|
|
35 |
|
|
|
29 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Consumer
|
|
|
3 |
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total recoveries
|
|
|
38 |
|
|
|
35 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loans charged off
|
|
|
774 |
|
|
|
312 |
|
|
|
222 |
|
|
|
|
|
|
|
|
|
Provision for loan losses
|
|
|
1,115 |
|
|
|
428 |
|
|
|
540 |
|
|
|
502 |
|
|
|
330 |
|
Purchase (sale) of loans
|
|
|
(310 |
) |
|
|
2,014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at end of year
|
|
$ |
3,461 |
|
|
$ |
3,430 |
|
|
$ |
1,300 |
|
|
$ |
982 |
|
|
$ |
480 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average total loans
|
|
$ |
239,895 |
|
|
$ |
195,606 |
|
|
$ |
97,833 |
|
|
$ |
62,260 |
|
|
$ |
23,886 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for loan losses to period end total loans
|
|
|
1.37 |
% |
|
|
1.49 |
% |
|
|
1.19 |
% |
|
|
1.15 |
% |
|
|
1.20 |
% |
Allowance for loan losses to non-performing loans
|
|
|
320.8 |
% |
|
|
252.9 |
% |
|
|
1023.6 |
% |
|
|
165.9 |
% |
|
|
N/A |
|
Net charge-offs to average loans
|
|
|
0.32 |
% |
|
|
0.16 |
% |
|
|
0.23 |
% |
|
|
N/A |
|
|
|
N/A |
|
34
The allowance for loan losses increased $31,000 in 2004 to
$3,461,000 from $3,430,000 in 2003 and $1,300,000 in 2002. Of
the $685,000 of commercial loan charge offs in 2004, $430,000
were attributable to two large relationships. Consumer loan
charge offs in 2004 of $127,000 were credits related to
commercial loans charge offs. In 2004, the Bank reduced the
allowance by $310,000 as a result of the sale of the Towanda and
Sayre branches to First Citizens National Bank in June 2004. In
2003, the Bank added $2,014,000 to the allowance as a result of
the acquisition of NSB and the three branches discussed above.
Of the $336,000 of commercial loan charge offs in 2003, $290,000
were attributable to one relationship. In 2002, $200,000 of the
commercial loan charge offs were a result of one loan. There
were no charge offs or recoveries in 2001 or 2000.
The allowance for loan losses represents 1.37% of loans
outstanding as of December 31, 2004 and 1.49% as of
December 31, 2003. As of December 31, 2004, there was
$1,079,000 in non-performing loans compared to $1,356,000 at the
end of 2003 and $127,000 at the end of 2002. This is reflective
of the maturing of the loan portfolio since the Banks
inception in 1999. At the end of 2001, there was a higher
percentage of government guaranteed loans than in the other
years, which did not require as high a loan loss reserve. There
were no non-performing loans in 2000.
TABLE 11 Allocation of the Allowance for Loan
Losses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Commercial and commercial real estate
|
|
$ |
2,931 |
|
|
$ |
2,786 |
|
|
$ |
1,088 |
|
|
$ |
620 |
|
|
$ |
332 |
|
Residential real estate
|
|
|
65 |
|
|
|
43 |
|
|
|
10 |
|
|
|
11 |
|
|
|
7 |
|
Consumer
|
|
|
160 |
|
|
|
111 |
|
|
|
67 |
|
|
|
46 |
|
|
|
29 |
|
Unallocated
|
|
|
305 |
|
|
|
490 |
|
|
|
135 |
|
|
|
305 |
|
|
|
112 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for loan losses
|
|
$ |
3,461 |
|
|
$ |
3,430 |
|
|
$ |
1,300 |
|
|
$ |
982 |
|
|
$ |
480 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of loans to total loans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial and commercial real estate
|
|
|
78.5 |
% |
|
|
81.1 |
% |
|
|
81.7 |
% |
|
|
83.3 |
% |
|
|
86.7 |
% |
Residential real estate
|
|
|
10.4 |
% |
|
|
7.5 |
% |
|
|
3.8 |
% |
|
|
5.3 |
% |
|
|
4.2 |
% |
Consumer
|
|
|
11.1 |
% |
|
|
11.4 |
% |
|
|
14.5 |
% |
|
|
11.1 |
% |
|
|
9.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total loans
|
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
While management feels that the Banks allowance for loan
losses is adequate based on information currently available,
future adjustments may be necessary due to changes in economic
conditions or changes in the Banks assumptions.
|
|
|
Intangible and Other Assets |
Intangible assets consist of goodwill and other amortizable
intangible assets. There were no intangible assets prior to
2003. As of December 31, 2004, total goodwill of
$5.6 million consisted of $2.8 million from the
purchase of Northern State Bank and $2.8 million from the
purchase of branches. Goodwill totaled $6.3 million at
December 31, 2003. Changes during 2004 were attributable to
the sale of branches to which the goodwill was attributed to.
Goodwill associated with the branch purchase is deductible for
tax purposes. Management has tested goodwill for impairment as
of December 31, 2004 and has determined there was no
impairment.
Amortizable intangible assets (principally core deposit
intangibles) associated with these transactions have a weighted
average amortization period of approximately ten years. At
December 31, 2004, the carrying amount of these intangible
assets was $1.4 million which is net of accumulated
amortization of $231,000. Amortization expense was $173,000 in
the year ended December 31, 2004 and $58,000 in 2003.
The Bank purchased $4.5 million in Bank Owned Life
Insurance (BOLI) in 2004. BOLI is a tax advantaged
investment that the Bank uses to offset employee benefit costs.
BOLI is subject to regulatory
35
review and compliance in order to receive favorable regulatory
capital treatment. In 2004 the Bank recorded $40,000 from BOLI
in other income.
The benefit to the Bank of operating loss carryforwards and
future deductible items exceeds future taxable items at
December 31, 2004 and 2003, resulting in the recognition of
a net deferred tax asset. Deferred tax assets of $1,600,000 and
$986,000 were recorded as of December 31, 2004 and 2003,
respectively and were net of valuation allowances of $0 and
$2,108,000, respectively. A valuation allowance is established
against deferred tax assets when in the judgment of management,
it is more likely than not that such deferred tax assets will
not be realizable based on the expected level of taxable income
through the expiration date of the operating losses. A deferred
tax benefit of $831,000 and $317,000 was recognized in 2004 and
2003, respectively. The recognition of this benefit as well as
the generation of taxable income in 2004 served to eliminate the
valuation allowance. The Bank has net operating loss
carryforwards available for federal income tax purposes of
approximately $2,348,000 as of December 31, 2004 which
begin to expire in 2019. The benefit of these net operating
losses has been fully recognized in the financial statements at
December 31, 2004.
The Banks primary source of funding for its loan and
investment portfolios is the deposit base. Total deposits grew
by $4.4 million or 1.8% in 2004 to $244.5 million.
This growth was partially offset by the decrease of
$20.4 million in deposits resulting from the sale of two
branches in 2004. Time deposit balances increased 2.6% as a
percentage of total deposits to 55.9% in 2004 to fund the growth
of the loan and investment portfolios. Both interest bearing and
non-interest bearing demand deposits decreased .3% of total
deposits in 2004 to 5.0% and 11.4%, respectively. Money market
deposit balances decreased in 2004 due to customers
shifting into other products and the Banks emphasis on
time deposits. In 2003, total deposits increased 92.4% or
$115.3 million compared to 2002. This growth is primarily
due to the $76.3 million and $59.5 million of deposits
acquired through the purchase of NSB and the three branches,
respectively. The Bank lowered deposit costs to 1.83% in 2004
from 1.99% in 2003 and 3.19% in 2002.
TABLE 12 Deposit Portfolio
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
2001 | |
|
2000 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Non-interest bearing demand deposits
|
|
$ |
27,931 |
|
|
$ |
28,125 |
|
|
$ |
9,066 |
|
|
$ |
4,622 |
|
|
$ |
3,159 |
|
Interest bearing demand deposits
|
|
|
12,240 |
|
|
|
12,745 |
|
|
|
3,745 |
|
|
|
4,703 |
|
|
|
2,091 |
|
Money market
|
|
|
13,739 |
|
|
|
21,616 |
|
|
|
7,519 |
|
|
|
11,834 |
|
|
|
110 |
|
Savings
|
|
|
53,939 |
|
|
|
49,577 |
|
|
|
35,868 |
|
|
|
14,955 |
|
|
|
5,715 |
|
Time Deposit, $100,000 and over
|
|
|
30,814 |
|
|
|
26,018 |
|
|
|
16,986 |
|
|
|
15,952 |
|
|
|
10,120 |
|
Time Deposit, other
|
|
|
105,801 |
|
|
|
101,999 |
|
|
|
51,594 |
|
|
|
40,011 |
|
|
|
19,461 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
244,464 |
|
|
$ |
240,080 |
|
|
$ |
124,778 |
|
|
$ |
92,077 |
|
|
$ |
40,656 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36
TABLE 13 Deposit Maturities
The following table summarizes the maturities of time deposits
of $100,000 or more as of December 31:
|
|
|
|
|
|
|
2004 | |
|
|
| |
|
|
(In thousands) | |
Three months or less
|
|
$ |
3,388 |
|
Over three through six months
|
|
|
3,345 |
|
Over six through twelve months
|
|
|
11,796 |
|
Over twelve months
|
|
|
12,285 |
|
|
|
|
|
Total
|
|
$ |
30,814 |
|
|
|
|
|
Borrowings have remained an important source of funding and
serve to support the Banks loan growth strategies. The
Bank has a total of $11.0 million available for borrowing
in short-term lines of credit established with five banks at
December 31, 2004. The Bank is a member of the Federal Home
Loan Bank (FHLB) of Pittsburgh; as a result the Bank
can take advantage of the FHLB program for overnight and term
advances at published daily rates, which are advantageous to
members as compared to issuing notes directly in the market. The
Bank had $23.4 million and $10.2 million in
outstanding overnight borrowings at December 31, 2004 and
2003, respectively. Long-term borrowings through the FHLB
totaled $28.0 million and $14.5 million at
December 31, 2004 and 2003 respectively. At
December 31, 2004, the Bank could borrow an additional
$25.6 million based on the FHLBs December 31,
2004 Maximum Borrowing Capacity Report. Certain borrowings have
a guaranteed fixed interest rate for a period of time, after
which the interest rate floats with a variable index until
maturity. An additional provision of these borrowings allows the
Bank to pay off the respective advance upon its conversion to a
variable rate of interest. The Bank has utilized long-term debt
as a better match for loan growth.
TABLE 14 Short-term Borrowings
The following table summarizes short-term borrowings for 2004
and 2003; there were no short-term borrowings in 2002:
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(Dollars in thousands) | |
Federal Home Loan Bank overnight advances
|
|
$ |
23,425 |
|
|
$ |
10,187 |
|
|
|
|
|
|
|
|
Average balance
|
|
$ |
7,814 |
|
|
$ |
9,379 |
|
Maximum month-end balance
|
|
$ |
23,425 |
|
|
$ |
14,090 |
|
Weighted average rate
|
|
|
1.60 |
% |
|
|
1.34 |
% |
Range of interest rates paid on December 31
|
|
|
2.19%- 2.34 |
% |
|
|
1.01%- 1.19 |
% |
|
|
|
Convertible Subordinated Debentures |
During 2003, the Bank sold 1,914 investment units for $5,000
each. Each investment unit consisted of 225 shares of
common stock priced at $11.11 per share and $2,500 in the
aggregate and a
15-year,
5% convertible subordinated capital note in the principal
amount of $2,500. Total notes outstanding were $4,500,000 and
$4,785,000 at December 31, 2004 and 2003, respectively. The
notes may be converted into shares of common stock at any time
at a conversion price of $12.50 per share, subject to
adjustment upon the occurrence of certain events. Interest on
the notes accrues from the date of issuance and is payable on
September 15 and March 15 of each year. As of December 31,
2004, 360,000 shares of common stock are reserved for the
potential conversion. During 2004, 114 notes were converted into
22,800 shares of common stock.
37
The Banks total shareholders equity was
$36.7 million at December 31, 2004, an increase of
$2.9 million from December 31, 2003. This increase is
due to $2.4 million of net income, a decrease of
$0.2 million due to changes in the net unrealized loss on
available for sale securities, and the issuance of common stock
of $0.7 million. The Bank maintains regulatory capital
ratios in excess of the limits defined as Well
Capitalized, pursuant to the Federal Deposit Insurance
Corporation Improvement Act of 1991. There are no conditions or
events that management believes have occurred that would change
the Well Capitalized rating.
TABLE 15 Risk-Based Capital
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To be Well | |
|
|
|
|
|
|
|
|
Capitalized Under | |
|
|
|
|
Capital Adequacy | |
|
Prompt Corrective | |
|
|
Actual Capital | |
|
Purposes | |
|
Action Provisions | |
|
|
| |
|
| |
|
| |
|
|
Amount | |
|
Ratio | |
|
Amount | |
|
Ratio | |
|
Amount | |
|
Ratio | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
December 31, 2004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital to risked weighted assets
|
|
$ |
37,698 |
|
|
|
14.7% |
|
|
$ |
20,573 |
|
|
|
8.0% |
|
|
$ |
25,717 |
|
|
|
10.0% |
|
|
Tier I capital to risked weighted assets
|
|
$ |
29,980 |
|
|
|
11.7% |
|
|
$ |
10,287 |
|
|
|
4.0% |
|
|
$ |
15,430 |
|
|
|
6.0% |
|
|
Tier I capital to average assets
|
|
$ |
29,980 |
|
|
|
9.4% |
|
|
$ |
12,762 |
|
|
|
4.0% |
|
|
$ |
15,952 |
|
|
|
5.0% |
|
December 31, 2003
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital to risked weighted assets
|
|
$ |
33,826 |
|
|
|
14.2% |
|
|
$ |
19,037 |
|
|
|
8.0% |
|
|
$ |
23,796 |
|
|
|
10.0% |
|
|
Tier I capital to risked weighted assets
|
|
$ |
26,061 |
|
|
|
11.0% |
|
|
$ |
9,518 |
|
|
|
4.0% |
|
|
$ |
14,277 |
|
|
|
6.0% |
|
|
Tier I capital to average assets
|
|
$ |
26,061 |
|
|
|
9.1% |
|
|
$ |
11,493 |
|
|
|
4.0% |
|
|
$ |
14,366 |
|
|
|
5.0% |
|
The Banks ability to generate funds needed to support loan
demand and deposit withdrawals are monitored by the Asset and
Liability Management Committee. Integral to the management of
the Banks balance sheet is the maintaining of adequate
liquidity and the ability to evaluate and control interest rate
risk. Liquidity represents the ability to meet potential cash
outflows resulting from deposit customers who need to withdraw
funds or borrowers who need available credit. The Bank maintains
a fairly high loan to deposit ratio of 103.3% and 95.6% at
December 31, 2004 and 2003, respectively. This strategy
helps to maximize net interest income, but also increases the
need for liquidity management.
Sources of liquidity include regular monthly cash flows from
loan repayments, prepayments of loans, which typically increase
in a declining interest rate environment, sale of investment
securities classified as available-for-sale and the sale of
loans. Other sources include cash flows generated from the
investment portfolio, through established maturities,
prepayments or call provisions, or from an increasing level of
capital due primarily to retained profits. In addition, the Bank
maintains borrowing relationships with correspondent banks,
totaling $11.0 million, and the Federal Home Loan Bank
of Pittsburgh. Borrowing capacity from the Federal Home
Loan Bank of Pittsburgh on December 31, 2004 was
approximately $77.0 million. These borrowing sources
provide substantial funds availability to meet liquidity needs.
On December 31, 2004, securities available for sale, short
term investments and federal funds sold totaled
$53.0 million compared to $43.2 in 2003. Maximizing cash
flow over time is crucial to the maintenance of adequate
liquidity.
Cash flows from operating activities increased in 2004 and 2003
as the Bank generated increasing profits. The increase in 2004
was primarily due to the increase in net income and decrease in
other assets. Cash used
38
in investing activities increased in 2004 as compared to 2003
and 2002. This was due to the overall increase in loans with
$15.5 million of the increase resulting from the purchase
of residential mortgages and the receipt of cash in 2003
attributable to branch purchases and assumption of deposits.
Cash provided by financing activities increased significantly in
2004 due to the increase in deposits and short-term and
long-term borrowings. In 2003, cash provided by financing
activities was significantly lower than 2004 and 2002 due to the
planned runoff in anticipation of acquiring deposits from the
branch acquisitions. Substantially all of the 2002 cash provided
by financing activities is related to deposit and long-term
borrowings increases.
|
|
|
Off Balance Sheet Arrangements |
The Bank is a party to financial instruments with off-balance
sheet risk in the normal course of business to meet the
financing needs of its customers. These financial instruments
include commitments to extend credit and standby letters of
credit. Standby letters of credit commit the Bank to make
payments on behalf of customers when certain specified future
events occur. Such commitments involve, to varying degrees,
elements of credit and interest rate risk in excess of the
amount recognized in the balance sheet.
The Banks exposure to credit loss in the event of
nonperformance by the other party to the financial instrument
for letters of credit and commitments to extend credit is
represented by the contractual amount of those instruments.
The Bank uses the same credit policies in making commitments and
conditional obligations as it does for on-balance sheet
instruments.
TABLE 16 Off Balance Sheet
Arrangements
At December 31, 2004 and 2003, the following financial
instruments were outstanding whose contract amounts represent
credit risk:
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Commitments to grant loans
|
|
$ |
20,760 |
|
|
$ |
19,568 |
|
Unfunded commitments under lines of credit
|
|
|
50,020 |
|
|
|
53,752 |
|
Unfunded letters of credit
|
|
|
2,741 |
|
|
|
2,597 |
|
|
|
|
|
|
|
|
|
|
$ |
73,521 |
|
|
$ |
75,917 |
|
|
|
|
|
|
|
|
Many of these commitments are expected to expire without being
drawn upon. The amounts do not necessarily represent future cash
requirements and are expected to be funded without impairing
liquidity.
TABLE 17 Contractual Obligations
The following table represents the Banks aggregate on and
off balance sheet contractual obligations to make future
payments as of December 31, 2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
After One | |
|
After Three | |
|
|
|
|
|
|
Within | |
|
but Within | |
|
but Within | |
|
After | |
|
|
|
|
One Year | |
|
Three Years | |
|
Five Years | |
|
Five Years | |
|
Total | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Time deposits
|
|
$ |
69,828 |
|
|
$ |
44,729 |
|
|
$ |
21,994 |
|
|
$ |
64 |
|
|
$ |
136,615 |
|
Long-term debt obligations
|
|
|
8,000 |
|
|
|
11,000 |
|
|
|
|
|
|
|
13,500 |
|
|
|
32,500 |
|
Operating leases
|
|
|
305 |
|
|
|
540 |
|
|
|
519 |
|
|
|
819 |
|
|
|
2,183 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
78,133 |
|
|
$ |
56,269 |
|
|
$ |
22,513 |
|
|
$ |
14,383 |
|
|
$ |
171,298 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In order to expand its market presence the Bank signed an
agreement to purchase the McAdoo, Pennsylvania branch of
Harleysville National Bank, a wholly-owned subsidiary of
Harleysville National
39
Corporation on December 17, 2004. The purchase of this
branch will include the assumption of approximately
$14.6 million in deposits as well as the purchase of
approximately $5.5 million of certain loans and other
assets. The transaction is subject to regulatory approval and is
expected to close early in the second quarter of 2005. The
acquisition is expected to be accretive to the Bank immediately.
The Bank is not aware of any additional known trends, demands,
commitments, events or uncertainties which would result in any
material increase or decrease in liquidity.
TABLE 18 Selected Quarterly Financial Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended | |
|
Quarter Ended | |
|
|
| |
|
| |
|
|
03/31/04 | |
|
06/30/04 | |
|
09/30/04 | |
|
12/31/04 | |
|
03/31/03 | |
|
06/30/03 | |
|
09/30/03 | |
|
12/31/03 | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Interest Income
|
|
$ |
3,898 |
|
|
$ |
4,000 |
|
|
$ |
4,066 |
|
|
$ |
4,305 |
|
|
$ |
3,200 |
|
|
$ |
3,330 |
|
|
$ |
3,434 |
|
|
$ |
3,811 |
|
Interest Expense
|
|
|
1,281 |
|
|
|
1,308 |
|
|
|
1,358 |
|
|
|
1,569 |
|
|
|
1,355 |
|
|
|
1,229 |
|
|
|
1,169 |
|
|
|
1,256 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Income
|
|
|
2,617 |
|
|
|
2,692 |
|
|
|
2,708 |
|
|
|
2,736 |
|
|
|
1,845 |
|
|
|
2,101 |
|
|
|
2,265 |
|
|
|
2,555 |
|
Provision for Loan Losses
|
|
|
240 |
|
|
|
369 |
|
|
|
189 |
|
|
|
317 |
|
|
|
35 |
|
|
|
149 |
|
|
|
52 |
|
|
|
192 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Int. Inc. after Prov. for Loan Losses
|
|
|
2,377 |
|
|
|
2,323 |
|
|
|
2,519 |
|
|
|
2,419 |
|
|
|
1,810 |
|
|
|
1,952 |
|
|
|
2,213 |
|
|
|
2,363 |
|
Non-interest income
|
|
|
639 |
|
|
|
628 |
|
|
|
417 |
|
|
|
699 |
|
|
|
324 |
|
|
|
327 |
|
|
|
504 |
|
|
|
447 |
|
Non-interest expense
|
|
|
2,818 |
|
|
|
2,651 |
|
|
|
2,490 |
|
|
|
2,538 |
|
|
|
2,088 |
|
|
|
2,182 |
|
|
|
2,444 |
|
|
|
2,514 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income tax benefit
|
|
|
198 |
|
|
|
300 |
|
|
|
446 |
|
|
|
580 |
|
|
|
46 |
|
|
|
97 |
|
|
|
273 |
|
|
|
296 |
|
Income tax benefit
|
|
|
(207 |
) |
|
|
(207 |
) |
|
|
(207 |
) |
|
|
(210 |
) |
|
|
(60 |
) |
|
|
(60 |
) |
|
|
(81 |
) |
|
|
(116 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
$ |
405 |
|
|
$ |
507 |
|
|
$ |
653 |
|
|
$ |
790 |
|
|
$ |
106 |
|
|
$ |
157 |
|
|
$ |
354 |
|
|
$ |
412 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PERFORMANCE RATIOS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings per share
|
|
|
0.11 |
|
|
|
0.14 |
|
|
|
0.18 |
|
|
|
0.22 |
|
|
|
0.04 |
|
|
|
0.06 |
|
|
|
0.14 |
|
|
|
0.13 |
|
|
Diluted earnings per share
|
|
|
0.11 |
|
|
|
0.14 |
|
|
|
0.17 |
|
|
|
0.21 |
|
|
|
0.04 |
|
|
|
0.06 |
|
|
|
0.14 |
|
|
|
0.13 |
|
Results for 2004 include the June 5, 2004 divestiture of
two branches; results for 2003 include the impact of the
January 1, 2003 acquisition of NSB and the
September 5, 2003 purchase of three branches.
Quantitative And Qualitative Disclosures About Market
Risk
In the course of its normal business operations, the Bank is
exposed to certain market risks, namely interest rate risk. The
Bank has no foreign currency exchange risk, no commodity price
risk or material equity price risk. Financial instruments, which
are sensitive to changes in market interest rates, include fixed
and variable-rate loans, fixed income securities, mortgage
backed securities, collateralized mortgage obligations,
interest-bearing deposits and other borrowings. All interest
rate risk arises in connection with financial instruments
entered into for purposes other than trading.
|
|
|
Interest Rate Sensitivity |
An important element of both earnings performance and the
maintenance of sufficient liquidity is maintaining an
appropriate balance between rate-sensitive assets and
rate-sensitive liabilities. Interest rate sensitivity analysis
is the measure of the vulnerability of net interest income to
changes in the level of rates. An interest rate sensitivity gap
results when assets and liabilities reprice at different
intervals and at different speeds. A negative gap or liability
sensitive gap, negatively impacts earnings if rates rise. A
positive or asset sensitive gap implies the risk of lower
earnings if rates decline. To attempt to offset this risk, the
Bank regularly forecasts its exposure to rate changes and
monitors its performance so that balance sheet restructuring may
be executed as needed.
40
Interest rate risk can result from a variety of factors
including timing differences in the maturity or repricing of the
Banks assets and liabilities, the effect of loan
prepayments and deposit withdrawals, and the differences in the
behavior of lending and funding rates, sometimes referred to as
basis risk. The Bank uses gap and simulation analysis to measure
interest rate risk. Under a gap analysis, interest earning
assets and interest bearing liabilities are measured by time
frame which reflects scheduled maturity and/or repricing dates
as of one point in time. Estimates on prepayments of the loan
and securities portfolios are projected through evaluation of
their respective prepayment histories and current market
conditions in the simulation analysis. Typically, prepayments on
loans and mortgage-backed securities accelerate in periods of
declining rates; and conversely, prepayments typically slow down
in a rising interest rate environment. The table below reflects
the Banks simulation analysis as of December 31,
2004, which includes estimated principal cash flows of the
Banks interest-bearing assets and liabilities. Estimates
of prepayments on loans and mortgage-backed securities and call
activity on other debt instruments are built into the analysis.
Certain interest-bearing liabilities, including NOW and savings
accounts are treated as core deposits in the simulation. Other
variable rate deposits are analyzed with deposits and borrowings
that are scheduled to mature within one year. Current market
interest rates as of December 31, 2004 were used in the
simulation.
As of December 31, 2004, the Bank is in an asset sensitive
position with assets maturing or repricing within one year
exceeding liabilities that mature or reprice in one year by
approximately $15.7 million. On a cumulative basis,
interest sensitive assets as a percentage of interest sensitive
liabilities are 112.5% within a one-year period. Although
certain assets and liabilities may share certain similar
characteristics with respect to maturity, repricing, and
historical prepayment velocity, they may react differently in
the future based on circumstances and events at that time,
including market and economic conditions as well as the
prevailing level of competition for loans and deposits. In
addition, there can be no assurance that the Banks assets
and liabilities will behave as estimated in the simulation
analysis due to the inherent uncertainty of the assumptions
employed in the model.
TABLE 19 Interest Rate Sensitivity Gaps
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2004 | |
|
|
| |
|
|
|
|
After Three | |
|
|
|
|
|
|
Months | |
|
After Six | |
|
After One | |
|
|
|
|
|
|
but Within | |
|
Months | |
|
Year but | |
|
|
|
|
Within Three | |
|
Six | |
|
but Within | |
|
Within | |
|
After | |
|
|
|
|
Months | |
|
Months | |
|
One Year | |
|
Five Years | |
|
Five Years | |
|
Total | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
Interest Earning Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal funds sold
|
|
$ |
1,868 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
1,868 |
|
Short-term investments
|
|
|
22 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22 |
|
Securities
|
|
|
2,768 |
|
|
|
1,443 |
|
|
|
11,610 |
|
|
|
24,256 |
|
|
|
23,034 |
|
|
|
63,111 |
|
Loans
|
|
|
99,483 |
|
|
|
8,965 |
|
|
|
15,422 |
|
|
|
58,603 |
|
|
|
70,007 |
|
|
|
252,480 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest earning assets
|
|
$ |
104,141 |
|
|
$ |
10,408 |
|
|
$ |
27,032 |
|
|
$ |
82,859 |
|
|
$ |
93,041 |
|
|
$ |
317,481 |
|
Cumulative
|
|
$ |
104,141 |
|
|
$ |
114,549 |
|
|
$ |
141,581 |
|
|
$ |
224,440 |
|
|
$ |
317,481 |
|
|
|
|
|
Interest Bearing Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest bearing demand deposits
|
|
$ |
389 |
|
|
$ |
389 |
|
|
$ |
779 |
|
|
$ |
2,327 |
|
|
$ |
8,356 |
|
|
$ |
12,240 |
|
Savings
|
|
|
18,965 |
|
|
|
1,363 |
|
|
|
2,725 |
|
|
|
14,319 |
|
|
|
30,306 |
|
|
|
67,678 |
|
Time deposits
|
|
|
15,723 |
|
|
|
14,601 |
|
|
|
39,504 |
|
|
|
66,723 |
|
|
|
64 |
|
|
|
136,615 |
|
Borrowings
|
|
|
25,425 |
|
|
|
|
|
|
|
6,000 |
|
|
|
11,000 |
|
|
|
13,500 |
|
|
|
55,925 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest bearing liabilities
|
|
$ |
60,502 |
|
|
$ |
16,353 |
|
|
$ |
49,008 |
|
|
$ |
94,369 |
|
|
$ |
52,226 |
|
|
$ |
272,458 |
|
Cumulative
|
|
$ |
60,502 |
|
|
$ |
76,855 |
|
|
$ |
125,863 |
|
|
$ |
220,232 |
|
|
$ |
272,458 |
|
|
|
|
|
Period GAP
|
|
$ |
43,639 |
|
|
$ |
(5,945 |
) |
|
$ |
(21,976 |
) |
|
$ |
(11,510 |
) |
|
$ |
40,815 |
|
|
|
|
|
Cumulative GAP
|
|
$ |
43,639 |
|
|
$ |
37,694 |
|
|
$ |
15,718 |
|
|
$ |
4,208 |
|
|
$ |
45,023 |
|
|
|
|
|
Cumulative GAP as a percentage of total interest earning assets
|
|
|
41.90 |
% |
|
|
32.91 |
% |
|
|
11.10 |
% |
|
|
1.87 |
% |
|
|
14.18 |
% |
|
|
|
|
41
Gap guidelines for the Bank are that for the one year interval,
the cumulative rate sensitive assets to rate sensitive
liabilities ratio will be between 70% and 120%. The Asset
Liability Committee (ALCO) and the Board of Directors
review this guideline quarterly to ensure compliance. ALCO
reviews its assumptions quarterly and determines if the gap is
correctly predicting the net interest margin. In determining
risk exposure limits, ALCO considers the nature of the
Banks strategies and activities, its past performance, the
level of earnings and capital available to absorb potential
losses. Historically, the Banks performance has been
within the guidelines set for gap. If it appears that the
guidelines may be breached, ALCO would implement actions to be
taken to prevent this breach. Some of the strategies used by
financial institutions to assure compliance with gap guidelines
are controlling interest rates, increasing or decreasing the
duration of the portfolio, raising additional capital, selling
assets to enhance liquidity, and/or implementing hedging and
interest rate swaps.
The Bank forecasts future changes in net interest income and the
present value of equity in the following table. This table
represents the changes as a result of movement of interest
rates. The Bank also uses simulation for various other interest
rate scenarios which are used to forecast earnings and
anticipate changes in net interest income based on both balance
and interest rate changes. The analysis in Table 20 estimates
the projected change to net interest income resulting from
instantaneous interest rate movements (rate shocks). The Bank
forecasts that a 200 basis point decrease in rates will
have a negative impact on net interest income. An increase in
rates of 100 or 200 basis points will have a positive
effect, and a decrease in rates of 100 basis points will
have a minimal positive effect on net interest income. The Bank
also analyses the impact that the change in rates have on the
market value of equity. The Bank forecasts that a decrease in
rates will have a positive impact on market value of equity and
an increase in rates will have a negative effect on market value
of equity. The risk to net interest income and changes in market
value of equity are within guidelines set by the asset/liability
policies of the Bank.
TABLE 20 Rate Shock Analysis
|
|
|
|
|
|
|
|
|
|
|
Percentage Change | |
|
Percentage Change | |
Changes in Interest Rates |
|
in Net Interest | |
|
in Market Value of | |
(Basis Points) |
|
Income | |
|
Equity | |
|
|
| |
|
| |
(200)
|
|
|
(0.43 |
)% |
|
|
36.22 |
% |
(100)
|
|
|
0.79 |
% |
|
|
17.75 |
% |
0
|
|
|
0.00 |
% |
|
|
0.00 |
% |
100
|
|
|
3.05 |
% |
|
|
(16.58 |
)% |
200
|
|
|
5.95 |
% |
|
|
(32.25 |
)% |
42
RISK FACTORS RELATING TO THE MERGER
In addition to the other information contained in or
incorporated by reference into this proxy statement/ prospectus,
you should carefully consider the following risk factors in
deciding whether to vote in favor of the merger proposal.
Risks Specifically Related to the Merger
|
|
|
FNB may encounter integration difficulties or may fail to
realize the anticipated benefits of the merger. |
FNB and Legacy may not be able to integrate their operations
without encountering difficulties, including, without
limitation, the loss of key employees and customers, the
disruption of their respective ongoing businesses or possible
inconsistencies in standards, controls, procedures and policies.
In determining that the merger is in the best interests of FNB
and Legacy, their respective boards of directors considered that
enhanced earnings may result from the consummation of the
merger, including from reduction of duplicate costs, improved
efficiency and cross-marketing opportunities.
|
|
|
If the merger is not completed, Legacy will have incurred
substantial expenses without realizing the expected benefits of
the merger. |
Legacy has incurred substantial expenses in connection with the
merger described in this proxy statement/ prospectus. The
completion of the merger depends on the satisfaction of
specified conditions and the receipt of regulatory approvals. If
the merger is not completed, these expenses could have a
significant impact on Legacys financial condition because
it would not have realized the expected benefits of the merger.
|
|
|
Because the market price of FNB common stock may
fluctuate, you cannot be certain of the market value of the
common stock that you will receive in the merger. |
Upon completion of the merger, each share of our common stock
will be converted into the right to receive one share of FNB
common stock or $18.40 in cash. Any change in the price of FNB
common stock prior to the merger will affect the market value of
the stock that you will receive in the merger. Stock price
changes may result from a variety of factors, including general
market and economic conditions, changes in FNBs
businesses, operations and prospects and regulatory
considerations.
The prices of FNB common stock and our common stock at the
closing of the merger may vary from their respective prices on
the date the merger agreement was executed, on the date of this
proxy statement/ prospectus and on the date of our special
meeting. As a result, the value represented by the exchange
ratio will also vary. For example, based on the range of closing
prices of FNB common stock during the period from
December 20, 2005, the last full trading day before public
announcement of the merger,
through ,
2006, the last practicable full trading day prior to the date of
the printing of this proxy statement/ prospectus, the exchange
ratio represented a value ranging from a high of
$ on , to
a low of
$ on , for
each share of our common stock. Because the date the merger will
be completed will be later than the date of our special meeting,
at the time of our special meeting you will not know what the
market value of FNBs common stock will be upon completion
of the merger, although we have a right to terminate the merger
agreement if the price of FNB common stock declines by more than
a specified amount and also underperforms the Nasdaq Bank Index
by a specified percentage during a specified period before the
receipt of the last required regulatory approval.
|
|
|
Future results of the combined companies may materially
differ from the pro forma financial information presented in
this proxy statement/ prospectus. |
Future results of the combined FNB and Legacy may be materially
different from those shown in the pro forma financial statements
that show only a combination of their historical results. The
costs FNB will incur in connection with the merger may be higher
or lower than FNB has estimated, depending upon how costly or
difficult it is to integrate FNB and Legacy. Furthermore, these
charges may decrease the capital of FNB after the merger that
could be used for profitable, income-earning investments in the
future.
43
|
|
|
The merger agreement limits our ability to pursue
alternatives to the merger. |
The merger agreement contains provisions that, subject to
limited exceptions, limit our ability to discuss, facilitate or
enter into agreements with third parties to acquire us. In
general, if we avail ourselves of those limited exceptions, we
will be obligated to pay FNB a
break-up fee of
$3,000,000. These provisions could discourage a potential
competing acquiror that might have an interest in acquiring us
from proposing or considering our acquisition even if that
potential acquiror were prepared to pay a higher price to our
shareholders than the price FNB proposes to pay under the merger
agreement.
Risks Related to Owning FNB Common Stock
|
|
|
FNBs status as a holding company makes it dependent
on dividends from its subsidiaries to meet its
obligations. |
FNB is a holding company and conducts almost all of its
operations through its subsidiaries. FNB does not have any
significant assets other than the stock of its subsidiaries.
Accordingly, FNB depends on dividends from its subsidiaries to
meet its obligations. FNBs right to participate in any
distribution of earnings or assets of its subsidiaries is
subject to the prior claims of creditors of such subsidiaries.
Under federal and state law, FNB Bank is limited in the amount
of dividends it may pay to FNB without prior regulatory
approval. Also, bank regulators have the authority to prohibit
FNB Bank from paying dividends if the bank regulators determine
the payment would be an unsafe and unsound banking practice.
|
|
|
Interest rate volatility could significantly harm
FNBs business. |
FNBs results of operations are affected by the monetary
and fiscal policies of the federal government and the regulatory
policies of governmental authorities. A significant component of
FNBs earnings is its net interest income, which is the
difference between the income from interest-earning assets, such
as loans, and the expense of interest-bearing liabilities, such
as deposits. A change in market interest rates could adversely
affect FNBs earnings if market interest rates change such
that the interest FNB pays on deposits and borrowings increases
faster than the interest it collects on loans and investments.
Consequently, FNB, along with other financial institutions
generally, is sensitive to interest rate fluctuations.
|
|
|
FNBs results of operations are significantly
affected by the ability of its borrowers to repay their
loans. |
Lending money is an essential part of the banking business.
However, borrowers do not always repay their loans. The risk of
non-payment is affected by:
|
|
|
|
|
credit risks of a particular borrower; |
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|
|
changes in economic and industry conditions; |
|
|
|
the duration of the loan; and |
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|
|
in the case of a collateralized loan, uncertainties as to the
future value of the collateral. |
Generally, commercial/industrial, construction and commercial
real estate loans present a greater risk of non-payment by a
borrower than other types of loans. In addition, consumer loans
typically have shorter terms and lower balances with higher
yields compared to real estate mortgage loans, but generally
carry higher risks of default. Consumer loan collections are
dependent on the borrowers continuing financial stability,
and thus are more likely to be affected by adverse personal
circumstances. Furthermore, the application of various federal
and state laws, including bankruptcy and insolvency laws, may
limit the amount that can be recovered on these loans.
|
|
|
FNBs financial condition and results of operations
would be adversely affected if its allowance for loan losses
were not sufficient to absorb actual losses. |
There is no precise method of predicting loan losses. FNB can
give no assurance that its allowance for loan losses is or will
be sufficient to absorb actual loan losses. Excess loan losses
could have a material adverse
44
effect on FNBs financial condition and results of
operations. FNB attempts to maintain an appropriate allowance
for loan losses to provide for estimated losses in its loan
portfolio. FNB periodically determines the amount of its
allowance for loan losses based upon consideration of several
factors, including:
|
|
|
|
|
a regular review of the quality, mix and size of the overall
loan portfolio; |
|
|
|
historical loan loss experience; |
|
|
|
evaluation of non-performing loans; |
|
|
|
assessment of economic conditions and their effects on
FNBs existing portfolio; and |
|
|
|
the amount and quality of collateral, including guarantees,
securing loans. |
|
|
|
FNBs financial condition may be adversely affected
if it is unable to attract sufficient deposits to fund its
anticipated loan growth. |
FNB funds its loan growth primarily through deposits. To
the extent that FNB is unable to attract and maintain sufficient
levels of deposits to fund its loan growth, FNB would be
required to raise additional funds through public or private
financings. FNB can give no assurance that it would be able to
obtain these funds on terms that are favorable to it.
|
|
|
FNB could experience significant difficulties and
complications in connection with its growth and acquisition
strategy. |
FNB has grown significantly over the last few years and may seek
to continue to grow by acquiring financial institutions and
branches as well as non-depository entities engaged in
permissible activities for its financial institution
subsidiaries. However, the market for acquisitions is highly
competitive. FNB may not be as successful in the future as it
has been in the past in identifying financial institution and
branch acquisition candidates, integrating acquired institutions
or preventing deposit erosion at acquired institutions or
branches.
As part of this acquisition strategy, FNB may acquire additional
banks and non-bank entities that it believes provide a strategic
fit with its business. For example, acquiring any bank or
non-bank entity will involve risks commonly associated with
acquisitions, including:
|
|
|
|
|
potential exposure to unknown or contingent liabilities of banks
and non-bank entities FNB acquires; |
|
|
|
exposure to potential asset quality issues of acquired banks and
non-bank entities; |
|
|
|
potential disruption to FNBs business; |
|
|
|
potential diversion of the time and attention of FNBs
management; and |
|
|
|
the possible loss of key employees and customers of the banks
and other businesses FNB acquires. |
In addition to acquisitions, FNB Bank may expand into additional
communities or attempt to strengthen its position in its current
markets by undertaking additional de novo branch openings. Based
on its experience, FNB believes that it generally takes up to
three years for new banking facilities to achieve operational
profitability due to the impact of organizational and overhead
expenses and the
start-up phase of
generating loans and deposits. To the extent that FNB Bank
undertakes additional de novo branch openings, FNB Bank is
likely to continue to experience the effects of higher operating
expenses relative to operating income from the new banking
facilities, which may have an adverse effect on FNBs net
income, earnings per share, return on average shareholders
equity and return on average assets.
FNB may encounter unforeseen expenses, as well as difficulties
and complications in integrating expanded operations and new
employees without disruption to its overall operations.
Following each acquisition, FNB must expend substantial
resources to integrate the entities. The integration of
non-banking entities often involves combining different industry
cultures and business methodologies. The failure to integrate
successfully the entities FNB acquires into its existing
operations may adversely affect its results of operations and
financial condition.
45
|
|
|
FNB could be adversely affected by changes in the law,
especially changes in the regulation of the banking
industry. |
FNB and its subsidiaries operate in a highly regulated
environment and are subject to supervision and regulation by
several governmental regulatory agencies, including the Federal
Reserve Board, the OCC and the Federal Deposit Insurance
Corporation, or the FDIC. Regulations are generally
intended to provide protection for depositors and customers
rather than for investors. FNB is subject to changes in federal
and state law, regulations, governmental policies, income tax
laws and accounting principles. Changes in regulation could
adversely affect the banking industry as a whole and could limit
FNBs growth and the return to investors by restricting
such activities as:
|
|
|
|
|
the payment of dividends; |
|
|
|
mergers with or acquisitions of other institutions; |
|
|
|
investments; |
|
|
|
loans and interest rates; |
|
|
|
the provision of securities, insurance or trust
services; and |
|
|
|
the types of non-deposit activities in which FNBs
financial institution subsidiaries may engage. |
In addition, legislation may change present capital
requirements, which could restrict FNBs activities and
require FNB to maintain additional capital.
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|
|
FNBs results of operations could be adversely
affected due to significant competition. |
FNB may not be able to compete effectively in its markets, which
could adversely affect FNBs results of operations. The
banking and financial service industry in each of FNBs
market areas is highly competitive. The competitive environment
is a result of:
|
|
|
|
|
changes in regulation; |
|
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|
changes in technology and product delivery systems; and |
|
|
|
the accelerated pace of consolidation among financial services
providers. |
FNB competes for loans, deposits and customers with various bank
and non-bank financial service providers, many of which are
larger in terms of total assets and capitalization, have greater
access to the capital markets and offer a broader array of
financial services than FNB does. Competition with such
institutions may cause FNB to increase its deposit rates or
decrease its interest rate spread on loans it originates.
|
|
|
FNBs continued pace of growth may require it to
raise additional capital in the future, but that capital may not
be available when it is needed. |
FNB is required by federal and state regulatory authorities to
maintain adequate levels of capital to support its operations.
As a financial holding company, FNB seeks to maintain capital
sufficient to meet the well capitalized standard set
by regulators. FNB anticipates that its current capital
resources will satisfy its capital requirements for the
foreseeable future. FNB may at some point, however, need to
raise additional capital to support continued growth, both
internally and through acquisitions.
FNBs ability to raise additional capital, if needed, will
depend on conditions in the capital markets at that time, which
are outside FNBs control, and on its financial
performance. If FNB cannot raise additional capital when needed,
its ability to expand its operations through internal growth and
acquisitions could be materially impaired.
46
|
|
|
Adverse economic conditions in FNBs market area may
adversely impact its results of operations and financial
condition. |
The majority of FNBs business is concentrated in western
Pennsylvania and eastern Ohio, which are traditionally slower
growth markets than other areas of the United States. As a
result, FNB Banks loan portfolio and results of operations
may be adversely affected by factors that have a significant
impact on the economic conditions in this market area. The local
economies of this market area historically have been less robust
than the economy of the nation as a whole and may not be subject
to the same fluctuations as the national economy. Adverse
economic conditions in FNBs market area, including the
loss of certain significant employers, could reduce its growth
rate, affect its borrowers ability to repay their loans
and generally affect FNBs financial condition and results
of operations. Furthermore, a downturn in real estate values in
FNB Banks market area could cause many of its loans to
become inadequately collateralized.
|
|
|
Certain provisions of FNBs articles of incorporation
and bylaws and Florida law may discourage takeovers. |
FNBs articles of incorporation and by-laws contain certain
anti-takeover provisions that may discourage or may make more
difficult or expensive a tender offer, change in control or
takeover attempt that is opposed by FNBs board of
directors. In particular, FNBs articles of incorporation
and by-laws:
|
|
|
|
|
classify its board of directors into three classes, so that
shareholders elect only one-third of its board of directors each
year; |
|
|
|
permit shareholders to remove directors only for cause; |
|
|
|
do not permit shareholders to take action except at an annual or
special meeting of shareholders; |
|
|
|
require shareholders to give FNB advance notice to nominate
candidates for election to its board of directors or to make
shareholder proposals at a shareholders meeting; |
|
|
|
permit FNBs board of directors to issue, without
shareholder approval unless otherwise required by law, preferred
stock with such terms as its board of directors may
determine; and |
|
|
|
require the vote of the holders of at least 75% of FNBs
voting shares for shareholder amendments to its by-laws. |
Under Florida law, the approval of a business combination with
shareholders owning 10% or more of the voting shares of a
corporation requires the vote of holders of at least two-thirds
of the voting shares not owned by such shareholder, unless the
transaction is approved by a majority of the corporations
disinterested directors. In addition, Florida law generally
provides that shares of a corporation acquired in excess of
certain specified thresholds will not possess any voting rights
unless the voting rights are approved by a majority vote of the
corporations disinterested shareholders.
These provisions of FNBs articles of incorporation and
by-laws and of Florida law could discourage potential
acquisition proposals and could delay or prevent a change in
control, even though a majority of FNBs shareholders may
consider such proposals desirable. Such provisions could also
make it more difficult for third parties to remove and replace
the members of FNBs board of directors. Moreover, these
provisions could diminish the opportunities for shareholders to
participate in certain tender offers, including tender offers at
prices above the then-current market price of FNBs common
stock, and may also inhibit increases in the trading price of
FNBs common stock that could result from takeover attempts.
|
|
|
Loss of members of FNBs executive team could have a
negative impact on its business. |
FNBs success is dependent, in part, on the continued
service of its executive officers, including Peter Mortensen,
its Chairman of the Board, and Stephen J. Gurgovits, its
President and Chief Executive Officer. The loss of the services
of either of these executive officers could have a negative
impact on FNBs business because of their skills,
relationships in the banking community and years of industry
experience, and the difficulty of promptly finding qualified
replacement executive officers.
47
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement/ prospectus contains or incorporates by
reference a number of forward-looking statements regarding the
financial condition, results of operations, earnings outlook,
business and prospects of FNB, Legacy and the potential combined
company as well as statements for the period following the
completion of the merger. You can find many of these statements
by looking for words such as plan,
believe, expect, intend,
anticipate, estimate,
project, potential, possible
or other similar expressions.
The forward-looking statements involve certain risks and
uncertainties. The ability of either FNB or Legacy to predict
results or the actual effects of their plans and strategies, or
those of the combined company, is inherently uncertain.
Accordingly, actual results may differ materially from
anticipated results. Some of the factors that may cause actual
results or earnings to differ materially from those contemplated
by the forward-looking statements include, but are not limited
to, those discussed under Risk Factors Relating to the
Merger beginning on
page , as well as the
following:
|
|
|
|
|
the businesses of FNB and Legacy may not be integrated
successfully or the integration may be more difficult,
time-consuming or costly than currently anticipated; |
|
|
|
expected revenue synergies and cost savings from the merger may
not be realized within the expected time frame or at all; |
|
|
|
revenues may be lower than expected following the merger; |
|
|
|
deposit attrition, operating costs, loss of customers and
business disruption, including, without limitation, difficulties
in maintaining relationships with our employees, customers or
suppliers may be greater than anticipated following the merger; |
|
|
|
the regulatory approvals for the merger may not be obtained on
acceptable terms, on the anticipated schedule or at all; |
|
|
|
the merger may not be approved by the requisite vote of our
shareholders; |
|
|
|
competitive pressure among financial services companies is
intense; |
|
|
|
general economic conditions may be less favorable than expected; |
|
|
|
political conditions and related actions by the United States
military abroad may adversely affect economic conditions as a
whole; |
|
|
|
changes in the interest rate environment may reduce interest
margins and impact funding sources; |
|
|
|
changes in market rates and prices may adversely impact the
value of financial products and assets; |
|
|
|
legislation or changes in the regulatory environment may
adversely affect the businesses in which FNB and Legacy are
engaged; and |
|
|
|
litigation liabilities, including costs, expenses, settlements
and judgments, may adversely affect either company or their
businesses. |
Because these forward-looking statements are subject to
assumptions and uncertainties, actual results may differ
materially from those expressed or implied by these
forward-looking statements. You are cautioned not to place undue
reliance on these statements, which speak only as of the date of
this proxy statement/ prospectus or the date of any document
incorporated by reference in this proxy statement/ prospectus.
All subsequent written and oral forward-looking statements
concerning the merger or other matters addressed in this proxy
statement/ prospectus and attributable to FNB or Legacy or any
person acting on their behalf are expressly qualified in their
entirety by the cautionary statements contained or referred to
in this section. Except to the extent required by applicable law
or regulation, FNB and Legacy undertake no obligation to update
these forward-looking statements to reflect events or
circumstances after the date of this proxy statement/ prospectus
or to reflect the occurrence of unanticipated events.
48
OUR SPECIAL MEETING
This section contains information for our shareholders about the
special meeting of shareholders we have called to consider the
approval of the merger proposal and related matters.
General
This proxy statement/ prospectus is being furnished to holders
of our common stock for use at our special meeting and any
adjournment, postponement or continuation of our special meeting.
When and Where Our Special Meeting Will Be Held
Our special meeting will be held
on , ,
2006, at 10:00 a.m., prevailing time,
at ,
Harrisburg, Pennsylvania, subject to any adjournment,
postponement or continuation of our special meeting.
Matters to Be Considered
The purpose of our special meeting is to consider and vote upon:
|
|
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|
|
Proposal 1 A proposal to approve and adopt the
merger agreement among FNB, FNB Bank and us; |
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|
|
Proposal 2 A proposal to grant discretionary
authority to adjourn our special meeting if necessary to permit
further solicitation of proxies because we have not received
sufficient votes at the time of our special meeting to approve
the merger proposal; and |
|
|
|
Such other business as may properly come before our special
meeting and any adjournment, postponement or continuation of our
special meeting. |
Our shareholders must approve Proposal 1 for the merger to
occur. If our shareholders fail to approve this proposal, the
merger will not occur.
At this time, our board of directors is unaware of any other
matters, other than as set forth above, that may be presented
for action at our special meeting. If other matters are properly
presented, however, the persons named as proxies will vote in
accordance with their judgment with respect to such matters.
Record Date; Shares Outstanding and Entitled to
Vote
Our board of directors has fixed the close of business
on ,
2006 as the record date for the determination of holders of our
common stock entitled to notice of, and to vote at, our special
meeting and any adjournment, postponement or continuation of our
special meeting.
On the record
date, shares
of our common stock were issued and outstanding and entitled to
vote at our special meeting, held by
approximately holders
of record. Each share of our common stock is entitled to cast
one vote on all matters that are properly submitted to our
shareholders at our special meeting.
Quorum
The presence, in person or by properly executed proxy, of the
holders of at least a majority of our outstanding shares of
common stock on the record date is necessary to constitute a
quorum at our special meeting. Abstentions will be counted for
the purpose of determining whether a quorum is present. A quorum
must be present in order for the vote on the merger proposal and
the adjournment proposal to occur.
Based on the number of shares of our common stock issued and
outstanding as of the record
date, shares
of our common stock must be present in person or represented by
proxy at our special meeting to constitute a quorum.
49
Shareholder Vote Required
Approve and Adopt the Merger Agreement. The affirmative
vote of the holders of not less than two-thirds of our
outstanding shares of common stock on the record date is
required to approve the merger proposal. Therefore, the failure
to vote, either by proxy or in person, will have the same effect
as a vote against approval of the merger proposal. Abstentions
will also have the same effect as a vote against approval of the
merger proposal. Accordingly, we urge you to complete, date and
sign the accompanying proxy card and return it promptly in the
enclosed postage-paid envelope.
When considering our board of directors recommendation
that you vote in favor of the approval and adoption of the
merger agreement, you should be aware that certain of our
executive officers and directors have interests in the merger
that may be different from, or in addition to, your interests as
a shareholder. See The Merger Interests of Our
Directors and Executive Officers in the Merger beginning
on page .
Discretionary Authority to Adjourn Our Special Meeting.
The affirmative vote of the holders of a majority of the
eligible shares of our common stock present in person or
represented by proxy at our special meeting is required to
approve the proposal to grant discretionary authority to adjourn
our special meeting if necessary to permit further solicitation
of proxies for the merger proposal. The failure to vote, either
by proxy or in person, will have no effect on the outcome of the
voting on the adjournment proposal. However, abstentions will
have the same effect as a vote against the adjournment proposal.
Appraisal Rights
Under the Bank Act, you have the right to receive the appraised
value of your shares of our common stock in connection with the
merger. See The Merger Appraisal Rights
beginning on page for further
information.
Director and Executive Officer Voting
As of the record date, our directors and executive officers and
their affiliates beneficially
own shares
of our common stock, or
approximately %
of the issued and outstanding shares of our common stock
entitled to vote at our special meeting. This number includes
options to
purchase shares
of our common stock exercisable within 60 days of the
record date.
In addition, as of the record date, FNB
owned shares
of our common stock or
approximately %
of the shares of our common stock entitled to vote at our
special meeting. FNB has advised us it will vote its shares for
approval of the merger proposal. In addition, as of the record
date, FNBs directors and executive officers and their
affiliates owned an aggregate
of shares
of our common stock, or
approximately %
of the shares entitled to vote at our special meeting.
FNBs directors and executive officers and their affiliates
have advised FNB that they will vote such shares for approval of
the merger proposal.
Proxies
Voting. You should complete and return the proxy card
accompanying this proxy statement/ prospectus in order to ensure
that your vote is counted at our special meeting and at any
adjournment, postponement or continuation of our special
meeting, regardless of whether you plan to attend our special
meeting. If you sign and send in your proxy card and do not
indicate how you want to vote, we will count your proxy card as
a vote in favor of approval of the merger proposal and in favor
of approval of the adjournment proposal.
If your shares of our common stock are held in the name of a
bank, broker, nominee or other holder of record, you will
receive instructions from the bank, broker, nominee or other
holder of record that you must follow in order for your shares
of our common stock to be voted.
If your shares are held in street name, i.e., by your bank,
broker or other nominee, you might also be eligible to vote by
phone or over the internet. Special instructions can be found on
the enclosed proxy materials.
50
Revocability. You may revoke your proxy at any time
before the vote is taken at our special meeting. If you have not
voted through a bank, broker, nominee or other holder of record,
you may revoke your proxy by:
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submitting written notice of revocation to our corporate
secretary prior to the voting of that proxy at our special
meeting; |
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|
submitting a properly executed proxy with a later date; or |
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|
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voting in person at our special meeting. |
However, simply attending our special meeting without voting
will not revoke an earlier proxy.
Written notices of revocation and other communications regarding
the revocation of your proxy should be addressed to:
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The Legacy Bank |
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2600 Commerce Drive |
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Harrisburg, Pennsylvania 17110 |
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Attention: Kirsten C. Penwell, Secretary |
If your shares are held in the name of a bank, broker, nominee
or other holder of record, you should follow the instructions of
the bank, broker, nominee or other holder of record regarding
the revocation of proxies.
A proxy appointment will not be revoked by the death or
incapacity of the shareholder executing the proxy unless notice
of the death or incapacity is given to our corporate secretary
before the shares of our common stock represented by such proxy
are voted.
How Proxies are Counted. All shares of our common stock
represented by properly executed proxies received before or at
our special meeting, and not revoked, will be voted in
accordance with the instructions indicated in the proxies.
We will count a properly executed proxy marked
ABSTAIN as present for purposes of determining the
presence of a quorum, but an abstention will have the effect of
voting against approval of the merger proposal and voting
against approval of the adjournment proposal.
Brokers may not vote shares of our common stock that they hold
beneficially either for or against the approval of the merger
proposal without specific instructions from the person who
beneficially owns those shares. Therefore, if your shares are
held by a broker and you do not give your broker instructions on
how to vote your shares, this will have the same effect as
voting against approval of the merger proposal.
In addition, brokers may not vote on the adjournment proposal
without specific instructions from the person who beneficially
owns those shares. Nevertheless, shares held by a broker for
which you do not give your broker instructions on how to vote
will have no effect on the outcome of the voting on the
adjournment proposal.
Solicitation. We will pay for the costs of our special
meeting and for the mailing of this proxy statement/ prospectus
to our shareholders, as well as all other costs we incur in
connection with the solicitation of proxies from our
shareholders. However, FNB and we will share equally the cost of
printing this proxy statement/ prospectus and the filing fees
paid to the SEC.
In addition to soliciting proxies by mail, our directors,
officers and employees may solicit proxies by telephone or in
person. Our directors, officers and employees will not be
specially compensated for these activities. We also intend to
request that brokers, banks, nominees and other holders of
record solicit proxies from their principals, and we will
reimburse the brokers, banks, nominees and other holders of
record for certain expenses they incur for those activities.
We have retained Regan & Associates, Inc. to assist us
in the solicitation of proxies. We have agreed to pay
Regan & Associates, Inc. a fee of $8,000 for its
services.
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Recommendation of Our Board of Directors
Our board of directors unanimously approved the merger agreement
and the transactions contemplated by the merger agreement. Based
on our reasons for the merger described in this proxy statement/
prospectus, our board of directors believes that the merger is
in our best interests and those of our shareholders.
Accordingly, our board of directors unanimously recommends that
our shareholders vote FOR approval of the merger
proposal and FOR approval of the adjournment
proposal. See The Merger Our Board of
Directors Reasons for the Merger; Recommendation
beginning on page , for a
more detailed discussion of our board of directors
recommendation.
Attending Our Special Meeting
If your shares are held in street name and you want to attend
our special meeting, you must bring an account statement or
letter from your holder of record showing that you were the
beneficial owner of the shares
on ,
2006, the record date for our special meeting.
Questions and Additional Information
If you have more questions about the merger or how to submit
your proxy card, or if you need additional copies of this proxy
statement/ prospectus or the enclosed proxy card, please call
Melissa Tyrrell at (717) 441-3400, extension 107.
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INFORMATION ABOUT LEGACY AND FNB
The Legacy Bank
2600 Commerce Drive
Harrisburg, Pennsylvania 17110
(717) 441-3400
Business
The Legacy Bank is a Pennsylvania state-chartered bank that
began operations in September 1999. Legacy serves a niche market
of small and middle-market businesses and professionals and uses
a business model predicated on convenient delivery of banking
products and services (ATM networks, courier service, telephone
banking, online banking and banking by appointment) by
experienced bankers through our branch system and alternate
delivery channels that supplement our branch locations. In
addition, through its wholly owned subsidiary, The Legacy Trust
Company, Legacy provides asset management services, including
personal trust and estate planning, retirement and employee
benefit planning and investment management. The vision of
management is for Legacy to be recognized for its superior
service, innovative products and services, professionalism and
integrity. Management believes that Legacys purpose is not
to sell products and services to customers; rather, through
comprehensive needs analysis, it is to construct solutions to
our customers needs by offering a wide range of commercial
banking and asset management services. Legacys philosophy
is to focus on the needs of the customer and building a
relationship with that customer. Legacy has eight offices which
are located in Harrisburg, Camp Hill, Hazleton, Shenandoah,
Drums, McAdoo, Pottsville and Williamsport. The Legacy Trust
Company has two offices which are located in Harrisburg and
Pottsville.
Banking Operations
We offer a select range of deposit accounts designed to attract
small to medium-sized businesses, professionals, professional
practices, associations and individuals in our primary market
area. These accounts include personal and business checking and
savings accounts, time certificates of deposit and specialized
deposit accounts, including sweep accounts, small business
packaged accounts and tiered accounts designed to
attract larger deposits, and Keogh and IRA accounts. In
addition, commercial loans and consumer loans, including auto
loans, mortgages, home improvement loans and home equity lines
of credit are offered. Loans in amounts that exceed our lending
limit may be offered through participation agreements with other
financial institutions. Our deposits are insured by the FDIC up
to the maximum extent permitted by law.
We provide a number of convenience-oriented services and
products to our customers, including direct payroll and social
security deposit services, Legacy-by-mail services, letters of
credit, cash management, access to a national automated teller
machine network, safe deposit boxes, night depository
facilities, notary services, travelers checks, a courier
service, 24-hour
bank-by-phone and a personal and business
24-hour Online Banking
Service.
Management periodically reviews Legacys services and will
add or delete them based upon the needs of our customers,
competitive factors and our financial and other capabilities.
Improvements and developments in technology and evolving federal
and state laws and regulations may also influence our future
services significantly.
We direct our commercial lending efforts primarily toward small
and mid-sized businesses, professionals and professional
practices whose demand for credit fall within our legal lending
limit of $5.5 million. In the event there are customers
whose loan requirements exceed our legal lending limit, we
arrange such loans on a participation basis with other financial
institutions. All customer banking and credit decisions are made
by our board of directors and management.
The Legacy Trust Company, a wholly owned subsidiary of Legacy,
was created to complement Legacys strategy by offering a
full range of traditional trust, employee benefits, asset
management and investment services. Legacy Trust offers a
consultative approach to the delivery of its services to
professionals, business
53
owners and their employees and the traditional fiduciary market
with the ultimate goal of helping clients build and preserve
their financial legacies.
We have in the past sought out opportunities to enhance our
existing business model. On January 1, 2003, Northern State
Bank merged into Legacy. This merger brought us an expanded
market area. On September 5, 2003, we purchased three
branch offices from Leesport Bank. The branches purchased
brought to us an expanded market area with branch offices
located in Shenandoah and Drums. On June 4, 2004, we sold
our branch offices in Towanda and Sayre to First Citizens
National Bank. In September 2004, we opened a loan production
office in Pottsville. On April 1, 2005, we purchased the
McAdoo branch office of Harleysville National Bank and now
operates the branch office as one of our branches. On
May 27, 2005, Legacy closed its Humboldt Industrial Park
branch office, and on October 3, 2005 we opened a branch in
Pottsville.
Credit Administration
Loan Policy and Approval Authorization. We employ
extensive written policies and procedures to enhance management
of credit risk. The loan portfolio is managed under a
specifically defined credit process. This process includes
formulation of portfolio management strategy, guidelines for
underwriting standards and risk assessment, procedures for
ongoing identification and management of credit deterioration
and regular portfolio reviews to estimate loss exposure and to
ascertain compliance with our credit policies. In particular,
these credit policies and procedures require the loan committee
of our board of directors to analyze all credit decisions in
excess of $1,000,000.
In general, our loan approval policies provide for dual
signatures in commercial lending. Loan authorities are approved
by our board for our individual officers in various aggregate
amounts on a secured and/or unsecured basis. Authority limits
are based on experience, ability and need.
Loan Review. Whenever loans are classified in a category
below satisfactory grade, heightened management attention is
devoted to protect our position and to reduce loss exposure. We
place loans on non-accrual status when the principal or interest
is 90 days past due, unless the loan is well-secured and in
the process of collection. Loans may be placed in non-accrual
earlier if full recovery of the principal balance is in doubt.
Loans are charged off when the collection of principal and
interest can no longer be considered a sound collectible asset.
Management meets regularly to review asset quality trends and to
discuss loan policy issues. Losses are identified during this
review and reserves are established accordingly. In
managements opinion, all anticipated and identified
potential loan losses are now reflected in the allowance for
loan losses.
Concentration of Risk. A major element of credit risk
management is diversification. Our objective is to maintain a
diverse loan portfolio to minimize the impact of any single
event or set of occurrences. Concentration parameters are based
on individual risk factors and policy constraints for type of
customer, collateral and product.
Although we have no major concentrations of credit to any
particular industry, the economic conditions within the
Commonwealth of Pennsylvania have influence. We have diversified
this risk by having an operating presence in several regions of
the state. We generally do not make loans outside our market
area unless the borrower has a relationship with us.
Competition
The banking business in Pennsylvania is extremely competitive.
We face strong competition from many other banks, savings and
loan associations, credit unions and other financial
institutions that have branch offices or otherwise operate in
our market area, as well as many other financial services
companies such as money market funds, stock brokerage firms,
insurance companies, mortgage companies and others seeking
deposits and making loans. Substantially all of these
competitors have greater financial resources than Legacy, and
many have substantially larger lending limits than Legacy. Many
of these competitors also offer services that we do not intend
to provide or are not authorized to provide.
54
Financial institutions generally compete on the basis of rates
and service. We are subject to increasing competition from
credit unions, finance companies and mortgage companies that may
not be subject to the same regulatory restrictions and taxation
as commercial banks.
Regulation and Supervision
General. The business of banking in the United States is
a highly regulated industry, governed extensively by federal and
state law and regulations. No entity can engage in the business
of banking in the United States without first applying for and
obtaining a bank charter, either a federal charter or a state
charter. After a charter is approved and issued, all banks are
subject to a complex structure of laws that regulate the
business of banking, including transactions with consumers and
other customers. The system of regulation and supervision by
federal and state banking agencies is comprehensive and
pervasive, and affects nearly every aspect of a banks
business, including expansion and, if necessary, liquidation.
While different types of banks have different agencies as their
primary regulator, most of the laws and regulations affecting
banking operations and activities are purposely similar.
We are a Pennsylvania-chartered commercial bank that is not a
member of the Federal Reserve System, a charter type commonly
referred to in the industry as a state non-member
bank. In the United States, all banks are required to have
their deposits insured by the FDIC. Under the Federal Deposit
Insurance Act (FDIA), each FDIC-insured bank must
have a primary federal regulator, either the FRB, which is the
primary regulator for state-chartered banks that are members of
the Federal Reserve System, the OCC, which regulates national
banks or the FDIC for state non-member banks. Accordingly, our
primary federal banking regulator is the FDIC. Because we are
state-chartered, the Department also regulates us. The principal
laws that directly govern our activities are the Banking Code,
the statute under which we were chartered and the FDIA, because
our deposits are FDIC-insured. Significant portions of other
banking laws, such as the Federal Reserve Act, also apply to us
even though we are not a Federal Reserve member bank. In
addition, a number of other laws directly affect discrete
portions of our business, such as the Truth in Lending Act and
the Community Reinvestment Act (CRA), among others.
We are subject to extensive regulation and supervision by the
FDIC and the Department. We must file reports with the
Department and the FDIC concerning our activities and financial
condition, in addition to obtaining regulatory approvals prior
to entering into certain transactions such as mergers with, or
acquisitions of, other banking institutions. Our quarterly
financial reports, known as call reports, are
publicly available on the FDICs website. The Department
and the FDIC conduct periodic examinations to test our safety
and soundness and compliance with various regulatory
requirements. This regulation and supervision establishes a
comprehensive framework of activities in which an institution
can engage and is intended primarily for the protection of the
FDIC insurance fund and our depositors and not our shareholders.
The regulatory structure also gives the regulatory authorities
extensive discretion in connection with their supervisory and
enforcement activities and examination policies, including
policies with respect to the classification of assets and the
establishment of adequate loan loss reserves for regulatory
purposes. Any change in such regulatory requirements and
policies, whether by the FDIC or the Congress, could have a
material adverse impact on us and our operations. Certain of the
regulatory requirements applicable to us are referred to below
or elsewhere herein. The description of statutory provisions and
regulations applicable to banking institutions set forth herein
does not purport to be a complete description of such statutes
and regulations and their effects on us.
Capital Requirements. The FDIC has adopted risk-based
capital guidelines for the banks it regulates. The required
minimum ratio of total capital to risk-weighted assets,
including off-balance sheet activities, such as standby letters
of credit, is 8.0%. At least half of the total capital is
required to be Tier 1 capital, consisting
principally of common shareholders equity, noncumulative
perpetual preferred stock and minority interests in the equity
accounts of consolidated subsidiaries, less certain intangible
assets. The remainder, or Tier 2 capital, may
consist of a limited amount of subordinated debt and
intermediate-term preferred stock, certain hybrid capital
instruments and other debt securities, perpetual preferred stock
and a limited amount of the allowance for credit losses. The
risk-based capital standards also require the FDIC to take
adequate account of a banks interest rate risk,
concentration of credit risk and the risks of non-traditional
activities.
55
In addition to the risk-based capital guidelines, the FDIC
established guidelines for a minimum leverage ratio, or
Tier 1 capital to average total assets, for banks. These
guidelines provide for a minimum leverage ratio of 3% for those
banks that have the highest regulatory examination ratings and
are not contemplating or experiencing significant growth or
expansion. All other banks are required to maintain a leverage
ratio of at least 1% to 2% above the 3% stated minimum. We are
in compliance with these guidelines.
Under the FDIC prompt corrective action regulations, the FDIC is
required to take certain supervisory actions against
undercapitalized institutions, the severity of which depends
upon the institutions degree of undercapitalization.
Generally, a bank is considered well capitalized if
its ratio of total capital to risk-weighted assets is at least
10%, its ratio of Tier I, or core, capital to risk-weighted
assets is at least 6%, its tier 1 leverage ratio is at
least 5% and it is not subject to any order or directive by the
FDIC to meet a specific capital level. A bank generally is
considered adequately capitalized if its ratio of
total capital to risk-weighted assets is at least 8%, its ratio
of core capital to risk-weighted assets is at least 4% and its
ratio of core capital to total assets is at least 4%, 3% if the
institution receives the highest CAMELS rating. A bank that has
lower ratios of capital is categorized as
undercapitalized, significantly under
capitalized, or critically undercapitalized.
Subject to a narrow exception, the appropriate banking regulator
is required to appoint a receiver or conservator for an
institution that is critically undercapitalized. The
regulation also provides that a capital restoration plan must be
filed with the FDIC within 45 days of the date a bank
receives notice that it is undercapitalized,
significantly undercapitalized or critically
undercapitalized. Compliance with the plan must be
guaranteed by any parent bank holding company. In addition,
numerous mandatory supervisory actions become immediately
applicable to an undercapitalized institution, including, but
not limited to, increased monitoring by regulators and
restrictions on growth, capital distributions and expansion. The
FDIC could also take any one of a number of discretionary
supervisory actions, including the issuance of a capital
directive and the replacement of senior executive officers and
directors.
At December 31, 2005, we met the definition of well
capitalized.
Insurance of Deposit Accounts. All bank deposits in the
United States are insured by the FDIC up to a maximum amount of
$100,000 per depositor per bank. In other words, a person
could have $1,000,000 on deposit at one bank, and have FDIC
insurance of only $100,000, or could maintain ten deposit
accounts of $100,000 each at ten different banks, thereby
obtaining $1,000,000 in FDIC insurance. FDIC regulations define
what types of accounts are entitled to separate insurance
coverage, such that an individual can have more than $100,000 of
coverage at one bank, if his deposits are in distinct accounts,
such as an individual account, a joint account, an IRA, etc.
FDIC insurance is not insurance against physical catastrophes
such as fire, flood, theft, etc., but is insurance that the
depositor will receive his or her deposits in case the bank
becomes insolvent. The primary reason for the extensive
regulation and supervision of banks insured by the FDIC is that
the FDIC wants to be sure that banks are financially sound so
that the FDIC does not have to close the bank and pay the
depositors.
The FDIC has implemented a risk-related premium schedule for all
insured depository institutions that results in the assessment
of premiums based on capital and supervisory measures. Under the
risk-related premium schedule, the FDIC assigns, on a semiannual
basis, each depository institution to one of three capital
groups (well-capitalized, adequately capitalized or
undercapitalized) and further assigns such institution to one of
three subgroups within a capital group. The institutions
subgroup assignment is based upon the FDICs judgment of
the institutions strength in light of supervisory
evaluations, including examination reports, statistical analyses
and other information relevant to measuring the risk posed by
the institution. Only institutions with a total capital to
risk-adjusted assets ratio of 10% or greater, a Tier 1
capital to risk-based assets ratio of 6% or greater, and a
Tier 1 leverage ratio of 5% or greater are assigned to the
well-capitalized group. As of December 31, 2005, Legacy was
well capitalized for purposes of calculating insurance
assessments.
The Bank Insurance Fund maintained by the FDIC, and this is
applicable to us, is presently fully funded at more than the
minimum amount required by law. Accordingly, the Bank Insurance
Fund assessment rates for 2006 range from zero for those
institutions with the least risk to $0.027 for every $100 of
insured deposits for institutions deemed to have the highest
risk. We are in the category of institutions that presently pays
56
nothing for deposit insurance. The FDIC adjusts the rates every
six months. The FDIC has indicated that it is possible that all
banks will again be required to pay deposit insurance premiums
in the future if the current trend of the size of the insurance
funds relative to all insured deposits continues.
While we presently pay no premiums for deposit insurance, we are
subject to assessments to pay the interest on Financing
Corporation bonds. The Financing Corporation was created by
Congress to issue bonds to finance the resolution of failed
thrift institutions. The FDIC sets the Financing Corporation
assessment rate every quarter. The Financing Corporation
assessment for us, and all other banks and savings institutions,
for the first quarter of 2006 is an annual rate of $0.0132 for
each $100 of deposits.
Under the FDIA, insurance of deposits may be terminated by the
FDIC upon a finding that the institution has engaged in unsafe
or unsound practices, is in an unsafe or unsound condition to
continue operations or has violated any applicable law,
regulation, rule, order or condition imposed by the FDIC. Our
management does not know of any practice, condition or violation
that might lead to termination of deposit insurance.
Loans to One Borrower. Applicable regulations limit the
dollar amount of loans that we may have outstanding to any one
borrower, or group of affiliated borrowers, to 15% of its
capital and surplus. As of December 31, 2005, this
limitation was equal to $5.5 million. There are exceptions
from the limitation for certain secured loans, depending upon
the amount and type of collateral.
Limitation on Capital Distributions. Dividend payments by
us are subject to the Banking Code and the FDIA. Under the
Banking Code, no dividends may be paid except from
accumulated net earnings, generally, undivided
profits. Under the FDIA, an insured bank may not pay dividends
if the bank is in arrears in the payment of any insurance
assessment due to the FDIC.
As indicated above, the FDIC has adopted standards for the
maintenance of adequate levels of capital by banks. Adherence to
such standards further limits Legacys ability to pay
dividends.
Interstate Banking. The Riegle-Neal Interstate Banking
and Branching Efficiency Act of 1994 amended various federal
banking laws to provide for nationwide interstate banking,
interstate bank mergers and interstate branching. The interstate
banking law allows for the acquisition by a bank holding company
of a bank located in another state. The Banking Code permits
Legacy to establish branches in other states.
Transactions with Related Parties. Legacys
authority to engage in transactions with related parties or
affiliates, e.g., any company that controls or is
under common control with an institution, is limited by
Sections 23A and 23B of the Federal Reserve Act.
Section 23A limits the aggregate amount of covered
transactions with any individual affiliate to 10% of our capital
and surplus. The aggregate amount of covered transactions with
all affiliates is limited to 20% of our capital and surplus.
Certain transactions with affiliates are required to be secured
by collateral in an amount and of a type described in
Section 23A, and the purchase of low-quality assets from
affiliates is generally prohibited. Section 23B generally
provides that certain transactions with affiliates, including
loans and asset purchases, must be on terms and under
circumstances, including credit standards, that are
substantially the same or at least as favorable to the
institution as those prevailing at the time for comparable
transactions with non-affiliated parties. In addition, banks are
prohibited from lending to any affiliate that is engaged in
activities that are not permissible for bank holding companies
and no bank may purchase the securities of any affiliate other
than a subsidiary.
Our authority to extend credit to executive officers, directors
and 10% shareholders (insiders), as well as entities
such persons control, is governed by the Federal Reserve Act and
the Federal Reserves Regulation O thereunder, as
implemented and modified by the FDICs regulations. Among
other things, such loans are required to be made on terms that
are substantially the same as those offered to unaffiliated
individuals and that do not involve more than the normal risk of
repayment. There is an exception for loans made pursuant to a
benefit or compensation program that is widely available to all
employees of the institution and does not give preference to
insiders over other employees. The regulations also place
individual and aggregate limits on the amount of loans we may
make to insiders based, in part, on our capital position and
requires certain board approval procedures to be followed.
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Enforcement. Under the FDIA, the FDIC has primary
enforcement responsibility over state non-member banks and has
the authority to bring actions against the institution and all
institution-affiliated parties, including shareholders, and any
attorneys, appraisers and accountants who knowingly or
recklessly participate in wrongful action likely to have an
adverse effect on an insured institution. Formal enforcement
action may range from the issuance of a capital directive or
cease and desist order and removal of officers and/or directors
to institution of receivership or conservatorship or termination
of deposit insurance. Civil penalties cover a wide range of
violations and can amount to $25,000 per day, or even
$1 million per day in especially egregious cases. Federal
law also establishes criminal penalties for certain violations.
Standards for Safety and Soundness. The federal banking
agencies have adopted Interagency Guidelines Prescribing
Standards for Safety and Soundness (Interagency
Guidelines) and a final rule to implement safety and
soundness standards required under the FDIA. The Interagency
Guidelines set forth the safety and soundness standards that the
federal banking agencies use to identify and address problems at
insured depository institutions before capital becomes impaired.
The standards set forth in the Interagency Guidelines address
internal controls and information systems, internal audit
system, credit underwriting, loan documentation, interest rate
risk exposure, asset growth and compensation, fees and benefits.
If the appropriate federal banking agency determines that an
institution fails to meet any standard prescribed by the
Interagency Guidelines, the agency may require the institution
to submit to the agency an acceptable plan to achieve compliance
with the standard, as required by the FDIA. The final rule
establishes deadlines for the submission and review of such
safety and soundness compliance plans when such plans are
required.
Federal Reserve System. Regulations of the Federal
Reserve require all depositary institutions to maintain
noninterest earning reserves against their transaction accounts
(primarily NOW and regular checking accounts). Regulations
generally require that reserves be maintained against aggregate
transaction accounts as follows: for accounts aggregating
$36.1 million or less (subject to adjustment) the reserve
requirement is 3%; and for accounts aggregating greater than
$36.1 million, the reserve requirement is $900,000 plus 10%
(subject to adjustment between 8% and 14%) against that portion
of total transaction accounts in excess of $38.8 million.
The first $6.0 million of otherwise reservable balances
(subject to adjustments) are exempted from the reserve
requirements. Legacy is in compliance with the foregoing
requirements. The balances maintained to meet the reserve
requirements imposed by the Federal Reserve may be used to
satisfy liquidity requirements that may be imposed by the FDIC
under separate regulations.
Other Laws. Legacy is also subject to other requirements
and restrictions under federal and state law, including
restrictions on the types and amounts of loans that may be
granted and the interest that may be charged thereon, proper
disclosures of interest rates and terms for loans and deposits,
and limitations on the types of investments that may be made and
the types of services that may be offered, bank secrecy and
money laundering. The Expedited Funds Availability Act restricts
the amount of time that a bank may hold a
customers funds before making them available for
withdrawal. The Real Estate Settlement Procedures Act prevents
lenders from making certain referral payments to others for home
mortgage loans, and requires standardized disclosure of fees on
a uniform settlement sheet. The Fair Credit Reporting Act
governs the actions of banks in reporting the payment histories
of its customers and the denial of credit to an applicant, and
the Fair Debt Collection Practices Act imposes requirements on
the collection of debts not timely paid by customers. The CRA
requires us to help meet the credit needs of the entire
community where it operates, including low and moderate income
neighborhoods. Our rating under the CRA, assigned by the FDIC
pursuant to an examination of us, is important in determining
whether we may receive approval for, or utilize certain
streamlined procedures in, applications to engage in new
activities. Various consumer laws and regulations also affect
our operations. In addition to the impact of regulation,
commercial banks are affected significantly by the actions of
the Federal Reserve Board as it attempts to control the
nations money supply and credit availability in order to
influence the economy.
Employees
We have 85 full-time employees and 13 part-time
employees. Our executive officers are the Chief Executive
Officer, the President and Chief Operating Officer, the Chief
Financial Officer, the President of Retail Banking, Technology
and Operations, the President of The Legacy Bank of Hazleton,
the Chief
58
Executive Officer of The Legacy Trust Company, the Chief Credit
Officer and the Managing Director of Legal and Human Resources.
The remaining employees provide staff support in the areas of
asset management, lending, personal banking, and operations.
Non-banking services, such as check processing, internal
auditing and maintenance are outsourced to companies
specializing in those areas.
Web Site Access to Legacys Filings with the
FDIC
All of our filings with the FDIC, including the Annual Report on
Form 10-K,
Quarterly Reports on
Form 10-Q, Current
Reports on
Form 8-K and
amendments to these reports filed or furnished pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
are made available at no cost on our web site,
www.thelegacybankonline2.com, through the Investor
Relations link as soon as reasonably practicable after we file
such material with, or furnish it to, the FDIC.
Properties
Legacys properties are as follows:
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Principal and Executive Offices Located at
2600 Commerce Drive, Harrisburg, Pennsylvania 17110. Legacy
owns this property in fee and without liens. |
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Camp Hill Office Located at 4231 Trindle
Road, Camp Hill, Pennsylvania 17011. Legacy leases this
property. The lease, effective October 26, 2001, is for a
term of 10 years and 6 months with 3 five-year renewal
options. Legacy is leasing the property at an annual rate of
$43,200. |
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Hazleton Office One South Church Street,
Hazleton, Pennsylvania 18201. Legacy leases this property. The
lease, effective February 1, 2001, is for a
10-year term with 2
five-year renewal options. Legacy is leasing the property at an
annual rate of $37,564. |
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Drums Office Rittenhouse Place, Route 309,
Drums, Pennsylvania 18222. Legacy leases this property by
assignment from Leesport Bank. The lease, effective May 26,
1992, is for a 20-year
term with 2 five-year renewal options. Legacy is leasing the
property at an annual rate of $6,985. |
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McAdoo Office 25 North Kennedy Drive, McAdoo,
Pennsylvania 18237. Legacy owns this property in fee and without
liens. |
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Shenandoah Office 101 North Main Street,
Shenandoah, Pennsylvania 17976-1798. Legacy owns this property
in fee and without liens. |
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Williamsport Office 120 West Fourth
Street, Williamsport, Pennsylvania 17701. Legacy leases this
property and adjoining parking spaces. The lease, effective
December 22, 2003, is for a
10-year term with 2
five-year renewal options. Legacy is leasing the property and
the adjoining parking spaces at an annual rate of $111,000. |
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Pottsville Office 394 South Centre Street,
Pottsville, Pennsylvania 17901. Legacy leases this property. The
lease, effective December 1, 2002, is for a two-year term
with 1 one-year renewal option. Legacy is leasing the property
at an annual rate of $41,131. |
Legal Proceedings
The nature of our business generates a certain amount of
litigation involving matters arising in the ordinary course of
business. In the opinion of our management, however, there are
no proceedings pending to which we are a party or to which our
property is subject, that, if determined adversely to us, would
be material in relation to our financial condition. In addition,
to managements knowledge, no governmental authorities have
initiated or are contemplating the initiation of any proceedings
against us that would be material to its financial condition.
For more information on us, see Where You Can Find More
Information beginning on
page .
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FNB
FNB is a $5.6 billion financial services holding company
headquartered in Hermitage, Pennsylvania. FNB provides a broad
range of financial services to its customers through FNB Bank
and its insurance agency, consumer finance and trust company
subsidiaries.
FNB Bank has 146 banking offices in western Pennsylvania and
eastern Ohio. FNB Bank offers the services traditionally offered
by full-service commercial banks, including commercial and
individual demand and time deposit accounts and commercial,
mortgage and individual installment loans. FNB Bank also offers
various alternative investment products, including mutual funds
and annuities. As of September 30, 2005, FNB Bank had total
assets, total liabilities and total stockholders equity of
approximately $5.7 billion, $5.2 billion and
$467.0 million, respectively.
Regency Finance, FNBs consumer finance subsidiary, has 22
offices in Pennsylvania, 15 offices in Ohio and 16 offices in
Tennessee and principally makes personal installment loans to
individuals and purchases installment sales finance contracts
from retail merchants.
Another FNB subsidiary, First National Trust Company, a
registered investment advisor, provides a broad range of
personal and corporate fiduciary services, including the
administration of decedent and trust estates, and has
approximately $1.2 billion of assets under management.
FNBs insurance agency subsidiary is a full-service
insurance agency and, through its seven locations, offers
commercial and personal insurance products of major insurance
companies.
For additional information about FNB, see The
Merger, below, and Where You Can Find More
Information, beginning on
page .
THE MERGER
The following discussion contains material information
pertaining to the merger. This discussion is subject, and
qualified in its entirety by reference, to the merger agreement
and the financial advisors opinion included as Appendices
A and B, respectively, to this proxy statement/ prospectus. We
encourage you to carefully read those documents as well as the
discussion in this proxy statement/ prospectus.
Background of the Merger
Legacy was formed in September 1999. Since its formation, Legacy
successfully executed a community banking strategy predicated on
providing personal banking and trust products and services to
individuals, professionals and small and medium sized, privately
held businesses in its market area. By September 2005, Legacy
was profitable, had grown to $382.1 million in assets and
also had $142.2 million in assets under management with
recurring fees. However, management also had concluded during
the last year that continued growth and improved profitability
would require significant restructuring steps to enable Legacy
to transition to a larger bank structure. Alternatively,
affiliation with another institution could provide Legacy with
the additional resources it needed to increase revenues and
reduce overhead expense. To that end, George H. Groves, our
chairman and chief executive officer, held a series of
discussions with potential affiliation candidates, most of whom
were of a similar size as Legacy. Mr. Groves kept our
Strategic Options Committee of our board of directors apprised
of his discussions throughout this time period. The purpose of
these discussions was to identify a partner that could help us
accelerate our growth and profitability and with whom our
management and staff could play a meaningful role. These
discussions intensified in July and August 2005, but ultimately
failed to yield an acceptable partner.
In September 2005, our management reviewed our prospects for the
three-year period beginning in 2006. Management concluded that,
with restructuring steps that would be focused primarily on
reduced staffing and other measures designed to improve
efficiency, we could achieve strong performance. However, our
management was cognizant of the associated risks with the
restructuring steps it believed were necessary. In addition,
like most banks, we expected to face challenges to our net
interest margin posed by the lack of disparity between short-
and long-term interest rates that prevailed throughout most of
2005. Furthermore,
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management could not predict the duration of this so-called flat
yield curve and therefore the long-term impact of interest rates
on our earnings prospects was uncertain.
On September 28 and October 11, 2005, George H. Groves met
with Legacys financial advisor, Griffin, to discuss our
strategic alternatives. Mr. Groves also had discussions
with a number of directors regarding our strategic options
during this time frame, including a discussion with our full
board at its September 27, 2005 board meeting. This meeting
was followed by an off-site meeting of our executive management
team on October 13 and 14, 2005. The result of these
discussions was a conclusion that it was appropriate to explore
external options, including affiliation with a larger
institution. As a result, Mr. Groves directed Griffin to
make inquiries of eight potential partners to gauge their level
of interest. Mr. Groves had several individual discussions
with members of the Strategic Options Committee during this time
period and a meeting of that committee was held on
October 24, 2005. At that meeting, Griffin reported that
FNB and one other institution had expressed serious interest. A
third institution had expressed some casual interest directly to
Mr. Groves, but Mr. Groves and Griffin advised the
Strategic Options Committee that the more seriously interested
parties should be considered first. Based on these discussions,
the Strategic Options Committee authorized Griffin to develop
further information regarding the interest of these two parties.
The full board was apprised of these indications of interest at
its October 25, 2005 meeting.
Subsequent to this meeting of the Strategic Options Committee,
Mr. Groves and Griffin met to outline a process for
proceeding. These meetings occurred on October 27, 2005 and
November 4, 2005. At these meetings, Mr. Groves
directed Griffin to arrange for meetings with each of the
interested parties so that each party could be afforded an
opportunity to demonstrate why it was the preferable affiliation
partner for Legacy. The meeting with FNB occurred on
November 9, 2005, and the meeting with the other party
occurred on the previous day.
Each of the parties submitted non-binding written expressions of
interest to Griffin. A meeting of the Strategic Options
Committee was held on November 17, 2005 at which
representatives of both Griffin and Legacys counsel,
Stevens & Lee, were present. The purpose of the meeting
was to review the expressions of interest. Griffin reviewed the
publicly available information regarding FNB and the other party
and compared the two expressions of interest. The expression of
interest from FNB indicated an offer price of approximately
$17.54 per share consisting of 70% stock and 30% cash. The
other party indicated a higher price than the price offered by
FNB, but, for a number of reasons, the Strategic Options
Committee concluded that affiliation with FNB was preferable to
an affiliation with the other party. These reasons included:
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the materially higher dividend paid by FNB compared to the
dividend paid by the other party; |
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the fact that the FNB offer consisted of more stock than the
other offer, which increased the ability of Legacy shareholders
to participate in the future growth of FNB; |
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the fact that FNB was an
out-of-market buyer
that likely would retain more Legacy employees than the other
party, which was an in-market buyer; |
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the fact that FNB intended to use Legacy as a platform for
further expansion into central Pennsylvania and the possibility
that this expansion could mean more jobs and a greater benefit
to the communities served by Legacy; |
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the fact that Legacys management was more likely to have a
meaningful role in FNBs eastward expansion than it would
have had in any consolidation with an in-market buyer; |
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the fact that FNB appeared to have a more diverse revenue stream
than the other party and the related fact that a material
component of the other partys assets, and resulting
revenue, were concentrated in an asset class that Legacy
management perceived as carrying greater risk than the asset
composition of FNBs balance sheet; |
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the fact that Legacy option holders would have the opportunity
to convert their options into options to acquire FNB stock and
thereby share in the future growth of FNB; |
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the fact that FNB agreed to operate Legacy as a separate
division and to continue use of the Legacy name compared to the
fact that the other party was not willing to do so; and |
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the subjective belief of the members of our Strategic Options
Committee that the trend toward bank consolidation in the United
States would more likely include FNB than the other bidder at
some time in the future, and the possibility of such a
sequential transaction in the future would likely be beneficial
to Legacy shareholders. |
A regular meeting of our full board of directors was held on
November 22, 2005, which was attended by representatives of
Griffin and Stevens & Lee. At this meeting, Griffin
again reviewed the expressions of interest by the two parties
for the benefit of the full board. Stevens & Lee
reviewed the fiduciary duty of directors of a Pennsylvania
corporation, including specifically the fact that the duty of
Pennsylvania directors is owed to the corporation and not any
one constituency, including shareholders. Stevens & Lee
advised our Board that Pennsylvania law provided our board the
ability to consider a variety of different factors and
constituencies in making a decision regarding a change in
control. Stevens & Lee further advised our board that
its ability to consider a variety of factors and constituencies
also gave it the ability to accept an offer from a party that is
not the highest price offered for the institution. After careful
consideration, and for the same reasons advanced by the
Strategic Options Committee, our board directed Griffin and our
management to pursue a transaction with FNB.
Subsequent to this board meeting, Griffin advised FNB that it
was the preferred buyer and the parties agreed to perform mutual
due diligence. In addition, FNB directed its counsel to prepare
a merger agreement and deliver it to Legacys counsel. FNB
performed due diligence with respect to Legacy on November 29
and November 30, 2005, and Legacy performed due diligence
with respect to FNB on December 1, 2005. During the course
of Legacys due diligence, FNB made Legacy aware of a
special charge that FNB intended to take in connection with the
restructuring of FNBs investment portfolio in an amount
not yet determined. Legacy and its advisors were concerned that
any announcement of a special charge might have an adverse
impact on the price of FNBs common stock and they
expressed this concern to FNB and its advisors. Pending
FNBs public announcement of the special charge, FNB and
Legacy mutually agreed that it would be prudent to defer
announcement of any transaction so they could evaluate the
effect of the disclosure of the special charge information on
FNBs stock price. On December 7, 2005, FNB issued a
press release announcing a special fourth quarter after-tax
change of $11.2 million, or $0.19 per share. In a
conference call held on December 8, 2005, our Strategic
Options Committee was apprised of this development and concurred
with the decision to delay execution of any definitive
agreement. Our Strategic Options Committee also directed Griffin
to maintain contact with the other bidder and gauge its level of
continued interest. Representatives of Griffin did continue to
communicate with the other bidder and indicated to our Strategic
Options Committee that this alternative transaction remained
possible. Following additional discussions with the other
bidder, the other bidder indicated that its offer had
technically expired but that it might have some continuing
interest. Both Griffin and Mr. Groves inferred from this
comment that it was quite possible that this bidder would reduce
its offer. The result of this meeting, coupled with the fact
that the announcement by FNB of its special charge did not have
a negative effect on FNBs common stock, our Strategic
Operations Committee concluded that FNB was still the preferred
affiliation partner. Mr. Groves apprised the board of his
recommendation and a meeting of the board was scheduled for
December 15, 2005 to consider a transaction with FNB.
At the December 15, 2005 board meeting, representatives of
Griffin again reviewed the FNB proposal, including the fact that
the approximate value of the transaction was now $18.40 per
share because of appreciation in the price of FNB common stock.
Griffin delivered an oral opinion that the transaction proposed
by FNB was fair to Legacy from a financial point of view. This
oral opinion was followed by a written fairness opinion dated
December 21, 2005, which is included as Appendix B to
this proxy statement/ prospectus. Stevens & Lee then
again reviewed the fiduciary duty of directors and the material
terms of the merger agreement, with special emphasis on those
provisions that were still under negotiation. Finally, the three
senior members of Legacys management provided their
recommendation, which was to proceed with the FNB transaction.
In their analysis, the management team cited all of the reasons
discussed above and considered previously by the Strategic
Options Committee and the full board. Based on this
recommendation, the board authorized and approved a transaction
with FNB on substantially the terms described at the meeting
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and gave management the authority to negotiate the final terms
of the merger agreement. From December 15, 2005, through
December 21, 2005, the parties completed the negotiation of
the merger agreement. The merger agreement was executed on the
afternoon of December 21, 2005 and public announcement of
the merger occurred that afternoon.
FNBs Reasons for the Merger
Following the spin-off of its Florida operations on
January 1, 2004, FNB committed to pursuing several key
strategies. Among them was the realization of modest organic
growth and the supplementation of that growth through strategic
acquisitions.
In approving the merger agreement, FNBs board of directors
considered the following factors as generally supporting its
decision to enter into the merger agreement:
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its understanding of FNBs business, operations, financial
condition, earnings and prospects and of Legacys business,
operations, financial condition, earnings and prospects,
including our geographic position in central and northeastern
Pennsylvania; |
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its understanding of the current and prospective environment in
which FNB and Legacy operate, including regional and local
economic conditions, the competitive environment for financial
institutions generally and continuing consolidation in the
financial services industry, and the likely effect of these
factors on FNB in light of, and in absence of, the proposed
merger; |
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the merger with Legacy will expand FNBs franchise to
several markets in central and northeastern Pennsylvania that
have recently experienced faster economic growth than FNBs
markets in western Pennsylvania and eastern Ohio; |
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the review by the FNB board of directors with its legal advisors
of the structure and terms of the merger, including the exchange
ratio, the expectation of FNBs legal advisors that the
merger will qualify as a transaction of a type that is generally
tax-free to stockholders for United States federal income tax
purposes and, based on the exchange ratio and assuming
continuation of FNBs current per share dividend rate of
$0.235 per quarter, an anticipated annual dividend increase
of $0.94 for holders of Legacy common stock; |
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the complementary nature of the respective customer bases,
business products and skills of FNB and Legacy could result in
opportunities to obtain synergies as products are cross-marketed
and distributed over broader customer bases and best practices
are compared and applied across businesses; |
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the scale, scope, strength and diversity of operations, product
lines and delivery systems that could be achieved by combining
FNB and Legacy; |
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the proposed board and management arrangements which would
position the combined company with strong leadership and
experienced operating management; |
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the likelihood that the regulatory approvals needed to complete
the transaction will be obtained; and |
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the historical and current market prices of FNB common stock and
Legacy common stock. |
The FNB board of directors also considered the fact that the
combined institution will result in a combined entity with
assets of approximately $6.2 billion. The future growth
prospects of the Legacy market area are expected to provide
sustained business development opportunities by enabling FNB to
capitalize on a cohesive banking franchise with sufficient
critical mass to compete in the central and northeastern
Pennsylvania markets.
The foregoing discussion of the factors considered by the FNB
board in evaluating the merger agreement is not intended to be
exhaustive, but, rather, includes all material factors
considered by the FNB board. In reaching its decision to approve
the merger agreement and the merger, the FNB board did not
quantify or assign relative rights to the factors considered,
and individual directors may have given different weights to
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different factors. The FNB board considered all of the above
factors as a whole, and on an overall basis considered them to
be favorable to, and support, its determination to enter into
the merger agreement.
Our Board of Directors Reasons for the Merger;
Recommendation
At its December 15, 2005 meeting, the Legacy board of
directors determined that the terms of the merger agreement and
the merger with FNB were in the best interests of Legacy. In
making this determination, our board concluded that the merger
with FNB was superior to the other alternatives available to
Legacy and to the prospects of continuing to operate Legacy as
an independent community-focused bank.
In the course of reaching its decision to approve the merger
agreement, our board of directors consulted with Griffin and
Stevens & Lee. In addition to the considerations
previously identified as significant with respect to our
decision to pursue a transaction with FNB rather than the other
bidder, our board considered, among other things, the following
factors:
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The terms of the merger agreement that called for 30% of our
shares to be exchanged for $18.40 in cash and 70% of our shares
to be exchanged on a share-for-share basis for FNB common stock.
The board noted that the ten-day average price for FNB common
stock was $18.25 which meant that Legacy shareholders would
receive blended aggregate consideration of $18.30 per
share. The board noted that this price reflected approximately a
43.5% premium for our shareholders over the $12.75 closing price
of our common stock on December 14, 2005, the day
immediately preceding the day that our board approved the merger; |
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The fact that the FNB exchange ratio required that up to 30% of
the merger consideration be composed of cash at $18.40 per
share, thereby permitting those Legacy shareholders who wished
to receive cash instead of FNB stock to elect an all-cash
exchange or an exchange composed of part FNB common stock and
part cash. The Legacy board understood that if more than 30% of
the issued and outstanding Legacy common stock elected to
receive cash, certain shareholders would be required to receive
a portion of the merger consideration in FNB stock instead of
cash; |
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The opinion of Griffin that the merger consideration was fair to
Legacy from a financial point of view; |
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Managements familiarity with and review of FNBs
business prospects and financial condition, including its future
prospects; |
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The adverse impact that the pressures of competition and our
limited economies of scale would have on our ability to increase
profitability; |
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FNBs agreement that George H. Groves would be appointed to
the board of FNB Bank and that other non-employee members of our
board of directors would be offered an appointment to a
Harrisburg regional advisory board for a minimum of three years; |
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The ability given in the merger agreement to the advisory board
to enforce specifically certain of the non-financial covenants
contained in the merger agreement; |
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The fact that our employees who did not continue as FNB
employees would be entitled to receive severance pay, depending
upon years of service and position with us, and further that we
would be permitted to pay retention bonuses to designated Legacy
employees in connection with the merger in an aggregate amount
not to exceed $200,000; |
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A determination that a business combination with FNB would
expand our lending capabilities and increase the range of
financial products and services available to our customers; |
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The prices, multiples of earnings per share and premiums over
book value and market value paid in other recent acquisitions of
financial institutions; |
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The possible negative impact the merger with FNB would have on
various constituencies served by Legacy, including potential job
loss among certain senior Legacy employees; |
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The fact that the merger is expected to be tax-free with regard
to Legacy shareholders who receive FNB common stock; |
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Our alternatives of continuing as an independent
community-focused bank or combining with other potential merger
partners, compared to the effect of Legacy combining with FNB
pursuant to the merger agreement, and the determination that the
merger with FNB presented the best opportunity for maximizing
shareholder value and achieving Legacys other strategic
goals; |
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The pro forma financial effects of the proposed transactions,
including the potential cost savings resulting from back office
efficiencies, consolidations and other cost savings, and
enhanced revenue anticipated from the merger and the effects of
the merger on the risk-based and leverage capital ratios of the
combined company and its subsidiary bank; |
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The fact that our shareholders who receive stock would have the
ability to continue to participate in the growth of the combined
company on a tax-deferred basis and also would benefit as a
result of the significantly greater liquidity of the trading
market for FNB common stock and that Legacy shareholders who
desire immediate liquidity could elect to receive cash, noting
that the receipt of cash would generally be taxable to such
shareholders; |
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The provisions pertaining to our ability in certain
circumstances to withdraw our boards recommendation of the
merger to our shareholders and our ability to recommend another
transaction to our shareholders and pursue such transaction in
certain circumstances; |
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The provisions permitting our board of directors to terminate
the merger agreement if the value of FNB common stock declines
by more than 20% from its price after the announcement of the
merger agreement and underperforms by 20% or more compared to
the Nasdaq Bank Index during the same time period; and |
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The fact that the termination fee provision of the merger
agreement could have the effect of discouraging superior
proposals for a business combination between Legacy and a third
party. |
The foregoing discussion of the information and factors
considered by our board of directors is not intended to be
exhaustive but is believed to include all material factors
considered by our board of directors. In reaching its
determination to approve and recommend the merger, our board of
directors did not assign any relative or specific weights to the
foregoing factors and individual directors may have given
differing weights to different factors. Our board of directors
determined that the above factors supporting the merger
outweighed the factors not supporting the merger.
After deliberating with respect to the merger transaction with
FNB, considering, among other things, the matters discussed
above and the opinion of Griffin referred to above, our board of
directors approved and adopted the merger agreement and the
merger with FNB by the unanimous vote of all directors present.
Our board of directors believes that the terms of the merger
agreement are in the best interests of Legacy and has
unanimously approved the merger agreement.
ACCORDINGLY, THE LEGACY BOARD UNANIMOUSLY RECOMMENDS THAT YOU
VOTE FOR APPROVAL AND ADOPTION OF THE MERGER
AGREEMENT.
Opinion of Our Financial Advisor
On July 1, 2004, we engaged Griffin to serve as our
financial advisor in connection with the merger. Griffin was
authorized to, and did, solicit third party indications of
interest in acquiring us or engaging in a business combination
with us. Griffin acted as our financial advisor in connection
with the merger and participated in certain negotiations leading
to the execution of the merger agreement, but the terms and
conditions of the merger, including pricing, were determined
through arms length negotiations between Legacy and FNB
and our decision to accept the FNB proposal and the pricing of
the merger was made by our board of directors. On
December 15, 2005, our board of directors held a special
meeting to evaluate our proposed merger with FNB. At this
meeting, Griffin delivered an oral opinion, that was
subsequently confirmed in writing on December 21, 2005, to
the effect that based on the assumptions, factors and
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limitations set forth in its opinion, the merger consideration
provided for in the merger agreement was fair, from a financial
point of view, to Legacy.
We have the right to terminate the merger agreement if the
average closing price of FNB common stock for each of the 20
consecutive trading days ending on and including the fifth such
trading day prior to the date on which the last regulatory
approval for the merger is obtained is less than $14.38
(representing a 20% decline from the $17.98 closing price of FNB
common stock on December 20, 2005) and if the decline in
the average closing price of FNB common stock from $17.98 is at
least 20% more than the change in the Nasdaq Bank Index (as
measured by its closing price on December 20, 2005 compared
to the average closing price of such Index for each of the 20
consecutive trading days ending on and including the second such
trading day prior to the date on which the last regulatory
approval is obtained). Even if we elect to terminate the merger
agreement, the merger may still be completed if FNB, at its
option, chooses to increase the exchange ratio provided for in
the merger agreement such that each share of Legacy common stock
that is converted into shares of FNB common stock will receive
shares of FNB common stock equal in value to $14.38 (determined
on the basis of the average closing price of FNB common stock
calculated as provided above). It is not possible to know until
two trading days before receipt of the last regulatory approval
if the price of FNB common stock has declined 20% more than the
change in the Nasdaq Bank Index.
The full text of Griffins written opinion is attached as
Appendix B to this proxy statement/ prospectus and is
incorporated herein by reference. The opinion describes the
processes Griffin followed, the assumptions Griffin made, the
matters Griffin considered and the qualifications and
limitations set forth in its opinion. The description of
Griffins opinion set forth below is qualified in its
entirety by reference to its opinion. You are urged to, and
should read Griffins opinion carefully and in its
entirety. Griffins opinion speaks only as of the date of
its opinion. Griffins opinion is directed solely to our
board of directors and addresses only the fairness, from a
financial point of view, of the merger consideration to be paid
by FNB as provided in the merger agreement. Griffins
opinion does not address the underlying business decision to
proceed with the merger or any other aspect of the merger or any
related transaction, nor does it constitute a recommendation to
any Legacy shareholder as to how such shareholder should vote at
the Legacy special meeting. Griffins opinion will not
reflect any developments that may occur after the date of its
opinion and prior to the completion of the merger. We do not
currently expect that we will request an updated opinion from
Griffin.
In arriving at its opinion, Griffin, among other things:
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(i) reviewed certain publicly available financial
statements and other information of Legacy and FNB,
respectively, which Griffin believed to be relevant; |
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(ii) discussed the past and current operations and
financial condition and the prospects of each of Legacy and FNB
with senior executives of Legacy and FNB, respectively,
including with respect to FNB (x) the potential impact on
FNB of the merger, including potential cost savings, synergies
and other strategic, financial and operational benefits that
management of FNB expects to realize from the combination of
Legacy and FNB and (y) the impact of the proposed merger on
the future financial performance of FNB; |
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(iii) reviewed the publicly reported historical price and
trading activity for Legacy common stock and FNB common stock,
including a comparison of certain financial and stock market
information for Legacy and FNB with similar publicly available
information for certain other financial institutions the
securities of which are publicly traded; |
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(iv) reviewed earnings per share consensus estimates for
FNB for the years ending December 31, 2005 and 2006; |
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(v) reviewed the financial terms, to the extent publicly
available, of certain merger and acquisition transactions
between financial institutions that Griffin viewed as relevant; |
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(vi) participated in discussions and negotiations between
Legacy and FNB; |
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(vii) reviewed a draft of the merger agreement; |
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(viii) considered the competitive environment for financial
institutions; and |
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(ix) performed comparable company, selected reference
transaction, discounted dividend and pro forma merger analyses. |
In connection with its reviews and analyses and in providing its
opinion, Griffin assumed and relied upon the accuracy and
completeness of all of the financial, accounting, tax and other
information reviewed by it for the purposes of arriving at its
opinion, without independent verification. Griffin also relied
upon assurances from management of FNB and Legacy that they are
not aware of any facts or circumstances that may cause such
information to contain a misstatement or omission of a fact
material to Griffins opinion. With respect to
Griffins discussion of financial and operating impact,
including the synergies, cost savings and other strategic,
financial and operational benefits to be realized in connection
with the completion of the merger, Griffin assumed that such pro
forma financial and operating analyses reflect the best
available estimates and judgments of the future financial
performance of FNB, after giving effect to the merger, and were
based on reasonable assumptions, estimates and judgments of
Legacys and FNBs respective management teams.
Griffin also relied upon the advice Legacy and FNB have each
received from their respective legal counsel, tax advisors and
independent public accountants as to all legal, tax and
accounting matters relating to the merger, including without
limitation, that the merger will be treated as a tax-free
reorganization for federal income tax purposes. Griffin assumed
that the merger will be completed in accordance with the terms
of the merger agreement and all laws and regulations applicable
to FNB and Legacy and that in the course of obtaining the
necessary regulatory approvals or other approvals of the merger,
no restrictions will be imposed that may have a material adverse
effect on the future results of operations or financial
condition of Legacy, FNB or the combined entity, as the case may
be, or on the contemplated benefits of the merger. Griffin did
not make an independent valuation or appraisal of either Legacy
or FNB or their respective assets or liabilities, including any
hedge, swap, foreign exchange, derivative or off-balance sheet
assets or liabilities, nor has it been furnished with any such
appraisals and Griffin has not made any independent review of
the loans, loan loss reserves or reviewed any individual loan
credit files of Legacy or FNB. In addition, Griffin did not
conduct a physical inspection of any of the properties or
facilities of Legacy or FNB. Griffin is not expressing an
opinion as to what the value of FNB common stock will actually
be when issued or the price at which FNB common stock will trade
at any time or whether FNB will realize the specific strategic
objectives and benefits of the merger. Griffins opinion
does not address the relative merits of the merger compared to
any other business strategy that might exist for Legacy, nor
does it address the underlying business decision of Legacy to
engage in the merger.
Griffins opinion was necessarily based upon market,
economic and other conditions as they existed on, and could be
evaluated as of, the date of its opinion. Griffin assumed, in
all respects material to its analyses, that all of the
representations and warranties contained in the merger agreement
and all related agreements were true and correct, that each
party to such agreements would perform all of the covenants
required to be performed by such party under such agreements and
that the conditions precedent in the merger agreement have not
been nor will be waived. Griffin also assumed that there had
been no material change in Legacys or FNBs assets,
financial condition, results of operations, business or
prospects since the date of the last financial statements made
available to Griffin, except that Griffin was aware of the
information set forth in FNBs December 7, 2005 press
release in which FNB announced a one-time restructuring charge.
In providing its opinion, Griffin does not admit that it is an
expert within the meaning of the term expert as used
within the Securities Act and the rules and regulations
promulgated thereunder, or that its opinion constitutes a report
or valuation within the meaning of Section 11 of the
Securities Act and the rules and regulations promulgated
thereunder.
|
|
|
Summary of Analyses by Griffin |
The following discussion summarizes the material analyses
undertaken by Griffin in connection with its written opinion
dated December 21, 2005. The summary is not a complete
description of the analyses underlying Griffins opinion or
the presentations made by Griffin to the Legacy board, but
summarizes the material analyses performed in connection with
such presentations and Griffins opinion. The preparation
of a fairness opinion is a complex analytic process involving
various determinations as to the most appropriate and
67
relevant methods of financial analysis and the application of
those methods to the particular circumstances. Therefore, a
fairness opinion is not readily susceptible to partial analysis
or summary description. In arriving at its opinion, Griffin did
not attribute any particular weight to any analysis or factor
that it considered, but rather made qualitative judgments as to
the significance and relevance of each analysis and factor. The
financial analyses summarized below include information
presented in tabular format. Accordingly, Griffin believes that
its analyses and the summary of its analyses must be considered
as a whole and that selecting portions of its analyses and
factors or focusing on the information presented below in
tabular format, without considering all analyses and factors or
the full narrative description of the financial analyses,
including the methodologies and assumptions underlying the
analyses, could create a misleading or incomplete view of the
processes underlying Griffins analyses and its opinion.
The tables alone do not provide a complete description of the
financial analyses.
The financial information, estimates of transaction costs,
purchase accounting adjustments and expected cost savings
discussed with Griffin were prepared by the respective
management teams of Legacy and FNB. Senior executives of Legacy
and FNB confirmed to Griffin that such estimates, adjustments
and savings reflected the best currently available estimates and
judgments of Legacys and FNBs respective management
teams. Griffin expresses no opinion as to such estimates,
adjustments and savings in its opinion. Legacy and FNB do not
publicly disclose internal management projections of the type
discussed with Griffin in connection with the review of the
merger. Such projections were not prepared with a view towards
public disclosure. The public disclosure of such projections
could be misleading since the projections were based on numerous
variables and assumptions that are inherently uncertain and
accordingly, actual results could vary materially from those set
forth in such projections.
In performing its analyses, Griffin also made numerous
assumptions with respect to industry performance, business and
economic conditions and various other matters, many of which
cannot be predicted and are beyond the control of Legacy and
FNB. The estimates set forth in Griffins analyses and the
ranges of valuations resulting from any particular analysis are
not necessarily indicative of actual values or predictive of
future results or values, which may be significantly more or
less favorable than those suggested by the analyses. In
addition, analyses relating to the value of businesses or
securities do not purport to be appraisals or to reflect the
prices at which businesses or securities actually may be sold.
Accordingly, no company, transaction, or business used in
Griffins analyses as a comparison is identical to Legacy
or FNB or the merger. Thus, Griffins analyses and opinion
are necessarily subjective.
Griffin prepared its analyses solely for review by Legacys
board in connection with its evaluation of the merger.
Legacys board of directors considered Griffins
analyses at our boards December 15, 2005 meeting.
Griffins financial analyses were only one of the many
factors considered by Legacys board of directors in its
evaluation of the merger and should not be viewed as
determinative of the views of the Legacy board of directors or
management with respect to the merger or the merger
consideration. Estimates of the values of companies do not
purport to be appraisals or necessarily reflect the prices at
which companies or their securities may actually be sold. Such
estimates are inherently subject to uncertainty and actual
values may be materially different. Accordingly, Griffins
analyses do not reflect the value of Legacys common stock
or FNBs common stock or the prices at which Legacys
or FNBs common stock may be sold at any time.
Financial Terms of the Merger. Griffin reviewed the
financial terms of the merger. Based upon the average closing
price of FNBs common stock for the ten days ended
December 13, 2005 of $18.25 and the exchange ratio of 1.00,
and assuming 70% of Legacy shares of common stock are exchanged
for shares of FNB common stock and 30% of Legacys shares
of common stock are exchanged for $18.40 cash per share, Griffin
calculated an implied transaction value of approximately
$18.30 per Legacy share and an implied aggregate
transaction value of approximately $74.1 million. The
implied aggregate transaction value was based upon
3,882,722 million shares of Legacy common stock outstanding
on an as-if converted basis as of September 30,
2005, plus the value of outstanding options, warrants and
convertible notes to purchase 404,080 shares of Legacy
common stock calculated using $18.30 per share less a
weighted average exercise price of $10.69 per share.
Griffin noted that the transaction value represented a 42.97%
premium over the December 13, 2005 closing sales price of
Legacy common stock of $12.80 per share.
68
Market Value and Comparable Company Analyses. Using
publicly available information, Griffin compared the financial
condition, performance and market value measures of Legacy to
the following 22 Mid-Atlantic-based financial institutions:
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Allegheny Valley Bancorp, Inc. |
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CBT Financial Corporation |
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|
Codorus Valley Bancorp, Inc. |
|
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Columbia Financial Corporation |
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Commercial National Financial Corporation |
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|
Community Bank, National Association |
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|
Dimeco, Incorporated |
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DNB Financial Corporation |
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East Penn Financial Corporation |
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Emclaire Financial Corp. |
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Honat Bancorp, Incorporated |
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Iron & Glass Bancorp |
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Juniata Valley Financial Corporation |
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Kish Bancorp, Inc. |
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Mauch Chunk Trust Financial Corp. |
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Mid Penn Bancorp, Inc. |
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MNB Corporation |
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Northumberland Bancorp |
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Norwood Financial Corp. |
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Peoples Financial Services Corp. |
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Somerset Trust Holding Company |
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Tower Bancorp Incorporated |
Using publicly available information, Griffin compared the
financial condition, performance and market value measures of
FNB to the following 12 Mid-Atlantic-based financial
institutions:
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|
Community Banks, Inc. |
|
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|
First Commonwealth Financial Corporation |
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Harleysville National Corporation |
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Lakeland Bancorp, Incorporated |
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National Penn Bancshares, Inc. |
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Provident Bankshares Corporation |
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|
S&T Bancorp, Inc. |
|
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Sandy Spring Bancorp, Inc. |
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Sterling Financial Corporation |
69
|
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Sun Bancorp, Inc. |
|
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Susquehanna Bancshares, Inc. |
|
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Yardville National Bancorp |
Griffin also compared Legacys and FNBs financial
condition, performance and market value measures to the median
and mean statistics of these peer reference groups of banks
selected by Griffin. The Legacy and FNB ratios were based on
data obtained from SNL Financials online databases. For
purposes of such analyses, the financial information used by
Griffin was as of and for the 12 months ended
September 30, 2005. Stock price data was as of
December 13, 2005. Certain financial information prepared
by Griffin, and referenced in the tables presented below, may
not correspond to the data presented in FNBs and
Legacys historical financial statements as a result of
different assumptions and methods used by Griffin to compute and
analyze the financial data presented. SNL Financial is a
recognized data service that collects, standardizes and
disseminates relevant corporate, financial, market and mergers
and acquisition data for companies in the industries it covers.
The results of such comparison were as follows:
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Peer | |
|
Peer | |
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|
Group | |
|
Group | |
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|
Legacy | |
|
Median | |
|
Mean | |
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| |
|
| |
|
| |
Asset Quality:
|
|
|
|
|
|
|
|
|
|
|
|
|
Tangible Equity & Trust Preferred/ Tangible
Assets(%)
|
|
|
7.65 |
|
|
|
8.88 |
|
|
|
9.49 |
|
Borrowings/ Assets(%)
|
|
|
14.66 |
|
|
|
8.46 |
|
|
|
10.61 |
|
Loans/ Deposits(%)
|
|
|
98.27 |
|
|
|
81.52 |
|
|
|
79.33 |
|
Loan loss reserve/ Loans(%)
|
|
|
1.15 |
|
|
|
1.13 |
|
|
|
1.22 |
|
Non-performing assets/ Assets(%)
|
|
|
0.37 |
|
|
|
0.53 |
|
|
|
0.61 |
|
Loan loss reserve/ Non-performing assets(%)
|
|
|
232.4 |
|
|
|
126.2 |
|
|
|
232.1 |
|
Performance:
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average equity(%)
|
|
|
5.55 |
|
|
|
11.50 |
|
|
|
11.56 |
|
Return on average assets(%)
|
|
|
0.59 |
|
|
|
1.05 |
|
|
|
1.09 |
|
Net interest margin(%)
|
|
|
3.49 |
|
|
|
3.76 |
|
|
|
3.67 |
|
Yield on earning assets(%)
|
|
|
5.79 |
|
|
|
5.63 |
|
|
|
5.64 |
|
Cost of funds(%)
|
|
|
2.08 |
|
|
|
2.12 |
|
|
|
2.08 |
|
Noninterest income/ Operating revenue(%)
|
|
|
18.66 |
|
|
|
18.65 |
|
|
|
18.86 |
|
Noninterest income/ Average assets(%)
|
|
|
0.74 |
|
|
|
0.78 |
|
|
|
0.80 |
|
Noninterest expense/ Average assets(%)
|
|
|
3.09 |
|
|
|
2.54 |
|
|
|
2.69 |
|
Efficiency ratio(%)
|
|
|
76.18 |
|
|
|
63.62 |
|
|
|
63.05 |
|
Market Statistics:
|
|
|
|
|
|
|
|
|
|
|
|
|
Price/ Trailing 12-month earnings per share(x)
|
|
|
22.86 |
|
|
|
14.99 |
|
|
|
16.59 |
|
Price/ Book value per share(%)
|
|
|
123.67 |
|
|
|
179.24 |
|
|
|
181.52 |
|
Price/ Tangible book value per share(%)
|
|
|
157.62 |
|
|
|
179.79 |
|
|
|
186.12 |
|
Dividend yield(%)
|
|
|
|
|
|
|
2.58 |
|
|
|
2.55 |
|
70
|
|
|
|
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|
|
|
|
|
|
|
|
Peer | |
|
Peer | |
|
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|
Group | |
|
Group | |
|
|
FNB | |
|
Median | |
|
Mean | |
|
|
| |
|
| |
|
| |
Asset Quality:
|
|
|
|
|
|
|
|
|
|
|
|
|
Tangible Equity & Trust Preferred/ Tangible
Assets(%)
|
|
|
7.02 |
|
|
|
8.26 |
|
|
|
8.53 |
|
Borrowings/ Assets(%)
|
|
|
21.93 |
|
|
|
15.53 |
|
|
|
16.84 |
|
Loans/ Deposits(%)
|
|
|
95.73 |
|
|
|
91.43 |
|
|
|
90.32 |
|
Loan loss reserve/ Loans(%)
|
|
|
1.34 |
|
|
|
1.12 |
|
|
|
1.18 |
|
Non-performing assets/ Assets(%)
|
|
|
0.73 |
|
|
|
0.37 |
|
|
|
0.33 |
|
Loan loss reserve/ Non-performing assets(%)
|
|
|
232.40 |
|
|
|
207.8 |
|
|
|
282.7 |
|
Performance:
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average equity(%)
|
|
|
16.36 |
|
|
|
11.71 |
|
|
|
11.54 |
|
Return on average assets(%)
|
|
|
1.23 |
|
|
|
0.99 |
|
|
|
1.08 |
|
Net interest margin(%)
|
|
|
3.87 |
|
|
|
3.69 |
|
|
|
3.73 |
|
Yield on earning assets(%)
|
|
|
5.94 |
|
|
|
5.77 |
|
|
|
5.78 |
|
Cost of funds(%)
|
|
|
2.08 |
|
|
|
2.09 |
|
|
|
2.09 |
|
Noninterest income/ Operating revenue(%)
|
|
|
28.00 |
|
|
|
23.82 |
|
|
|
23.99 |
|
Noninterest income/ Average assets(%)
|
|
|
1.33 |
|
|
|
1.04 |
|
|
|
1.10 |
|
Noninterest expense/ Average assets(%)
|
|
|
2.82 |
|
|
|
2.62 |
|
|
|
2.79 |
|
Efficiency ratio(%)
|
|
|
57.11 |
|
|
|
59.00 |
|
|
|
60.06 |
|
Market Statistics:
|
|
|
|
|
|
|
|
|
|
|
|
|
Price/ Trailing 12-month earnings per share(x)
|
|
|
14.88 |
|
|
|
17.14 |
|
|
|
18.64 |
|
Price/ Projected EPS(1)(x)
|
|
|
15.51 |
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|
|
16.52 |
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|
|
17.10 |
|
Price/ Book value per share(%)
|
|
|
219.73 |
|
|
|
195.98 |
|
|
|
198.14 |
|
Price/ Tangible book value per share(%)
|
|
|
399.24 |
|
|
|
297.38 |
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|
|
289.49 |
|
Dividend yield(%)
|
|
|
5.18 |
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|
|
2.83 |
|
|
|
2.74 |
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|
|
(1) |
Based on estimated FNB core earnings. |
Griffin selected these companies because their businesses and
operating profiles are reasonably similar to those of Legacy and
FNB. No comparable company identified above is identical to
Legacy or FNB. A complete analysis involves complex
considerations and judgments concerning differences in financial
and operating characteristics of the comparable companies and
other factors that could affect public trading values of such
comparable companies. Mathematical analysis, such as determining
the mean and median, is not by itself a meaningful method of
using selected company data.
Selected Reference Transaction Analysis. Griffin reviewed
publicly available information related to certain bank
transactions which it selected and believed to be generally
comparable to the merger. These
71
transactions included acquisitions of commercial banks with
transaction values between $10 million and
$100 million in Pennsylvania completed since
January 1, 2003. These transactions included:
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|
|
Acquiror |
|
Acquired Company |
|
|
|
Orrstown Financial Services
|
|
First National Bank of Newport |
Tower Bancorp Inc.
|
|
FNB Financial Corp. |
Standard Mutual Holding Company
|
|
Hoblitzell National Bank of Hyndman |
F.N.B. Corporation
|
|
North East Bancshares Inc. |
Sterling Financial Corp.
|
|
Pennsylvania State Banking Co |
F.N.B. Corporation
|
|
Slippery Rock Financial Corp. |
Leesport Financial Corp.
|
|
Madison Bancshares Group Ltd. |
Community Bank System Inc.
|
|
First Heritage Bank |
Harleysville National Corporation
|
|
Millennium Bank |
Community Bank System Inc.
|
|
Grange National Banc Corp. |
Univest Corporation of Pennsylvania
|
|
Suburban Community Bank |
National Penn Bancshares Inc.
|
|
Home Towne Heritage Bank |
KNBT Bancorp Inc.
|
|
First Colonial Group Inc. |
Fulton Financial Corp.
|
|
Premier Bancorp Inc. |
Univest Corporation of Pennsylvania
|
|
First County Bank |
Griffin also reviewed a group of 27 Mid-Atlantic and 299
nationwide transactions involving the acquisition of commercial
banks completed since January 1, 2003 with transaction
values between $10 million and $100 million.
Mid-Atlantic transactions included transactions in Delaware,
Maryland, New Jersey and Pennsylvania, including those
Pennsylvania transactions listed above.
For each these selected merger transactions, Griffin used
publicly available financial information, including information
from SNL Financials online databases to determine:
|
|
|
|
|
The multiple of the selected transactions price per share
to publicly-disclosed earnings per share for the latest
12 months at the time of announcement of the selected
transaction; |
|
|
|
The multiple of the selected transactions price per share
to book value per share and tangible book value per share using
the acquired companys most recent publicly-disclosed
financial statements at the time of announcement of the selected
transaction; |
|
|
|
The multiple of the selected transactions price to total
assets using the acquired companys most recent publicly
disclosed financial statements at the time of announcement of
the selected transaction; |
|
|
|
The implied tangible book premium to core deposits, which means
total deposits less certificates of deposit greater than
$100,000, using the acquired companys most recent
publicly-disclosed financial statements at the time of
announcement of the selected transaction; and |
|
|
|
The market premium, which represents the selected transaction
value per share less the acquired companys stock price one
trading day before announcement divided by the acquired
companys stock price one trading day before announcement. |
72
Transaction multiples for the merger were derived from the
$18.30 per share transaction value and financial data on an
as if converted basis as of September 30, 2005
made available to Griffin by Legacy. Griffin compared these
results with announced, selected transaction multiples. The
results of the analysis are set forth in the following table:
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|
Price/ | |
|
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|
|
Price/ | |
|
|
|
Tangible | |
|
Price/ | |
|
Premium/ | |
|
Market | |
|
|
LTM EPS | |
|
Price/ | |
|
Book | |
|
Assets | |
|
Core Dep. | |
|
Premium | |
|
|
(x) | |
|
Book (%) | |
|
(%) | |
|
(%) | |
|
(%) | |
|
(%) | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
Pennsylvania transaction medians
|
|
|
23.06 |
|
|
|
246.93% |
|
|
|
250.38% |
|
|
|
23.53% |
|
|
|
21.40% |
|
|
|
39.87% |
|
Mid-Atlantic transaction medians
|
|
|
24.07 |
|
|
|
246.93% |
|
|
|
251.90% |
|
|
|
23.53% |
|
|
|
21.40% |
|
|
|
39.87% |
|
Nationwide transaction medians
|
|
|
21.67 |
|
|
|
224.32% |
|
|
|
230.36% |
|
|
|
20.23% |
|
|
|
16.47% |
|
|
|
35.59% |
|
FNB/ Legacy
|
|
|
35.19 |
|
|
|
173.49% |
|
|
|
214.73% |
|
|
|
19.39% |
|
|
|
18.86% |
|
|
|
42.97% |
|
Discounted Dividend Analysis. Griffin performed a
discounted dividend analysis to generate reference ranges for
the implied present value per share of Legacy and FNB common
stock assuming that each continued to operate as a stand-alone
company. These ranges were calculated using FNBs and
Legacys internal estimates for core earnings per share and
growth rates and were determined in each case by calculating a
present value of the estimated future dividends of Legacy and
FNB, respectively, through 2010, plus a present value of the
estimated terminal trading value of the common stock of Legacy
and FNB, respectively, as of the end of 2010.
Griffin estimated alternative terminal value ranges for Legacy
and FNB common stock at the end of 2010 using (1) a
long-term earnings per share growth rate of 20% for Legacy and
7.5% for FNB, (2) for FNB, a dividend in 2006 consistent
with FNBs current dividend and thereafter a dividend
payout of 75%, (3) for Legacy, initiation of a dividend in
2006 at a dividend payout ratio of 15% with 5% increases
thereafter and (4) a range of terminal value multiples of
15.0x to 20.0x for each of Legacy and FNB. The estimated future
dividends and terminal values resulting from the calculations
described above were discounted to present values using discount
rates of 10% to 14% for FNB and 12% to 16% for Legacy. Griffin
viewed these ranges as appropriate for companies with
Legacys and FNBs respective risk characteristics.
The results of this analysis are set forth below:
|
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|
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|
|
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|
|
|
|
|
|
|
|
|
|
|
Legacy Terminal Value Price/Earnings Multiple | |
|
|
| |
|
|
|
|
15.0 | |
|
16.0 | |
|
17.0 | |
|
18.0 | |
|
19.0 | |
|
20.0 | |
|
|
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
|
12.0 |
% |
|
$ |
11.54 |
|
|
$ |
12.25 |
|
|
$ |
12.95 |
|
|
$ |
13.66 |
|
|
$ |
14.37 |
|
|
$ |
15.08 |
|
|
|
|
13.0 |
% |
|
|
11.05 |
|
|
|
11.73 |
|
|
|
12.40 |
|
|
|
13.08 |
|
|
|
13.76 |
|
|
|
14.43 |
|
Discount Rate
|
|
|
14.0 |
% |
|
|
10.59 |
|
|
|
11.23 |
|
|
|
11.88 |
|
|
|
12.53 |
|
|
|
13.17 |
|
|
|
13.82 |
|
|
|
|
15.0 |
% |
|
|
10.14 |
|
|
|
10.76 |
|
|
|
11.38 |
|
|
|
12.00 |
|
|
|
12.62 |
|
|
|
13.24 |
|
|
|
|
16.0 |
% |
|
|
9.73 |
|
|
|
10.32 |
|
|
|
10.91 |
|
|
|
11.51 |
|
|
|
12.10 |
|
|
|
12.69 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FNB Terminal Value Price/Earnings Multiple | |
|
|
| |
|
|
|
|
15.0 | |
|
16.0 | |
|
17.0 | |
|
18.0 | |
|
19.0 | |
|
20.0 | |
|
|
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
|
10.0 |
% |
|
$ |
18.43 |
|
|
$ |
19.41 |
|
|
$ |
20.38 |
|
|
$ |
21.35 |
|
|
$ |
22.32 |
|
|
$ |
23.29 |
|
|
|
|
11.0 |
% |
|
|
17.69 |
|
|
|
18.62 |
|
|
|
19.54 |
|
|
|
20.47 |
|
|
|
21.40 |
|
|
|
22.33 |
|
Discount Rate
|
|
|
12.0 |
% |
|
|
16.98 |
|
|
|
17.87 |
|
|
|
18.76 |
|
|
|
19.64 |
|
|
|
20.53 |
|
|
|
21.42 |
|
|
|
|
13.0 |
% |
|
|
16.31 |
|
|
|
17.16 |
|
|
|
18.01 |
|
|
|
18.86 |
|
|
|
19.70 |
|
|
|
20.55 |
|
|
|
|
14.0 |
% |
|
|
15.67 |
|
|
|
16.49 |
|
|
|
17.30 |
|
|
|
18.11 |
|
|
|
18.92 |
|
|
|
19.73 |
|
Based on the above assumptions, Griffin determined that the
present value of Legacy common stock ranged from $9.73 to $15.08
and the present value of FNB common stock ranged from $15.67 to
$23.29.
Pro Forma Merger Analysis. Griffin analyzed certain
potential pro forma effects of the merger, assuming the
following: (1) 70% of Legacys outstanding shares of
common stock were exchanged for shares of FNB common stock at an
exchange ratio of 1.00 and 30% of Legacys shares of
outstanding common stock
73
were exchanged for $18.40 cash per share, (2) all
outstanding options and warrants to purchase Legacy common stock
are converted into options and warrants to purchase a number of
shares of FNB common stock equal to the number of shares of
Legacy common stock subject to the options multiplied by 1.00,
(3) without independent review by Griffin of underlying
data or assumptions for accuracy or reasonableness, all purchase
accounting adjustments, transaction costs and cost savings are
as estimated by FNB, (4) without independent review by
Griffin of underlying data or assumptions for accuracy or
reasonableness, the earnings estimates of Legacy were consistent
with those discussed with senior executives of Legacy;
(5) FNBs estimated annualized core earnings per share
for the year ended December 31, 2006 was $1.17, exclusive
of non-recurring charges and (6) the merger was completed
on January 1, 2006. This analysis indicated that the
merger, assuming it was completed on a pro forma basis on
January 1, 2006, would have had a dilutive effect on
FNBs earnings per share for the year ending
December 31, 2006 without cost savings and an accretive
effect on FNBs earnings per share for the year ending
December 31, 2006 (assuming cost savings). This analysis
does not include the impact of any potential revenue
enhancements available to the combined entity.
Fees Payable by Legacy to its Financial Advisor. Legacy
has agreed to pay Griffin a transaction fee in connection with
the merger of $825,000 payable upon closing of the merger.
Legacy has also agreed to reimburse certain of Griffins
reasonable
out-of-pocket expenses
incurred in connection with its engagement and to indemnify
Griffin and its affiliates and their respective partners,
directors, officers, employees, agents, and controlling persons
against certain expenses and liabilities, including liabilities
under securities laws. Griffin is an affiliate of
Stevens & Lee, Legacys legal counsel.
Structure of the Merger and the Merger
Consideration
Structure. Subject to the terms and conditions of the
merger agreement, and in accordance with Pennsylvania law,
Florida law and the Bank Act, at the completion of the merger,
we will merge with and into FNB Bank and your shares of Legacy
common stock will be converted into cash, FNB common stock or a
combination thereof. FNB Bank will be the surviving corporation
and will continue its corporate existence under the laws of the
United States. Immediately thereafter, Legacy Trust, our wholly
owned subsidiary, will merge with and into First National Trust
Company, a wholly owned subsidiary of FNB. Each share of our
common stock issued and outstanding at the effective time of the
merger will be converted into either cash or shares of FNB
common stock.
When the merger is completed, our separate corporate existence
will terminate. To the extent you become a shareholder of FNB,
your rights as a shareholder will be governed by Florida law,
FNBs articles of incorporation and FNBs by-laws. See
Comparison of Shareholder Rights beginning on
page .
The board of directors of FNB will continue as the board of
directors of the combined company. The board of directors of FNB
Bank will continue as the board of directors of the combined
bank, except that at the completion of the merger, FNB Bank will
appoint George H. Groves to the board of directors of FNB Bank.
See Boards of Directors of FNB Bank Following
the Merger beginning on
page .
Based on information as of the record date, upon completion of
the merger, current holders of FNB common stock will own
approximately %
of, and holders of our common stock will own
approximately %
of, the outstanding FNB common stock.
Merger Consideration. The merger agreement provides that
at the effective time of the merger each share of our common
stock issued and outstanding immediately prior to the effective
time, other than shares held by FNB and shares as to which
appraisal rights are perfected, will be converted into either:
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$18.40 in cash; or |
|
|
|
one share of FNB common stock. |
You may elect whether you want to receive all FNB common stock,
all cash or a combination of cash and FNB common stock in
exchange for the shares of our common stock that you hold.
However, your election is subject to possible proration because
the allocation procedures in the merger agreement provide that
30% of the shares of our common stock will be exchanged for cash
and 70% of the shares of our common stock will be
74
exchanged for shares of FNB common stock, although FNB has the
option of increasing the amount of FNB common stock it issues in
the merger if our shareholders elect to receive more than 70% of
the merger consideration in FNB common stock. The actual
allocation of cash and FNB common stock will be dependent on the
elections made by our shareholders and may result in your
receiving a combination of FNB common stock and cash regardless
of your choice. See Election Procedure
beginning on page .
Since the market value of FNB common stock may fluctuate due to
a variety of factors and the exchange ratio of one share of FNB
common stock for each share of our common stock is fixed, no
assurance can be given that the value of one share of FNB common
stock received in the merger will be substantially equivalent to
$18.40 in cash. In addition, no assurance can be given that the
value of one share of FNB common stock received by a Legacy
shareholder at the effective time of the merger will be
substantially equivalent to the value of one share of FNB common
stock at the time of the vote to approve the merger proposal or
at the time you elect the form of merger consideration you want
to receive. As the market value of FNB common stock fluctuates,
the value of one share of FNB common stock that you will receive
will correspondingly fluctuate, and may be greater or less than
$18.40 in cash.
If, between the date of the merger agreement and the effective
time of the merger, shares of FNB common stock are changed into
a different number or class of shares by reason of any
reclassification, split-up, combination, exchange of shares or
readjustment, or a stock dividend is declared with a record date
within that period, appropriate adjustments will be made to the
per share cash consideration and the per share stock
consideration.
Fractional Shares. No fractional shares of FNB common
stock will be issued to you upon completion of the merger. For
each fractional share that you would otherwise be entitled to
receive, FNB will pay cash in an amount, rounded to the nearest
cent, equal to the product of the number of fractional shares
held by you multiplied by the average closing price of FNB
common stock for the 20 consecutive trading-day period ending on
and including the fifth trading day prior to the effective date
of the merger. No interest will be paid or accrued on cash
payable in lieu of fractional shares of FNB common stock nor
will any holder of fractional shares be entitled to dividends or
other rights in respect of such fractional shares.
Treasury Shares. Upon consummation of the merger, any
shares of our common stock held by us or any of our subsidiaries
or by FNB or any of its subsidiaries, other than in a fiduciary
capacity or as a result of debts previously contracted in good
faith, will be cancelled and retired and no merger consideration
will be given with respect to those shares.
Dissenting Shares. If you perfect appraisal rights under
the Bank Act, and you are therefore entitled to be paid the
appraised value of your shares as provided for under the Bank
Act, you will not be entitled to receive the merger
consideration, unless and until you have withdrawn or lost your
appraisal rights.
Election Procedure
Subject to the allocation process described in the next section,
you will have the right to elect to receive in exchange for your
shares of our common stock:
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|
|
all cash, |
|
|
|
all shares of FNB common stock, or |
|
|
|
a combination of cash and shares of FNB common stock. |
In our discussion, we refer to each of these three possible
elections as the all cash election, the all
stock election and the combination election,
respectively.
All Cash Election. If you choose the all cash election,
you will receive $18.40 in cash for each share of our common
stock you hold, subject to the allocation mechanism described
below. In our description below, we refer to the shares held by
a Legacy shareholder who has made an all cash election as
cash election shares.
75
All Stock Election. If you choose the all stock election,
you will receive one share of FNB common stock for each share of
our common stock you hold, subject to the allocation mechanism
described below. In our description below, we refer to the
shares held by a Legacy shareholder who has made an all stock
election as stock election shares.
Combination Election. If you choose the combination
election, you will receive (i) one share of FNB common
stock for each share of our common stock you hold for which you
elected to receive FNB common stock and (ii) $18.40 in cash
for each remaining share of our common stock you hold, subject
to the allocation mechanism described below. If you choose the
combination election, you will able to specify the number of
shares of our common stock you want converted into shares of FNB
common stock. All shares of our common stock for which you do
not elect to receive FNB common stock will be converted into
cash, subject to the allocation mechanism described below.
Undesignated Shares. Any shares of our common stock,
other than shares for which appraisal rights have properly been
perfected under the Bank Act and treasury shares, with respect
to which the exchange agent does not receive an effective,
properly completed election form prior to the election deadline
will be deemed undesignated shares. If you hold
shares of our common stock that are deemed to be undesignated
shares, you will receive $18.40 in cash for each share of our
common stock you hold unless there is an oversubscription of the
cash consideration, in which case you may receive one share of
FNB common stock for some or all of your shares of our common
stock. See Allocation of FNB Common Stock and
Cash below.
For example, assuming you hold 100 shares of our common
stock, if you made:
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|
|
|
|
an all stock election, you will receive 100 shares of FNB
common stock; |
|
|
|
an all cash election, you will receive $1,840 in cash; or |
|
|
|
a combination election, you will receive: |
|
|
|
|
|
assuming an election of 75% cash and 25% stock, approximately
$1,380 in cash and 25 shares of FNB common stock (and
payment for any fractional share); |
|
|
|
assuming an election of 50% cash and 50% stock, approximately
$920 in cash and 50 shares of FNB common stock (and payment
for any fractional share); or |
|
|
|
assuming an election of 75% stock and 25% cash, approximately
$460 in cash and 75 shares of FNB common stock (and payment
for any fractional share). |
The actual allocation of cash and stock will be subject in each
case to the allocation procedures described under the heading
Allocation of FNB Common Stock and Cash
below.
Under the terms of the merger agreement, 30% of the shares of
our common stock will be exchanged for cash and 70% of the
shares of our common stock will be exchanged for FNB common
stock, unless FNB exercises its option to increase the number of
shares of FNB common stock issued in the merger in the case of a
stock oversubscription. Accordingly, there is no assurance that
you will receive the form of the merger consideration that you
elect with respect to all of your shares of our common stock. If
the elections of our shareholders result in an oversubscription
for the available pool of FNB common stock or cash, the exchange
agent will follow the procedures for allocating FNB common stock
and cash to be received by our shareholders as set forth in the
merger agreement and described under
Allocation of FNB Common Stock and Cash
below.
Election Form. The merger agreement provides that no less
than 40 days prior to the anticipated date of completion of
the merger, or on a different date mutually agreed upon by FNB
and us, an election form and other appropriate and customary
transmittal materials will be mailed by, or on behalf of, FNB to
you. Each election form will allow you to elect to receive:
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|
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|
|
one share of FNB common stock for each share of our common stock
you hold; |
|
|
|
$18.40 in cash for each share of our common stock you
hold; or |
76
|
|
|
|
|
one share of FNB common stock for each share of our common stock
you hold for which you elect to receive FNB common stock and
$18.40 in cash for each remaining share of our common stock you
hold. |
The form of election will be mailed to you if you are a holder
of record as of the close of business on the fifth business day
prior to the mailing date of this proxy statement/ prospectus.
In our discussion, we refer to this date at the election
form record date. FNB will also make election forms
available to persons who become record holders of our common
stock subsequent to the election form record date and prior to
the election deadline.
If you wish to elect the type of merger consideration you will
receive in the merger, you should carefully review and follow
the instructions set forth in the election form. Shares of our
common stock as to which you have not made a valid election
prior to the election deadline, which is 5:00 p.m. on the
30th day following the mailing date, will be deemed
undesignated shares.
An election will have been properly made and effective only if
the exchange agent has actually received a properly completed
election form that has not been revoked by the election
deadline. An election form will be properly completed only if an
election is indicated for each share of our common stock covered
by such election form and accompanied by one of more
certificates representing all shares of our common stock covered
by the election form (or customary affidavits and
indemnification regarding the loss or destruction of such
certificates or the guaranteed delivery of such certificates),
together with duly executed transmittal materials included in or
required by the election form.
You may revoke your election form prior to the election
deadline, provided that the exchange agent actually receives a
written notice from you revoking your election form and
specifying the shares of our common stock covered by such
revoked election form prior to the election deadline. In the
event an election form is revoked prior to the election
deadline, the shares of our common stock represented by such
revoked election form will automatically become undesignated
shares unless and until a new election is properly made with
respect to such shares of our common stock on or before the
election deadline. In the event of a revocation of an election,
FNB will cause the certificates representing such shares of our
common stock to be promptly returned without charge to the
person submitting the revoked election form upon request to that
effect from the holder who submitted such election form.
The exchange agent will have reasonable discretion to determine
whether any election or revocation has been properly or timely
made and to disregard immaterial defects in the election forms,
and any decisions of Legacy and FNB required by the exchange
agent and made in good faith in determining such matters will be
binding and conclusive. Neither FNB nor the exchange agent will
be under any obligation to notify any person of any defects in
an election form.
Allocation of FNB Common Stock and Cash
Under the terms of the merger agreement, 30% of our shares of
common stock will be exchanged for cash and 70% of our shares of
common stock will be exchanged for FNB common stock.
Accordingly, there is no assurance that you will receive the
form of merger consideration that you elect with respect to all
shares of our common stock you hold. If the elections of all of
our shareholders result in an oversubscription of the available
pool of cash or FNB common stock, the exchange agent will
allocate between the cash and shares of FNB common stock to be
received by you in the manner described below. For a discussion
of fractional interests in shares of FNB common stock, see
Structure of the Merger and the Merger
Consideration beginning on
page .
If the aggregate number of shares of FNB common stock that would
be issued in the merger is approximately equal to 2,468,845,
subject to adjustment pursuant to the merger agreement, then:
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if you made an all cash election, you will receive $18.40 in
cash for each share of our common stock you hold; |
77
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|
if you made an all stock election, you will receive one share of
FNB common stock for each share of our common stock you hold; |
|
|
|
if you made a combination election, you will receive one share
of FNB common stock per share of our common stock you hold for
which you elected to receive FNB common stock and $18.40 in cash
for each remaining share of our common stock you hold; and |
|
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|
if you hold undesignated shares, you will be deemed to have made
an all cash election and will receive $18.40 in cash for each
share of our common stock you hold, subject to the allocation
provisions in the merger agreement. |
Oversubscription of the Stock Consideration. If the
aggregate number of shares of FNB common stock that would be
issued in the merger exceeds, and is not approximately equal to,
2,468,845 shares, subject to adjustment pursuant to the
merger agreement, FNB may issue such number of its shares of
common stock even though more than 2,468,845 shares of its
common stock would be issued. However, FNB also has the right
not to issue more than 2,468,845 shares of its common
stock. If FNB chooses not to issue more than
2,468,845 shares of its common stock, then:
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if you made an all cash election, you will receive $18.40 in
cash for each share of our common stock you hold; |
|
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|
if you hold undesignated shares, you will be deemed to have made
an all cash election and you will receive $18.40 in cash for
each share of our common stock you hold; |
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|
if you made a combination election, you will receive the
following consideration for the shares of our common stock you
hold for which you elected to receive FNB common stock: |
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a number of shares of FNB common stock equal to the following:
(i) the sum of the number of shares of our common stock as
to which you made a stock election and the number of shares of
our common stock for which FNB common stock was elected in
connection with combination elections by other Legacy
shareholders multiplied by (ii) the stock proration
factor; and |
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|
cash in an amount equal to the following: (i) $18.40
multiplied by (ii) the sum of the number of shares of our
common stock with respect to which all stock elections were made
and the number of shares of our common stock for which FNB
common stock was elected in connection with combination
elections by other Legacy shareholders multiplied by
(iii) one minus the stock proration factor; and |
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|
if you made a combination election, you will receive $18.40 in
cash for each of the remaining shares of our common stock you
hold; |
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|
if you made an all stock election, you will receive the
following for each share of our common stock you hold: |
|
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|
a number of shares of FNB common stock equal to the following:
(i) the sum of the number of shares of our common stock
with respect to which all stock elections were made and the
number of shares of our common stock for which FNB common stock
was elected in connection with combination elections by other
Legacy shareholders multiplied by (ii) the stock proration
factor; and |
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|
cash in an amount equal to the following: (i) $18.40
multiplied by (ii) the sum of the number of shares of our
common stock with respect to which all stock elections were made
and the number of shares of our common stock for which FNB
common stock was elected in connection with combination
elections by other Legacy shareholders multiplied by
(iii) one minus the stock proration factor. |
The stock proration factor will be calculated by dividing
(i) 2,468,845 by (ii) the number of shares of our
common stock with respect to which all stock elections were made
and the number of shares of our common stock for which FNB
common stock was elected in connection with combination
elections.
78
Oversubscription of the Cash Consideration. If the
aggregate number of shares of FNB common stock that would be
issued in the merger is less than, and is not approximately
equal to, 2,468,845, subject to adjustment pursuant to the
merger agreement, then:
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|
if you made an all stock election, you will receive one share of
FNB common stock for each share of our common stock you hold; |
|
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|
if you made a combination election, you will receive one share
of FNB common stock for each share of our common stock you hold
for which you elected to receive FNB common stock; |
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|
the exchange agent will then select by pro rata allocation
according to the number of shares of our common stock held by
the holders of the undesignated shares, other than shares for
which appraisal rights have properly been perfected under the
Bank Act, a sufficient number of shares such that aggregate
number of shares of FNB common stock that would be issued in the
merger equals 2,468,845, as closely as possible, subject to
adjustment pursuant to the merger agreement; |
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if the sum of the undesignated shares plus the shares of our
common stock as to which all stock elections were made plus the
number of shares of our common stock for which FNB common stock
was elected in connection with combination elections by other
Legacy shareholders is less than, and not approximately equal
to, 2,468,845 shares of FNB common stock, then
(i) each shareholder who made a combination election will
receive the following consideration for each share of our common
stock they hold for which they elected to receive cash and
(ii) each shareholder who made an all cash election will
receive the following consideration for each share of our common
stock they hold: |
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cash in an amount equal to the following: (i) $18.40
multiplied by (ii) the sum of the number of shares of our
common stock with respect to which all cash elections were made
and the number of shares of our common stock for which cash was
elected in connection with combination elections by other Legacy
shareholders multiplied by (iii) one minus the cash
proration factor; and |
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|
the number of shares of FNB common stock equal to the following:
(i) the sum of the number of shares of our common stock
with respect to which all cash elections were made and the
number of shares of our common stock for which cash was elected
in connection with combination elections by other Legacy
shareholders multiplied by (ii) the cash proration factor. |
The cash proration factor will be calculated by dividing
(i) the amount that is the difference between
(x) 2,468,845 and (y) the sum of the number of shares
of our common stock with respect to which all stock elections
were made, the number of shares of our common stock for which
FNB common stock was elected in connection with combination
elections and the number of undesignated shares selected
pursuant to the second preceding bullet point by (ii) the
sum of the number of shares of our common stock with respect to
which all cash elections were made and the number of shares of
our common stock for which cash was elected in connection with
combination elections.
No later than five business days prior to the effective time of
the merger, FNB will cause the exchange agent to compute the
allocation described above. The pro rata allocation process to
be used by the exchange agent will consist of such procedures as
FNB and we mutually determine.
Because the United States federal income tax consequences of
receiving cash, FNB common stock or both cash and FNB common
stock will differ, you are urged to read carefully the
information set forth under the section Material Federal
Income Tax Consequences of the Merger and to consult your
tax advisors for a full understanding of the tax consequences of
the merger to you. In addition, because the value of one share
of FNB common stock can fluctuate during the election period,
the economic value per share received by our shareholders who
receive FNB common stock may, as of the date of receipt by them,
be more or less than the $18.40 in cash received by our
shareholders who received cash consideration.
79
Some examples of the approximate effects of the proration of the
cash consideration and the stock consideration in the merger to
a holder of 100 shares of Legacy common stock are set forth
below. The actual elections by Legacy shareholders may differ
significantly. The examples are for illustrative purposes only.
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If 85% of Shares Elect Cash, Then: |
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If 85% of Shares Elect Stock, Then(1): |
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(a) A holder of 100 shares electing stock will receive
all stock, and
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(a) A holder of 100 shares electing cash will receive
all cash, and |
(b) A holder of 100 shares electing cash will receive
stock and cash in the following amount:
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(b) A holder of 100 shares electing stock would
receive stock and cash in the following amounts: |
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Amount of Merger | |
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Amount of Merger | |
Amount of Merger |
|
Consideration in | |
|
Amount of Merger | |
|
Consideration in | |
Consideration in FNB Stock |
|
Cash | |
|
Consideration in FNB Stock | |
|
Cash | |
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| |
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| |
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| |
64.71 shares
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$ |
649.41 |
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82.4 shares |
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$ |
324.71 |
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(1) |
Assumes FNB does not exercise its option to issue more than
2,468,845 shares of FNB common stock in the merger. |
Procedures for the Exchange of Shares of Our Common
Stock
Exchange Fund. Not later than three days prior to the
effective time of the merger, FNB will deposit with the exchange
agent certificates representing the shares of FNB common stock
and cash to be exchanged for shares of our common stock.
After the effective time of the merger, each holder of a Legacy
stock certificate, other than shares for which appraisal rights
have properly been perfected under the Bank Act and treasury
shares, who has surrendered such certificate (or customary
affidavits and indemnification regarding the loss or destruction
of such certificate) together with duly executed transmittal
materials to the exchange agent, will be entitled to receive a
certificate representing FNB common stock and/or cash in
accordance with the election and allocation procedures described
above. See Election Procedure beginning
on page and
Allocation of FNB Common Stock and Cash
beginning on page .
Holders of our common stock should not submit their Legacy stock
certificates for exchange until they receive the transmittal
instructions and an election form from the exchange agent.
If your Legacy stock certificate has been lost, stolen or
destroyed, you may receive shares of FNB common stock if you
make an affidavit of that fact. FNB may require that you post a
bond in a reasonable amount as an indemnity against any claim
that may be made against FNB with respect to the lost, stolen or
destroyed Legacy stock certificate.
Until you exchange your Legacy stock certificates, you will not
receive any dividends or distributions in respect of any shares
of FNB common stock you are entitled to receive in connection
with the merger. Once you exchange your Legacy stock
certificates for FNB stock certificates, you will receive,
without interest, any dividends or distributions with a record
date after the effective time of the merger and payable with
respect to your shares of FNB common stock.
After completion of the merger, no transfers of our common stock
issued and outstanding immediately prior to the completion of
the merger will be allowed, except as required to settle trades
executed prior to the completion of the merger. If certificates
representing shares of our common stock are presented for
transfer after the completion of the merger, they will be
cancelled and exchanged for the merger consideration into which
such shares represented by that certificate have been converted.
The exchange agent will issue a FNB stock certificate, or a
check representing cash, in a name other than the name in which
a surrendered Legacy stock certificate is registered only if the
surrendered Legacy stock certificate is properly endorsed and
otherwise in proper form for transfer and the person requesting
such
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exchange either affixes any requisite stock transfer tax stamps
to the surrendered certificate, provides funds for their
purchase or establishes to the satisfaction of the exchange
agent that such transfer taxes are not payable.
Our stock certificates may be exchanged for cash and/or FNB
stock certificates with the exchange agent for up to nine months
after the completion of the merger. At the end of that period,
any FNB stock certificates and cash will be returned to FNB. Any
holders of our stock certificates who have not exchanged their
certificates will then be entitled to look only to FNB to seek
payment of their claim for cash and/or FNB common stock to be
received as merger consideration.
FNB or the exchange agent may be entitled to deduct and withhold
from any amounts payable to any holder of shares of our common
stock such backup withholding as is required under the Internal
Revenue Code of 1986, as amended, or the Code, or
any state, local or foreign tax law or regulation. Any amounts
that are withheld will be treated as having been paid to such
holder of our common stock.
Neither we nor FNB will be liable to any former holder of our
common stock for any shares of FNB common stock or cash that is
paid to a public official pursuant to any applicable abandoned
property, escheat or similar laws.
Resale of FNB Common Stock
The shares of FNB common stock to be issued pursuant to the
merger will be registered under the Securities Act, and will be
freely transferable, except for shares issued to any Legacy
shareholder who may be deemed to be either an affiliate of
(i) FNB, at or after the effective time of the merger, for
purposes of Rule 144 promulgated under the Securities Act
or (ii) Legacy, at the time of our special meeting, for
purposes of Rule 145 promulgated under the Securities Act.
Affiliates include persons who control, are controlled by or are
under common control with Legacy or FNB, as the case may be, and
generally consist of executive officers, directors and 10% or
greater shareholders.
Rule 145 will restrict the sale of FNB common stock
received in the merger by affiliates of Legacy and certain of
their family members and related interests. Generally speaking,
during the year following the effective time of the merger,
those persons who are affiliates of Legacy at the time of our
special meeting, provided they are not affiliates of FNB at or
following the effective time of the merger, may publicly resell
any FNB common stock received by them in the merger, subject to
certain limitations as to, among other things, the amount of FNB
common stock sold by them in any three-month period and the
manner of sale. After the one-year period, such affiliates may
resell their shares without such restrictions so long as there
is adequate current public information available with respect to
FNB as required by Rule 144.
Persons who are affiliates of FNB after the effective time of
the merger may publicly resell the shares of FNB common stock
received by them in the merger subject to similar limitations
and subject to certain filing requirements specified in
Rule 144 and in a manner consistent with FNBs insider
trading policy. At the present time, it is anticipated that only
one affiliate of Legacy will become a director of FNB Bank. This
individual will become an affiliate of FNB after the merger.
The ability of affiliates to resell shares of FNB common stock
received in the merger under Rules 144 or 145 as summarized
above generally will be subject to FNB having timely filed the
periodic reports required under the Securities Exchange Act of
1934, or the Exchange Act, for specified periods
prior to the time of sale. Affiliates also would be permitted to
resell FNB common stock received in the merger pursuant to an
effective registration statement under the Securities Act or
another available exemption from the registration requirements
of the Securities Act. Neither the registration statement of
which this proxy statement/ prospectus is a part nor this proxy
statement/ prospectus cover any resales of FNB common stock
received by persons who may be deemed to be affiliates of FNB or
Legacy in the merger.
We have agreed in the merger agreement to use our reasonable
best efforts to identify each person who may be deemed to be our
affiliate for purposes of Rule 145 and to cause such person
to deliver to FNB, prior to the date of our special meeting, a
written agreement intended to ensure compliance with the
Securities Act in connection with the sale or other transfer of
FNB common stock received in the merger.
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Interests of Our Directors and Executive Officers in the
Merger
In considering the recommendation of our board of directors that
you vote in favor of the approval of the merger proposal, you
should be aware that some of our executive officers and
directors have interests in the merger that are different from,
or in addition to, your interests as our shareholders. Our board
of directors was aware of these interests and took them into
account in its decision to approve the merger agreement.
These interests relate to or arise from, among other things:
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the continued indemnification of our current directors and
executive officers under the merger agreement and providing
these individuals with directors and officers
insurance; |
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the execution of employment agreements between FNB Bank and each
of George H. Groves, Thomas W. Lennox and Joseph L. Paese
that will become effective upon the consummation of the merger; |
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the receipt of change of control payments pursuant to employment
or change of control agreements with Legacy; |
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the members of our board of directors will be offered the
opportunity to serve as members of the advisory board of
directors of FNBs Harrisburg region and will receive
certain fees for such services; and |
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one member of our board of directors, George H. Groves, will be
appointed as a member of FNB Banks board of directors. |
Employment Agreements with Senior Officers. FNB Bank and
each of George H. Groves, our Chairman and Chief Executive
Officer, Thomas W. Lennox, our President and Chief Operating
Officer, and Joseph L. Paese, the President and Chief Executive
Officer of Legacy Trust, have entered into an employment
agreement that will become effective upon the consummation of
the merger. The principal terms of the employment agreements are
as follows:
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the employment agreements have an initial term of two years and
thereafter automatically review for successive terms of one
year, unless either party exercises its right to terminate the
automatic renewal; |
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the employment agreements provide for a minimum annual base
salary of $196,000 in the case of Mr. Groves, $165,000 in
the case of Mr. Lennox and $140,000 in the case of
Mr. Paese, plus merit increases and incentive bonuses at
the discretion of FNB; and |
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Each of Messrs. Groves, Lennox and Paese is entitled to
receive severance compensation of two times his then annual base
salary in the event FNB terminates such officers
employment for other than cause (as defined in the employment
agreement). |
Indemnification and Directors and Officers
Insurance. FNB has agreed in the merger agreement that for
six years following the effective time of the merger, FNB will
indemnify and hold harmless each of our present and former
directors, officers and employees and those of our subsidiaries
against any costs or expenses including reasonable
attorneys fees, judgments, fines, losses, claims, damages
or liabilities incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of matters existing
or occurring at or prior to the effective time of the merger
including the transactions contemplated by the merger agreement,
whether asserted or claimed prior to, at or after the effective
time of the merger, to the fullest extent that the person would
have been indemnified pursuant to (i) our articles of
incorporation and by-laws and (ii) any agreement,
arrangement or understanding disclosed by us to FNB, in each
case as in effect on the date of the merger agreement.
FNB has also agreed in the merger agreement that for a period of
six years after the effective time of the merger, it will cause
the persons serving as our directors and officers immediately
prior to the effective time of the merger to be covered by the
directors and officers liability insurance policy we
currently maintain. FNB is permitted to provide a substitute
insurance policy of at least the same coverage and amounts that
contains terms and conditions that are not materially less
advantageous than the insurance policy we presently maintain. In
no case, however, will FNB be required to expend in any one year
an amount in excess of 150% of
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the annual premium currently paid by us for such insurance. If
FNB is unable to maintain or obtain such insurance for that
amount, then FNB will use its reasonable best efforts to obtain
the most advantageous coverage as is available for that amount.
Change of Control Agreements. We have employment or
change of control agreements with George H. Groves, Thomas W.
Lennox, Joseph L. Paese, Joseph M. DeBias, Paul F.
Spiegal, Jr., Kirsten C. Penwell, Joseph S. Arthur and Jane
B. Tompkins that entitle each of them to certain compensation
and benefits upon the completion of the merger between FNB Bank
and us unless they are terminated for cause, as
defined in the change of control agreements, prior to the
completion of the merger. Ms. Penwell, Ms. Tompkins,
Messrs. Groves, Lennox, Paese, DeBias, Spiegel and Arthur
may be entitled to receive approximately $103,173, $109,000,
$1,056,000, $798,000, $248,000, $210,400, $137,115 and $104,692,
respectively, in compensation and benefits pursuant to these
agreements on the effective date of the merger. Of these
payments, approximately $856,000 of the payment to
Mr. Groves and approximately $641,000 of the payment to
Mr. Lennox will not be deductible for federal income tax
purposes by either Legacy or FNB.
FNB Bank Board of Directors. FNB has agreed to add one
current member of our board of directors to the existing board
of directors of FNB Bank. Mr. Groves will serve until the
2008 annual meeting of shareholders of FNB Bank. See
Board of Directors of FNB and FNB Bank
Following the Merger below.
Other than as set forth above, none of our directors or
executive officers has any direct or indirect material interest
in the merger, except insofar as ownership of our common stock
might be deemed such an interest.
Boards of Directors of FNB and FNB Bank Following the
Merger
The board of directors of FNB immediately prior to the effective
time of the merger will be the board of directors of FNB
following the closing of the merger. At the closing of the
merger, FNB has agreed to cause FNB Bank to add George H. Groves
of our board of directors to the existing board of directors of
FNB Bank for not less than two years following the closing of
the merger.
Regulatory Approvals Required for the Merger
Completion of the merger is subject to several federal and state
bank regulatory agency filings and approvals. The merger cannot
be completed unless FNB and FNB Bank receive prior approvals,
waivers or exemptions from the OCC and the Federal Reserve Board
and FNB Bank and until we have made certain filings with the
Department.
Neither FNB nor we can predict whether or when the required
regulatory approvals, waivers or exemptions will be obtained. As
of the date of this proxy statement/ prospectus, all
applications and requests for waivers or exemptions have been
filed with the Department, the OCC and the Federal Reserve Board.
Federal Reserve Board. Because FNB is a financial holding
company registered under the Bank Holding Company Act of 1956,
as amended, or BHCA, the merger is subject to prior
approval from the Federal Reserve Board under Section 3 of
the BHCA.
Office of the Comptroller of the Currency. The merger of
Legacy with and into FNB Bank is subject to the prior approval
of the OCC under the Bank Merger Act. On
February , 2006, FNB and FNB
Bank filed their application for approval of the bank merger
with the OCC. In reviewing applications under the Bank Merger
Act, the OCC must consider, among other factors, the financial
and managerial resources and future prospects of the existing
and proposed institutions, the convenience and needs of the
communities to be served and the effectiveness of both
institutions in combating money laundering. In addition, the OCC
may not approve a merger:
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that will result in a monopoly or be in furtherance of any
combination or conspiracy to monopolize or to attempt to
monopolize the business of banking in any part of the United
States; |
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if its effect in any section of the country may be substantially
to lessen competition or tend to create a monopoly; or |
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if it would in any other manner be a restraint of trade, |
unless the OCC finds that the anticompetitive effects of the
merger are clearly outweighed by the public interest and the
probable effect of the merger on meeting the convenience and
needs of the communities to be served.
Under the Community Reinvestment Act, the OCC must also take
into account the record of performance of each of the merging
banks in meeting the credit needs of the entire community,
including low and moderate income neighborhoods served by each
institution. As part of the merger review process, the federal
supervisory agencies frequently receive comments and protests
from community groups and others. Each of Legacy and FNB Bank
received Satisfactory performance ratings in their
most recent Community Reinvestment Act evaluations.
The OCC is also authorized to, but generally does not, hold a
public hearing or meeting in connection with an application
under the Bank Merger Act. A decision by the OCC that such a
hearing or meeting would be appropriate regarding any
application could prolong the period during which the
application is subject to review.
Mergers approved by the OCC under the Bank Merger Act, with
certain exceptions, may not be consummated until 30 days
after such approval, during which time the United States
Department of Justice may challenge such merger on antitrust
grounds and may require the divestiture of certain assets and
liabilities. With the approval of the OCC and the Department of
Justice, the waiting period may be, and customarily is, reduced
to no less than 15 days. There can be no assurance that the
Department of Justice will not challenge the merger or, if such
a challenge is made, as to the result of such challenge.
Pennsylvania Department of Banking. The prior written
approval of the Department is not required for the proposed
merger of Legacy or Legacy Trust, each of which is a
Pennsylvania state-chartered banking institution, with and into
FNB Bank and First National Trust Company, each of which is a
national association because each of the resulting institutions
will be a national association. Legacy and Legacy Trust are
required to provide certain notice and documents to the
Department regarding the proposed mergers. Pursuant to the
Banking Code, Legacy and Legacy Trust must: (i) notify the
Department of the proposed mergers, (ii) provide such
evidence of the adoption of plans of merger as the Department
may request, (iii) notify the Department of any abandonment
of disapproval of the plans of merger and (iv) file with
the Department and with the Pennsylvania Department of State a
certificate of the approval of the mergers by the OCC.
Other Regulatory Approvals. Neither we nor FNB are aware
of any other regulatory approvals that would be required for
completion of the merger or the trust company merger except as
described above. Should any other approvals be required, we and
FNB presently contemplate that such approvals would be sought.
There can be no assurance, however, that any other approvals, if
required, will be obtained.
There can be no assurance that the regulatory authorities
described above will approve the bank merger or the trust
company merger, and if such mergers are approved, there can be
no assurance as to the date such approvals will be received. In
any event, FNB and Legacy do not expect to obtain all required
regulatory approvals until during the second quarter of 2006.
The mergers cannot proceed in the absence of the receipt of all
requisite regulatory approvals and the expiration of statutory
antitrust waiting periods. See The Merger
Agreement Conditions to Completion of the
Merger and The Merger Agreement
Amendment, Waiver and Termination of the Merger Agreement.
The approval of any application merely implies the satisfaction
of regulatory criteria for approval, which do not include review
of the merger from the standpoint of the adequacy of the merger
consideration to be received by our shareholders. Further,
regulatory approvals do not constitute an endorsement or
recommendation of the merger.
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Public Trading Markets
FNB common stock is listed on the New York Stock Exchange under
the symbol FNB. Our common stock is traded on the
OTC Bulletin Board of the Nasdaq under the symbol
LBOH. Upon completion of the merger, our common
stock will no longer be quoted on the OTC Bulletin Board
and will be deregistered under the Exchange Act. The FNB common
stock issuable pursuant to the merger agreement will be listed
on the New York Stock Exchange.
The shares of FNB common stock to be issued in connection with
the merger will be freely transferable under the Securities Act,
except for shares issued to any of our shareholders that may be
deemed either to be an affiliate of (i) FNB at or after the
effective time of the merger or (ii) us at the time of our
special meeting, as discussed in Resale of FNB
Common Stock beginning on
page .
As reported on the NYSE, the closing price per share of FNB
common stock
on ,
2006 was
$ .
As reported by Nasdaq, the closing price per share of our common
stock on the OTC Bulletin Board
on ,
2006 was
$ .
Based on the FNB closing price per share and the exchange ratio,
the implied per share value of our common stock was
$ as
of that date.
FNB Dividends
FNB paid cash dividends on its common stock in the amount of
$0.23 per share for the first three quarters of 2005 and
paid a cash dividend of $0.235 per share for the fourth
quarter of 2005. Based on the one share exchange ratio and
FNBs current dividend rate, holders of our common stock
would experience an anticipated dividend at an annual rate of
$0.94 per share, an increase of $0.94 per share per
year.
FNB shareholders are entitled to receive cash dividends when and
if declared by the FNB board of directors out of funds legally
available for dividends. The FNB board of directors quarterly
considers the payment of dividends, taking into
account FNBs financial condition and level of net
income, FNBs future prospects, economic conditions,
industry practices and other factors, including applicable
banking laws and regulations.
The primary source of FNBs funds for cash dividends to its
shareholders is dividends received from its subsidiaries,
including FNB Bank. FNB Bank is subject to various regulatory
policies and requirements relating to the payment of dividends
to FNB, including requirements to maintain capital above
regulatory minimums. The appropriate federal regulatory
authority is authorized to determine under certain circumstances
relating to the financial condition of a bank or bank holding
company that the payment of dividends would be an unsafe or
unsound practice and to prohibit payment thereof. In addition,
the ability of FNB and the ability of FNB Bank to pay dividends
may be affected by the various minimum capital requirements and
the capital and non-capital standards established under the
Federal Deposit Insurance Corporation Improvement Act of 1991.
Appraisal Rights of Dissenting Shareholders
Appraisal rights are statutory rights that enable shareholders
to dissent from an extraordinary transaction, such as a merger,
and to demand that he corporation pay the fair value for their
shares as determined by a court in a judicial proceeding instead
of receiving the consideration offered to shareholders in
connection with the extraordinary transaction.
In a merger or consolidation in which the resulting institution
is a national bank, such as FNB Bank, the Banking Code does not
provide dissenters rights. Instead, dissenters
rights are provided by Section 215a of the Bank Act.
Any Legacy shareholder who contemplates exercising a
holders right to dissent is urged to read carefully the
provisions of the Bank Act attached to this proxy statement/
prospectus as Appendix C. The following discussion
summarizes the steps to be taken if the right to dissent is to
be exercised, and should be read with the full text of the law
found at Appendix C.
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A dissenting shareholder must take each step in the indicated
order and in strict compliance with the provisions of the law in
order to perfect dissenters rights. The failure of a
Legacy shareholder to comply precisely with the procedural steps
on a timely basis will result in a loss of that
shareholders dissenters rights.
Pursuant to 12 USC §215a, any holder of Legacy common
stock who votes against the merger at our special meeting, or
who has given notice in writing at or prior to our special
meeting to the presiding officer that he or she dissents from
the plan of merger, shall be entitled to receive the value of
the Legacy common stock held by such shareholder when such
merger shall be approved by the OCC, upon written request made
to FNB Bank at any time before 30 days after the date of
consummation of the merger, accompanied by the surrendered of
his or her stock certificates. FNB and Legacy anticipate that a
press release will be issued announcing the consummation of the
merger promptly following such consummation.
The value of the shares of any dissenting shareholder shall be
determined, as of the effective date of the merger, by an
appraisal made by a committee of three persons, composed of one
selected by the vote of the holders of a majority of the stock,
the owners of which are entitled to payment in cash pursuant to
the exercise of dissenters rights, one selected by the directors
of FNB Bank and one selected by the two so selected. The
valuation agreed upon by any two of the three appraisers shall
govern.
If the value so fixed shall not be satisfactory to any
dissenting shareholder who has requested payment, that
shareholder may, within five days after being notified of the
appraised value of his shares, appeal to the OCC, which shall
cause a reappraisal to be made which shall be final and binding
as to the value of the shares of the appellant. If, within
90 days from the date of consummation of the merger, for
any reason one or more of the appraisers is not selected, or the
appraisers fail to determine the value of such shares, the OCC
shall upon written request of any interested party cause an
appraisal to be made which shall be final and binding on all
parties. The expense of the OCC in making the reappraisal or the
appraisal, as the case may be, shall be paid by FNB Bank. The
value of the shares ascertained shall be promptly paid to the
dissenting shareholders by FNB Bank.
Failure to vote against the merger agreement will constitute
a waiver of a Legacy shareholders appraisal rights unless
he gives written notice prior to or at the special meeting to
the presiding officer at the special meeting that he dissents
from the merger agreement. However, simply because a shareholder
votes against the merger agreement at the special meeting or
gives written notice prior to or at the special meeting that he
dissents from the merger agreement does not mean that he is then
entitled to receive the value of his shares. A Legacy
shareholder must also make a request to FNB Bank for payment of
the value or his shares at any time before 30 days after
the effective date of the merger and must accompany that request
with a surrender of his stock certificates. Mere failure to vote
or merely voting against the merger or merely filing a notice of
dissent will not satisfy the requirement for a written
demand.
Unless the above procedure is followed precisely, a Legacy
shareholder will be presumed to have acquiesced in the approval
of the merger and waived his dissenters rights. As noted
above, failure to vote against the merger agreement and the
merger will not waive a shareholders dissenters
rights if the Legacy shareholder has filed a written notice
prior to the special meeting and has not voted in favor of the
merger agreement. If a Legacy shareholder abstains from voting
on the merger agreement, this will not waive dissenters
rights so long as the appropriate written notice is properly and
timely filed at or prior to the special meeting. Mere notice
filed after the special meeting, absent compliance with the
other specific requirements, will not preserve a
shareholders dissenters rights.
In the event a shareholder does not act in order to perfect his
dissenters rights, that shareholder will be bound by the
terms of the merger agreement, including the requirement to
exchange his shares of Legacy common stock for the merger
consideration, and will be entitled to receive the merger
consideration following completion of the merger, in the same
manner as those shareholders who have not exercised their
dissenters rights.
Legacy shareholders wishing to exercise their dissenters
rights should consult their own counsel to ensure that they
fully and properly comply with applicable requirements.
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THE MERGER AGREEMENT
The following section describes certain aspects of the
merger, including the material provisions of the merger
agreement. The following description of the merger agreement
summarizes the material provisions of the merger agreement, but
is subject to, and qualified in its entirety by reference to,
the merger agreement, which is included as Appendix A to
this proxy statement/ prospectus and is incorporated by
reference in this proxy statement/ prospectus. We urge you to
read the merger agreement carefully and in its entirety.
Terms of the Merger
The merger agreement provides for the merger of Legacy with and
into FNB Bank. FNB Bank will be the surviving corporation in the
merger. Each share of our common stock issued and outstanding
immediately prior to the completion of the merger, except for
shares of our common stock held by FNB or shares as to which
appraisal rights are perfected, will be converted into the right
to receive, at the election of the Legacy shareholder, subject
to the allocation provisions in the merger agreement, either one
share of FNB common stock or $18.40 in cash.
Our shareholders may elect whether they want to receive all FNB
common stock, all cash or a combination of cash and FNB common
stock. However, shareholder elections are subject to possible
proration because the allocation procedures in the merger
agreement provide that 30% of the shares of our common stock
will be exchanged for cash and 70% of the shares of our common
stock will be exchanged for 2,468,845 shares of FNB common
stock. The actual allocation of cash and FNB common stock will
be dependent on the elections made by our shareholders and may
result in a Legacy shareholder receiving a mixture of FNB common
stock and cash regardless of that shareholders choice. See
The Merger Election Procedure beginning
on page .
Treatment of Legacy Stock Options, Warrants and Legacy
Notes
The merger agreement provides that, at the effective time of the
merger, each outstanding stock option and warrant to purchase
our common stock will cease to represent a right to purchase our
common stock and will be converted automatically into, and
become a right, to purchase that number of shares of FNB common
stock equal to the number of shares of our common stock subject
to the stock option or warrant at a price equal to the
pre-merger exercise price of the stock option or the warrant.
FNB has agreed to assume our obligations with respect to our
stock options and warrants that are converted into FNB stock
options and warrants in accordance with the terms of the plans
and instruments under which they have been granted. FNB has
agreed to reserve additional shares of FNB common stock to
satisfy its obligations under the converted stock options and
warrants. If necessary, FNB will file a registration statement
with the SEC on an appropriate form to the extent necessary to
register FNB common stock subject to the converted stock options
and warrants.
The merger agreement further provides that, at the effective
time of the merger, each outstanding Legacy Note will cease to
be convertible into Legacy common stock and will automatically
become convertible into that number of shares of FNB common
stock equal to the number of shares of our common stock into
which the Legacy Note was convertible before the merger at a
conversion price equal to the pre-merger conversion price. FNB
has also agreed to execute a supplemental indenture relating to
the Legacy Notes and to register the FNB common stock issuable
upon conversion of the Legacy Notes.
Closing and Effective Time of the Merger
The merger will be completed only if all of the following occur:
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our shareholders approve and adopt the merger agreement; |
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we obtain all required governmental and regulatory consents and
approvals; and |
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all other conditions to the merger discussed in this proxy
statement/ prospectus and the merger agreement are either
satisfied or waived. |
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The merger will become effective when articles of merger are
filed with the OCC. In the merger agreement, we have agreed to
cause the completion of the merger to occur no later than the
fifth business day following the satisfaction or waiver of the
last of the conditions specified in the merger agreement, or on
another mutually agreed date, provided that such date shall not
be less than 10 days following our special meeting. It is
currently anticipated that the effective time of the merger will
occur in the second quarter of 2006, but we cannot guarantee
when or if the merger will be completed. FNBs articles of
incorporation and FNBs bylaws as in effect immediately
prior to the effective time will be FNBs articles of
incorporation and FNBs bylaws upon completion of the
merger and, along with Florida law, will govern the rights of
the holders of our common stock who receive FNB common stock in
the merger.
Representations, Warranties, Covenants and
Agreements
The merger agreement contains generally reciprocal customary
representations and warranties of Legacy and FNB relating to
their respective businesses. No representation or warranty will
be deemed untrue or incorrect as a consequence of the existence
or absence of any fact, event or circumstance unless that fact,
event or circumstance has had or is reasonably likely to have a
material adverse effect on the party making the representation
or warranty, disregarding any materiality or material adverse
effect qualifications in any representations or warranties. The
representations and warranties in the merger agreement will not
survive the effective time of the merger.
Legacy has made representations and warranties regarding, among
other things:
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corporate matters, including due organization, qualification and
authority; |
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capitalization; |
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subsidiaries; |
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corporate power and authority to conduct its business; |
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authority relative to execution and delivery of the merger
agreement and the absence of conflicts with, or violations of,
organizational documents or other obligations as a result of the
merger; |
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required governmental filings and consents for approval of the
merger and the absence of any defaults; |
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the timely filing of reports with governmental entities, and the
absence of investigations by regulatory agencies; |
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financial statements and the absence of undisclosed liabilities; |
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brokers fees payable in connection with the merger; |
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the absence of material adverse effects; |
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legal proceedings; |
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tax matters; |
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material contracts and the absence of defaults thereunder; |
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employee benefit plans; |
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fiduciary accounts; |
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real property; |
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intellectual property; |
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loans and nonperforming and classified assets; |
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labor matters; |
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FDIC reports; |
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compliance with applicable laws; |
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insurance; |
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the absence of agreements with regulatory agencies; |
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allowances for loan losses; |
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interest rate risk management instruments; |
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books and records; |
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environmental liabilities; |
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the inapplicability of state anti-takeover laws; |
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the absence of knowledge preventing the merger from qualifying
as a reorganization; |
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the receipt of a fairness opinion from our financial
advisor; and |
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the accuracy of information supplied for inclusion in this proxy
statement/ prospectus and other similar documents. |
FNB has made representations and warranties regarding:
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corporate matters, including due organization, qualification and
authority; |
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capitalization; |
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subsidiaries; |
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corporate power and authority to conduct its business; |
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authority relative to execution and delivery of the merger
agreement and the absence of conflicts with, or violations of,
organizational documents or other obligations as a result of the
merger; |
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required governmental filings and consents for approval of the
merger and the absence of any defaults; |
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the timely filing of reports with governmental entities, and the
absence of investigations by regulatory agencies; |
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financial statements and the absence of undisclosed liabilities; |
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brokers fees payable in connection with the merger; |
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the absence of material adverse effects; |
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legal proceedings; |
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tax matters; |
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material contracts and the absence of defaults thereunder; |
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SEC reports; |
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compliance with applicable laws; |
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the absence of agreements with regulatory agencies; |
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interest rate risk management instruments; and |
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the absence of knowledge preventing the merger from qualifying
as a reorganization. |
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We have agreed to certain customary covenants that place
restrictions on us and our subsidiaries until the effective time
of the merger. In general, we agree to:
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conduct our business in the ordinary course in all material
respects; |
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use commercially reasonable best efforts to maintain and
preserve intact our business organization, employees and
advantageous business relationships; and |
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take no action that would adversely affect or materially delay
our ability to obtain any necessary regulatory approvals of the
merger, perform our covenants and agreements in the merger
agreement or complete the merger. |
We have further agreed in the merger agreement that, except with
FNBs prior written consent, we will not, among other
things, undertake the following actions:
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issue, sell or otherwise permit to become outstanding any shares
of our common stock or options or other rights to acquire our
common stock, except for currently outstanding stock options; |
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make, declare or pay any dividends or other distributions on any
shares of our capital stock; |
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adjust, split, combine, reclassify, redeem, purchase or acquire
any shares of our common stock; |
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except as contemplated by the merger agreement, grant any salary
increase other than: |
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normal increases in the ordinary course of business that, in the
aggregate, do not exceed 3.5%, or, in any individual case, 5.0%; |
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changes required by applicable law; |
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changes pursuant to existing plans or commitments as disclosed
to FNB; |
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retention bonuses not in excess of $200,000 in the aggregate to
such persons and in such amounts as we and FNB mutually agree; |
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severance payments as disclosed to FNB; and |
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grants of awards to newly-hired employees consistent with past
practice. |
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hire or promote any employee, except to satisfy existing
contractual obligations or to fill vacancies where employment is
terminable at our will and where the total compensation does not
exceed $40,000 annually; |
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enter into, establish, amend or make any contributions to any
employee benefit plan, except as is required by applicable law
or to satisfy existing contractual obligations or take any
action to accelerate the vesting or exercisability of stock
options or other benefits; |
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other than in the ordinary course of business, sell, transfer,
mortgage, encumber or otherwise dispose of any assets, deposits,
business or properties; |
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acquire, other than by foreclosure or in satisfaction of debts
in the ordinary course of business, any assets, business,
deposits or properties of any other entity; |
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make any capital expenditure other than in the ordinary course
of business and in amounts not exceeding $15,000 individually or
$50,000 in the aggregate; |
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amend our articles of incorporation or by-laws or those of our
subsidiaries except as required by law; |
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implement or adopt any change in our tax accounting or financial
accounting principles, practices or methods, except as required
by changes in law or regulations or generally accepted
accounting principles; |
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other than in the ordinary course of business and as permitted
by the merger agreement, enter into or terminate any material
contract or amend any material contract in any material respect; |
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enter into any settlement of any action, proceeding, order or
investigation to which we are a party that involves the payment
of more than $50,000 by us or that would impose any material
restriction on our business; |
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enter into any new material line of business or change our
lending, investment, underwriting, risk and asset liability
management or other banking and operating policies that are
material to us, except as required by applicable law, or open or
close any branch location; |
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enter into any derivatives contract; |
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other than in the ordinary course of business, incur any
indebtedness or assume, guarantee, endorse or otherwise become
responsible for the indebtedness of any other person or prepay
any indebtedness; |
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other than in the ordinary course of business, acquire any debt
security or equity security other than federal funds or United
States Government or agency securities with a term of one year
or less or restructure or materially change our investment
securities portfolio or gap position; |
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other than in the ordinary course of business, make, renew or
otherwise modify any loan, loan commitment or other extension of
credit to any person, provided that we may make, renew or
otherwise modify (i) an unsecured loan to any person, if,
after making, renewing or otherwise modifying such loan, such
person would not be indebted to us for an aggregate amount in
excess of $250,000, (ii) make, renew or otherwise modify a
secured loan to any person (other than a permanent loan secured
by an owner-occupied 1-4 family single-family residence) if
after making such loan, such person would not be indebted to us
for an aggregate amount in excess of $2,000,000,
(iii) make, renew or otherwise modify any permanent loan
secured by an owner-occupied 1-4 single-family residence with a
principal balance in excess of $500,000 or (iv) make, renew
or otherwise modify any loan that contains terms that involve an
exception to our credit policy manual; |
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other than in the ordinary course of business, make any
investment or commitment to invest in real estate or a real
estate development project other than in foreclosures,
acquisitions in a fiduciary capacity or in satisfaction of a
debt previously contracted; |
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take any action that would, or is reasonably likely to, prevent
the merger from qualifying as a reorganization; |
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fail to hold our special meeting; |
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take any action that is intended, or is reasonably likely, to
result in: |
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any representations or warranties under the merger agreement
becoming untrue in any material respect; |
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any of the conditions to the merger not being satisfied; or |
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a material violation of the merger agreement or the trust
company merger agreement. |
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take any action that would adversely affect or materially delay
necessary governmental or regulatory approvals, or our ability
to perform our covenants and agreements under the merger
agreement or to consummate the transactions contemplated by the
merger agreement; or |
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enter into any contract or otherwise agree or commit to do any
of the foregoing. |
FNB has agreed that, except with our prior written consent, FNB
will not, among other things, undertake the following actions:
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take any action that would, or is reasonably likely to, prevent
the merger from qualifying as a reorganization; |
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take any action that is intended, or is reasonably likely to,
result in: |
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any representations or warranties under the merger agreement
becoming untrue in any material respect; |
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any of the conditions to the merger not being satisfied; or |
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a material violation of the merger agreement or the bank merger
agreement. |
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take any action that would adversely affect or materially delay
necessary governmental or regulatory approvals, or its ability
to perform its covenants and agreements under the merger
agreement or to consummate the transactions contemplated by the
merger agreement; or |
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enter into any agreement or otherwise agree or commit to do any
of the foregoing. |
The merger agreement also contains mutual covenants relating to
the preparation of this proxy statement/ prospectus and the
holding of our special meeting of shareholders, access to
information of the other company and public announcements with
respect to the transactions contemplated by the merger agreement.
Declaration and Payment of Dividends
We have agreed that, until the merger is completed, we will not
pay or make any dividends or distributions on our common stock.
Agreement Not to Solicit Other Offers
We have also agreed that we, our subsidiaries and our and their
officers, directors, employees, agents and representatives will
not, directly or indirectly:
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initiate, solicit, encourage or take any action to facilitate
any inquiries or proposals for any Acquisition
Proposal, as defined below; or |
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participate in any discussions or negotiations, furnish any
information to or approve, recommend or enter into any
agreement, regarding any Acquisition Proposal. |
However, prior to the effective time of the merger, we may
consider and participate in discussions and negotiations with
respect to a Superior Proposal, as defined below, if:
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we have first entered into a confidentiality agreement with the
party proposing the Superior Proposal with confidentiality terms
no less favorable to us than those contained in our
confidentiality agreement with FNB; and |
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our board of directors concludes in good faith, after
consultation with our outside legal counsel, that failure to
take these actions could reasonably be expected to cause our
board of directors to violate its fiduciary duties to our
shareholders. |
We have also agreed, at least 72 hours prior to providing
any information to any person or entering into any discussions
or negotiations with any person, to notify FNB in writing of the
name of such person and the material terms and conditions of any
such Superior Proposal. The merger agreement permits our board
of directors to withdraw or qualify its recommendation of our
merger with FNB if our board of directors concludes in good
faith, after consultation with our outside legal counsel and our
financial advisors, that failure to take such actions could
reasonably be expected to breach our fiduciary duties to our
shareholders.
We have agreed:
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to notify FNB promptly, and in any event within 24 hours,
after we receive any Acquisition Proposal, or any information
related thereto, which notification shall describe the
Acquisition Proposal and the third party making it; and |
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to cease any existing discussions or negotiations with any
persons with respect to any Acquisition Proposal. |
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As used in the merger agreement, an Acquisition
Proposal means any inquiry, proposal, offer, regulatory
filing or disclosure of an intention to do any of the foregoing
regarding any:
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direct or indirect acquisition of a substantial portion of the
net revenues, net income or net assets of us or any of our
subsidiaries; |
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direct or indirect acquisition of 10% or more of our common
stock after December 21, 2005 by a person who, on
December 21, 2005 did not own 10% or more of our common
stock; |
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direct or indirect acquisition of 5% or more of our common stock
after December 21, 2005 by a person who owned 10% or more
of our common stock on December 21, 2005; |
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tender offer or exchange offer that if consummated would result
in any person beneficially owning 10% or more of our common
stock; or |
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merger, consolidation, business combination, recapitalization,
liquidation or dissolution involving us, other than our proposed
merger with FNB. |
As used in the merger agreement, Superior Proposal
means any bona fide, unsolicited written Acquisition Proposal
made by a third party to acquire more than 50% of the voting
power of our then outstanding shares of common stock or all or
substantially all of our consolidated assets for consideration
consisting of cash and/or securities, that our board of
directors in good faith concludes, after consultation with our
financial advisors and our outside legal counsel, taking into
account, among other things, all legal, financial, regulatory
and other aspects of the proposal and the person making the
proposal, including any
break-up fees, expense
reimbursement provisions and conditions to consummation:
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is on terms that are more favorable from a financial point of
view to our shareholders than the terms of the proposed merger
with FNB; |
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has financing, to the extent required, that is fully committed
or reasonably determined to be available to the party making the
offer; and |
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is reasonably capable of being completed. |
Expenses and Fees
In general, each of FNB and Legacy will be responsible for all
expenses it incurs in connection with the negotiation and
completion of the transactions contemplated by the merger
agreement. However, the costs and expenses of printing and
mailing this proxy statement/ prospectus, and all filing and
other fees paid to the SEC in connection with the merger, will
be shared equally by FNB and us.
Conditions to Completion of the Merger
Our respective obligations to complete the merger are subject to
the fulfillment or waiver of certain conditions, including:
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the approval and adoption of the merger agreement and the
approval of the merger by the holders of not less than
two-thirds of our outstanding shares of common stock; |
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the receipt and effectiveness of all governmental and other
approvals, registrations and consents, and the expiration of all
related waiting periods, required to complete the merger; |
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the absence of any law, statute, regulation, judgment, decree,
injunction or other order in effect by any court or other
governmental entity that prohibits completion of the
transactions contemplated by the merger agreement; |
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the registration statement with respect to the FNB common stock
to be issued in the merger shall have become effective under the
Securities Act and no stop order or proceedings for that purpose
will have been initiated or threatened by the SEC; |
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the approval of the listing of the FNB common stock to be issued
in the merger on the New York Stock Exchange, subject to
official notice of issuance; |
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the truth and correctness of the representations and warranties
of FNB and Legacy in the merger agreement, subject to the
materiality standard provided in the merger agreement, and the
performance by each of FNB and us in all material respects of
our respective obligations under the merger agreement and the
receipt by each of us of certificates from the other to that
effect; and |
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the receipt by each of FNB and Legacy of a legal opinion with
respect to certain federal income tax consequences of the merger. |
In addition, FNBs obligation to complete the merger is
also subject to receipt by FNB of Phase I environmental
studies with respect to all real property owned by us or our
subsidiaries, the findings of which studies shall be
commercially acceptable to FNB who will not unreasonably
withhold such acceptance.
We cannot provide assurance as to when or if all of the
conditions to the merger can or will be satisfied or waived by
the appropriate party. As of the date of this proxy statement/
prospectus, we have no reason to believe that any of these
conditions will not be satisfied.
Amendment, Waiver and Termination of the Merger Agreement
Subject to applicable law, FNB and Legacy may amend the merger
agreement by written agreement authorized by their boards of
directors. However, after approval of the merger proposal by our
shareholders, there may not be, without further approval of our
shareholders, any amendment of the merger agreement that
requires such further approval. Either party to the merger
agreement may waive any inaccuracies in the representations and
warranties of the other party, or, subject to applicable law,
may waive compliance by the other party with any of the other
agreements or conditions contained in the merger agreement. The
merger agreement may be terminated at any time prior to closing
by mutual consent and by either party in the following
circumstances:
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if any of the required regulatory approvals for the merger are
denied and the denial is final and nonappealable; |
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if the merger has not been completed by September 30, 2006,
unless the failure to complete the merger by that date is due to
the terminating partys actions; |
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provided the terminating party is not then in material breach,
if there is a breach by the other party that would cause the
failure of the closing conditions described above, unless the
breach is capable of being, and is, cured within 30 days of
notice of the breach; or |
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if our shareholders do not approve and adopt the merger
agreement and approve the merger by the requisite vote, provided
that we are not in material breach of our covenant to hold our
special meeting and our board of directors is not in breach of
its covenant to recommend such approval. |
FNB may terminate the merger agreement at any time prior to our
special meeting in the following circumstances:
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if we have breached in any material respect our obligations with
respect to Acquisition Proposals and Superior Proposals as
described on
pages through ; |
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if we have failed to have our board of directors recommend that
our shareholders approve and adopt the merger agreement and
approve the merger, or if our board of directors has withdrawn
or modified its recommendation in a manner adverse to FNB; |
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if our board of directors shall have recommended the approval of
another proposal to acquire us; or |
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if we have breached in any material respect our obligation to
hold our special meeting. |
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We may terminate the merger agreement, upon notice to FNB,
during the two-day period following receipt of the last required
bank regulatory authority approval if both of the following
conditions apply:
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if the average closing price of FNB common stock on the New York
Stock Exchange as reported in The Wall Street Journal for the 20
consecutive trading days ending on and including the fifth
trading day prior to the commencement of the aforesaid two-day
period is less than the product of the closing price of FNB
common stock on December 20, 2005 ($17.98) and
0.800; and |
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if the number obtained by dividing such average closing price by
the closing price of FNB common stock on December 20, 2005
($17.98) is less than the number obtained by dividing the
average closing price of the Nasdaq Bank Index for the 20
consecutive trading days ending on and including the second
trading day prior to the date of commencement of the aforesaid
two-day period by the price of the Nasdaq Bank Index on
December 20, 2005 and subtracting 0.200 from such quotient; |
provided, however, that if FNB elects, within two business days
after its receipt of such notification, to increase the exchange
ratio as provided in the merger agreement, the exchange ratio
shall be so adjusted such that each share of our common stock
that is converted into shares of FNB common stock will receive
shares of FNB common stock having a value of not less than
$14.38 per share which is equal to 80% of the closing price
of FNB common stock on December 20, 2005 and no termination
shall be deemed to have occurred.
The merger agreement also provided us with certain rights to
terminate the merger agreement until the date of mailing of this
proxy statement/ prospectus in connection with a Superior
Proposal. We did not exercise these rights.
Effect of Termination;
Break-up Fee;
Expenses
If the merger agreement is terminated, it will become void, and
there will be no liability on the part of FNB or us, except that:
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termination will not relieve a breaching party from liability
for its willful breach giving rise to the termination; and |
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the confidentiality agreement between the parties will survive
termination. |
We are obligated under the merger agreement to pay FNB a
break-up fee of
$3,000,000 in the following four circumstances:
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if FNB terminates the merger agreement prior to our special
meeting because we have breached our obligations not to
initiate, solicit or encourage any third parties to make an
Acquisition Proposal or otherwise breach our obligations with
respect to Acquisition Proposals or Superior Proposals in a
manner adverse to FNB, our board of directors fails to make or
withdraws its recommendation of the merger proposal or we fail
to hold our special meeting; |
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if we terminate the merger agreement and accept an Acquisition
Proposal that is a Superior Proposal prior to the date of our
special meeting and, after giving FNB an opportunity to adjust
the terms of the merger agreement such that the Acquisition
Proposal no longer remains a Superior Proposal, the Acquisition
Proposal remains a Superior Proposal; |
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the termination of the merger agreement following the
commencement of a tender offer or exchange offer for 25% or more
of our common stock and we have not sent to our shareholders,
within 10 days after the commencement of such offer, a
statement that our board of directors recommends the rejection
of such tender offer or exchange offer; or |
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if FNB or we terminate the agreement because: |
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our shareholders did not approve the merger proposal and an
Acquisition Proposal has been made by a third party after
December 21, 2005 and prior to the termination of the
agreement; |
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such Acquisition Proposal has not been withdrawn prior to such
termination; and |
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within 18 months following such termination we merge with
or are acquired by that third party or that third party acquires
more than 50% of our common stock or we otherwise become
controlled by that third party within such time period. |
We have also agreed that if either FNB or we breach our
representations, warranties, covenants or agreements in the
merger agreement, which breach could reasonably be expected to
result in a material adverse effect and which breach cannot be
or is not cured, the breaching party, assuming the other party
is not also in material breach of its obligations under the
merger agreement, will pay all
out-of-pocket expenses,
including fees and expenses of legal counsel, financial advisors
and accountants, of the non-breaching party.
Employee Benefit Plans
The merger agreement provides that as soon as administratively
practicable after completion of the merger FNB will provide our
employees with benefits and compensation plans that are
equivalent to those provided to similarly situated FNB
employees. Eligible Legacy employees whose employment is
terminated at any time during the first year following
completion of the merger will be entitled to receive severance
benefits in accordance with the terms of a schedule to the
merger agreement.
FNB will generally provide our employees with service credit for
their service with us for purposes of eligibility,
participation, vesting and levels of benefits, but generally not
for benefit accruals under defined benefit pension plans, under
the employee benefit and compensation plans of FNB in which such
employees are eligible to participate following the merger. FNB
has agreed to waive specified exclusions and limitations under
its welfare benefit plans in which our employees are eligible to
participate following the merger under the corresponding Legacy
plan in which the applicable employee participated prior to the
merger and to give our employees credit, for the plan year in
which they start participating in any such plan, towards
applicable deductibles and annual
out-of-pocket limits
for expenses incurred before such participation.
ACCOUNTING TREATMENT
The merger will be accounted for as a purchase, as
that term is used under GAAP, for accounting and financial
reporting purposes. Under purchase accounting, our assets,
including identifiable intangible assets, and liabilities,
including executory contracts and other commitments, as of the
effective time of the merger will be recorded at their
respective fair values and added to the balance sheet of FNB.
Any excess of the purchase price over the fair values will be
recorded as goodwill. Financial statements of FNB issued after
the merger would reflect these fair values and the results of
operations for us from the date of acquisition. See
Selected Consolidated Unaudited Pro Forma Financial
Information beginning on
page .
MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
The following discussion is a summary description of the
material United States federal income tax consequences of the
merger applicable to Legacy shareholders. This discussion does
not purport to consider all aspects of United States federal
income taxation that may be relevant to a Legacy shareholder.
This discussion is based upon the provisions of the Code,
existing regulations and administrative and judicial
interpretations of the Code, all of which are as in effect as of
the date of this proxy statement/ prospectus and are subject to
change, possibly with retroactive effect. This discussion
applies only to Legacy shareholders who hold their shares of
Legacy stock as capital assets within the meaning of
Section 1221 of the Code and does not apply to the
following:
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shareholders who received their shares of Legacy stock from the
exercise of employee stock options or similar securities or
otherwise as compensation; |
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shareholders who hold their shares of Legacy stock as part of a
straddle, hedge, conversion
transaction, synthetic security or other
integrated investment; |
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shareholders, including, without limitation, financial
institutions, insurance companies, tax-exempt organizations,
dealers or traders in securities and shareholders subject to the
alternative minimum tax, who may be subject to special rules; |
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shareholders whose functional currency is not the United States
dollar; or |
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shareholders who, for United States federal income tax purposes,
are non-resident alien individuals, foreign corporations,
foreign partnerships, foreign estates or foreign trusts. |
This discussion also does not consider the effect of any
foreign, state or local laws or any United States federal laws
other than those pertaining to the income tax.
Accordingly, you should consult your tax advisor to determine
the tax effect to you of the merger, including the application
and effect of foreign or United States federal, state, local or
other tax laws.
Tax Opinion and Merger
Completion of the merger is contingent upon the receipt by:
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FNB of an opinion from its outside counsel to the effect that
the merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code; and |
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Legacy of an opinion from its outside counsel to the effect that
the merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code. |
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The tax opinion of Duane Morris LLP, counsel for FNB is included
as exhibit 8.1 to the registration statement filed with the
SEC of which this proxy statement/ prospectus is a part. These
opinions are based upon, among other things, representations of
fact contained in certificates of officers of FNB and Legacy. We
will not seek any ruling from the Internal Revenue Service as to
the United States federal income tax consequences of the merger,
and the opinions of counsel are not binding upon the Internal
Revenue Service or any court. Accordingly, we can give no
assurance that the Internal Revenue Service will not contest the
conclusions expressed in the opinions or that a court will not
sustain that contest. |
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Assuming the merger is consummated in the manner described in
this proxy statement/ prospectus and in accordance with the
merger agreement, the merger will qualify as a
reorganization within the meaning of
Section 368(a) of the Code. The following discussion sets
forth the United States federal income tax consequences to
Legacy shareholders of the qualification of the merger as a
reorganization within the meaning of
Section 368(a) of the Code. As discussed below, the United
States federal income tax consequences of the merger to a Legacy
shareholder depend on the form of merger consideration received
by the Legacy shareholder. |
Legacy Shareholders Who Receive Solely FNB Common
Stock
A Legacy shareholder who exchanges shares of Legacy common stock
solely for FNB common stock will not recognize any gain or loss
on that exchange, except to the extent the shareholder receives
cash in lieu of a fractional share of FNB common stock, as
discussed below. The aggregate adjusted tax basis of FNB common
stock received will equal the Legacy shareholders
aggregate adjusted tax basis in the shares of Legacy common
stock surrendered in the merger, decreased by the amount of any
tax basis allocable to any fractional share of FNB common stock
for which cash is received. The holding period of the FNB common
stock received in the merger will include the holding period of
the Legacy common stock surrendered in the merger. If a Legacy
shareholder has differing tax bases and/or holding periods in
respect of the shareholders shares of Legacy common stock,
the shareholder should consult with a tax advisor in order to
identify the tax bases and/or holding periods of the particular
shares of FNB common stock that the shareholder receives.
Legacy Shareholders Who Receive Cash and FNB Common
Stock
If the consideration received in the merger by a Legacy
shareholder consists of part cash and part FNB common stock, the
shareholder will recognize gain, but not loss, to the extent of
the lesser of the excess of the
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sum of the amount of cash and the fair market value, as of the
date of the merger, of the shares of FNB common stock received,
over the adjusted basis of the shares of Legacy common stock
surrendered in exchange for FNB common stock, and the amount of
cash received by the shareholder in the exchange. For this
purpose, a Legacy shareholder must calculate gain or loss
separately for each identifiable block of shares of Legacy
common stock that such shareholder surrenders pursuant to the
merger, and a Legacy shareholder cannot offset a loss recognized
on one block of such shares of Legacy common stock against a
gain recognized on another block of such shares of Legacy common
stock.
In the case of a Legacy shareholder who recognizes gain on the
exchange, if the exchange sufficiently reduces the
shareholders proportionate stock interest, as discussed
below, the gain will be characterized as a capital gain. If the
exchange does not sufficiently reduce the shareholders
proportionate stock interest, that gain will be taxable as a
dividend to the extent of the shareholders ratable share
of accumulated earnings and profits, as calculated for United
States federal income tax purposes, and the remainder, if any,
of that recognized gain will be capital gain. Any recognized
capital gain will be long-term capital gain if the
shareholders holding period for the surrendered shares of
Legacy common stock exceeds one year.
The determination of whether the exchange sufficiently reduces a
Legacy shareholders proportionate stock interest will be
made in accordance with Section 302 of the Code, taking
into account the stock ownership attribution rules of
Section 318 of the Code. Under Section 318,
individuals are treated as constructively owning stock owned by
specified members of the individuals family or by certain
entities in which the individual or his family members have a
beneficial interest and certain entities are treated as
constructively owning stock owned by persons having a beneficial
interest in the entity. For purposes of determining whether the
exchange sufficiently reduces a shareholders proportionate
stock interest, a Legacy shareholder is treated as if
(1) all of that shareholders shares of Legacy common
stock were first exchanged in the merger for FNB common stock,
and (2) a portion of that FNB common stock was then
redeemed for the cash actually received in the merger. The
Legacy shareholders hypothetical stock interest in FNB
(both actual and constructive) after hypothetical step
(2) is compared to the Legacy shareholders
hypothetical stock interest in FNB, both actual and
constructive, after hypothetical step (1). Dividend treatment
will apply unless (A) the shareholders stock interest
in FNB has been completely terminated, (B) there has been a
substantially disproportionate reduction in the
shareholders stock interest in FNB (i.e., the interest
after hypothetical step (2) is less than 80% of the
interest after hypothetical step (1)), or (C) the exchange
is not essentially equivalent to a dividend. While
the determination is based on a Legacy shareholders
particular facts and circumstances, the Internal Revenue Service
has indicated in published rulings that a distribution is not
essentially equivalent to a dividend and will
therefore result in capital gain treatment if the distribution
results in any actual reduction in the stock interest of an
extremely small minority shareholder in a publicly held
corporation and the shareholder exercises no control with
respect to corporate affairs.
Because the determination of whether a payment will be treated
as having the effect of the distribution of a dividend generally
will depend upon the facts and circumstances of each Legacy
shareholder, you are strongly advised to consult your own tax
advisors regarding the tax treatment of cash received in the
merger, including the application of the constructive ownership
rules of the Code and the effect of any transactions in FNB
common stock or shares of Legacy common stock by you.
The basis in the FNB common stock of a Legacy shareholder who
receives cash and FNB common stock in the merger in the FNB
common stock received will equal the Legacy shareholders
adjusted basis in the shareholders shares of Legacy common
stock increased by any gain recognized as a result of the merger
and reduced by the amount of cash received in the merger. The
holding period of the FNB common stock received will include the
holding period of the shares of Legacy common stock surrendered
in the merger. Cash received and gain realized in connection
with the receipt of cash in lieu of a fractional share of FNB
common stock will not be taken into account in making the
computations of gain realized or recognized and of the basis in
the FNB common stock received. Rather, such cash and gain are
treated as described below.
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Legacy Shareholders Who Receive Solely Cash
The exchange of shares of Legacy common stock solely for cash
generally will result in recognition of gain or loss by the
shareholder in an amount equal to the difference between the
amount of cash received and the shareholders adjusted tax
basis in the shares of Legacy common stock surrendered. The
amount and character of gain or loss will be computed separately
for each block of Legacy common stock that was purchased by the
holder. The gain or loss recognized will be long-term capital
gain or loss if the shareholders holding period for the
shares of Legacy common stock surrendered exceeds one year.
There are limitations on the extent to which shareholders may
deduct capital losses from ordinary income.
If a Legacy shareholder who receives only cash in exchange for
all of the shareholders shares of Legacy common stock
actually or constructively owns FNB common stock after the
merger (as the result of constructive ownership of shares of
Legacy common stock that are exchanged for FNB common stock in
the merger, prior actual or constructive ownership of FNB common
stock or otherwise), all or a portion of the cash received by
the shareholder may be taxed as a dividend, and those
shareholders should consult their tax advisors to determine the
amount and character of the income recognized in connection with
the merger.
Fractional Shares
A Legacy shareholder who receives cash in lieu of a fractional
share of FNB common stock will be treated as having first
received the fractional share of FNB common stock in the merger
and then as having received cash in exchange for the fractional
share interest. A Legacy shareholder generally will recognize
gain or loss in an amount equal to the difference between the
amount of cash received in lieu of the fractional share of FNB
common stock and the portion of the basis in the shares of
Legacy common stock allocable to that fractional interest. A
Legacy shareholder who receives a fractional share of FNB common
stock generally will not recognize any gain or loss on that
fractional share.
Material Federal Income Tax Consequences to FNB and
Legacy
Neither FNB nor Legacy will recognize gain or loss as a result
of the merger.
Tax Consequences If the Merger Does Not Qualify as a
Reorganization Under Section 368(a) of the Code
If the Internal Revenue Service determines that the merger of
Legacy with and into FNB does not qualify as a reorganization
within the meaning of Section 368(a) of the Code, the
Legacy shareholders would be required to recognize gain or loss
with respect to each share of Legacy common stock surrendered in
the merger in an amount equal to the difference between
(a) the sum of the fair market value of any FNB common
stock and cash received in the merger and (b) the tax basis
of the shares of Legacy common stock surrendered in exchange
therefor. Such gain or loss will be long-term capital gain or
loss if such shareholder held the Legacy common stock for more
than one year, and will be short-term capital gain or loss if
such shareholder held the Legacy common stock for less than one
year. The amount and character of gain or loss will be computed
separately for each block of Legacy common stock that was
purchased by the holder in the same transaction. A Legacy
shareholders aggregate tax basis in the FNB common stock
received in the merger would in this case be equal to its fair
market value at the time of the closing of the merger, and the
holding period for the FNB common stock would begin the day
after the closing of the merger.
Backup Withholding
Payments in connection with the merger may be subject to
backup withholding at a rate of 28%, unless a Legacy
shareholder, (1) provides a correct taxpayer identification
number (which, for an individual shareholder, is the
shareholders social security number) and any required
information to the exchange agent, (2) provides a
certification of foreign status on Form W-8 , or successor
form, or (3) is a corporation or comes within certain
exempt categories and otherwise complies with applicable
requirements of the backup withholding rules. A Legacy
shareholder who does not provide a correct taxpayer
identification number may be subject to penalties imposed by the
Internal Revenue Service. Any amount paid as backup withholding
does not constitute an additional tax and will be creditable
against the shareholders United States federal
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income tax liability. Each Legacy shareholder should consult
with his own tax advisor as to his qualification for exemption
from backup withholding and the procedure for obtaining this
exemption. You may prevent backup withholding by completing a
substitute
form W-9
(contained with the election form to be forwarded to you) and
submitting it to the exchange agent for the merger when you
submit your Legacy share certificates for exchange.
DESCRIPTION OF FNB CAPITAL STOCK
FNB Common Stock
General. FNB is authorized to issue
500,000,000 shares of common stock, par value
$0.01 per share, of which 57,419,041 shares were
outstanding as of December 31, 2005. FNB common stock is
traded on the New York Stock Exchange under the symbol
FNB. The transfer agent and registrar for FNB common
stock is Registrar & Transfer Company.
As of December 31, 2005, approximately 2.6 million
shares of FNB common stock were reserved for issuance upon the
exercise of outstanding options. In addition, FNB has reserved
approximately 4.3 million shares of common stock for
issuance in connection with the merger and the Legacy stock
options, warrants and Notes being assumed by FNB. After taking
into account these reserved shares, FNB will have approximately
436 million shares of authorized but unissued common stock
available for issuance for other corporate purposes.
Voting and Other Rights. The holders of FNB common stock
are entitled to one vote per share, and in general a majority of
the votes cast with respect to a matter is sufficient to
authorize action upon routine matters. Directors are elected by
a plurality of votes cast, and each shareholder entitled to vote
in an election of directors is entitled to vote each share of
stock for as many persons as there are directors to be elected.
In elections of directors, shareholders do not have the right to
cumulate their votes. See Comparison of Shareholder
Rights beginning on
page .
In the event of a liquidation, holders of FNB common stock are
entitled to receive pro rata any assets legally available for
distribution to shareholders with respect to shares held by
them, subject to any prior rights of the holders of any FNB
preferred stock then outstanding.
FNB common stock does not carry any preemptive rights,
redemption privileges, sinking fund privileges or conversion
rights. All outstanding shares of FNB common stock are, and the
shares of FNB common stock to be issued to our shareholders in
the merger will be, validly issued, fully paid and nonassessable.
Distributions. The holders of FNB common stock are
entitled to receive such dividends or distributions as the FNB
board of directors may declare out of funds legally available
for such payments. The payment of distributions by FNB is
subject to the restrictions of Florida law applicable to the
declaration of distributions by a business corporation. A
corporation generally may not authorize and make distributions
if, after giving effect thereto, it would be unable to meet its
debts as they become due in the usual course of business or if
the corporations total assets would be less than the sum
of its total liabilities plus the amount that would be needed,
if it were to be dissolved at the time of distribution, to
satisfy claims upon dissolution of shareholders who have
preferential rights superior to the rights of the holders of its
common stock. In addition, the payment of distributions to
shareholders is subject to any prior rights of any then
outstanding FNB preferred stock. Stock dividends, if any are
declared, may be paid from authorized but unissued shares.
The ability of FNB to pay distributions is affected by the
ability of its subsidiaries to pay dividends. The ability of
FNBs subsidiaries, as well as of FNB, to pay dividends in
the future is influenced by bank regulatory requirements and
capital guidelines.
FNB Preferred Stock
General. FNB is authorized to issue
20,000,000 shares of preferred stock, par value
$0.01 per share, of which no shares were outstanding as of
December 31, 2005. The FNB board of directors has the
authority to
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issue FNB preferred stock in one or more series and to fix the
dividend rights, dividend rates, liquidation preferences,
conversion rights, voting rights, rights and terms of
redemption, including sinking fund provisions, and the number of
shares constituting any such series, without any further action
by the shareholders of FNB unless such action is required by
applicable rules or regulations or by the terms of any other
outstanding series of FNB preferred stock. Any shares of FNB
preferred stock that may be issued may rank prior to shares of
FNB common stock as to payment of dividends and upon liquidation.
COMPARISON OF SHAREHOLDER RIGHTS
After the merger, you will become shareholders of FNB and your
rights will be governed by FNBs articles of incorporation,
FNBs by-laws and the Florida Business Corporations Act.
The following summary discusses differences between FNBs
articles of incorporation and by-laws and our articles of
incorporation and by-laws and the differences between the
Banking Code and the Florida Business Corporations Act. For
information as to how to get the full text of each document, see
Where You Can Find More Information beginning on
page .
The following summary is not intended to be a complete statement
of the differences affecting the rights of our shareholders who
become FNB shareholders, but rather summarizes the more
significant differences affecting the rights of such
shareholders and certain important similarities. The summary is
qualified in its entirety by reference to the articles of
incorporation and by-laws of FNB, our articles of incorporation
and by-laws and applicable laws and regulations.
Removal of Directors;
Filling Vacancies on the Board of Directors
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Legacy |
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FNB |
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Pennsylvania law and our by-laws provide that our board of
directors may remove a director from office if he(i) is
adjudicated an incompetent by a court or is convicted of a
felony; (ii) if within 60 days after notice of
election, the director does not accept office either in writing
or by attending a meeting of our board of directors or
(iii) fails to attend regular meetings of our board of
directors for six successive months without having been excused
by our board of directors. Our entire board of directors or any
individual director may be removed from office without assigning
any cause by the vote of our shareholders entitled to cast at
least a majority of the vote which all shareholders would be
entitled to cast at an annual election of directors. A court may
remove a director in a suit in which we are a party filed by a
majority of the directors or by holders of at least 10% of our
outstanding shares for fraudulent or dishonest acts or gross
abuse of authority or discretion in our affairs. Vacancies on
our board of directors, including vacancies resulting from an
increase in the number of directors, may be filled by a majority
vote of the remaining members of our board of directors, though
less than a quorum, or by a sole remaining director, to serve
until his successor is elected by the shareholders. |
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Under Florida law, unless the articles of incorporation of a
corporation provide otherwise, directors may be removed by the
corporations shareholders with or without cause; provided
that, if a director is elected by a voting group, only the
shareholders of that voting group may participate in the vote to
remove him or her. Article 6 of FNBs articles of
incorporation, however, provides that, subject to the rights of
holders of any preferred stock, any director or the entire board
of directors may be removed without cause by the affirmative
vote of the holders of at least 75% of the then outstanding
shares of FNB common stock. Florida law and FNBs by- laws
provide that vacancies on the FNB board of directors, including
vacancies resulting from an increase in the number of directors
or resulting from removal from office, may be filled by a
majority vote of the remaining directors, though less than a
quorum. |
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Legacy |
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FNB |
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Our by-laws provide that the holders of a majority of our shares
entitled to vote on a matter to be acted upon, represented in
person or by proxy, constitute a quorum for action on the
matter. Our by-laws further provide that, if a meeting called
for the election of directors is adjourned two times for lack of
a quorum, the shareholders who attend the second of such
adjourned meetings shall constitute a quorum for the purpose of
electing directors. |
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FNBs by-laws and Florida law provide that the holders of a
majority of votes entitled to be cast on a matter to be
considered, represented in person or by proxy, constitute a
quorum of that voting group for action on the matter. FNBs
by-laws further provide that whenever the holders of any class
or series of shares are entitled to vote separately on a
specified item of business, the holders of a majority of the
votes of that class or series entitled to be cast, represented
in person or by proxy, shall constitute a quorum of such class
or series. |
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Adjournment of Shareholder Meetings |
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Legacy |
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FNB |
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Our by-laws provide that any regular or special meeting of
shareholders that cannot be organized for lack of a quorum may
be adjourned to such time and place as those shareholders
present in person or by proxy may determine, without notice
other than an announcement at the meeting until the requisite
number of shareholders for a quorum are present in person or by
proxy. |
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FNBs by-laws and Florida law provide that, if a quorum is
not present or represented at a shareholders meeting, the
shareholders present and entitled to vote at the meeting may
adjourn such meeting from time to time. |
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Call of Special Meetings of Shareholders |
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Legacy |
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FNB |
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Our by-laws provide that special meetings of our shareholders
may be called at any time by our Chairman of the Board, our
board of directors or shareholders entitled to cast at least
one-fifth of all of the shares entitled to vote at the meeting. |
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FNBs by-laws provide that special meetings of shareholders
may be called only by the chairman of the board, the president
or the secretary of FNB pursuant to a resolution or written
direction of at least 75% of the members of the FNB board or by
the holders of not less than 10% of the outstanding shares of
FNB. |
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Shareholder Consent in Lieu of Meeting |
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Legacy |
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FNB |
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Pennsylvania law and our by-laws provide that any action that
may be taken at a meeting of our shareholders may be taken
without a meeting if a consent or consents in writing setting
forth the action so taken is signed by all of our shareholders
who would be entitled to vote at a meeting for such purpose and
is filed with our secretary. |
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Florida law permits any action that may be taken at a meeting of
the shareholders of FNB to be taken without a meeting, if, prior
or subsequent to the action, one or more written consents signed
by a majority the shareholders who would be entitled to vote at
a meeting for such purpose are delivered to FNB. |
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Legacy |
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FNB |
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In a merger or consolidation in which the resulting institution
is a national bank, such as FNB Bank, the Banking Code does not
provide dissenters rights. Instead, dissenters
rights are provided by Section 215a of the Bank Act. |
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Under Florida law, dissenters appraisal rights are
available in connection with corporate actions involving certain
mergers, share exchanges, sales or other dispositions of all or
substantially all of the property of the corporation other than
in the ordinary |
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Legacy |
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FNB |
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Appraisal rights are otherwise provided under the Banking Code
by incorporating by reference provisions of the BCL in
situations where a merger or consolidation will result in an
institution subject to the Banking Code: i.e., where the entity
surviving a merger or resulting from a consolidation is a
Pennsylvania bank or other institution that is subject to the
Banking Code. In such cases, the rights and remedies of
shareholders would then be governed under the provisions of the
BCL applicable to dissenting shareholders and would be subject
to the limitations on dissenters rights and remedies under
the provisions of the BCL. Under the BCL, dissenters
rights are generally afforded to shareholders in the event of
corporate actions involving certain mergers, share exchanges,
transfers of all or substantially all of the assets of the
corporation, as well as certain other fundamental transactions
in which the corporation is not the acquiring corporation. If a
corporations shares are held by record of more than
2,000 shareholders or are listed on a national securities
exchange, the BCL generally does not provide dissenters
rights so long as the consideration received by shareholders
pursuant to the plan consists solely of shares of the acquiring,
surviving or new corporation and money in lieu of fractional
shares.
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course of business, the approval of certain control- share
acquisitions and amendments of the articles of incorporation
that would materially and adversely affect the rights or
preferences of shares held by the dissenting shareholders.
Under Florida law, appraisal rights generally are denied to
holder of shares listed on a national securities exchange or the
Nasdaq National Market and when the corporations shares
are held of record by at least 2,000 persons and such
outstanding shares have a market value of at least
$10 million, not counting the value of certain insider
shares. |
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Dividends and Distributions |
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Legacy |
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FNB |
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Under the Banking Code, a Pennsylvania state-chartered bank may
pay dividends only out of accumulated net earnings and may not
declare or pay dividends unless surplus (shareholders
equity) is at least equal to capital. Furthermore, dividends may
not be declared or paid if the bank is in default in payment of
any assessments due to the FDIC. |
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Subject to any restrictions in a corporations articles of
incorporation, Florida law generally provides that a corporation
may make distributions to its shareholders unless after giving
effect thereto (i) the corporation would not be able to pay
its debts as they become due in the usual course of business, or
(ii) the corporations total assets would be less than
the sum of its total liabilities plus the amount that would be
needed upon the dissolution of the corporation to satisfy the
preferential rights of shareholders having superior preferential
rights to those shareholders receiving the distribution.
FNBs articles of incorporation do not contain any
restrictions on the payment of dividends or the making of
distributions to shareholders. |
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Classes of Stock With Preferential Rights |
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Legacy |
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FNB |
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Our articles of incorporation authorize us to issue one or more
classes or series of stock that may have rights preferential to
our common stock. No such stock is currently outstanding. Our
board of directors |
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The articles of incorporation of FNB authorize it to issue
multiple classes of stock that may have rights preferential to
the FNB common stock to be received by Legacy shareholders as a
result of the merger. No |
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is authorized to determine the voting powers, if any,
designations, preferential rights, including rights to
preferential dividend rates, and related, participating,
optional or other special rights, including the rights of
holders of any such preferred stock in the event of liquidation,
dissolution or winding up of the affairs of the bank, and
conversion rights.
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such stock is currently outstanding. Such preferential rights
include rights to preferential dividend rates compared to such
rates for FNB common stock, rights to prevent dividends being
paid on the common stock until dividends have been paid on the
preferred stock, rights to preferential payments upon any
liquidation of FNB, independent class voting rights with respect
to certain fundamental transactions and rights to convert shares
of FNB preferred stock into FNB common stock at a conversion
ratio that protects such preferred shareholders against a
decline in the price of FNB common stock by further diluting the
common stock. |
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Director Qualifications, Number and Term |
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Legacy |
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FNB |
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Our by-laws provide that our board of directors must consist of
no less than 5 nor more than 25 members divided into three
classes, as equal in number as possible, with each director
serving a staggered three-year term. In addition, our by-laws
provide that each director must be a natural person of full age
and a citizen of the Unites States of America and at least
two-thirds of the members of our board of directors must be
residents of Pennsylvania. |
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FNBs by-laws provide that the board of directors of FNB
shall consist of such number of directors as may be determined
by the board of directors of FNB, which number shall be not less
than 5 nor more than 25. FNBs by-laws further provide that
FNBs board of directors shall be divided into three
classes as equal in number as possible, with each director
having a staggered, three-year term. Under Florida law and
FNBs by-laws, a director need not be a resident of Florida
or a shareholder of FNB to qualify to serve as a director.
FNBs by-laws further provide that the directors must be at
least 21 years of age. |
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Legacy |
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FNB |
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Our Nominating Committee Charter provides that our Nominating
Committee will identify qualified individuals to become members
of our board of directors and recommend to our board of
directors nominees for election at each annual meeting of
shareholders and any director nominees to be elected to fill any
interim director vacancies and that the Nominating Committee
will review and consider candidates submitted by shareholders. |
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FNBs by-laws provide that directors may be nominated for
election to FNBs board of directors by either a resolution
of the board of directors or by a shareholder of FNB. FNBs
by-laws provide that a shareholder may make nominations for
director by providing FNB with written notice of the
shareholders intention to nominate a director, which
written notice generally must be received not less than
14 days prior to the meeting of shareholders called for the
election of directors. The notice of a shareholders
intention to nominate a director must include, among other
things: |
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the name and address of the nominating shareholder; |
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a representation that the shareholder is a holder of
record of FNB voting stock and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified
in the notice; |
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information regarding each nominee as would have
been required under the SECs proxy rules; |
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a description of all arrangements or understandings |
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Legacy |
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FNB |
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among the shareholder and each nominee pursuant to which the
nomination or nominations are to be made by the shareholder; and |
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the written consent of each nominee to serve as a
director of FNB if so elected. |
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Indemnification of Officers and Directors |
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Legacy |
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FNB |
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Our by-laws require that we indemnify our directors and officers
against expenses, judgments, fines and amounts paid in
settlement incurred by them in connection with any pending,
threatened or completed action or proceeding by reason of the
fact that director or officer is or was a director or officer of
the bank, unless the act or failure to act giving rise to the
claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Our by-laws further provide that we will pay expenses incurred
in defending any action or proceeding in advance of its final
disposition upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately
determined that the director or officer is not entitled to be
indemnified by us.
Our by-laws state that the provisions for indemnification and
advancement of expenses are non-exclusive with respect to any
other rights, such as contractual rights or rights granted
pursuant to a by-law or by vote of shareholders or disinterested
directors, to which a person seeking indemnification or
advancement of expenses may be entitled. It is our policy that
indemnification of, and advancement of expenses to, our
directors and officers will be made to the fullest extent
permitted by law. Our by-laws permit us to purchase and maintain
insurance on behalf of our directors and officers against any
liability asserted against the director or officer and incurred
in such capacity, whether or not we would have the power to
indemnify a director or officer against such liability. Our
by-laws also permit us to enter into separate indemnification
agreements with any of our officers, directors, employees or
agents. |
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Florida law permits a corporation to indemnify a director or
officer who was or is a party to any threatened, pending or
completed action, suit or other type of proceeding other than an
action by or in the right of the corporation by reason of the
fact that he is or was a director or officer or is now serving
at the request of the corporation as a director or officer of
another entity against expenses, including attorneys fees,
judgments, fines, penalties and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding. These indemnification rights apply
if the director or officer acted in good faith and in a manner
in which he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to a
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In addition, under Florida
law, FNB may indemnify and hold harmless an officer or director
who is a party in an action by or in the right of the
corporation against expenses, including attorneys fees,
and certain amounts paid in settlement, actually and reasonably
incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Such indemnification
shall be authorized if the director or officer has acted in good
faith and in a manner in which he reasonably believed to be in
or not opposed to the best interests of the corporation, except
indemnification is not authorized where there is an adjudication
of liability, unless a court determines, in view of all the
circumstances, that such person is fairly and reasonably
entitled to indemnity for such expenses.
Florida law further provides that indemnification against the
costs and expenses of defending any action is required to be
made to any officer or director who is successful in defending
an action of the type referred to in the immediately preceding
paragraph. Except with regard to the costs and expenses of
successfully defending an action as may be ordered by a court,
indemnification as described in the previous paragraph is only
required to be made to a director or officer if a determination
is made that indemnification is proper under the circumstances.
Such determination shall be made in accordance |
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with the provisions of Florida law.
Florida law further provides that expenses incurred in defending
any action or proceeding may be paid by the corporation in
advance of the final disposition upon receipt of an undertaking
by or on behalf of the director or officer to repay the amount
if it is ultimately determined that the director or officer is
not entitled to be indemnified by the corporation.
Under Florida law, the provisions for indemnification and
advancement of expenses are not exclusive. Accordingly, a
corporation may make any other or further indemnification or
advancement of expenses of any of its officers or directors,
both as to action in his official capacity and as to action in
another capacity while holding such office. Under Florida law,
indemnification or advancement of expenses, however, shall
generally not be made to or on behalf of any officer or director
if a judgment or other final adjudication establishes that his
actions or omissions were material to the cause of action so
adjudicated and constitute: |
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a violation of the criminal law; |
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a transaction from which the officer or director
derived an improper personal benefit; |
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an unlawful distribution; or |
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willful misconduct or a conscious disregard for the
best interests of the corporation. |
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Florida law and FNBs articles of incorporation permit FNB
to purchase and maintain insurance on behalf of any director or
officer of FNB against any liability asserted against the
director or officer and incurred in such capacity, whether or
not FNB would have the power to indemnify the director or
officer against such liability. FNBs articles of
incorporation further provide that its directors, officers and
any other person designated by the board of directors of FNB is
entitled to be indemnified to the fullest extent permitted by
law. |
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Our by-laws include a provision limiting the personal liability
of a director for monetary damages for any action taken, or
failure to take any action, other than as would constitute
criminal conduct or with respect to liability for nonpayment of
taxes, and except to the extent that the director has breached
or failed to perform his duties to us and the breach or failure
to perform constitutes self-dealing, willful misconduct or
recklessness. |
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Under Florida law, a director is not liable for monetary damages
for any statement, vote, decision or failure to act regarding
corporate management or policy, unless the director breached or
failed to perform his duties as a director and the
directors breach of, or failure to perform, those duties
constitutes a violation of criminal law, self-dealing, an
unlawful distribution, willful misconduct or recklessness.
FNBs by-laws contain a provision |
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limiting the liability of its directors to the fullest extent
permitted by law. |
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Amendment of articles of incorporation and by-laws |
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Under Pennsylvania law, our articles of incorporation may be
amended only if the amendment is first proposed by our board of
directors by the adoption of a resolution and approved by our
shareholders. Our articles of incorporation provide that
amendments related to the voting rights, qualifications,
privileges and limitations of the common stock, merger
provisions and our board of directors ability to oppose a
tender offer must be approved by an affirmative vote of the
holders of at least 75% of our outstanding shares or
662/3%
of our outstanding shares provided that such transaction has
received the prior approval of at least 75% of all members of
our board of directors.
Our by-laws provide that they may be amended by the affirmative
vote of a majority of the votes cast by our shareholders at a
regular or special meeting; except that changes to our by-laws
to amend the provisions that provide for director and officer
indemnification require the affirmative vote of shareholders
entitled to cast at least 75% of all votes entitled to be cast
by shareholders. Our by-laws may also be amended by the
affirmative vote of a majority of the members of our board of
directors, subject to the power of the shareholders to change
such action, except that changes to our by-laws to amend the
provisions that limit director liability require the approval of
our shareholders and changes to amend the provisions that
provide for director and officer indemnification must be
approved by two-thirds of the members of the entire board of
directors or by the affirmative vote of the holders of at least
75% of our outstanding shares. |
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In order to amend the articles of incorporation of a Florida
corporation, Florida law generally requires that, unless the
articles of incorporation provide for a greater vote, the votes
cast in favor of such an amendment must exceed the votes cast
against such an amendment at a meeting at which a quorum is
present; provided, however, that a majority of the outstanding
votes entitled to be cast on the amendment is required with
respect to amendments that would create dissenters rights
under Florida law. Further, under Florida law, shareholder
approval is not required for certain non-material amendments.
Under Florida law, a corporations by-laws may be amended
or repealed by the board of directors or shareholders; provided,
however, that the board may not amend or repeal the
corporations by-laws if the articles of incorporation
reserve such power to the shareholders, or the shareholders, in
amending or repealing the by-laws, expressly provide that the
board of directors may not amend or repeal the by- laws or a
particular bylaw provision. FNBs by-laws provide that they
may be altered or amended and new by-laws adopted by the
affirmative vote of at least 75% of the members of FNBs
board of directors or by the affirmative vote of the holders of
at least 75% of the outstanding shares entitled to vote thereon. |
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Vote Required for Extraordinary Corporation
Transactions |
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Under Pennsylvania law, a merger or consolidation that will
result in an entity subject to the Banking Code must be approved
by a majority of the directors and at least two-thirds of the
votes of all shareholders are entitled to be cast thereon. Under
our articles of incorporation, a merger, consolidation,
liquidation or dissolution or sale or other disposition of
substantially all of our assets must be approved by the
affirmative vote of at least 75% of the outstanding shares of
our common stock or
662/3%
of the outstanding shares provided that such transaction has
received the prior approval of at least 75% of all members of
our board |
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Under Florida law, generally, a merger, consolidation, share
exchange, dissolution or sale of substantially all of a
corporations assets other than in the ordinary course of
business must be approved by the affirmative vote of the holders
of a majority of the shares entitled to vote thereon unless the
corporations articles of incorporation require a higher
vote. Florida law further provides that, unless required by its
articles of incorporation, the shareholders approval of a plan
of merger if is not required if: |
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of directors.
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the articles of incorporation of the surviving
corporation will not differ (except for certain minor amendments
approved by the board of directors as provided by Florida law)
from its articles before the merger; and |
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each shareholder of the surviving corporation whose
shares were outstanding immediately prior to the effective date
of the merger will hold the same number of shares, with
identical designations, preferences, limitations and relative
rights, immediately after the merger. |
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FNBs articles of incorporation require an affirmative vote
of the holders of at least 75% of the outstanding shares of FNB
common stock entitled to vote to approve a merger, consolidation
or sale, lease, exchange or other disposition, in a single
transaction or series of related transactions, of all or
substantially all or a substantial part of the properties or
assets of FNB, unless the board of directors of FNB has approved
and recommended the transaction prior to the consummation
thereof. |
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Interested Shareholder Transactions |
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The Banking Code requires that certain transactions, such as a
merger, consolidation or dissolution, between us and any
shareholder or entity controlled by a shareholder in which the
shareholder would be treated differently from other shareholders
(an interested shareholder) require, in addition to
the other approval requirements under the Banking Code and our
articles of incorporation and by-laws, the affirmative vote of
the shareholders entitled to cast at least a majority of the
votes that all shareholders would be entitled to cast with
respect to the transaction, without counting the vote of the
interested shareholder, unless the transaction is approved by a
majority vote of the board of directors without counting the
vote of directors who were nominated by, or have a material
interest in, the interested shareholder. |
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Florida law contains a number of provisions that require
supermajority approval for certain affiliate transactions. Under
Florida law, if any person who together with his or her
affiliates and associates beneficially owns 10% or more of any
voting stock of the corporation (an interested
person) is a party to any merger, consolidation,
disposition of all or a substantial part of the assets of the
corporation or a subsidiary of the corporation, or exchange of
securities requiring shareholder approval (a Business
Combination), such transaction shall be approved by the
affirmative vote of the holders of two-thirds of the voting
shares other than the shares beneficially owned by the
interested person; provided, that such approval is not required
if (1) the interested person transaction has been approved by a
majority of the disinterested directors; (2) the corporation has
not had more than 300 shareholders of record at any time
during the three years preceding the date of the
transactions announcement; (3) the interested person has
been the beneficial owner of at least 80% of the
corporations outstanding voting shares for at least five
years preceding the date of the transactions announcement;
(4) the interested person is the beneficial owner of at least
90% of the outstanding voting shares of the corporation,
exclusive of shares acquired directly from the corporation in a
transaction not approved by a majority of the disinterested
directors; (5) the corporation is an |
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investment company registered under the Investment Company Act
of 1940 or (6) the consideration to be received by holders of
the stock of the corporation meets certain minimum levels
determined by a formula under Section 607.0901(4)(f) of the
Florida Business Corporations Act. |
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Pursuant to Pennsylvania law and our by-laws, a director must
perform his duties as a director in good faith, in a manner he
reasonably believes to be in the best interests of the bank and
with such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under
similar circumstances, and is entitled in performing his duties
to rely in good faith on information, opinions, reports or
statements, including financial statements and other financial
data, prepared or presented by:(1) one or more of our
officers or employees whom the director reasonably believes to
be reliable and competent in the matters
presented;(2) legal counsel, public accountants or other
persons as to matters that the director reasonably believes to
be within the professional or expert competence of such person
or(3) a committee of the board upon which he does not
serve, as to matters within its designated authority, which
committee the director reasonably believes to merit confidence.
Under Pennsylvania law and our articles of incorporation and
by-laws, a director may, in considering our best interests,
consider(1) the effects of any action on our shareholders,
employees, suppliers, customers and creditors, and upon
communities in which our offices or other establishments are
located,(2) our short-term and long-term interests of the
bank, including the possibility that the best interests of the
bank may be served by the continued independence of the
bank,(3) the resources, intent and conduct of any person
seeking to acquire control of the bank and(4) all other
pertinent factors. |
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FNBs articles of incorporation provide that the board of
directors of FNB, in evaluating a proposal for an extraordinary
corporate transaction, shall consider all relevant factors,
including, without limitation, the long-term prospects and
interests of the corporation and its shareholders, the social,
economic, legal or other effects of any action on the employees,
suppliers and customers of the corporation and its subsidiaries,
the communities and societies in which FNB and its subsidiaries
operate, and the economy of the state and the nation.
FNBs articles of incorporation further provide that, if
the board of directors of FNB determines that such a proposal
should be rejected, it may take any lawful action to accomplish
its purpose.
Under Florida law, a director is required to discharge his
duties in good faith, with the care an ordinarily prudent person
in a like position would exercise under similar circumstances
and in a manner reasonably believed to be in the best interests
of the corporation. In discharging his duties, a director is
entitled to rely on: (1) information, opinions, reports, or
statements, including financial statements and other financial
data, if presented or prepared by officers or employees of the
corporation whom the director reasonably believes to be reliable
and competent in the matters presented; (2) legal counsel,
public accountants or other persons as to matters the director
reasonably believes are within the persons professional or
expert competence or (3) a committee of the Board of which the
director is not a member if the director reasonably believes the
committee merits confidence. |
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Provisions with Possible Anti-Takeover Effects |
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Our articles of incorporation provide that our board of
directors may, if it deems advisable, oppose a tender offer or
other offer for our capital stock and consider any one or more
of the factors set forth in our articles of incorporation.
Pennsylvania law and our articles of incorporation also provide
that directors may, in discharging their fiduciary duties, |
|
FNB is subject to statutory anti-takeover provisions
under Florida law. Section 607.0902 of the Florida Business
Corporations Act restricts the voting rights of certain shares
of a corporations stock when those shares are acquired by
a party who, by such acquisition, would control at least 20% of
all voting rights of the corporations issued and |
109
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consider the interests of a number of different constituencies,
including shareholders, employees, depositors, customers,
creditors and the communities in which the corporation is
located. Directors are not required to consider the interests of
shareholders to a greater degree than other constituencies
interests.
We are subject to statutory anti-takeover provisions
under the Banking Code. The Banking Code provides that if a
person or group of persons acting in concert has voting power
over shares of that would entitle the holders thereof to cast at
least 30% of the votes that all shareholders would be entitled
to cast in the election of directors, the controlling person is
required to notify each of our shareholders that a control
transaction has occurred and that all shareholders are entitled
to demand that they be paid fair value for their shares by the
controlling shareholder.
In addition, there are various provisions in our articles of
incorporation and by-laws that may serve as anti-takeover
protections including:
the ability of the board of directors of Legacy to
fill vacancies resulting from an increase in the number of
directors;
the supermajority voting requirements for certain
corporate transactions; and
provisions in Legacys articles of
incorporation which authorize the board of directors of Legacy,
without further shareholder action, to issue from time to time,
up to 1,000,000 shares of Legacy preferred stock. The board
of directors of Legacy is empowered to divide any and all of the
shares of the Legacy preferred stock into series and to fix and
determine the relative rights and preferences of the shares of
any series so established.
The anti-takeover provisions of Pennsylvania law and
Legacys articles of incorporation and by-laws may have the
effect of deterring merger proposals, tender offers or other
attempts to effect changes in control of Legacy that are not
negotiated with and approved by the board of directors of Legacy.
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outstanding stock. The statute provides that the acquired shares
(the control shares) will, upon such acquisition,
cease to have any voting rights. The acquiring party may,
however, petition the corporation to have voting rights
re-assigned to the control shares by way of an acquiring
persons statement submitted to the corporation in
compliance with the requirements of the statute. Upon receipt of
such request, the corporation must submit, for shareholder
approval, such request. Voting rights may be reassigned to the
con trol shares by a resolution of a majority of the
corporations shareholders for each class and series of
stock, with the control shares not voting.
Florida law further provides that a corporation may, by
amendment to its articles of incorporation or by- laws, provide
that, if the party acquiring the control shares does not submit
an acquiring persons statement in accordance with the
statute, the corporation may redeem the control shares at any
time during the period ending 60 days after the acquisition
of control shares. If the acquiring party files an acquiring
persons statement, the control shares are not subject to
redemption by the corporation unless the shareholders, acting on
the acquiring partys request for re-assignment, deny full
voting rights to the control shares. Neither FNBs articles
of incorporation nor its by-laws have been amended to include
such a provision.
The statute does not alter the voting rights of any stock of the
corporation acquired in certain specified transactions.
In addition, there are various provisions in FNBs articles
of incorporation and by-laws that may serve as anti-takeover
protections including:
the ability of the board of directors of FNB to fill
vacancies resulting from an increase in the number of
directors;
the supermajority voting requirements for certain
corporate transactions;
the broad range of factors that the board of
directors of FNB may consider in evaluating an unsolicited offer
including a tender offer proposal; and
provisions in FNBs articles of incorporation
which authorize the board of directors of FNB, without further
shareholder action, to issue from time to time, up to
20,000,000 shares of FNB preferred stock. The board of
directors of FNB is empowered to divide any and all of the
shares of the FNB |
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preferred stock into series and to fix and determine the
relative rights and preferences of the shares of any series so
established. |
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The anti-takeover provisions of Florida law and
FNBs articles of incorporation and by-laws may have the
effect of deterring merger proposals, tender offers or other
attempts to effect changes in control of FNB that are not
negotiated with and approved by the board of directors of FNB.
FNB is not aware of any effort or intent to gain control of FNB
or any effort to organize a proxy contest or to accumulate
shares of FNB. |
COMPARATIVE MARKET PRICES AND DIVIDENDS
FNB common stock is listed on the New York Stock Exchange.
Prices for our common stock are quoted on the OTC
Bulletin Board. The following table sets forth:
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the high and low trading prices of shares of FNB common stock as
reported on the New York Stock Exchange since January 1,
2004; |
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the high and low trading prices of shares of our common stock as
reported on the OTC Bulletin Board. These quotations
reflect inter-dealer prices without retail markup, markdown or
commission and may not necessarily represent actual
transactions. In each case, this information is based on
published sources; and |
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quarterly cash dividends paid per share by FNB for the periods
indicated. |
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FNB Common Stock | |
|
Legacy Common Stock | |
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| |
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High | |
|
Low | |
|
Dividend | |
|
High | |
|
Low | |
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Dividend | |
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| |
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| |
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| |
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| |
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| |
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2004:
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|
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First quarter
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|
$ |
22.79 |
|
|
$ |
18.79 |
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|
|
0.23 |
|
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$ |
15.45 |
|
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$ |
12.75 |
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|
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Second quarter
|
|
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22.63 |
|
|
|
18.80 |
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|
|
0.23 |
|
|
|
16.90 |
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|
|
15.00 |
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Third quarter
|
|
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22.91 |
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|
|
19.40 |
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|
|
0.23 |
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|
|
15.05 |
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|
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14.00 |
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Fourth quarter
|
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22.82 |
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|
|
19.88 |
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|
|
0.23 |
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|
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15.25 |
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14.05 |
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2005:
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First quarter
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20.70 |
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|
|
18.55 |
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|
|
0.23 |
|
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$ |
14.75 |
|
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$ |
13.30 |
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|
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Second quarter
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|
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19.85 |
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|
|
17.49 |
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|
|
0.23 |
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|
|
14.40 |
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|
|
12.75 |
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Third quarter
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21.00 |
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|
|
16.80 |
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|
|
0.23 |
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|
|
15.00 |
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|
|
13.70 |
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Fourth quarter
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18.87 |
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16.18 |
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|
0.235 |
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17.20 |
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12.75 |
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2006:
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First quarter (through February 1)
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$ |
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|
|
$ |
|
|
|
|
0.235 |
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|
$ |
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|
|
$ |
|
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You are advised to obtain current market quotations for FNB
common stock. The market price of FNB common stock will
fluctuate between the date of this proxy statement/ prospectus
and the completion of the merger. No assurance can be given
concerning the market price of FNB common stock.
111
BENEFICIAL OWNERSHIP OF LEGACY STOCK
The following table sets forth information pertaining to the
beneficial ownership of the outstanding shares of our common
stock as of December 31, 2005 by (1) persons known to
us to own more than five percent of the outstanding shares of
our common stock, (2) each director and (3) our
directors and executive officers as a group. The information
contained herein has been obtained from our records and from
information furnished to us by each individual. We know of no
person who owns, beneficially or of record, either individually
or with associates, more than five percent of our common stock.
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Amount and | |
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Nature of | |
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Beneficial | |
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Percent of | |
Name of Individual or Identity of Group |
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Ownership(1)(2) | |
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Class(3) | |
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5% or Greater Holders:
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Northaven Management, Inc. |
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302,851 |
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8.59 |
% |
375 Park Avenue
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New York, NY 10152
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Directors:
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Lawrence S. Allison(4)
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9,936 |
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* |
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Lawrence W. Bitner(5)
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17,852 |
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|
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* |
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Martin F. Brophy(6)
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3,992 |
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|
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* |
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Douglas Doherty(7)
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|
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75,399 |
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|
2.00 |
% |
George H. Groves(8)
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|
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170,397 |
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|
|
4.52 |
% |
William A. Hawkins(9)
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|
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15,411 |
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|
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* |
|
William L. Jones III(10)
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1,000 |
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|
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* |
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Ralph S. Klinepeter, Jr.(11)
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13,203 |
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|
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* |
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Daniel A. Klingerman(12)
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64,662 |
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1.71 |
% |
Thomas W. Lennox(13)
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|
|
87,288 |
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|
|
2.31 |
% |
Robert J. Moisey(14)
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|
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17,849 |
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|
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* |
|
Scott C. Penwell(15)
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|
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26,770 |
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|
|
* |
|
John H. Rhodes(16)
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|
|
13,759 |
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|
|
* |
|
A. Richard Szeles(17)
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|
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26,552 |
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|
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* |
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Russell W. Twigg(18)
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|
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63,606 |
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|
|
1.69 |
% |
John B. Warden, III(19)
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|
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9,852 |
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* |
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|
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617,528 |
|
|
|
16.38 |
% |
Named Executive Officers:
|
|
|
|
|
|
|
|
|
Joseph DeBias(20)
|
|
|
24,687 |
|
|
|
* |
|
Joseph L. Paese(21)
|
|
|
36,925 |
|
|
|
* |
|
Paul F. Spiegel, Jr.(22)
|
|
|
19,592 |
|
|
|
* |
|
Directors and Executive Officers as a group (22) persons
|
|
|
703,792 |
|
|
|
18.66 |
% |
|
|
|
|
(1) |
The securities beneficially owned by an individual
are determined in accordance with the definitions of
beneficial ownership set forth in the General Rules
and Regulations of the SEC and may include securities owned by
or for the individuals spouse and minor children and any
other relative who has the same home, as well as securities to
which the individual has or shares voting or investment power or
has the right to acquire beneficial ownership within
60 days after December 31, 2005. Beneficial ownership
may be disclaimed as to certain securities. |
|
|
(2) |
Includes certain warrants granted to the organizers of the Bank
and the directors in consideration of the risk undertaken by
them during the organization of the Bank, and for their time,
efforts and services in |
112
|
|
|
|
|
organizing the Bank (referred to as organizer
warrants). The organizer warrants are exercisable for ten
years from the date of issuance, at a price of $10.00 per
share. The organizer warrants were granted under the 1999 Equity
Incentive Plan for Organizers. |
|
|
|
|
(3) |
Includes options that are currently exercisable or exercisable
within 60 days of December 31, 2005. |
|
|
(4) |
Includes convertible subordinated debentures that can be
converted into 2,000 shares of common stock by
Mr. Allison. |
|
|
(5) |
Includes 871 options granted to Mr. Bitner under the
1999 Directors Compensation Plan, 400 organizer
warrants, 13,944 shares owned by Eastern Holding Co., Ltd.,
of which he is a director, and convertible subordinated
debentures that can be converted into 400 shares of common
stock. |
|
|
(6) |
Includes 1,800 shares held by Mr. Brophy jointly with
his spouse and convertible subordinated debentures that can be
converted into 1,600 shares of common stock. |
|
|
(7) |
Includes 70,719 shares held by Mr. Doherty jointly
with spouse and convertible subordinated debentures that can be
converted into 4,000 shares of common stock. |
|
|
(8) |
Includes 50,000 shares jointly owned with his spouse,
74,598 options granted to Mr. Groves under the 1999 Equity
Incentive Stock Option Plan, and 10,360 organizer warrants.
Mr. Groves is also a Named Executive Officer. |
|
|
(9) |
Includes 200 shares jointly owned with his spouse, 901
options granted to Mr. Hawkins under the
1999 Directors Compensation Plan, and 2,360 organizer
warrants. |
|
|
(10) |
Includes 1,000 shares owned by Mr. Jones. |
|
(11) |
Includes 5,000 shares owned jointly with spouse, 889
options granted to Mr. Klinepeter under the
1999 Directors Compensation Plan, 1,360 organizer
warrants, and convertible subordinated debentures that can be
converted into 1,000 shares of common stock. |
|
(12) |
Includes 8,035 shares, which may be purchased under
exercisable warrants, 27,140 shares held jointly with
spouse, 675 shares held as custodian for
Mr. Klingermans children, and convertible
subordinated debentures that can be converted to 600 shares
of common stock. |
|
(13) |
Includes 1,000 shares of common stock held individually by
his spouse, 10,375 shares owned jointly with spouse, 41,079
options granted to Mr. Lennox under the 1999 Equity
Incentive Stock Option Plan, 3,360 organizer warrants, and
convertible subordinated debentures that can be converted into
3,000 shares of common stock. Mr. Lennox is also a
Named Executive Officer. |
|
(14) |
Includes 9,470 shares jointly owned with his spouse,
2,050 shares held individually by his spouse,
506 options granted to Mr. Moisey under the
1999 Directors Compensation Plan, and convertible
subordinated debentures that can be converted into
2,000 shares of common stock. |
|
(15) |
Includes 838 options granted to Mr. Penwell under the
1999 Directors Compensation Plan,
1,360 organizer warrants held individually by
Mr. Penwell, 231 shares of common stock held
individually by his spouse, 5,750 options held individually by
his spouse, and 13,944 shares of common stock owned by
Eastern Holding Co., Ltd., of which he is a director. |
|
(16) |
Includes 829 options granted to Mr. Rhodes under the
1999 Directors Compensation Plan,
1,360 organizer warrants and 5,000 shares owned by
Brandywine Financial Resources, Inc., of which he is a director. |
|
(17) |
Includes 19,195 shares jointly owned with his spouse, 453
options granted to Mr. Szeles under the 1999 Directors
Compensation Plan, and convertible subordinated debentures that
can be converted into 4,000 shares of common stock. |
|
(18) |
Includes 8,035 shares, which may be purchased under
exercisable warrants, 33,140 shares held jointly with
Mr. Twiggs spouse, and 21,500 shares held in
custody for Mr. Twiggs children. |
|
(19) |
Includes convertible subordinated debentures that can be
converted into 2,000 shares of common stock by
Mr. Warden. |
113
|
|
(20) |
Includes 14,000 options granted to Mr. DeBias under the
1999 Equity Incentive Stock Option Plan and convertible
subordinated debentures that can be converted into
2,000 shares of common stock. Mr. DeBias is a Named
Executive Officer. |
|
(21) |
Includes 30,000 options granted to Mr. Paese under the 1999
Equity Incentive Stock Option Plan, 2,425 shares held in
custody for Mr. Paeses children, and convertible
subordinated debentures that can be converted to
1,000 shares of common stock. Mr. Paese is a Named
Executive Officer. |
|
(22) |
Includes 5,450 shares owned jointly with spouse, 12,500
options granted to Mr. Spiegel under the 1999 Equity
Incentive Stock Option Plan, and convertible subordinated
debentures that can be converted into 400 shares of common
stock. Mr. Spiegel is a Named Executive Officer. |
PROPOSAL NO. 2
ADJOURNMENT PROPOSAL
In the event sufficient votes are not present at our special
meeting to constitute a quorum or approve the merger proposal,
the merger proposal cannot be approved unless our special
meeting is adjourned in order to permit further solicitation of
proxies. In order to allow shares present in person or by proxy
at our special meeting to vote for the adjournment of our
special meeting, if necessary, we are submitting an adjournment
of our special meeting to our shareholders as a separate matter
for their consideration. Properly executed proxies will be voted
in favor of the adjournment proposal, unless otherwise indicated
on the proxy. If the adjournment proposal is approved, no notice
of the time and place of the adjourned meeting is required to be
given to shareholders other than an announcement of the time and
place that is given at the meeting.
Recommendation of our Board of Directors
Our board of directors recommends that you vote FOR
the approval of the adjournment proposal.
LEGAL MATTERS
The validity of the FNB common stock being registered in
connection with the merger has been passed upon for FNB by Duane
Morris LLP, Philadelphia, Pennsylvania. Duane Morris LLP and
Stevens & Lee P.C. have delivered their opinions to FNB
and Legacy, respectively, as to certain federal income tax
consequences of the merger. See Material United States
Federal Income Tax Consequences of the Merger beginning on
page .
EXPERTS
The consolidated financial statements of FNB and subsidiaries
appearing in FNBs Annual Report
(Form 10-K) dated
for the year ended December 31, 2004, and FNB
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2004
included therein have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth
in their reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements and
managements assessment are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim
financial information of FNB for the three-month periods ended
March 31, 2005 and March 31, 2004, the six-month
periods ended June 30, 2005 and June 30, 2004 and the
nine-month periods ended September 30, 2005 and
September 30, 2004, respectively, incorporated by reference
in this proxy statement/ prospectus, Ernst & Young LLP
reported that they have applied limited procedures in accordance
with professional standards for a review of such information.
However, their separate reports dated May 5, 2005,
August 4, 2005 and November 2, 2005, included in
FNBs Quarterly Reports on
Form 10-Q for the
quarters ended March 31, 2005, June 30, 2005 and
September 30, 2005 and incorporated by reference herein,
states that they did not audit and they do not express an
opinion on that interim financial information. Accordingly, the
degree of reliance on their reports
114
on such information should be restricted in light of the limited
nature of the review procedures applied. Ernst & Young
LLP is not subject to the liability provisions of
Section 11 of the Securities Act for their reports on the
unaudited interim financial information because those reports
are not a report or a part of the
registration statement prepared or certified by Ernst &
Young LLP within the meaning of Sections 7 and 11 of the
Securities Act.
The consolidated financial statements of Legacy and subsidiary
set forth elsewhere in this proxy statement/ prospectus as of
December 31, 2004 and 2003 and for each of the three years
in the period ended December 31, 2004, have been audited by
Beard Miller Company LLP, independent registered public
accounting firm, as set forth in their report thereon included
elsewhere herein. Such consolidated financial statements are
included in this proxy statement/ prospectus in reliance upon
such report given on the authority of such firm as experts in
accounting and auditing.
OTHER MATTERS
As of the date of this proxy statement/ prospectus, we do not
know of any matters that will be presented for consideration at
our special meeting other than the approval of the merger
proposal and the adjournment proposal. However, if any other
matters shall properly come before our special meeting or any
adjournment, postponement or continuation thereof and be voted
upon, the enclosed proxies shall be deemed to confer
discretionary authority on the individuals named as proxies
therein to vote the shares represented by such proxies as to any
such matters.
No person is authorized to give any information or make any
representation other than those contained or incorporated by
reference in this proxy statement/ prospectus, and, if given or
made, such information or representation should not be relied
upon as having been authorized by FNB or us.
This proxy statement/ prospectus does not constitute an offer to
exchange or sell, or a solicitation of an offer to exchange or
purchase, the FNB common stock offered by this proxy statement/
prospectus, nor does it constitute the solicitation of a proxy,
in any jurisdiction in which such offer or solicitation is not
authorized or to or from any person to whom it is unlawful to
make such offer or solicitation.
The information contained in this proxy statement/ prospectus
speaks as of the date hereof unless otherwise specifically
indicated. The delivery of this proxy statement/ prospectus
shall not, under any circumstances, create any implication that
there has been no change in the affairs of Legacy or FNB since
the date of this proxy statement/ prospectus or that the
information in this proxy statement/ prospectus or in the
documents incorporated by reference in this proxy statement/
prospectus is correct at any time subsequent to that date.
This proxy statement/ prospectus does not cover any resales of
the FNB common stock offered hereby to be received by
shareholders of Legacy deemed to be affiliates of
Legacy or FNB upon the consummation of the merger. No person is
authorized to make use of this proxy statement/ prospectus in
connection with any such resales.
WHERE YOU CAN FIND MORE INFORMATION
FNB files reports, proxy statements and other information with
the SEC under the Exchange Act. You may read and copy any
reports, statements or other information filed by FNB at the
SECs public reference room at 450 Fifth Street, N.W.,
Washington D.C. 20549. You may call the SEC at
1-800-SEC-0330 for
further information on the public reference rooms. FNBs
SEC filings are also available to the public from commercial
document retrieval services and at the web site maintained by
the SEC at www.sec.gov.
Legacy files reports, proxy statements and other information
with the FDIC under the Exchange Act. You may read and copy any
reports, statements or other information filed by Legacy at the
FDICs offices at 1776 F Street, N.W.,
Washington, D.C. [20006]. Please call the FDIC at
(202) 898-8913 for further information regarding access to
these documents at the FDIC and at the web site maintained by
Legacy at www.thelegacybankonline2.com.
115
FNB filed a registration statement on
Form S-4 to
register with the SEC under the Securities Act the issuance of
FNB common stock to our shareholders in the merger. This proxy
statement/ prospectus is a part of that registration statement
and constitutes a prospectus of FNB and a proxy statement of
Legacy for our special meeting. As allowed by the SEC rules,
this proxy statement/ prospectus does not contain all the
information contained in the registration statement.
The SEC allows the incorporation by reference of
information into this proxy statement/ prospectus, which means
that FNB can disclose important information to you by referring
you to another document filed separately with the SEC by FNB.
The information incorporated by reference is deemed to be part
of this proxy statement/ prospectus, except for any information
that is superseded by information in this proxy statement/
prospectus. This proxy statement/ prospectus incorporates by
reference the documents set forth below that FNB has previously
filed with the SEC. These documents contain important
information about FNB.
The following documents previously filed with the SEC by FNB
(SEC File No. 001-31940) are incorporated by reference into this
proxy statement/ prospectus:
|
|
|
FNBs Annual Report on
Form 10-K for the
year ended December 31, 2004; |
|
|
FNBs Quarterly Reports on
Form 10-Q for the
quarters ended March 31, 2005, June 30, 2005 and
September 30, 2005; and |
|
|
FNBs Current Reports on
Form 8-K filed
April 12, 2005, April 25, 2005, August 22, 2005,
October 6, 2005, December 21, 2005, January 23,
2006 and January 31, 2006; and |
|
|
FNB further incorporates by reference any additional documents
that it files with the SEC, under Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act between the date of
this proxy statement/ prospectus and the date of the Legacy
special meeting. These documents include periodic reports such
as Annual Reports on
Form 10-K,
Quarterly Reports on
Form 10-Q and
Current Reports on
Form 8-K, as well
as proxy statements. |
If you would like to receive a copy of any of the documents
incorporated by reference, please contact FNB at the address or
telephone number listed under the heading Additional
Information.
SHAREHOLDER PROPOSALS
We will hold our annual meeting of shareholders in 2006 only if
the merger is not completed. Any eligible shareholder desiring
to present a proposal pursuant to
Rule 14a-8
promulgated by the SEC to be considered at our 2006 annual
meeting of shareholders should have submitted the proposal in
writing to: George H. Groves, Chairman and Chief Executive
Officer, The Legacy Bank, 2600 Commerce Drive, Harrisburg,
Pennsylvania 17110 no later than November 9, 2005. A
shareholder wishing to submit a proposal other than pursuant to
Rule 14a-8 must
notify us within a reasonable time prior to the annual meeting.
In the absence of timely notice, management will exercise its
discretionary power in voting on any such matter.
116
INDEX TO LEGACY FINANCIAL STATEMENTS
|
|
|
|
|
|
|
Page | |
|
|
| |
Audited:
|
|
|
|
|
|
|
|
F-2 |
|
|
|
|
F-3 |
|
|
|
|
F-4 |
|
|
|
|
F-5 |
|
|
|
|
F-6 |
|
|
|
|
F-7 |
|
Unaudited:
|
|
|
|
|
|
|
|
F-29 |
|
|
|
|
F-30 |
|
|
|
|
F-31 |
|
|
|
|
F-32 |
|
|
|
|
F-33 |
|
F-1
|
|
Item 8. |
Financial Statements and Supplementary Data. |
Report of Independent Registered Public Accounting Firm
To the Board of Directors
The Legacy Bank
Harrisburg, Pennsylvania
We have audited the accompanying consolidated balance sheets of
The Legacy Bank and its wholly-owned subsidiary as of
December 31, 2004 and 2003, and the related consolidated
statements of income, shareholders equity and cash flows
for each of the three years in the period ended
December 31, 2004. These financial statements are the
responsibility of the Banks management. Our responsibility
is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the financial
position of The Legacy Bank and its wholly-owned subsidiary as
of December 31, 2004 and 2003, and the results of their
operations and their cash flows for each of the three years in
the period ended December 31, 2004, in conformity with
accounting principles generally accepted in the United States of
America.
|
|
|
/s/ Beard Miller Company LLP |
Harrisburg, Pennsylvania
February 15, 2005
F-2
The Legacy
Bank
Consolidated Balance Sheets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands, except | |
|
|
share amounts) | |
ASSETS |
Cash and due from banks
|
|
$ |
5,305 |
|
|
$ |
8,709 |
|
Federal funds sold
|
|
|
1,868 |
|
|
|
|
|
Short-term investments
|
|
|
22 |
|
|
|
21 |
|
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents
|
|
|
7,195 |
|
|
|
8,730 |
|
Securities available for sale
|
|
|
51,098 |
|
|
|
43,184 |
|
Securities held to maturity, fair value 2004 $11,930; 2003
$12,450
|
|
|
12,013 |
|
|
|
12,500 |
|
Loans receivable, net of allowance for loan losses 2004 $3,461;
2003 $3,430
|
|
|
249,019 |
|
|
|
226,155 |
|
Bank premises and equipment, net
|
|
|
4,502 |
|
|
|
3,578 |
|
Goodwill
|
|
|
5,566 |
|
|
|
6,264 |
|
Other intangible assets
|
|
|
1,375 |
|
|
|
1,548 |
|
Accrued interest receivable
|
|
|
1,437 |
|
|
|
1,242 |
|
Bank owned life insurance
|
|
|
4,540 |
|
|
|
|
|
Other assets
|
|
|
1,845 |
|
|
|
2,285 |
|
|
|
|
|
|
|
|
|
|
|
Total Assets
|
|
$ |
338,590 |
|
|
$ |
305,486 |
|
|
|
|
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS EQUITY |
Liabilities
|
|
|
|
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
|
|
|
|
|
Non-interest bearing
|
|
$ |
27,931 |
|
|
$ |
28,125 |
|
|
|
Interest-bearing
|
|
|
216,533 |
|
|
|
211,955 |
|
|
|
|
|
|
|
|
|
|
|
Total Deposits
|
|
|
244,464 |
|
|
|
240,080 |
|
|
Short-term borrowings
|
|
|
23,425 |
|
|
|
10,187 |
|
|
Long-term Federal Home Loan Bank borrowings
|
|
|
28,000 |
|
|
|
14,500 |
|
|
Convertible subordinated debentures
|
|
|
4,500 |
|
|
|
4,785 |
|
|
Other liabilities
|
|
|
1,476 |
|
|
|
2,062 |
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities
|
|
|
301,865 |
|
|
|
271,614 |
|
|
|
|
|
|
|
|
Shareholders
Equity
|
|
|
|
|
|
|
|
|
|
Preferred stock, $5 par value; authorized
1,000,000 shares; none issued and outstanding
|
|
|
|
|
|
|
|
|
|
Common stock, $5 par value; authorized
5,000,000 shares; issued and outstanding 2004
3,609,417 shares; 2003 3,550,273 shares
|
|
|
18,047 |
|
|
|
17,751 |
|
|
Surplus
|
|
|
19,327 |
|
|
|
18,930 |
|
|
Accumulated deficit
|
|
|
(453 |
) |
|
|
(2,808 |
) |
|
Accumulated other comprehensive loss
|
|
|
(196 |
) |
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
Total Shareholders Equity
|
|
|
36,725 |
|
|
|
33,872 |
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities and Shareholders Equity
|
|
$ |
338,590 |
|
|
$ |
305,486 |
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
F-3
The Legacy
Bank
Consolidated Statements
of Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands, except per | |
|
|
share data) | |
Interest
Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans receivable, including fees
|
|
$ |
14,410 |
|
|
$ |
12,048 |
|
|
$ |
6,730 |
|
|
Securities, taxable
|
|
|
1,851 |
|
|
|
1,680 |
|
|
|
664 |
|
|
Federal funds sold and short-term investments
|
|
|
8 |
|
|
|
47 |
|
|
|
141 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Interest Income
|
|
|
16,269 |
|
|
|
13,775 |
|
|
|
7,535 |
|
|
|
|
|
|
|
|
|
|
|
Interest
Expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
|
4,369 |
|
|
|
4,182 |
|
|
|
3,339 |
|
|
Short-term borrowings
|
|
|
125 |
|
|
|
126 |
|
|
|
|
|
|
Convertible subordinated debentures
|
|
|
233 |
|
|
|
60 |
|
|
|
|
|
|
Long-term debt
|
|
|
789 |
|
|
|
641 |
|
|
|
376 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Interest Expense
|
|
|
5,516 |
|
|
|
5,009 |
|
|
|
3,715 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Income
|
|
|
10,753 |
|
|
|
8,766 |
|
|
|
3,820 |
|
Provision for Loan
Losses
|
|
|
1,115 |
|
|
|
428 |
|
|
|
540 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Income after Provision for Loan Losses
|
|
|
9,638 |
|
|
|
8,338 |
|
|
|
3,280 |
|
|
|
|
|
|
|
|
|
|
|
Noninterest
Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service charges on deposit accounts
|
|
|
569 |
|
|
|
458 |
|
|
|
158 |
|
|
Asset management fees
|
|
|
815 |
|
|
|
624 |
|
|
|
401 |
|
|
Service charges on loans
|
|
|
340 |
|
|
|
250 |
|
|
|
153 |
|
|
Securities gains, net
|
|
|
|
|
|
|
183 |
|
|
|
27 |
|
|
Gain on sales of loans
|
|
|
416 |
|
|
|
82 |
|
|
|
1 |
|
|
Gain on sale of branches
|
|
|
196 |
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
47 |
|
|
|
5 |
|
|
|
5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Noninterest Income
|
|
|
2,383 |
|
|
|
1,602 |
|
|
|
745 |
|
|
|
|
|
|
|
|
|
|
|
Noninterest
Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries and employee benefits
|
|
|
5,277 |
|
|
|
4,549 |
|
|
|
2,249 |
|
|
Occupancy and equipment
|
|
|
1,243 |
|
|
|
1,138 |
|
|
|
486 |
|
|
Data processing
|
|
|
1,055 |
|
|
|
872 |
|
|
|
361 |
|
|
Advertising, marketing and business development
|
|
|
205 |
|
|
|
280 |
|
|
|
180 |
|
|
Professional services
|
|
|
314 |
|
|
|
331 |
|
|
|
140 |
|
|
Other
|
|
|
2,403 |
|
|
|
2,058 |
|
|
|
837 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Noninterest Expenses
|
|
|
10,497 |
|
|
|
9,228 |
|
|
|
4,253 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (Loss) before Income Tax Benefit
|
|
|
1,524 |
|
|
|
712 |
|
|
|
(228 |
) |
Income Tax
Benefit
|
|
|
831 |
|
|
|
317 |
|
|
|
485 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
$ |
2,355 |
|
|
$ |
1,029 |
|
|
$ |
257 |
|
|
|
|
|
|
|
|
|
|
|
Earnings per
Share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$ |
0.66 |
|
|
$ |
0.37 |
|
|
$ |
0.19 |
|
|
Diluted
|
|
$ |
0.64 |
|
|
$ |
0.37 |
|
|
$ |
0.19 |
|
See notes to consolidated financial statements.
F-4
The Legacy
Bank
Consolidated Statements
of Shareholders Equity
Years Ended December 31, 2004, 2003 and 2002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated | |
|
|
|
|
|
|
|
|
|
|
|
|
Other | |
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive | |
|
|
|
|
Issued | |
|
Common | |
|
|
|
Accumulated | |
|
Income | |
|
|
|
|
Shares | |
|
Stock | |
|
Surplus | |
|
Deficit | |
|
(Loss) | |
|
Total | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Balance
December 31,
2001
|
|
|
1,299 |
|
|
$ |
6,495 |
|
|
$ |
6,463 |
|
|
$ |
(4,094 |
) |
|
$ |
18 |
|
|
$ |
8,882 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
257 |
|
|
|
|
|
|
|
257 |
|
|
|
Unrealized gain on securities available for sale, net of tax of
$132
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
256 |
|
|
|
256 |
|
|
|
Reclassification adjustment for realized gains, net of tax of $9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(18 |
) |
|
|
(18 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
495 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale of common stock
|
|
|
44 |
|
|
|
222 |
|
|
|
263 |
|
|
|
|
|
|
|
|
|
|
|
485 |
|
|
Stock issued for directors compensation
|
|
|
3 |
|
|
|
13 |
|
|
|
15 |
|
|
|
|
|
|
|
|
|
|
|
28 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
December 31,
2002
|
|
|
1,346 |
|
|
|
6,730 |
|
|
|
6,741 |
|
|
|
(3,837 |
) |
|
|
256 |
|
|
|
9,890 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,029 |
|
|
|
|
|
|
|
1,029 |
|
|
|
Unrealized loss on securities available for sale, net of tax of
$(70)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(136 |
) |
|
|
(136 |
) |
|
|
Reclassification adjustment for realized gains, net of tax of $62
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(121 |
) |
|
|
(121 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
772 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock issued in connection with acquisition of Northern State
Bank
|
|
|
1,197 |
|
|
|
5,983 |
|
|
|
6,832 |
|
|
|
|
|
|
|
|
|
|
|
12,815 |
|
|
Sale of common stock
|
|
|
981 |
|
|
|
4,903 |
|
|
|
5,460 |
|
|
|
|
|
|
|
|
|
|
|
10,363 |
|
|
Warrants converted
|
|
|
24 |
|
|
|
120 |
|
|
|
(120 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock issued for directors compensation
|
|
|
3 |
|
|
|
15 |
|
|
|
17 |
|
|
|
|
|
|
|
|
|
|
|
32 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
December 31,
2003
|
|
|
3,551 |
|
|
|
17,751 |
|
|
|
18,930 |
|
|
|
(2,808 |
) |
|
|
(1 |
) |
|
|
33,872 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,355 |
|
|
|
|
|
|
|
2,355 |
|
|
|
Unrealized loss on securities available for sale, net of tax of
$(103)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(195 |
) |
|
|
(195 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,160 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debentures converted
|
|
|
22 |
|
|
|
114 |
|
|
|
144 |
|
|
|
|
|
|
|
|
|
|
|
258 |
|
|
Stock options exercised
|
|
|
32 |
|
|
|
159 |
|
|
|
202 |
|
|
|
|
|
|
|
|
|
|
|
361 |
|
|
Stock issued for directors compensation
|
|
|
4 |
|
|
|
23 |
|
|
|
51 |
|
|
|
|
|
|
|
|
|
|
|
74 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
December 31,
2004
|
|
|
3,609 |
|
|
$ |
18,047 |
|
|
$ |
19,327 |
|
|
$ |
(453 |
) |
|
$ |
(196 |
) |
|
$ |
36,725 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
F-5
The Legacy
Bank
Consolidated Statements
of Cash Flows
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Cash Flows from
Operating Activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$ |
2,355 |
|
|
$ |
1,029 |
|
|
$ |
257 |
|
|
Adjustments to reconcile net income to net cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for loan losses
|
|
|
1,115 |
|
|
|
428 |
|
|
|
540 |
|
|
|
|
Provision for depreciation and amortization
|
|
|
726 |
|
|
|
525 |
|
|
|
237 |
|
|
|
|
Amortization of intangible assets
|
|
|
173 |
|
|
|
58 |
|
|
|
|
|
|
|
|
Net amortization of investment securities
|
|
|
715 |
|
|
|
763 |
|
|
|
103 |
|
|
|
|
Deferred income taxes
|
|
|
(831 |
) |
|
|
(317 |
) |
|
|
(485 |
) |
|
|
|
Stock issued for directors compensation
|
|
|
74 |
|
|
|
32 |
|
|
|
28 |
|
|
|
|
Securities gains
|
|
|
|
|
|
|
(183 |
) |
|
|
(27 |
) |
|
|
|
Gains on sale of loans
|
|
|
(416 |
) |
|
|
(82 |
) |
|
|
(1 |
) |
|
|
|
Gain on sale of branches
|
|
|
(196 |
) |
|
|
|
|
|
|
|
|
|
|
|
Earnings on bank-owned life insurance
|
|
|
(40 |
) |
|
|
|
|
|
|
|
|
|
|
|
Decrease (increase) in accrued interest receivable and other
assets
|
|
|
1,100 |
|
|
|
(918 |
) |
|
|
(313 |
) |
|
|
|
Increase (decrease) in other liabilities
|
|
|
(486 |
) |
|
|
(16 |
) |
|
|
194 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Cash Provided by Operating Activities
|
|
|
4,289 |
|
|
|
1,319 |
|
|
|
533 |
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from
Investing Activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities available for sale:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases
|
|
|
(25,522 |
) |
|
|
(48,029 |
) |
|
|
(20,022 |
) |
|
|
Proceeds from sales
|
|
|
2,463 |
|
|
|
27,700 |
|
|
|
563 |
|
|
|
Proceeds from maturities and principal repayments
|
|
|
14,054 |
|
|
|
17,542 |
|
|
|
2,838 |
|
|
Securities held to maturity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases
|
|
|
(2,000 |
) |
|
|
(13,962 |
) |
|
|
|
|
|
|
Proceeds from maturities and principal repayments
|
|
|
2,271 |
|
|
|
1,319 |
|
|
|
|
|
|
Net increase in loans receivable
|
|
|
(43,293 |
) |
|
|
(29,045 |
) |
|
|
(24,264 |
) |
|
Proceeds from sale of loans
|
|
|
6,626 |
|
|
|
|
|
|
|
|
|
|
Purchase of loans
|
|
|
(15,511 |
) |
|
|
|
|
|
|
|
|
|
Increase in cash from Bank and branch sale/acquisitions
|
|
|
9,093 |
|
|
|
37,931 |
|
|
|
|
|
|
Purchase of bank owned life insurance
|
|
|
(4,500 |
) |
|
|
|
|
|
|
|
|
|
Purchases of bank premises and equipment
|
|
|
(1,896 |
) |
|
|
(995 |
) |
|
|
(83 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Cash Used in Investing Activities
|
|
|
(58,215 |
) |
|
|
(7,539 |
) |
|
|
(40,968 |
) |
|
|
|
|
|
|
|
|
|
|
Cash Flows from
Financing Activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in deposits
|
|
|
25,292 |
|
|
|
(20,482 |
) |
|
|
32,701 |
|
|
Net increase in short-term borrowings
|
|
|
13,238 |
|
|
|
7,190 |
|
|
|
|
|
|
Proceeds from long-term borrowings
|
|
|
16,000 |
|
|
|
5,285 |
|
|
|
11,000 |
|
|
Repayments of long-term borrowings
|
|
|
(2,500 |
) |
|
|
(2,000 |
) |
|
|
|
|
|
Net proceeds from issuance of common stock
|
|
|
361 |
|
|
|
10,363 |
|
|
|
485 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Cash Provided by Financing Activities
|
|
|
52,391 |
|
|
|
356 |
|
|
|
44,186 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Increase (Decrease) in Cash and Cash Equivalents
|
|
|
(1,535 |
) |
|
|
(5,864 |
) |
|
|
3,751 |
|
Cash and Cash
Equivalents
Beginning
|
|
|
8,730 |
|
|
|
14,594 |
|
|
|
10,843 |
|
|
|
|
|
|
|
|
|
|
|
Cash and Cash
Equivalents
Ending
|
|
$ |
7,195 |
|
|
$ |
8,730 |
|
|
$ |
14,594 |
|
|
|
|
|
|
|
|
|
|
|
Supplementary Cash
Flows Information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest paid
|
|
$ |
5,451 |
|
|
$ |
4,861 |
|
|
$ |
3,774 |
|
|
Income taxes paid
|
|
$ |
52 |
|
|
$ |
8 |
|
|
$ |
|
|
|
Debentures converted into common stock
|
|
$ |
258 |
|
|
$ |
|
|
|
$ |
|
|
See notes to consolidated financial statements.
F-6
The Legacy
Bank
Notes to Consolidated
Financial Statements
Note 1
Summary of Significant
Accounting Policies
|
|
|
Principles of Consolidation |
The accompanying consolidated financial statements include the
accounts of The Legacy Bank (the Bank) and its wholly owned
subsidiary, The Legacy Trust Company (the Trust). All
significant intercompany accounts and transactions have been
eliminated.
|
|
|
Organization and Nature of Operations |
The Legacy Bank was incorporated on June 10, 1999 under the
laws of the Commonwealth of Pennsylvania and is a Pennsylvania
state chartered bank. The Bank commenced operations on
September 20, 1999 and is a full service bank providing
personal and business lending and deposit services. As a state
chartered, non-Federal Reserve member bank, the Bank is subject
to regulation by the Pennsylvania Department of Banking and the
Federal Deposit Insurance Corporation. The area served by the
Bank is principally the central and northeast Pennsylvania
regions. The Legacy Trust Company provides trust and asset
management services.
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States of
America requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could
differ from those estimates. Material estimates that are
particularly susceptible to significant change in the near term
relate to the determination of the allowance for loan losses,
the evaluation of other than temporary impairment of investment
securities, and the valuation of deferred tax assets and
intangible assets.
|
|
|
Presentation of Cash Flows |
For purposes of reporting cash flows, cash and cash equivalents
include cash on hand, amounts due from banks, federal funds
sold, interest-bearing deposits and short-term investments with
a maturity date of three months or less. Generally, federal
funds are purchased and sold for one-day periods.
Management determines the appropriate classification of debt
securities at the time of purchase and re-evaluates such
designation as of each balance sheet date. Debt securities that
management has the positive intent and ability to hold to
maturity are classified as held to maturity. These securities
are carried at cost adjusted for the amortization of premium and
accretion of discount, computed by the interest method over the
terms of the securities.
Securities classified as available for sale are those securities
that the Bank intends to hold for an indefinite period of time
but not necessarily to maturity. Securities available for sale
are carried at fair value. Any decision to sell a security
classified as available for sale would be based on various
factors, including significant movement in interest rates,
changes in maturity or mix of the Banks assets and
liabilities, liquidity needs, regulatory capital considerations
and other similar factors. Unrealized gains and losses are
reported as increases or decreases in other comprehensive
income, net of the related deferred tax effect. Realized gains
or losses, determined on the basis of the cost of the specific
securities sold, are included in earnings. Premiums and
discounts are recognized in interest income using the interest
method over the terms of the securities.
F-7
The Legacy
Bank
Notes to Consolidated
Financial
Statements (Continued)
Declines in the fair value of held to maturity and available for
sale securities below their cost that are deemed to be
other-than-temporary are reflected as realized losses. In
estimating other-than-temporary impairment losses, management
considers (1) the length of time and the extent to which
the fair value has been less than cost, (2) the financial
condition and near-term prospects of the issuer, and
(3) the intent and ability of the Bank to retain its
investment in the issuer for a period of time sufficient to
allow for any anticipated recovery in fair value.
Federal law requires a member institution of the Federal Home
Loan Bank (FHLB) to hold stock of its district FHLB
according to a predetermined formula. This restricted stock is
carried at cost and is included within securities available for
sale.
Loans receivable that management has the intent and ability to
hold for the foreseeable future or until maturity or payoff are
stated at their outstanding unpaid principal balances, net of an
allowance for loan losses and any deferred fees or costs.
Interest income is accrued on the unpaid principal balance.
Premiums on purchased loans are amortized to income using the
interest method over the expected lives of the loans. Loan
origination fees, net of certain direct origination costs, are
deferred and recognized as an adjustment of the yield (interest
income) of the related loans. The Bank is generally amortizing
these amounts over the contractual life of the loan.
The accrual of interest is discontinued when the contractual
payment of principal or interest has become 90 days past
due or management has serious doubts about further
collectibility of principal or interest, even though the loan is
currently performing. Past due status is based on the
contractual terms of the loan. A loan may remain on accrual
status if it is in the process of collection and is either
guaranteed or well secured. When a loan is placed on nonaccrual
status, unpaid interest credited to income in the current year
is reversed and unpaid interest accrued in prior years is
charged against the allowance for loan losses. Interest received
on nonaccrual loans generally is either applied against
principal or reported as interest income, according to
managements judgment as to the collectibility of
principal. Generally, loans are restored to accrual status when
the obligation is brought current, has performed in accordance
with the contractual terms for a reasonable period of time and
the ultimate collectibility of the total contractual principal
and interest is no longer in doubt.
|
|
|
Allowance for Loan Losses |
The allowance for loan losses is established through provisions
for loan losses charged to earnings. Loans deemed to be
uncollectible are charged against the allowance for loan losses
when management believes the uncollectibility of the loan
balance is confirmed. Subsequent recoveries, if any, are
credited to the allowance.
The allowance for loan losses is maintained at a level
considered adequate to provide for losses that can be reasonably
anticipated. Managements periodic evaluation of the
adequacy of the allowance is based on known and inherent risks
in the portfolio, adverse situations that may affect the
borrowers ability to repay, the estimated value of any
underlying collateral, composition of the loan portfolio,
current economic conditions and other relevant factors. This
evaluation is inherently subjective, as it requires material
estimates that may be susceptible to significant change,
including the amounts and timing of future cash flows expected
to be received on impaired loans.
The allowance consists of specific, general and unallocated
components. The specific component relates to loans that are
classified as either doubtful, substandard or special mention.
For such loans that are also classified as impaired, an
allowance is established when the discounted cash flows (or
collateral value or observable market price) of the impaired
loan is lower than the carrying value of that loan. The general
component covers non-classified loans and is based on historical
loss experience of similar institutions due to
F-8
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
its limited charge-off history, adjusted for qualitative
factors. An unallocated component is maintained to cover
uncertainties that could affect managements estimate of
probable losses. The unallocated component of the allowance
reflects the margin of imprecision inherent in the underlying
assumptions used in the methodologies for estimating specific
and general losses in the portfolio.
A loan is considered impaired when, based on current information
and events, it is probable that the Bank will be unable to
collect the scheduled payments of principal or interest when due
according to the contractual terms of the loan agreement.
Factors considered by management in determining impairment
include payment status, collateral value and the probability of
collecting scheduled principal and interest payments when due.
Loans that experience insignificant payment delays and payment
shortfalls generally are not classified as impaired. Management
determines the significance of payment delays and payment
shortfalls on a case-by-case basis, taking into consideration
all of the circumstances surrounding the loan and the borrower,
including the length of the delay, the reasons for the delay,
the borrowers prior payment record and the amount of the
shortfall in relation to the principal and interest owed.
Impairment is measured on a loan-by-loan basis for commercial
and commercial real estate loans by either the present value of
expected future cash flows discounted at the loans
effective interest rate, the loans observable market price
or the fair value of the collateral if the loan is collateral
dependent.
Large groups of smaller balance homogeneous loans are
collectively evaluated for impairment. Accordingly, the Bank
does not separately identify individual consumer and residential
loans for impairment disclosures, unless such loans are the
subject of a restructuring agreement.
|
|
|
Bank Premises and Equipment |
Bank premises and equipment are stated at cost less accumulated
depreciation. Depreciation is computed on the straight-line
method over the assets estimated useful lives.
|
|
|
Goodwill and Other Intangible Assets |
The costs of acquired banks or branches in excess of the fair
value of net assets at acquisition date is recorded as goodwill.
Goodwill is not amortized but, instead, is tested at least
annually for impairment. Other identifiable intangible assets
are amortized over their estimated useful lives.
|
|
|
Transfers of Financial Assets |
Transfers of financial assets are accounted for as sales, when
control over the assets has been surrendered. Control over
transferred assets is deemed to be surrendered when (1) the
assets have been isolated from the Bank, (2) the transferee
obtains the right (free of conditions that constrain it from
taking advantage of that right) to pledge or exchange the
transferred assets and (3) the Bank does not maintain
effective control over the transferred assets through an
agreement to repurchase them before their maturity.
Assets held in a fiduciary capacity are not assets of the Bank
or Trust and are, therefore, not included in the financial
statements. Trust income is recognized on the accrual method.
F-9
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
The Bank follows the policy of charging the costs of advertising
to expense as incurred.
Deferred income taxes are provided on the liability method
whereby deferred tax assets are recognized for deductible
temporary differences and deferred tax liabilities are
recognized for taxable temporary differences. Temporary
differences are the differences between the reported amounts of
assets and liabilities and net operating loss carryforwards and
their tax basis. Deferred tax assets are reduced by a valuation
allowance when, in the opinion of management, it is more likely
than not that some portion of the deferred tax assets will not
be realized. Deferred tax assets and liabilities are adjusted
for the effects of changes in tax laws and rates on the date of
enactment.
Certain amounts in the 2003 and 2002 financial statements have
been reclassified to conform to the 2004 presentation format.
These reclassifications had no impact on the Banks net
income.
Statement of Financial Accounting Standards
(SFAS) No. 123, Accounting for Stock-Based
Compensation, encouraged all entities to adopt a fair
value based method of accounting for employee stock compensation
plans, whereby compensation cost is measured at the grant date
based on the value of the award and is recognized over the
service period, which is usually the vesting period. However, it
also allowed an entity to continue to measure compensation cost
for those plans using the intrinsic value based method of
accounting prescribed by Accounting Principles Board Opinion
No. 25, Accounting for Stock Issued to
Employees, whereby compensation cost is the excess, if
any, of the quoted market price of the stock at the grant date
(or other measurement date) over the amount an employee must pay
to acquire the stock. Stock options issued under the Banks
stock option plan have no intrinsic value at the grant date, and
under Opinion No. 25 no compensation cost is recognized for
them. The Bank elected to continue with the accounting
methodology in Opinion No. 25 and, as a result, has
provided pro forma disclosures of net income and earnings per
share and other disclosures, as if the fair value based method
of accounting had been applied.
Pro forma disclosures as though compensation expense for the
stock options was determined under the recognition provisions of
Statement No. 123 using the fair value of the awards at the
grant date are as follows for the years ended December 31,
2004, 2003 and 2002:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands, except per share | |
|
|
data) | |
Net income, as reported
|
|
$ |
2,355 |
|
|
$ |
1,029 |
|
|
$ |
257 |
|
Total stock-based compensation expense determined under fair
value method, net of tax
|
|
|
(194 |
) |
|
|
(99 |
) |
|
|
(185 |
) |
|
|
|
|
|
|
|
|
|
|
Pro forma net income
|
|
$ |
2,161 |
|
|
$ |
930 |
|
|
$ |
72 |
|
|
|
|
|
|
|
|
|
|
|
Earnings per share basic:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As reported
|
|
$ |
.66 |
|
|
$ |
.37 |
|
|
$ |
.19 |
|
|
Pro forma
|
|
$ |
.60 |
|
|
$ |
.33 |
|
|
$ |
.05 |
|
Earnings per share diluted:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As reported
|
|
$ |
.64 |
|
|
$ |
.37 |
|
|
$ |
.19 |
|
|
Pro forma
|
|
$ |
.59 |
|
|
$ |
.33 |
|
|
$ |
.05 |
|
F-10
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
The fair values were estimated using the Black-Scholes model and
are summarized below, along with the weighted-average
assumptions.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
Weighted-average grant date fair value
|
|
$ |
2.96 |
|
|
$ |
2.21 |
|
|
$ |
3.19 |
|
Expected life in years
|
|
|
7 |
|
|
|
7 |
|
|
|
7 |
|
Risk-free interest rate
|
|
|
3.77 |
% |
|
|
3.36 |
% |
|
|
4.85 |
% |
Volatility was assumed to be zero given the limited trading of
the Banks stock. The expected dividend yield was assumed
to be zero given the Bank has not declared a dividend since
inception.
|
|
|
Earnings per Common Share |
Basic earnings per share represents income available to common
shareholders divided by the weighted-average number of common
shares outstanding during the period. Diluted earnings per share
reflects additional common shares that would have been
outstanding if dilutive potential common shares had been issued,
as well as any adjustment to income that would result from the
assumed issuance. Potential common shares that may be issued by
the Bank relate to outstanding stock options, warrants and
convertible debentures. Potential common shares that may be
issued related to stock options and warrants are determined
using the treasury stock method.
Earnings per common share have been computed based on the
following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Net income
|
|
$ |
2,355 |
|
|
$ |
1,029 |
|
|
$ |
257 |
|
|
|
|
|
|
|
|
|
|
|
Average number of common shares outstanding
|
|
|
3,582 |
|
|
|
2,785 |
|
|
|
1,337 |
|
Effect of dilutive options and warrants
|
|
|
103 |
|
|
|
17 |
|
|
|
5 |
|
|
|
|
|
|
|
|
|
|
|
Average number of common shares outstanding used to calculate
diluted earnings per common share
|
|
|
3,685 |
|
|
|
2,802 |
|
|
|
1,342 |
|
|
|
|
|
|
|
|
|
|
|
Options to purchase 37,000 shares of common stock at a
price of $12.00 per share were outstanding at
December 31, 2003 but were not included in the computation
of diluted EPS because they were anti-dilutive. Options to
purchase 68,234 and 3,536 shares of common stock at a
price of $11.50 and $10.62 per share, respectively were
outstanding at December 31, 2002 but were not included in
the computation of diluted EPS because they were anti-dilutive.
Convertible debentures which are convertible into 360,000 and
382,800 shares of common stock at a price of
$12.50 per share were outstanding at December 31, 2004
and 2003, respectively, but were not included in the computation
of diluted EPS because they were anti-dilutive.
|
|
|
Off-Balance Sheet Financial Instruments |
In the ordinary course of business, the Bank has entered into
off-balance sheet financial instruments consisting of
commitments to extend credit and letters of credit. Such
financial instruments are recorded in the balance sheet when
they are funded.
In December 2003, the Accounting Standards Executive Committee
issued Statement of Position 03-3 (SOP 03-3), Accounting
for Certain Loans or Debt Securities Acquired in a
Transfer. SOP 03-3 addresses accounting for differences
between contractual cash flows and cash flows expected to be
collected from an
F-11
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
investors initial investment in loans or debt securities
acquired in a transfer, including business combinations, if
those differences are attributable, at least in part, to credit
quality. SOP 03-3 is effective for loans or debt securities
acquired in fiscal years beginning after December 15, 2004.
The Bank adopted the provisions of SOP 03-3 effective
January 1, 2005, and the initial implementation did not
have any effect on the consolidated financial statements.
In March 2004, the FASBs Emerging Issues Task Force
(EITF) reached a consensus on EITF Issue No.,
03-1, The Meaning
of Other-Than-Temporary Impairment and Its Application to
Certain Investments
(EITF 03-1).
EITF 03-1 provides
guidance regarding the meaning of other-than-temporary
impairment and its application to investments classified as
either available-for-sale or
held-to-maturity under
FASB Statement No. 115, Accounting for Certain
Investments in Debt and Equity Securities, and to equity
securities accounted for under the cost method. Included in
EITF 03-1 is
guidance on how to account for impairments that are solely due
to interest rate changes, including changes resulting from
increases in sector credit spreads.
The effective date for the accounting guidance of
EITF 03-1 is
delayed until additional clarifying guidance is issued. The Bank
is not able to assess the impact of the adoption of
EITF 03-1 until
final guidance is issued.
In March 2004, the SEC released Staff Accounting Bulletin
(SAB) No. 105, Application of Accounting
Principles to Loan Commitments. SAB 105 provides
guidance about the measurements of loan commitments recognized
at fair value under FASB Statement No. 133,
Accounting for Derivative Instruments and Hedging
Activities. SAB 105 also requires companies to
disclose their accounting policy for those loan commitments
including methods and assumptions used to estimate fair value
and associated hedging strategies. SAB 105 is effective for
all loan commitments accounted for as derivatives that are
entered into after March 31, 2004. The adoption of
SAB 105 did not have any effect on the consolidated
financial statements.
In December 2004, the Financial Accounting Standards Board
(FASB) issued Statement No. 123(R), Share-Based
Payment. Statement No. 123(R) revised Statement
No. 123, Accounting for Stock-Based
Compensation, and supersedes APB Opinion No. 25,
Accounting for Stock Issued to Employees, and its
related implementation guidance. Statement No. 123(R) will
require compensation costs related to share-based payment
transactions to be recognized in the financial statements (with
limited exceptions). The amount of compensation cost will be
measured based on the grant-date fair value of the equity or
liability instruments issued. Compensation cost will be
recognized over the period that an employee provides service in
exchange for the award. This statement is effective as of the
beginning of the first interim or annual reporting period that
begins after June 15, 2005. The Bank is currently
evaluating the impact of this standard on its results of
operations and financial position.
F-12
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
Note 2
Securities
The amortized cost and fair value of securities, with gross
unrealized gains and losses, are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2004 | |
|
|
| |
|
|
|
|
Gross | |
|
Gross | |
|
|
|
|
Amortized | |
|
Unrealized | |
|
Unrealized | |
|
Fair | |
|
|
Cost | |
|
Gains | |
|
Losses | |
|
Value | |
|
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Securities Available
for Sale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities
|
|
$ |
552 |
|
|
$ |
11 |
|
|
$ |
|
|
|
$ |
563 |
|
|
|
|
U.S. Government agency obligations
|
|
|
17,524 |
|
|
|
18 |
|
|
|
(61 |
) |
|
|
17,481 |
|
|
|
|
Mortgage-backed securities
|
|
|
16,683 |
|
|
|
17 |
|
|
|
(127 |
) |
|
|
16,573 |
|
|
|
|
Collateralized mortgage obligations
|
|
|
12,557 |
|
|
|
9 |
|
|
|
(58 |
) |
|
|
12,508 |
|
|
|
|
Corporate and other debt securities
|
|
|
775 |
|
|
|
1 |
|
|
|
(109 |
) |
|
|
667 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Debt Securities
|
|
|
48,091 |
|
|
|
56 |
|
|
|
(355 |
) |
|
|
47,792 |
|
|
Federal Home Loan Bank stock
|
|
|
2,878 |
|
|
|
|
|
|
|
|
|
|
|
2,878 |
|
|
Other equity securities
|
|
|
428 |
|
|
|
|
|
|
|
|
|
|
|
428 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
51,397 |
|
|
$ |
56 |
|
|
$ |
(355 |
) |
|
$ |
51,098 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities Held to
Maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Government agency obligations
|
|
$ |
3,035 |
|
|
$ |
1 |
|
|
$ |
(10 |
) |
|
$ |
3,026 |
|
|
Mortgage-backed securities
|
|
|
3,663 |
|
|
|
|
|
|
|
(53 |
) |
|
|
3,610 |
|
|
Collateralized mortgage obligations
|
|
|
5,315 |
|
|
|
13 |
|
|
|
(34 |
) |
|
|
5,294 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
12,013 |
|
|
$ |
14 |
|
|
$ |
(97 |
) |
|
$ |
11,930 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-13
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2003 | |
|
|
| |
|
|
|
|
Gross | |
|
Gross | |
|
|
|
|
Amortized | |
|
Unrealized | |
|
Unrealized | |
|
Fair | |
|
|
Cost | |
|
Gains | |
|
Losses | |
|
Value | |
|
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Securities Available
for Sale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities
|
|
$ |
553 |
|
|
$ |
30 |
|
|
$ |
|
|
|
$ |
583 |
|
|
|
|
U.S. Government agency obligations
|
|
|
11,336 |
|
|
|
110 |
|
|
|
(25 |
) |
|
|
11,421 |
|
|
|
|
Mortgage-backed securities
|
|
|
20,480 |
|
|
|
52 |
|
|
|
(151 |
) |
|
|
20,381 |
|
|
|
|
Collateralized mortgage obligations
|
|
|
8,418 |
|
|
|
39 |
|
|
|
(29 |
) |
|
|
8,428 |
|
|
|
|
Corporate and other debt securities
|
|
|
775 |
|
|
|
2 |
|
|
|
(29 |
) |
|
|
748 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Debt Securities
|
|
|
41,562 |
|
|
|
233 |
|
|
|
(234 |
) |
|
|
41,561 |
|
|
Federal Home Loan Bank stock
|
|
|
1,538 |
|
|
|
|
|
|
|
|
|
|
|
1,538 |
|
|
Other equity securities
|
|
|
85 |
|
|
|
|
|
|
|
|
|
|
|
85 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
43,185 |
|
|
$ |
233 |
|
|
$ |
(234 |
) |
|
$ |
43,184 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities Held to
Maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Government agency obligations
|
|
$ |
1,052 |
|
|
$ |
2 |
|
|
$ |
|
|
|
$ |
1,054 |
|
|
Mortgage-backed securities
|
|
|
4,484 |
|
|
|
|
|
|
|
(47 |
) |
|
|
4,437 |
|
|
Collateralized mortgage obligations
|
|
|
6,964 |
|
|
|
16 |
|
|
|
(21 |
) |
|
|
6,959 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
12,500 |
|
|
$ |
18 |
|
|
$ |
(68 |
) |
|
$ |
12,450 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2004 and 2003, investment securities with a
carrying value of $5,966,000 and $5,102,000, respectively, were
pledged to secure public deposits, and for other purposes as
required or permitted by law. At December 31, 2003,
investment securities with a carrying value of $47,701,000 were
pledged to collateralize borrowings with the Federal Home
Loan Bank of Pittsburgh. During 2004, the FHLB removed the
requirement for Legacy to pledge securities to collateralize
borrowings.
F-14
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
The following table shows the Banks investments
gross unrealized losses and fair value, aggregated by investment
category and length of time that individual securities have been
in a continuous unrealized loss position, at December 31,
2004.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less Than 12 Months | |
|
12 Months or More | |
|
Total | |
|
|
| |
|
| |
|
| |
|
|
Fair | |
|
Unrealized | |
|
Fair | |
|
Unrealized | |
|
Fair | |
|
Unrealized | |
|
|
Value | |
|
Losses | |
|
Value | |
|
Losses | |
|
Value | |
|
Losses | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Securities Available
for Sale:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Government agency obligations
|
|
$ |
7,834 |
|
|
$ |
(61 |
) |
|
$ |
|
|
|
$ |
|
|
|
$ |
7,834 |
|
|
$ |
(61 |
) |
|
Mortgage-backed securities
|
|
|
3,252 |
|
|
|
(11 |
) |
|
|
10,109 |
|
|
|
(116 |
) |
|
|
13,361 |
|
|
|
(127 |
) |
|
Collateralized mortgage obligations
|
|
|
3,801 |
|
|
|
(32 |
) |
|
|
2,522 |
|
|
|
(26 |
) |
|
|
6,323 |
|
|
|
(58 |
) |
|
Corporate and other debt securities
|
|
|
|
|
|
|
|
|
|
|
641 |
|
|
|
(109 |
) |
|
|
641 |
|
|
|
(109 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Temporarily Impaired Securities Available for Sale
|
|
$ |
14,887 |
|
|
$ |
(104 |
) |
|
$ |
13,272 |
|
|
$ |
(251 |
) |
|
$ |
28,159 |
|
|
$ |
(355 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities Held to
Maturity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Government agency obligations
|
|
$ |
1,026 |
|
|
$ |
(10 |
) |
|
$ |
|
|
|
$ |
|
|
|
$ |
1,026 |
|
|
$ |
(10 |
) |
|
Mortgage-backed securities
|
|
|
|
|
|
|
|
|
|
|
3,610 |
|
|
|
(53 |
) |
|
|
3,610 |
|
|
|
(53 |
) |
|
Collateralized mortgage obligations
|
|
|
3,127 |
|
|
|
(16 |
) |
|
|
1,015 |
|
|
|
(18 |
) |
|
|
4,142 |
|
|
|
(34 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Temporarily Impaired Securities Held to Maturity
|
|
$ |
4,153 |
|
|
$ |
(26 |
) |
|
$ |
4,625 |
|
|
$ |
(71 |
) |
|
$ |
8,778 |
|
|
$ |
(97 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Bank has determined that the unrealized losses pertain to 41
securities and are attributable to the current interest rate
environment. The unrealized losses are temporary and management
has the intent and ability to hold them until the market price
recovers. All securities are rated investment grade or better
according to the Banks policy. The mortgage-backed
securities are primarily agency backed, have favorable cash flow
characteristics and are closely monitored for performance. The
unrealized loss in corporate securities is attributable to one
trust preferred security that has been paying interest timely
and is deemed to have acceptable credit quality.
The amortized cost and fair value of debt securities by
contractual maturity at December 31, 2004 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available for Sale | |
|
Held to Maturity | |
|
|
| |
|
| |
|
|
Amortized | |
|
Fair | |
|
Amortized | |
|
Fair | |
|
|
Cost | |
|
Value | |
|
Cost | |
|
Value | |
|
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Within one year
|
|
$ |
1,533 |
|
|
$ |
1,527 |
|
|
$ |
|
|
|
$ |
|
|
Over one year through five years
|
|
|
15,058 |
|
|
|
15,024 |
|
|
|
3,035 |
|
|
|
3,026 |
|
Over five years through ten years
|
|
|
1,510 |
|
|
|
1,519 |
|
|
|
|
|
|
|
|
|
Over ten years
|
|
|
750 |
|
|
|
641 |
|
|
|
|
|
|
|
|
|
Mortgage-backed securities and collateralized mortgage
obligations
|
|
|
29,240 |
|
|
|
29,081 |
|
|
|
8,978 |
|
|
|
8,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
48,091 |
|
|
$ |
47,792 |
|
|
$ |
12,013 |
|
|
$ |
11,930 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-15
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
For the years ended December 31, 2004, 2003 and 2002, gross
realized gains from sales of securities available for sale
amounted to $-0-, $208,000 and $27,000, respectively. Gross
realized losses amounted to
$-0-, $25,000 and $-0-
during 2004, 2003 and 2002, respectively.
Note 3
Loans Receivable
The composition of net loans receivable at December 31,
2004 and 2003 is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Commercial real estate
|
|
$ |
108,063 |
|
|
$ |
104,914 |
|
Commercial
|
|
|
88,541 |
|
|
|
78,298 |
|
Residential real estate
|
|
|
26,174 |
|
|
|
17,261 |
|
Consumer
|
|
|
27,854 |
|
|
|
25,948 |
|
|
|
|
|
|
|
|
|
Total Loans
|
|
|
250,632 |
|
|
|
226,421 |
|
Unamortized premium on purchased loans
|
|
|
1,581 |
|
|
|
3,019 |
|
Net deferred loan costs
|
|
|
267 |
|
|
|
145 |
|
Allowance for loan losses
|
|
|
(3,461 |
) |
|
|
(3,430 |
) |
|
|
|
|
|
|
|
|
Net Loans
|
|
$ |
249,019 |
|
|
$ |
226,155 |
|
|
|
|
|
|
|
|
Note 4
Allowance for Loan
Losses
The changes in the allowance for loan losses for the years ended
December 31, 2004, 2003 and 2002 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Balance, beginning
|
|
$ |
3,430 |
|
|
$ |
1,300 |
|
|
$ |
982 |
|
|
Provision for loan losses
|
|
|
1,115 |
|
|
|
428 |
|
|
|
540 |
|
|
Added through acquisitions
|
|
|
|
|
|
|
2,014 |
|
|
|
|
|
|
Reduced due to sale of loans
|
|
|
(310 |
) |
|
|
|
|
|
|
|
|
|
Charge-offs
|
|
|
(812 |
) |
|
|
(347 |
) |
|
|
(222 |
) |
|
Recoveries
|
|
|
38 |
|
|
|
35 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, ending
|
|
$ |
3,461 |
|
|
$ |
3,430 |
|
|
$ |
1,300 |
|
|
|
|
|
|
|
|
|
|
|
The following is a summary of information pertaining to impaired
and non-accrual loans:
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Impaired loans, (all have a valuation allowance)
|
|
$ |
4,213 |
|
|
$ |
4,814 |
|
|
|
|
|
|
|
|
Valuation allowance related to impaired loans
|
|
$ |
1,334 |
|
|
$ |
988 |
|
|
|
|
|
|
|
|
Total non-accrual loans
|
|
$ |
1,037 |
|
|
$ |
1,161 |
|
|
|
|
|
|
|
|
Total loans past due ninety days or more and still accruing
|
|
$ |
42 |
|
|
$ |
195 |
|
|
|
|
|
|
|
|
F-16
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Average investment in impaired loans
|
|
$ |
4,686 |
|
|
$ |
4,582 |
|
|
$ |
1,437 |
|
|
|
|
|
|
|
|
|
|
|
Interest income recognized on impaired loans, total
|
|
$ |
338 |
|
|
$ |
294 |
|
|
$ |
113 |
|
|
|
|
|
|
|
|
|
|
|
Interest income recognized on cash basis on nonaccrual loans
|
|
$ |
|
|
|
$ |
48 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
Note 5
Bank Premises and
Equipment
The components of bank premises and equipment at
December 31, 2004 and 2003 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated |
|
|
|
|
|
|
Lives in |
|
|
|
|
|
|
Years |
|
2004 | |
|
2003 | |
|
|
|
|
| |
|
| |
|
|
|
|
(In thousands) | |
Land
|
|
|
|
$ |
313 |
|
|
$ |
50 |
|
Buildings and building improvements
|
|
30 |
|
|
1,185 |
|
|
|
107 |
|
Leasehold improvements
|
|
7 - 20 |
|
|
2,255 |
|
|
|
2,139 |
|
Furniture, fixtures and equipment
|
|
3 - 15 |
|
|
1,208 |
|
|
|
1,563 |
|
Computer equipment and data processing software
|
|
3 - 10 |
|
|
1,652 |
|
|
|
1,445 |
|
Automobiles
|
|
2 - 5 |
|
|
173 |
|
|
|
145 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,786 |
|
|
|
5,449 |
|
Accumulated depreciation
|
|
|
|
|
(2,284 |
) |
|
|
(1,871 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
4,502 |
|
|
$ |
3,578 |
|
|
|
|
|
|
|
|
|
|
Depreciation expense for the years ended December 31, 2004,
2003 and 2002 amounted to $726,000, $525,000 and $237,000,
respectively.
Note 6
Goodwill and Other
Intangible Assets
During 2003, the Bank acquired Northern State Bank and purchased
three additional branches including certain assets and
liabilities from another financial institution. In 2004, the
Bank sold two of the branches acquired from Northern State Bank
and wrote-off a proportionate amount of goodwill against the
sales proceeds. The following reflects goodwill associated with
these transactions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Northern | |
|
|
|
|
|
|
State | |
|
Purchase of | |
|
|
|
|
Bank | |
|
Branches | |
|
Total | |
|
|
| |
|
| |
|
| |
Balance as of January 1, 2003
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
Goodwill acquired during the year
|
|
|
4,260 |
|
|
|
2,004 |
|
|
|
6,264 |
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2003
|
|
|
4,260 |
|
|
|
2,004 |
|
|
|
6,264 |
|
|
Goodwill related to branches acquired (disposed of) during the
year
|
|
|
(1,512 |
) |
|
|
814 |
|
|
|
(698 |
) |
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2004
|
|
$ |
2,748 |
|
|
$ |
2,818 |
|
|
$ |
5,566 |
|
|
|
|
|
|
|
|
|
|
|
Goodwill associated with the branch purchase is deductible for
tax purposes. Management has tested goodwill for impairment as
of December 31, 2004 and has determined there was no
impairment.
F-17
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
Amortizable intangible assets (principally core deposit
intangibles) associated with these transactions have a weighted
average amortization period of approximately ten years. At
December 31, 2004, the carrying amount of these intangible
assets was $1,375,000, which is net of accumulated amortization
of $231,000, compared to intangible assets of $1,548,000, net of
accumulated amortization of $58,000 at December 31, 2003.
Amortization expense was $173,000, $58,000, and $-0- in the
years ended December 31, 2004, 2003 and 2002, respectively.
Aggregate estimated amortization expense for the five years
subsequent to December 31, 2004 is as follows (in
thousands):
|
|
|
|
|
2005
|
|
$ |
171 |
|
2006
|
|
|
171 |
|
2007
|
|
|
171 |
|
2008
|
|
|
171 |
|
2009
|
|
|
168 |
|
Note 7
Deposits
The components of deposits at December 31, 2004 and 2003
are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Demand, non-interest bearing
|
|
$ |
27,931 |
|
|
$ |
28,125 |
|
Demand, interest bearing
|
|
|
12,240 |
|
|
|
12,745 |
|
Money market
|
|
|
13,739 |
|
|
|
21,616 |
|
Savings
|
|
|
53,939 |
|
|
|
49,577 |
|
Time, $100,000 and over
|
|
|
30,814 |
|
|
|
26,018 |
|
Time, other
|
|
|
105,801 |
|
|
|
101,999 |
|
|
|
|
|
|
|
|
|
Total Deposits
|
|
$ |
244,464 |
|
|
$ |
240,080 |
|
|
|
|
|
|
|
|
At December 31, 2004, the scheduled maturities of time
deposits are as follows (in thousands):
|
|
|
|
|
2005
|
|
$ |
69,828 |
|
2006
|
|
|
25,236 |
|
2007
|
|
|
19,493 |
|
2008
|
|
|
8,328 |
|
2009
|
|
|
13,666 |
|
Thereafter
|
|
|
64 |
|
|
|
|
|
|
|
$ |
136,615 |
|
|
|
|
|
Note 8
Short-Term
Borrowings
The Bank has a total of $11,000,000 available for borrowing in
short-term lines of credit established with five banks. In
addition, the Bank can borrow from the Federal Home
Loan Bank (FHLB); see Note 9-Federal Home
Loan Bank Borrowings for more information on FHLB
borrowings.
F-18
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
These borrowings are described below at or for the years ended:
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
|
| |
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(Dollars in thousands) | |
Federal Home Loan Bank overnight advances
|
|
$ |
23,425 |
|
|
$ |
10,187 |
|
|
|
|
|
|
|
|
Average balance
|
|
$ |
7,814 |
|
|
$ |
9,379 |
|
Maximum month-end balance
|
|
$ |
23,425 |
|
|
$ |
14,090 |
|
Weighted average rate
|
|
|
1.60 |
% |
|
|
1.34 |
% |
Range of interest rates paid on December 31
|
|
|
2.19%- 2.34 |
% |
|
|
1.01%- 1.19 |
% |
Note 9
Federal Home
Loan Bank Borrowings
The Bank is a member of the Federal Home Loan Bank
(FHLB) of Pittsburgh. As such, the Bank can take advantage
of the FHLB program for overnight and term advances at published
daily rates, which are advantageous to members as compared to
issuing notes directly in the market. At December 31, 2004,
the Bank had a borrowing capacity of $76,977,000, of which
$51,425,000 was outstanding. Outstanding long-term borrowings
from the Federal Home Loan Bank are summarized as follows
at December 31, 2004 and 2003:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2004 | |
|
|
| |
|
|
|
|
Weighted | |
|
|
|
Weighted | |
|
|
|
Weighted | |
|
|
Fixed | |
|
Average | |
|
Variable | |
|
Average | |
|
|
|
Average | |
|
|
Rate | |
|
Rate | |
|
Rate | |
|
Rate | |
|
Total | |
|
Rate | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
Due in 2005
|
|
$ |
7,000 |
|
|
|
2.4% |
|
|
$ |
1,000 |
|
|
|
6.7% |
|
|
$ |
8,000 |
|
|
|
2.9% |
|
Due in 2006
|
|
|
9,000 |
|
|
|
2.8% |
|
|
|
|
|
|
|
|
|
|
|
9,000 |
|
|
|
2.8% |
|
Due in 2007
|
|
|
2,000 |
|
|
|
2.8% |
|
|
|
|
|
|
|
|
|
|
|
2,000 |
|
|
|
2.8% |
|
After 2009
|
|
|
|
|
|
|
|
|
|
|
9,000 |
|
|
|
4.4% |
|
|
|
9,000 |
|
|
|
4.4% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
18,000 |
|
|
|
2.6% |
|
|
$ |
10,000 |
|
|
|
4.7% |
|
|
$ |
28,000 |
|
|
|
3.3% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2003 | |
|
|
| |
|
|
|
|
Weighted | |
|
|
|
Weighted | |
|
|
|
Weighted | |
|
|
Fixed | |
|
Average | |
|
Variable | |
|
Average | |
|
|
|
Average | |
|
|
Rate | |
|
Rate | |
|
Rate | |
|
Rate | |
|
Total | |
|
Rate | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands) | |
Due in 2004
|
|
$ |
2,500 |
|
|
|
2.8% |
|
|
$ |
|
|
|
|
|
|
|
$ |
2,500 |
|
|
|
2.8% |
|
Due in 2005
|
|
|
2,000 |
|
|
|
3.1% |
|
|
|
1,000 |
|
|
|
6.7% |
|
|
|
3,000 |
|
|
|
4.3% |
|
After 2008
|
|
|
|
|
|
|
|
|
|
|
9,000 |
|
|
|
4.4% |
|
|
|
9,000 |
|
|
|
4.4% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
4,500 |
|
|
|
3.0% |
|
|
$ |
10,000 |
|
|
|
4.7% |
|
|
$ |
14,500 |
|
|
|
4.1% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The above variable rate borrowings are convertible notes. The
FHLB has the option to convert the loans to an adjustable rate
equal to the three-month LIBOR plus 0.08% to 0.15%. If the above
convertible notes are converted, the Bank has the option to
repay these advances at each of the option dates without
penalty. Accordingly, contractual maturities above may differ
from expected maturities.
Note 10
Convertible Subordinated
Debentures
During 2003, the Bank sold 1,914 investment units for $5,000
each. Each unit consisted of 225 shares of common stock
priced at $11.11 per share and $2,500 in the aggregate and
a 15-year
5% convertible subordinated capital note in the principal
amount of $2,500. Total notes outstanding were $4,500,000 and
F-19
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
$4,785,000 at December 31, 2004 and 2003, respectively. The
notes may be converted into shares of common stock at any time
at a conversion price of $12.50 per share, subject to
adjustment upon the occurrence of certain events. Interest on
the notes accrued from the date of issuance and is payable on
September 15 and March 15 of each year. During 2004, 114 notes
were converted into 22,800 shares of common stock. As of
December 31, 2004, 360,000 shares of common stock are
reserved for potential conversion.
Note 11
Lease Commitments and
Total Rental Expense
Total lease expense was $426,000, $489,000 and $213,000 for the
years ended December 31, 2004, 2003 and 2002, respectively,
of which $225,000, $315,000 and $130,000, respectively,
pertained to leases with related parties.
Future minimum lease payments by year are as follows (in
thousands):
|
|
|
|
|
2005
|
|
$ |
305 |
|
2006
|
|
|
274 |
|
2007
|
|
|
266 |
|
2008
|
|
|
260 |
|
2009
|
|
|
259 |
|
Thereafter
|
|
|
819 |
|
|
|
|
|
|
|
$ |
2,183 |
|
|
|
|
|
Note 12
Employment
Agreements
The Bank has entered into employment agreements with four
members of senior management. Upon resignation after a change in
the control of the Bank, as defined in the agreement, these
individuals will receive monetary compensation in the amount set
forth in their agreements. These agreements expire during 2005
and 2006, but will automatically renew at various terms, unless
written notice electing not to renew is given by the Bank or
individual.
Note 13
Comprehensive
Income
Accounting principles generally require that recognized revenue,
expenses, gains and losses be included in net income or loss.
Although certain changes in assets and liabilities, such as
unrealized gains and losses on available for sale securities,
are reported as a separate component of the equity section of
the balance sheet, such items, along with net income, are
components of comprehensive income or loss. Sources of other
comprehensive income (loss) not included in net income were
limited to unrealized gains (losses) on available for sale
securities which, net of tax, were $(195,000), $(257,000) and
$238,000 for the years ended December 31, 2004, 2003 and
2002, respectively.
Note 14
Shareholders
Equity
In 2002, the Bank sold 44,444 shares of common stock at
$11.25 per share, which resulted in proceeds of $485,000,
net of stock offering costs of $15,000.
In 2003, the Bank issued 1,196,608 shares of common stock
for the purchase of Northern State Bank. As further described in
Note 10, the Bank sold 1,914 investment units resulting in
the issuance of 430,650 shares of stock priced at
$11.11 per share and sold 550,000 shares of common
stock at an average price of $10.59 per share. These sales
resulted in proceeds of $10,363,000, net of stock offering costs
of $109,000.
In 2004, 114 convertible subordinated notes were converted into
22,800 shares of common stock.
F-20
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
Note 15
Stock Warrants and Stock
Option Plans
The Bank issued stock purchase warrants in connection with its
initial public offering, giving certain organizers the right to
purchase a total of 38,080 shares of common stock at the
initial offering price of $10 per share. As of
December 31, 2004, 38,080 warrants were outstanding. These
warrants were granted in consideration of the risks undertaken
by the organizers and are exercisable in full and will expire
August 24, 2009. The shares may be issued either from
previously authorized but unissued shares or issued shares that
have been reacquired by the Bank.
Under the 1999 Directors Compensation Plan, each
non-employee director was entitled to a retainer fee of
$2,000 per year. The non-employee directors were also
eligible to receive up to $3,000 compensation per year based on
attendance at board meetings. At the election of the
non-employee director, the retainer fee was payable in common
stock or cash and compensation was payable in either options to
acquire shares of common stock or cash. The shares were valued
at their fair market value. In 2003, 3,073 options were issued
to directors under this plan. In 2002, 2,646 shares and
3,536 options were issued to directors under this plan. The
options vest over a three-year period and expire 10 years
from the date of grant. The expense recorded relating to the
shares granted totaled $28,000 in 2002. The plan was closed in
2003 and no shares are available for future grant under this
plan. The Bank adopted a new plan in 2003.
Under the 2003 Directors Compensation Plan, each
non-employee director is entitled to a retainer fee of
$2,000 per year. The non-employee directors are also
eligible to receive up to $3,000 compensation per year based on
attendance at board meetings. The non-employee directors also
receive common stock equal to $50 per committee meeting
attended. Compensation is to be paid annually in shares of
common stock. The shares will be valued at their fair market
value. 50,000 shares of the Banks common stock have
been reserved for awards granted under this plan and 42,482 are
available at December 31, 2004. In 2004, 4,494 common
shares were issued to directors under this plan. The expense
recorded relating to the shares granted totaled $74,000 in 2004.
In 2003, 3,024 shares were issued to directors under this
plan with $32,000 of expense recorded relating to the shares
granted in 2003.
Under the 1999 Equity Incentive Stock Option Plan (the Plan),
Bank employees are eligible to receive options to purchase
shares of common stock at the fair market value on the date the
option is granted. Shares that may be issued under the Stock
Option Plan shall not exceed in the aggregate
245,000 shares. Shares granted prior to 2004 vest equally
over a three-year period and expire no later than ten years from
the date of the grant. Shares granted in 2004 vest immediately
and expire no later than six years from the date of the grant.
The shares may be issued either from previously authorized but
unissued shares or issued shares that have then been reacquired
by the Bank. The Plan is administered by a committee of
non-employee directors. At December 31, 2004,
25,203 shares remain available for future grant under the
plan.
On January 1, 2003, the Bank acquired Northern State Bank.
The warrants and options held by directors and employees of
Northern State Bank were converted into options to buy Legacy
Bank common stock through the issuance of 85,315 options to
purchase Legacy Bank common stock at $10.00 per share to
directors of Northern State Bank, 73,400 options to purchase
Legacy Bank common stock at $12.00 per share to employees
of Northern State Bank and 16,000 options to purchase Legacy
Bank common stock at $10.60 per share to employees of
Northern State Bank. All of these options vested immediately and
begin to expire in 2009.
F-21
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
A summary of the status of the Banks stock warrants and
stock option plans is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
2002 | |
|
|
| |
|
| |
|
| |
|
|
|
|
Weighted | |
|
|
|
Weighted | |
|
|
|
Weighted | |
|
|
|
|
Average | |
|
|
|
Average | |
|
|
|
Average | |
|
|
|
|
Exercise | |
|
|
|
Exercise | |
|
|
|
Exercise | |
|
|
Shares | |
|
Price | |
|
Shares | |
|
Price | |
|
Shares | |
|
Price | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Shares in thousands) | |
Outstanding at the beginning of year
|
|
|
355 |
|
|
$ |
10.55 |
|
|
|
191 |
|
|
$ |
10.50 |
|
|
|
156 |
|
|
$ |
10.50 |
|
|
Granted
|
|
|
45 |
|
|
$ |
12.85 |
|
|
|
29 |
|
|
$ |
10.60 |
|
|
|
36 |
|
|
$ |
11.20 |
|
|
Issued in connection with acquisition
|
|
|
|
|
|
|
|
|
|
|
174 |
|
|
$ |
10.90 |
|
|
|
|
|
|
|
|
|
|
Exercised
|
|
|
(32 |
) |
|
$ |
11.32 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forfeited
|
|
|
(2 |
) |
|
$ |
11.25 |
|
|
|
(39 |
) |
|
$ |
11.97 |
|
|
|
(1 |
) |
|
$ |
11.26 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at the end of year
|
|
|
366 |
|
|
$ |
10.76 |
|
|
|
355 |
|
|
$ |
10.55 |
|
|
|
191 |
|
|
$ |
10.50 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2004:
|
|
|
|
|
|
Options available for grant
|
|
|
25,203 |
|
|
Weighted average life in years of outstanding options and
warrants
|
|
|
5.7 |
|
|
Exercisable options and warrants
|
|
|
338,289 |
|
|
Weighted average price of exercisable options and warrants
|
|
$ |
10.75 |
|
|
Range of exercise prices
|
|
$ |
10.00-$12.85 |
|
Note 16
Federal Income
Taxes
A deferred tax benefit of $831,000, $317,000 and $485,000 was
recognized in 2004, 2003 and 2002, respectively.
F-22
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
The components of the net deferred tax asset at
December 31, 2004 and 2003 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Deferred tax assets:
|
|
|
|
|
|
|
|
|
|
Allowance for loan losses
|
|
$ |
1,034 |
|
|
$ |
1,097 |
|
|
Organization costs
|
|
|
|
|
|
|
31 |
|
|
Net operating loss carryforwards
|
|
|
799 |
|
|
|
1,846 |
|
|
Compensation related
|
|
|
304 |
|
|
|
94 |
|
|
Unrealized securities losses
|
|
|
103 |
|
|
|
|
|
|
Acquisition fair value adjustment, net
|
|
|
|
|
|
|
81 |
|
|
Other
|
|
|
65 |
|
|
|
130 |
|
|
|
|
|
|
|
|
|
|
|
2,305 |
|
|
|
3,279 |
|
|
Valuation allowance
|
|
|
|
|
|
|
(2,108 |
) |
|
|
|
|
|
|
|
|
|
Total Deferred Tax Assets, Net of Valuation Allowance
|
|
|
2,305 |
|
|
|
1,171 |
|
|
|
|
|
|
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
|
Bank premises and equipment
|
|
|
(55 |
) |
|
|
(68 |
) |
|
Deferred loan costs
|
|
|
(91 |
) |
|
|
(49 |
) |
|
Cash basis conversion
|
|
|
(98 |
) |
|
|
(56 |
) |
|
Acquisition fair value adjustment, net
|
|
|
(449 |
) |
|
|
|
|
|
Other
|
|
|
(12 |
) |
|
|
(12 |
) |
|
|
|
|
|
|
|
|
|
Total Deferred Tax Liabilities
|
|
|
(705 |
) |
|
|
(185 |
) |
|
|
|
|
|
|
|
|
|
Net Deferred Tax Asset
|
|
$ |
1,600 |
|
|
$ |
986 |
|
|
|
|
|
|
|
|
The Bank has net operating loss carryforwards available for
federal income tax purposes of approximately $2,348,000, which
begin to expire in 2019.
Note 17
Transactions with
Executive Officers, Directors and Principal
Shareholders
The Bank has had, and may be expected to have in the future,
banking transactions in the ordinary course of business with its
executive officers, directors, principal shareholders, their
immediate families and affiliated companies (commonly referred
to as related parties), on the same terms, including interest
rates and collateral, as those prevailing at the time for
comparable transactions with others. Deposits of related parties
totaled $11,552,000 and $11,134,000 at December 31, 2004
and 2003, respectively. Loan activity during 2004 with related
parties was as follows (in thousands):
|
|
|
|
|
|
Balance, beginning
|
|
$ |
17,857 |
|
|
Advances
|
|
|
8,895 |
|
|
Repayments
|
|
|
6,560 |
|
|
|
|
|
Balance, ending
|
|
$ |
20,192 |
|
|
|
|
|
Fees paid to a directors law firm for corporate legal
services were $47,000 in 2004, $207,000 in 2003 and $157,000 in
2002. Fees paid to a directors insurance company for
insurance services were $-0- in 2004, $34,000 in 2003 and $-0-
in 2002. As noted in Note 11, the Bank also rents certain
premises from related parties. The Bank purchased its main
office in 2004 from a related party at fair market value for
$1.3 million.
F-23
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
Note 18
Financial Instruments with
Off-Balance Sheet Risk
The Bank is a party to financial instruments with off-balance
sheet risk in the normal course of business to meet the
financing needs of its customers. These financial instruments
include commitments to extend credit and standby letters of
credit. Standby letters of credit commit the Bank to make
payments on behalf of customers when certain specified future
events occur. Such commitments involve, to varying degrees,
elements of credit and interest rate risk in excess of the
amount recognized in the balance sheet.
The Banks exposure to credit loss in the event of
nonperformance by the other party to the financial instrument
for letters of credit and commitments to extend credit is
represented by the contractual amount of those instruments. The
Bank uses the same credit policies in making commitments and
conditional obligations as it does for on-balance sheet
instruments.
At December 31, 2004 and 2003, the following financial
instruments were outstanding whose contract amounts represent
credit risk:
|
|
|
|
|
|
|
|
|
|
|
December 31, | |
|
December 31, | |
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Commitments to grant loans
|
|
$ |
20,760 |
|
|
$ |
19,568 |
|
Unfunded commitments under lines of credit
|
|
|
50,020 |
|
|
|
53,752 |
|
Unfunded letters of credit
|
|
|
2,741 |
|
|
|
2,597 |
|
|
|
|
|
|
|
|
|
|
$ |
73,521 |
|
|
$ |
75,917 |
|
|
|
|
|
|
|
|
Commitments to extend credit are agreements to lend to a
customer as long as there is no violation of any condition
established in the contract. Since many of the commitments are
expected to expire without being drawn upon, the total
commitment amounts do not necessarily represent future cash
requirements. Commitments generally have fixed expiration dates
or other termination clauses and may require payment of a fee.
The Bank evaluates each customers credit worthiness on a
case-by-case basis. The amount of collateral obtained, if deemed
necessary by the Bank upon extension of credit, is based on
managements credit evaluation. Collateral held varies but
may include personal or commercial real estate, accounts
receivable, inventory and equipment.
The credit risk involved in issuing letters of credit is
essentially the same as that involved in extending loan
commitments. The Bank requires collateral supporting these
letters of credit as deemed necessary. Management believes that
the proceeds obtained through a liquidation of such collateral
would be sufficient to cover the maximum potential amount of
future payments required under the corresponding guarantees. The
majority of these standby letters of credit expire within the
next twelve months. The current amount of the liability as of
December 31, 2004 and 2003 for guarantees under standby
letters of credit issued is not material.
Note 19
Concentration of Credit
Risk
Note 2 presents the types of securities that the Bank
invests in.
The Bank grants commercial, residential and consumer loans to
customers primarily located in central and northeast
Pennsylvania. The concentration of credit by type of loan is set
forth in Note 3. The debtors ability to honor their
contracts is influenced by the regions economy. The Bank
does not have any significant concentrations to any one industry
or customer.
Note 20
Regulatory
Matters
The Bank is subject to various regulatory capital requirements
administered by the federal banking agencies. Failure to meet
the minimum capital requirements can initiate certain mandatory
and possibly
F-24
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
additional discretionary-actions by regulators that, if
undertaken, could have a direct material effect on the
Banks financial statements. Under capital adequacy
guidelines and the regulatory framework for prompt corrective
action, the Bank must meet specific capital guidelines that
involve quantitative measures of the Banks assets,
liabilities and certain off-balance sheet items as calculated
under regulatory accounting practices. The Banks capital
amounts and classification are also subject to qualitative
judgments by the regulators about components, risk-weightings
and other factors.
Quantitative measures established by regulation to ensure
capital adequacy require the Bank to maintain minimum amounts
and ratios (set forth below) of total and Tier 1 capital
(as defined in the regulations) to risk-weighted assets and of
Tier 1 capital to average assets. Management believes, as
of December 31, 2004, that the Bank meets all capital
adequacy requirements to which it is subject.
As of December 31, 2004, the most recent notification from
the Federal Deposit Insurance Corporation categorized the Bank
as well capitalized under the regulatory framework for prompt
corrective action.
The Banks actual capital amounts and ratios compared to
regulatory requirements at December 31 are presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To be Well Capitalized | |
|
|
|
|
|
|
|
|
Under Prompt | |
|
|
|
|
For Capital Adequacy | |
|
Corrective Action | |
|
|
Actual | |
|
Purposes | |
|
Provisions | |
|
|
| |
|
| |
|
| |
|
|
Amount | |
|
Ratio | |
|
Amount | |
|
Ratio | |
|
Amount | |
|
Ratio | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollar amounts in thousands) | |
As of December 31, 2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital (to risk-weighted assets)
|
|
$ |
37,698 |
|
|
|
14.7 |
% |
|
|
$³20,573 |
|
|
|
³8.0 |
% |
|
|
$³25,717 |
|
|
|
³10.0 |
% |
|
Tier 1 capital (to risk-weighted assets)
|
|
|
29,980 |
|
|
|
11.7 |
|
|
|
³10,287 |
|
|
|
³4.0 |
|
|
|
³15,430 |
|
|
|
³6.0 |
|
|
Tier 1 capital (to average assets)
|
|
|
29,980 |
|
|
|
9.4 |
|
|
|
³12,762 |
|
|
|
³4.0 |
|
|
|
³15,952 |
|
|
|
³5.0 |
|
As of December 31, 2003:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital (to risk-weighted assets)
|
|
$ |
33,826 |
|
|
|
14.2 |
% |
|
|
$³19,037 |
|
|
|
³8.0 |
% |
|
|
$³23,796 |
|
|
|
³10.0 |
% |
|
Tier 1 capital (to risk-weighted assets)
|
|
|
26,061 |
|
|
|
11.0 |
|
|
|
³ 9,518 |
|
|
|
³4.0 |
|
|
|
³14,277 |
|
|
|
³6.0 |
|
|
Tier 1 capital (to average assets)
|
|
|
26,061 |
|
|
|
9.1 |
|
|
|
³11,493 |
|
|
|
³4.0 |
|
|
|
³14,366 |
|
|
|
³5.0 |
|
The Bank is subject to certain restrictions on the amount of
dividends that it may declare due to regulatory considerations.
The Pennsylvania Banking Code provides that cash dividends may
be declared and paid only out of accumulated net earnings.
Note 21
Employee Benefit
Plans
The Bank maintains a defined contribution 401(k) retirement plan
that covers substantially all full time employees. The Bank
contributes 3% of all currently employed participants
compensation. Additionally, employer profit sharing
contributions are made at the discretion of the Board of
Directors and are typically based on profits and business
conditions. Contributions to the plan totaled $115,000, $91,000
and $52,000 for 2004, 2003 and 2002, respectively.
The Bank also maintains a Supplemental Employee Retirement Plan
to provide certain of the Banks executive officers with
supplemental retirement benefits. Participants under the Plan
are designated by the Plan Committee and approved by the
Banks Board of Directors. The Plan is an unfunded defined
benefit plan with an accrued liability of $398,000 at
December 31, 2004 and $275,000 at December 31, 2003.
Expense associated with the Plan was $123,000 in 2004, $79,000
in 2003 and $71,000 in 2002.
F-25
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
Note 22
Fair Values of Financial
Instruments
Statement of Financial Accounting Standards No. 107,
Disclosures about Fair Value of Financial
Instruments, requires disclosure of fair value information
about financial instruments, whether or not recognized in the
balance sheet, for which it is practicable to estimate fair
value. In cases where quoted market prices are not available,
fair values are based on estimates using present value or other
valuation techniques. Those techniques are significantly
affected by the assumptions used, including the discount rate
and estimates of future cash flows. In that regard, the derived
fair value estimates cannot be substantiated by comparison to
independent markets and, in many cases, could not be realized in
immediate settlement of the instruments. Statement No. 107
excludes certain financial instruments and all non-financial
instruments from its disclosure requirements. Accordingly, the
aggregate fair value amounts presented do not represent the
underlying value of the Bank.
The following methods and assumptions were used by the Bank in
estimating its fair value disclosures for financial instruments:
|
|
|
Cash and Cash Equivalents |
The carrying amounts reported in the balance sheets for cash and
cash equivalents approximate their fair value.
Fair values for securities are based on quoted market prices,
where available. If quoted market prices are not available, fair
values are based on quoted market prices of comparable
instruments. The fair value of the restricted stock in the
Federal Home Loan Bank is assumed to be its cost or
carrying value.
For variable-rate loans that reprice frequently and which entail
no significant changes in credit risk, fair values are based on
carrying values. The fair values of other loans are estimated
using discounted cash flow analysis, based on interest rates
currently being offered for loans with similar terms to
borrowers of similar credit quality.
|
|
|
Accrued Interest Receivable |
The carrying amount of accrued interest approximates its fair
value.
Fair value for demand deposits, savings accounts and certain
money market deposits are, by definition, equal to the amount
payable on demand at the reporting date (i.e., their carrying
amounts). Fair values of fixed-rate certificates of deposit are
estimated using a discounted cash flow calculation that applies
interest rates currently being offered on certificates to a
schedule of aggregated expected monthly maturity of deposits.
The carrying amounts for variable rate certificates of deposit
approximate their fair values.
The carrying amount of short-term borrowings approximate their
fair value.
|
|
|
Long-Term Debt and Subordinated Debentures |
The fair value of advances from the Federal Home Loan Bank
are based on market prices as quoted by the Federal Home
Loan Bank. For other long-term debt and FHLB advances where
market prices are not
F-26
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
available, fair values are estimated using discounted cash flow
analysis, based on interest rates currently being offered for
debt with similar terms. The fair value of subordinated
debentures is estimated by discounting the future cash flows,
using rates available for debt of similar remaining maturity at
the report date.
The carrying amount of accrued interest approximates its fair
value.
|
|
|
Unfunded Lending Commitments and Letters of Credit |
Fair values for unfunded lending commitments and letters of
credit are based on fees currently charged to enter into similar
agreements, taking into account the remaining terms of the
agreements and the counterparties credit standings. These
amounts were not considered material at December 31, 2004
and 2003.
The carrying amounts and estimated fair values of the
Banks financial instruments at December 31 are as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2004 | |
|
2003 | |
|
|
| |
|
| |
|
|
Carrying | |
|
Fair | |
|
Carrying | |
|
Fair | |
|
|
Amount | |
|
Value | |
|
Amount | |
|
Value | |
|
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands) | |
Financial assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and due from banks
|
|
$ |
5,305 |
|
|
$ |
5,305 |
|
|
$ |
8,709 |
|
|
$ |
8,709 |
|
|
Short-term investments and federal funds sold
|
|
|
1,890 |
|
|
|
1,890 |
|
|
|
21 |
|
|
|
21 |
|
|
Securities available for sale
|
|
|
51,098 |
|
|
|
51,098 |
|
|
|
43,184 |
|
|
|
43,184 |
|
|
Securities held to maturity
|
|
|
12,013 |
|
|
|
11,930 |
|
|
|
12,500 |
|
|
|
12,450 |
|
|
Loans receivable, net
|
|
|
249,019 |
|
|
|
256,207 |
|
|
|
226,155 |
|
|
|
237,354 |
|
|
Accrued interest receivable
|
|
|
1,437 |
|
|
|
1,437 |
|
|
|
1,242 |
|
|
|
1,242 |
|
Financial liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
|
244,464 |
|
|
|
247,771 |
|
|
|
240,080 |
|
|
|
242,999 |
|
|
Short-term borrowings
|
|
|
23,425 |
|
|
|
23,425 |
|
|
|
10,187 |
|
|
|
10,187 |
|
|
Long-term Federal Home Loan Bank borrowings
|
|
|
28,000 |
|
|
|
28,250 |
|
|
|
14,500 |
|
|
|
15,171 |
|
|
Convertible subordinated debentures
|
|
|
4,500 |
|
|
|
4,317 |
|
|
|
4,785 |
|
|
|
4,479 |
|
|
Accrued interest payable
|
|
|
213 |
|
|
|
213 |
|
|
|
148 |
|
|
|
148 |
|
Off balance sheet financial instruments, unfunded lending
commitments and letters of credit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note 23
Acquisitions
On January 1, 2003, the Bank acquired 100% of the
outstanding common shares of Northern State Bank (Northern
State). The results of Northern States operations have
been included in the consolidated financial statements for the
year 2003. Similar to the Bank, Northern State was a full
service bank providing personal and business lending and deposit
services in its markets in north-central Pennsylvania. As
anticipated, the Bank has experienced expanded revenue
opportunities and economies of scale resulting from the purchase.
The aggregate purchase price was approximately
$12.9 million as Northern State received
1,196,608 shares of the Banks common stock in a
one-for-one exchange for all outstanding Northern State common
shares. The acquisition was accretive to the Bank for 2003. On
June 5, 2004, the Bank sold the Towanda and Sayre branches
acquired through this acquisition to Citizens Financial
Services, Inc., holding company of First Citizens National Bank.
F-27
The Legacy
Bank
Notes to Consolidated
Financial Statements (Continued)
On September 5, 2003, the Bank acquired three banking
offices and the associated loans and deposits from Leesport
Financial Corporation (Leesport). The results of this purchase
have been included in the consolidated financial statements
since that date. The Bank significantly expanded its presence
and customer delivery capabilities in northeast Pennsylvania
with the addition of these three offices, complimenting the
existing office in Hazleton. The Bank received
$23.9 million in net commercial, mortgage and consumer
loans, and assumed $59.5 million in demand, savings and
time deposits. This acquisition was immediately accretive to the
Bank.
The following table summarizes the estimated fair values of the
assets acquired and liabilities assumed as of the respective
dates of the transactions:
|
|
|
|
|
|
|
|
|
|
|
|
Northern | |
|
Leesport Branch | |
|
|
State Bank | |
|
Purchases | |
|
|
| |
|
| |
|
|
(In thousands) | |
Assets
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$ |
6,705 |
|
|
$ |
31,226 |
|
|
Investment securities
|
|
|
14,782 |
|
|
|
|
|
|
Net loans
|
|
|
65,464 |
|
|
|
23,902 |
|
|
Premises and equipment, net
|
|
|
1,456 |
|
|
|
917 |
|
|
Goodwill
|
|
|
4,260 |
|
|
|
2,004 |
|
|
Intangible assets
|
|
|
36 |
|
|
|
1,568 |
|
|
Other assets
|
|
|
606 |
|
|
|
59 |
|
|
|
|
|
|
|
|
Total Assets Acquired
|
|
|
93,309 |
|
|
|
59,676 |
|
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
|
76,276 |
|
|
|
59,508 |
|
|
Borrowed funds
|
|
|
2,997 |
|
|
|
|
|
|
Other liabilities
|
|
|
1,176 |
|
|
|
168 |
|
|
|
|
|
|
|
|
|
Total Liabilities Assumed
|
|
|
80,449 |
|
|
$ |
59,676 |
|
|
|
|
|
|
|
|
|
Net Assets (Liabilities) Acquired
|
|
$ |
12,860 |
|
|
|
|
|
|
|
|
|
|
|
|
Note 24
pending branch
purchase
In order to expand its market presence the Bank signed an
agreement to purchase the McAdoo, Pennsylvania branch of
Harleysville National Bank, a wholly-owned subsidiary of
Harleysville National Corporation on December 17, 2004. The
purchase of this branch will include the assumption of
approximately $14.6 million in deposits as well as the
purchase of approximately $5.5 million of certain loans and
other assets. The transaction is subject to regulatory approval
and is expected to close early in the second quarter of 2005.
The acquisition is expected to be accretive to the Bank
immediately.
F-28
PART I FINANCIAL INFORMATION
|
|
Item 1. |
Financial Statements |
The Legacy Bank
Consolidated Balance Sheets
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, | |
|
December 31, | |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(Unaudited) | |
|
|
|
|
(In thousands, except share | |
|
|
amounts) | |
ASSETS |
Cash and due from banks
|
|
$ |
5,624 |
|
|
$ |
5,305 |
|
Federal funds sold
|
|
|
309 |
|
|
|
1,868 |
|
Short-term investments
|
|
|
22 |
|
|
|
22 |
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents
|
|
|
5,955 |
|
|
|
7,195 |
|
Securities:
|
|
|
|
|
|
|
|
|
|
Available for sale
|
|
|
60,492 |
|
|
|
51,098 |
|
|
Held to maturity
|
|
|
10,049 |
|
|
|
12,013 |
|
|
|
|
|
|
|
|
|
|
Total Securities
|
|
|
70,541 |
|
|
|
63,111 |
|
Total loans
|
|
|
283,252 |
|
|
|
252,480 |
|
|
Less: Allowance for loan losses
|
|
|
(3,254 |
) |
|
|
(3,461 |
) |
|
|
|
|
|
|
|
|
|
Net Loans
|
|
|
279,998 |
|
|
|
249,019 |
|
Premises and equipment, net
|
|
|
5,510 |
|
|
|
4,502 |
|
Goodwill
|
|
|
6,481 |
|
|
|
5,566 |
|
Other intangible assets
|
|
|
1,384 |
|
|
|
1,375 |
|
Accrued interest receivable
|
|
|
1,912 |
|
|
|
1,437 |
|
Bank owned life insurance
|
|
|
7,769 |
|
|
|
4,540 |
|
Other assets
|
|
|
2,589 |
|
|
|
1,845 |
|
|
|
|
|
|
|
|
|
|
Total Assets
|
|
$ |
382,139 |
|
|
$ |
338,590 |
|
|
|
|
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS EQUITY |
|
LIABILITIES |
Deposits:
|
|
|
|
|
|
|
|
|
|
Non-interest bearing
|
|
$ |
30,694 |
|
|
$ |
27,931 |
|
|
Interest-bearing
|
|
|
257,542 |
|
|
|
216,533 |
|
|
|
|
|
|
|
|
|
|
Total Deposits
|
|
|
288,236 |
|
|
|
244,464 |
|
Short-term borrowings
|
|
|
7,575 |
|
|
|
23,425 |
|
Long-term FHLB borrowings
|
|
|
44,000 |
|
|
|
28,000 |
|
Convertible subordinated debentures
|
|
|
4,442 |
|
|
|
4,500 |
|
Other liabilities
|
|
|
1,373 |
|
|
|
1,476 |
|
|
|
|
|
|
|
|
|
|
Total Liabilities
|
|
|
345,626 |
|
|
|
301,865 |
|
Shareholders Equity
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $5 par value; authorized
1,000,000 shares; none issued and outstanding
|
|
|
|
|
|
|
|
|
|
|
Common stock, $5 par value; authorized
5,000,000 shares; 3,636,949 shares issued and
3,527,322 outstanding at September 30, 2005;
3,609,417 shares issued and outstanding at
December 31, 2004
|
|
|
18,185 |
|
|
|
18,047 |
|
|
|
Surplus
|
|
|
19,505 |
|
|
|
19,327 |
|
|
|
Retained earnings (deficit)
|
|
|
811 |
|
|
|
(453 |
) |
|
|
Accumulated other comprehensive loss
|
|
|
(426 |
) |
|
|
(196 |
) |
|
|
Treasury stock, 109,627 shares at September 30, 2005
and 0 shares at December 31, 2004
|
|
|
(1,562 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Shareholders Equity
|
|
|
36,513 |
|
|
|
36,725 |
|
|
|
|
|
|
|
|
|
|
Total Liabilities and Shareholders Equity
|
|
$ |
382,139 |
|
|
$ |
338,590 |
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
F-29
The Legacy Bank
Consolidated Statements of Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months | |
|
Nine Months | |
|
|
Ended | |
|
Ended | |
|
|
September 30, | |
|
September 30, | |
|
|
| |
|
| |
|
|
2005 | |
|
2004 | |
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
| |
|
| |
|
|
(In thousands, except per share amounts) | |
|
|
(Unaudited) | |
Interest Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans receivable, including fees
|
|
$ |
4,617 |
|
|
$ |
3,608 |
|
|
$ |
12,773 |
|
|
$ |
10,590 |
|
|
Securities
|
|
|
619 |
|
|
|
456 |
|
|
|
1,698 |
|
|
|
1,368 |
|
|
Other
|
|
|
1 |
|
|
|
2 |
|
|
|
30 |
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Interest Income
|
|
|
5,237 |
|
|
|
4,066 |
|
|
|
14,501 |
|
|
|
11,964 |
|
Interest Expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deposits
|
|
|
1,829 |
|
|
|
1,071 |
|
|
|
4,875 |
|
|
|
3,131 |
|
|
Short-term borrowings
|
|
|
76 |
|
|
|
35 |
|
|
|
163 |
|
|
|
81 |
|
|
Convertible subordinated debentures
|
|
|
57 |
|
|
|
59 |
|
|
|
169 |
|
|
|
179 |
|
|
Long-term FHLB borrowings
|
|
|
259 |
|
|
|
193 |
|
|
|
716 |
|
|
|
556 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Interest Expense
|
|
|
2,221 |
|
|
|
1,358 |
|
|
|
5,923 |
|
|
|
3,947 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Income
|
|
|
3,016 |
|
|
|
2,708 |
|
|
|
8,578 |
|
|
|
8,017 |
|
Provision for Loan Losses
|
|
|
200 |
|
|
|
189 |
|
|
|
350 |
|
|
|
798 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Interest Income After Provision for Loan Losses
|
|
|
2,816 |
|
|
|
2,519 |
|
|
|
8,228 |
|
|
|
7,219 |
|
Noninterest Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service charges on deposit accounts
|
|
|
161 |
|
|
|
132 |
|
|
|
485 |
|
|
|
443 |
|
|
Asset management fees
|
|
|
242 |
|
|
|
200 |
|
|
|
731 |
|
|
|
605 |
|
|
Service charges on loans
|
|
|
70 |
|
|
|
85 |
|
|
|
247 |
|
|
|
240 |
|
|
Loss on sale of securities
|
|
|
|
|
|
|
|
|
|
|
(11 |
) |
|
|
|
|
|
Gain on sales of loans
|
|
|
|
|
|
|
|
|
|
|
214 |
|
|
|
197 |
|
|
Gain on sale of branches
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
196 |
|
|
Income from Bank owned life insurance
|
|
|
74 |
|
|
|
|
|
|
|
213 |
|
|
|
|
|
|
Other
|
|
|
3 |
|
|
|
|
|
|
|
6 |
|
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Noninterest Income
|
|
|
550 |
|
|
|
417 |
|
|
|
1,885 |
|
|
|
1,684 |
|
Noninterest Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries and employee benefits
|
|
|
1,439 |
|
|
|
1,267 |
|
|
|
4,400 |
|
|
|
3,993 |
|
|
Occupancy and equipment
|
|
|
259 |
|
|
|
271 |
|
|
|
743 |
|
|
|
985 |
|
|
Data processing
|
|
|
244 |
|
|
|
267 |
|
|
|
721 |
|
|
|
809 |
|
|
Advertising, marketing and business development
|
|
|
37 |
|
|
|
74 |
|
|
|
112 |
|
|
|
165 |
|
|
Other
|
|
|
708 |
|
|
|
611 |
|
|
|
2,303 |
|
|
|
2,007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Noninterest Expenses
|
|
|
2,687 |
|
|
|
2,490 |
|
|
|
8,279 |
|
|
|
7,959 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income Before Income Tax Expense (Benefit)
|
|
|
679 |
|
|
|
446 |
|
|
|
1,834 |
|
|
|
944 |
|
Income Tax Expense (Benefit)
|
|
|
208 |
|
|
|
(207 |
) |
|
|
570 |
|
|
|
(621 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
$ |
471 |
|
|
$ |
653 |
|
|
$ |
1,264 |
|
|
$ |
1,565 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings Per Share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$ |
0.13 |
|
|
$ |
0.18 |
|
|
$ |
0.35 |
|
|
$ |
0.44 |
|
|
Diluted
|
|
$ |
0.13 |
|
|
$ |
0.17 |
|
|
$ |
0.34 |
|
|
$ |
0.43 |
|
See notes to consolidated financial statements.
F-30
The Legacy Bank
Consolidated Statements of Shareholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30, 2004 | |
|
|
| |
|
|
|
|
Accumulated | |
|
|
|
|
|
|
Other | |
|
|
|
|
|
|
Retained | |
|
Comprehensive | |
|
|
|
|
Common | |
|
|
|
Earnings | |
|
Income | |
|
Treasury |
|
|
|
|
Stock | |
|
Surplus | |
|
(Deficit) | |
|
(Loss) | |
|
Stock |
|
Total | |
|
|
| |
|
| |
|
| |
|
| |
|
|
|
| |
|
|
(Dollars in thousands) | |
|
|
(Unaudited) | |
Balance January 1, 2004
|
|
$ |
17,751 |
|
|
$ |
18,930 |
|
|
$ |
(2,808 |
) |
|
$ |
(1 |
) |
|
$ |
|
|
|
$ |
33,872 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
|
|
|
|
|
|
|
|
|
1,565 |
|
|
|
|
|
|
|
|
|
|
|
1,565 |
|
|
Unrealized gain (loss) on securities available for sale, net of
tax of $18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(33 |
) |
|
|
|
|
|
|
(33 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,532 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercised, 28,600 shares
|
|
|
143 |
|
|
|
181 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
324 |
|
Debentures converted to 20,400 shares
|
|
|
102 |
|
|
|
126 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
228 |
|
Directors compensation, 4,494 shares
|
|
|
23 |
|
|
|
51 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
74 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance September 30, 2004
|
|
$ |
18,019 |
|
|
$ |
19,288 |
|
|
$ |
(1,243 |
) |
|
$ |
(34 |
) |
|
$ |
|
|
|
$ |
36,030 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30, 2005 | |
|
|
| |
Balance January 1, 2005
|
|
$ |
18,047 |
|
|
$ |
19,327 |
|
|
$ |
(453 |
) |
|
$ |
(196 |
) |
|
$ |
|
|
|
$ |
36,725 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income
|
|
|
|
|
|
|
|
|
|
|
1,264 |
|
|
|
|
|
|
|
|
|
|
|
1,264 |
|
|
Unrealized gain (loss) on securities available for sale, net of
tax of $118
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(230 |
) |
|
|
|
|
|
|
(230 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,034 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercised, 17,220 shares
|
|
|
86 |
|
|
|
97 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
183 |
|
Debentures converted, 4,600 shares
|
|
|
23 |
|
|
|
34 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
57 |
|
Directors compensation, 5,712 shares
|
|
|
29 |
|
|
|
47 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
76 |
|
Purchase of treasury stock, 109,627 shares
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,562 |
) |
|
|
(1,562 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance September 30, 2005
|
|
$ |
18,185 |
|
|
$ |
19,505 |
|
|
$ |
811 |
|
|
$ |
(426 |
) |
|
$ |
(1,562 |
) |
|
$ |
36,513 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements
F-31
The Legacy Bank
Consolidated Statements of Cash Flows
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended | |
|
|
September 30, | |
|
|
| |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(Unaudited, in | |
|
|
thousands) | |
|
Cash Flows from Operating Activities
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$ |
1,264 |
|
|
$ |
1,565 |
|
|
|
Adjustments to reconcile net income to net cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
|
|
Provision for loan losses
|
|
|
350 |
|
|
|
798 |
|
|
|
Provision for depreciation and amortization
|
|
|
407 |
|
|
|
562 |
|
|
|
Amortization of intangible assets
|
|
|
148 |
|
|
|
130 |
|
|
|
Net amortization of investment securities
|
|
|
463 |
|
|
|
575 |
|
|
|
Deferred income taxes (benefit)
|
|
|
374 |
|
|
|
(621 |
) |
|
|
Stock issued for directors compensation
|
|
|
76 |
|
|
|
74 |
|
|
|
Securities losses (gains)
|
|
|
11 |
|
|
|
|
|
|
|
Gains on sale of loans
|
|
|
(214 |
) |
|
|
(197 |
) |
|
|
Gain on sale of branches
|
|
|
|
|
|
|
(196 |
) |
|
|
Earnings on Bank owned life insurance
|
|
|
(213 |
) |
|
|
|
|
|
|
Decrease (increase) in accrued interest receivable and other
assets
|
|
|
(1,597 |
) |
|
|
62 |
|
|
|
Increase (decrease) in other liabilities
|
|
|
(480 |
) |
|
|
(278 |
) |
|
|
|
|
|
|
|
|
|
|
|
Net Cash Provided by Operating Activities
|
|
|
589 |
|
|
|
2,474 |
|
|
|
|
|
|
|
|
|
Cash Flows from Investing Activities
|
|
|
|
|
|
|
|
|
|
|
Securities available for sale:
|
|
|
|
|
|
|
|
|
|
|
|
Purchases
|
|
|
(32,330 |
) |
|
|
(8,885 |
) |
|
|
|
Proceeds from sales
|
|
|
9,529 |
|
|
|
1,834 |
|
|
|
|
Proceeds from maturities of and principal repayments
|
|
|
12,826 |
|
|
|
11,880 |
|
|
|
Securities held to maturity:
|
|
|
|
|
|
|
|
|
|
|
|
Purchases
|
|
|
|
|
|
|
(2,000 |
) |
|
|
|
Proceeds from maturities of and principal repayments
|
|
|
1,840 |
|
|
|
1,839 |
|
|
|
Net increase in loans receivable
|
|
|
(21,747 |
) |
|
|
(39,332 |
) |
|
|
Proceeds from sale of loans
|
|
|
3,410 |
|
|
|
2,642 |
|
|
|
Purchase of loans
|
|
|
(7,711 |
) |
|
|
(10,329 |
) |
|
|
Increase in cash from branch sale/acquisition
|
|
|
7,505 |
|
|
|
9,093 |
|
|
|
Purchase of Bank owned life insurance
|
|
|
(3,016 |
) |
|
|
(4,500 |
) |
|
|
Purchases of bank premises and equipment
|
|
|
(966 |
) |
|
|
(1,785 |
) |
|
|
|
|
|
|
|
|
|
|
|
Net Cash Used in Investing Activities
|
|
|
(30,660 |
) |
|
|
(39,543 |
) |
|
|
|
|
|
|
|
|
Cash Flows from Financing Activities
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in deposits
|
|
|
30,060 |
|
|
|
27,115 |
|
|
|
Net increase (decrease) in short-term borrowings
|
|
|
(15,850 |
) |
|
|
(3,187 |
) |
|
|
Proceeds from long-term borrowings
|
|
|
19,000 |
|
|
|
9,500 |
|
|
|
Repayments of long-term borrowings
|
|
|
(3,000 |
) |
|
|
|
|
|
|
Payments to purchase treasury stock
|
|
|
(1,562 |
) |
|
|
|
|
|
|
Net proceeds from exercised stock options
|
|
|
183 |
|
|
|
324 |
|
|
|
|
|
|
|
|
|
|
|
|
Net Cash Provided by Financing Activities
|
|
|
28,831 |
|
|
|
33,752 |
|
|
|
|
|
|
|
|
|
|
|
|
Net (Decrease) in Cash and Cash Equivalents
|
|
|
(1,240 |
) |
|
|
(3,317 |
) |
|
Cash and Cash Equivalents Beginning
|
|
|
7,195 |
|
|
|
8,730 |
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents Ending
|
|
$ |
5,955 |
|
|
$ |
5,413 |
|
|
|
|
|
|
|
|
SUPPLEMENTARY CASH FLOWS INFORMATION
|
|
|
|
|
|
|
|
|
|
|
Interest paid
|
|
$ |
5,878 |
|
|
$ |
3,957 |
|
|
|
Income taxes paid
|
|
$ |
355 |
|
|
$ |
52 |
|
|
|
Debentures converted in common stock
|
|
$ |
57 |
|
|
$ |
228 |
|
See notes to consolidated financial statements
F-32
The Legacy Bank
Notes to Consolidated Financial Statements
Note 1 Summary of Significant Accounting
Policies
|
|
|
Principles of Consolidation |
The accompanying consolidated financial statements include the
accounts of The Legacy Bank (the Bank) and its wholly-owned
subsidiary, The Legacy Trust Company (the Trust). All
significant intercompany accounts and transactions have been
eliminated.
The accompanying financial statements have been prepared in
accordance with accounting principles generally accepted in the
United States for interim financial information and instructions
to Form 10-Q and
Article 10 of
Regulation S-X.
Accordingly, they do not include all of the information and
footnotes required by accounting principles generally accepted
in the United States for complete financial statements. In the
opinion of management, all adjustments, consisting of normal
recurring accruals, considered necessary for a fair presentation
have been included. Operating results for the nine months ended
September 30, 2005 are not necessarily indicative of what
results for the fiscal year will be.
The Bank accounts for stock options under the intrinsic value
based method of accounting prescribed by Accounting Principles
Board Opinion No. 25, Accounting for Stock Issued to
Employees, whereby compensation cost is the excess, if
any, of the quoted market price of the stock at the grant date
(or other measurement date) over the amount an employee must pay
to acquire the stock. Stock options issued under the Banks
stock option plan have no intrinsic value at the grant date, and
under Opinion No. 25 no compensation cost is recognized for
them. The Bank has elected to continue with the accounting
methodology in Opinion No. 25 and, as a result, has
provided pro forma disclosures of net income and earnings per
share, as if the fair value based method of accounting had been
applied.
Pro forma disclosures as though compensation expense for the
stock options was determined under the recognition provisions of
Statement No. 123 using the fair value of the awards at the
grant date are as follows for the periods ended
September 30, 2005 and 2004:
|
|
|
|
|
|
|
|
|
|
|
|
Three Months | |
|
|
Ended | |
|
|
September 30, | |
|
|
| |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(In thousands, | |
|
|
except per share | |
|
|
data) | |
Net income, as reported
|
|
$ |
471 |
|
|
$ |
653 |
|
Total stock-based compensation expense determined under fair
value method, net of tax
|
|
|
(5 |
) |
|
|
(15 |
) |
|
|
|
|
|
|
|
Pro forma net income
|
|
$ |
466 |
|
|
$ |
638 |
|
|
|
|
|
|
|
|
Earnings per share basic:
|
|
|
|
|
|
|
|
|
|
As reported
|
|
$ |
0.13 |
|
|
$ |
0.18 |
|
|
Pro forma
|
|
$ |
0.13 |
|
|
$ |
0.18 |
|
Earnings per share diluted:
|
|
|
|
|
|
|
|
|
|
As reported
|
|
$ |
0.13 |
|
|
$ |
0.17 |
|
|
Pro forma
|
|
$ |
0.13 |
|
|
$ |
0.17 |
|
F-33
The Legacy Bank
Notes to Consolidated Financial
Statements (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months | |
|
|
Ended | |
|
|
September 30, | |
|
|
| |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(In thousands, | |
|
|
except per share | |
|
|
data) | |
Net income, as reported
|
|
$ |
1,264 |
|
|
|
1,565 |
|
Total stock-based compensation expense determined under fair
value method, net of tax
|
|
|
(233 |
) |
|
|
(179 |
) |
|
|
|
|
|
|
|
Pro forma net income
|
|
$ |
1,031 |
|
|
$ |
1,386 |
|
|
|
|
|
|
|
|
Earnings per share basic:
|
|
|
|
|
|
|
|
|
|
As reported
|
|
$ |
0.35 |
|
|
$ |
0.44 |
|
|
Pro forma
|
|
$ |
0.29 |
|
|
$ |
0.39 |
|
Earnings per share diluted:
|
|
|
|
|
|
|
|
|
|
As reported
|
|
$ |
0.34 |
|
|
$ |
0.43 |
|
|
Pro forma
|
|
$ |
0.28 |
|
|
$ |
0.38 |
|
|
|
|
Earnings per Common Share |
Basic earnings per share is income available to common
shareholders divided by the weighted-average number of common
shares outstanding during the period. Diluted earnings per share
reflects additional common shares that would have been
outstanding if dilutive potential common shares had been issued,
as well as any adjustment to income that would result from the
assumed issuance. Potential common shares that may be issued by
the Bank relate to outstanding stock options, warrants and
convertible debentures.
Earnings per common share have been computed based on the
following:
|
|
|
|
|
|
|
|
|
|
|
Three Months | |
|
|
Ended | |
|
|
September 30, | |
|
|
| |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Net income
|
|
$ |
471 |
|
|
$ |
653 |
|
|
|
|
|
|
|
|
Average number of common shares outstanding
|
|
|
3,584 |
|
|
|
3,598 |
|
Effect of dilutive options and warrants
|
|
|
127 |
|
|
|
141 |
|
|
|
|
|
|
|
|
Average number of common shares outstanding used to calculate
diluted earnings per common share
|
|
|
3,711 |
|
|
|
3,739 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months | |
|
|
Ended | |
|
|
September 30, | |
|
|
| |
|
|
2005 | |
|
2004 | |
|
|
| |
|
| |
|
|
(In thousands) | |
Net income
|
|
$ |
1,264 |
|
|
$ |
1,565 |
|
|
|
|
|
|
|
|
Average number of common shares outstanding
|
|
|
3,603 |
|
|
|
3,574 |
|
Effect of dilutive options and warrants
|
|
|
119 |
|
|
|
105 |
|
|
|
|
|
|
|
|
Average number of common shares outstanding used to calculate
diluted earnings per common share
|
|
|
3,722 |
|
|
|
3,679 |
|
|
|
|
|
|
|
|
F-34
The Legacy Bank
Notes to Consolidated Financial
Statements (Continued)
Note 2 Guarantees
The Bank does not issue any guarantees that would require
liability recognition or disclosure, other than its standby
letters of credit. Standby letters of credit written are
conditional commitments issued by the Bank to guarantee the
performance of a customer to a third party. Generally, all
letters of credit, when issued have expiration dates within one
year. The credit risk involved in issuing letters of credit is
essentially the same as those that are involved in extending
loan facilities to customers. The Bank generally holds
collateral and/or personal guarantees supporting these
commitments. The Bank had $2,331,000 of standby letters of
credit as of September 30, 2005 and $2,741,000 at
December 31, 2004. Management believes that the proceeds
obtained through a liquidation of collateral and the enforcement
of guarantees would be sufficient to cover the potential amount
of future payments required under the corresponding guarantees.
The current amount of the liability as of September 30,
2005 and December 31, 2004 for guarantees under standby
letters of credit issued is insignificant.
Note 3 Comprehensive Income
Accounting principles generally require that recognized revenue,
expenses, gains and losses be included in net income or loss.
Although certain changes in assets and liabilities, such as
unrealized gains and losses on available for sale securities,
are reported as a separate component of the equity section of
the balance sheet, such items, along with net income, are
components of comprehensive income. Sources of other
comprehensive income (loss) not included in net income were
limited to unrealized gains (losses) on available for sale
securities which, net of tax, were ($140,000) and $428,000 for
the three month periods ended September 30, 2005 and 2004,
respectively and were ($230,000) and ($33,000) for the nine
month periods ended September 30, 2005 and 2004,
respectively.
The Bank recorded reclassification adjustments out of other
comprehensive income totaling $0 for the three month period and
$11,000 for the nine month period ended September 30, 2005,
respectively, for losses realized on securities available for
sale. The adjustment for the nine month period ended
September 30, 2005 included a net tax benefit of $4,000.
There were no gains or losses realized on security sales for the
comparable prior periods.
|
|
Note 4 |
Branch Acquisition and Branch Opening |
On April 1, 2005, the Bank completed the purchase of a
branch office in McAdoo, Schuylkill County, Pennsylvania. The
transaction was recognized in the second quarter as a purchase
of a business resulting in additional goodwill of $909,000. As
reported previously, the branch purchase added approximately
$5.5 million in loans, $.4 million in real estate, and
$13.8 million in deposits.
On October 3, 2005, the Bank opened a full service branch
in Pottsville, Schuylkill County, Pennsylvania. This facility
includes, and builds upon the success of, existing Legacy trust
and loan production operations in Pottsville. The branch opening
did not have a significant impact on the Banks financial
condition or results of operations.
|
|
Note 5 |
New Accounting Guidance |
In December 2004, the Financial Accounting Standards Board
(FASB) issued Statement No. 123(R), Share-Based
Payments, (SFAS 123(R)). SFAS 123(R) revised
Statement No. 123, Accounting for Stock-Based
Compensation and supersedes APB Opinion No. 25,
Accounting for Stock Issued to Employees.
SFAS 123(R) will require compensation costs related to
share-based payment transactions to be recognized in the
financial statements, with limited exceptions. The amount of
compensation cost will be measured based on the grant-date fair
value of the equity or liability instruments issued.
Compensation cost will be recognized over the period that an
employee provides services in exchange for the award. The
F-35
The Legacy Bank
Notes to Consolidated Financial
Statements (Continued)
Securities and Exchange Commission (SEC) recently adopted a
new rule that amended the compliance dates for SFAS 123(R).
As a result of this SEC ruling, the Bank will be required to
implement SFAS 123(R) as of January 1, 2006 on a
prospective basis. The impact of this standard on the
Banks future financial condition and results of operations
is dependent on the extent and nature of share-based
compensation issued in future periods.
In March 2005, the SEC issued Staff Accounting
Bulletin No. 107 (SAB No. 107),
Share-Based Payment, providing guidance on option
valuation methods, the accounting for income tax effects of
share-based payment arrangements upon adoption of
SFAS No. 123(R), and the disclosures in MD&A
subsequent to the adoption. The Bank will provide
SAB No. 107 required disclosures upon adoption of
SFAS No. 123(R) on January 1, 2006.
In December 2003, the Accounting Standards Executive Committee
issued Statement of Position 03-3 (SOP 03-3), Accounting
for Certain Loans or Debt Securities Acquired in a
Transfer. SOP 03-3 addresses accounting for differences
between contractual cash flows and cash flows expected to be
collected from an investors initial investment in loans or
debt securities acquired in a transfer, including business
combinations, if those differences are attributable, at least in
part, to credit quality. SOP 03-3 is effective for loans or debt
securities acquired in fiscal years beginning after
December 15, 2004. The Bank adopted the provisions of SOP
03-3 on January 1, 2005.
In May 2005, FASB issued SFAS 154, Accounting Changes
and Error Corrections. The Statement requires retroactive
application of a voluntary change in accounting principle to
prior period financial statements unless it is impracticable.
SFAS 154 also requires that a change in method of
depreciation, amortization, or depletion for long-lived,
non-financial assets be accounted for as a change in accounting
estimate that is affected by a change in accounting principle.
SFAS 154 replaces APB Opinion 20, Accounting
Changes, and SFAS 3, Reporting Accounting
Changes in Interim Financial Statements. SFAS 154
will be effective for accounting changes and corrections of
errors made in fiscal years beginning after December 15,
2005. Management currently believes that adoption of the
provisions of SFAS 154 will not have a material impact on
the Banks consolidated financial statements.
In June 2005, the FASBs Emerging Issues Task Force
(EITF) reached a consensus on Issue No. 05-6,
Determining the Amortization Period for Leasehold
Improvements Purchased after Lease Inception or Acquired in a
Business Combination
(EITF 05-6).
This guidance requires that leasehold improvements acquired in a
business combination or purchased subsequent to the inception of
a lease be amortized over the shorter of the useful life of the
assets or a term that includes required lease periods and
renewals that are reasonably assured at the date of the business
combination or purchase. This guidance is applicable only to
leasehold improvements that are purchased or acquired in
reporting periods beginning after June 29, 2005. The Bank
adopted this guidance as of July 1, 2005, with
insignificant impact on the Banks financial condition and
results of operations.
In October 2005, the FASB issued FASB Staff Position
FAS 13-1
(FSP
FAS 13-1),
which requires companies to expense rental costs associated with
ground or building operating leases that are incurred during a
construction period. As a result, companies that are currently
capitalizing these rental costs are required to expense them
beginning in its first reporting period after December 15,
2005. FSP FAS 13-1
is effective for the Bank as of the first quarter of fiscal
2006. Management evaluated the provisions of FSP
FAS 13-1 and do
not believe that its adoption will have a material impact on the
Banks financial condition or results of operations.
F-36
APPENDIX A
AGREEMENT AND PLAN OF MERGER
AMONG
F.N.B. CORPORATION,
FIRST NATIONAL BANK OF PENNSYLVANIA
AND
THE LEGACY BANK
December 21, 2005
A-1
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
Page | |
|
|
|
|
| |
ARTICLE I CERTAIN DEFINITIONS |
|
|
A-4 |
|
|
1.1
|
|
Certain Definitions |
|
|
A-4 |
|
|
ARTICLE II THE MERGER |
|
|
A-10 |
|
|
2.1
|
|
The Merger |
|
|
A-10 |
|
|
2.2
|
|
Effective Date and Effective Time; Closing |
|
|
A-11 |
|
|
ARTICLE III MERGER CONSIDERATION; EXCHANGE PROCEDURES |
|
|
A-11 |
|
|
3.1
|
|
Conversion of Shares |
|
|
A-11 |
|
|
3.2
|
|
Fractional Shares |
|
|
A-12 |
|
|
3.3
|
|
Election and Proration Procedures |
|
|
A-12 |
|
|
3.4
|
|
Exchange Procedures |
|
|
A-15 |
|
|
3.5
|
|
Adjustments for Dilution and Other Matters |
|
|
A-16 |
|
|
3.6
|
|
Dissenting Shares |
|
|
A-16 |
|
|
3.7
|
|
Withholding Rights |
|
|
A-16 |
|
|
3.8
|
|
Legacy Options, Warrants and Convertible Debentures |
|
|
A-17 |
|
|
3.9
|
|
Trust Company Merger |
|
|
A-18 |
|
|
ARTICLE IV ACTIONS PENDING CLOSING |
|
|
A-18 |
|
|
4.1
|
|
Forbearances of Legacy |
|
|
A-18 |
|
|
4.2
|
|
Forbearances of Parent |
|
|
A-21 |
|
|
ARTICLE V REPRESENTATIONS AND WARRANTIES |
|
|
A-21 |
|
|
5.1
|
|
Disclosure Schedules |
|
|
A-21 |
|
|
5.2
|
|
Standard |
|
|
A-21 |
|
|
5.3
|
|
Representations and Warranties of Legacy |
|
|
A-22 |
|
|
5.4
|
|
Representations and Warranties of Parent |
|
|
A-33 |
|
|
ARTICLE VI COVENANTS |
|
|
A-38 |
|
|
6.1
|
|
Commercially Reasonable Efforts |
|
|
A-38 |
|
|
6.2
|
|
Stockholders Meeting |
|
|
A-38 |
|
|
6.3
|
|
Registration Statement |
|
|
A-38 |
|
|
6.4
|
|
Regulatory Filings |
|
|
A-39 |
|
|
6.5
|
|
Press Releases |
|
|
A-39 |
|
|
6.6
|
|
Access; Information |
|
|
A-39 |
|
|
6.7
|
|
Affiliates |
|
|
A-40 |
|
|
6.8
|
|
Certain Actions |
|
|
A-40 |
|
|
6.9
|
|
Certain Policies |
|
|
A-42 |
|
|
6.10
|
|
NYSE Listing |
|
|
A-42 |
|
|
6.11
|
|
Indemnification |
|
|
A-42 |
|
|
6.12
|
|
Benefit Plans |
|
|
A-43 |
|
|
6.13
|
|
Parent Bank Board |
|
|
A-44 |
|
|
6.14
|
|
Notification of Certain Matters |
|
|
A-44 |
|
|
6.15
|
|
Regulatory Conditions |
|
|
A-44 |
|
|
6.16
|
|
Exemption From Liability Under Section 16(b) |
|
|
A-45 |
|
A-2
|
|
|
|
|
|
|
|
|
|
|
|
Page | |
|
|
|
|
| |
|
6.17
|
|
Certain Post-Closing Matters |
|
|
A-45 |
|
|
6.18
|
|
Employment Matters |
|
|
A-45 |
|
|
6.19
|
|
Director Agreements |
|
|
A-45 |
|
|
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER |
|
|
A-46 |
|
|
7.1
|
|
Conditions to Each Partys Obligation to Effect the Merger |
|
|
A-46 |
|
|
7.2
|
|
Conditions to Obligation of Legacy |
|
|
A-46 |
|
|
7.3
|
|
Conditions to Obligation of Parent |
|
|
A-47 |
|
|
ARTICLE VIII TERMINATION |
|
|
A-47 |
|
|
8.1
|
|
Termination |
|
|
A-47 |
|
|
8.2
|
|
Effect of Termination |
|
|
A-49 |
|
|
ARTICLE IX MISCELLANEOUS |
|
|
A-49 |
|
|
9.1
|
|
Survival |
|
|
A-49 |
|
|
9.2
|
|
Waiver; Amendment |
|
|
A-49 |
|
|
9.3
|
|
Counterparts |
|
|
A-49 |
|
|
9.4
|
|
Governing Law |
|
|
A-49 |
|
|
9.5
|
|
Expenses |
|
|
A-49 |
|
|
9.6
|
|
Notices |
|
|
A-50 |
|
|
9.7
|
|
Entire Understanding; No Third Party Beneficiaries |
|
|
A-50 |
|
|
9.8
|
|
Severability |
|
|
A-50 |
|
|
9.9
|
|
Enforcement |
|
|
A-51 |
|
|
9.10
|
|
Interpretation |
|
|
A-51 |
|
|
9.11
|
|
Assignment |
|
|
A-51 |
|
|
9.12
|
|
Alternative Structure |
|
|
A-51 |
|
ANNEX A Form of Trust Company Merger Agreement |
|
|
A-53 |
|
ANNEX B Form of Affiliate Letter |
|
|
A-57 |
|
ANNEX C Form of Voting Agreement |
|
|
A-60 |
|
ANNEX D Form of Employment Agreements |
|
|
A-63 |
|
A-3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 21, 2005
(this Agreement), among F.N.B. Corporation
(Parent), First National Bank of Pennsylvania
(Parent Bank) and The Legacy Bank
(Legacy).
RECITALS
A. Legacy. Legacy is a Pennsylvania banking
institution, having its principal place of business in
Harrisburg, Pennsylvania.
B. Parent. Parent is a Florida corporation,
having its principal place of business in Hermitage,
Pennsylvania.
C. Parent Bank. Parent Bank is a national
banking association, having its principal place of business in
Hermitage, Pennsylvania.
D. Intention of the Parties. It is the
intention of the parties to this Agreement that the Merger
provided for herein be treated as a reorganization
under Section 368(a) of the Internal Revenue Code of 1986,
as amended (the Code), and this Agreement
constitutes a plan of reorganization within the
meaning of Section 1.368-1(c) of the Treasury Regulations.
E. Board Action. The respective Boards of
Directors of Parent, Parent Bank and Legacy have determined that
it is in the best interests of their respective companies and
their stockholders to consummate the Merger provided for herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations, warranties and agreements
contained herein the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain
Definitions. The following terms are used in this
Agreement with the meanings set forth below:
|
|
|
Acquisition Proposal has the meaning set
forth in Section 6.8(e)(i). |
|
|
Affiliate has the meaning set forth in
Section 3.4(h) and in Section 6.7. |
|
|
Affiliate Letter has the meaning set forth in
Section 6.7. |
|
|
Agreement means this Agreement, as amended or
modified from time to time in accordance with Section 9.2. |
|
|
Approval Recommendation has the meaning set
forth in Section 6.2. |
|
|
Articles of Combination has the meaning set
forth in Section 2.2(a). |
|
|
Articles of Merger has the meaning set forth
in Section 2.2(a). |
|
|
Average Closing Price as of any specified
date shall mean the average composite closing price of Parent
Common Stock on the NYSE as reported in New York Stock
Exchange Composite Transactions in The Wall Street Journal
(Eastern Edition) for each of the twenty consecutive trading
days ending on and including the fifth such trading day prior to
the specified date rounded to the nearest whole cent. |
|
|
Bank Insurance Fund means the Bank Insurance
Fund maintained by the FDIC. |
A-4
|
|
|
Bank Regulatory Authority means the Federal
Reserve Board, the OCC, the FDIC, the Department and any other
state or federal bank regulatory agency charged with the
supervision or regulation of Legacy, Parent or Parent Bank or
the insurance of the deposits of Legacy or Parent Bank. |
|
|
Bank Secrecy Act means the Bank Secrecy Act
of 1970, as amended. |
|
|
Banking Code means the Pennsylvania Banking
Code of 1965, as amended. |
|
|
Benefit Plans has the meaning set forth in
Section 5.3(m)(i). |
|
|
Break-up
Fee has the meaning set forth in Section 6.8(f). |
|
|
Business Day means Monday through Friday of
each week, except a legal holiday recognized as such by the
U.S. Government or any day on which banking institutions in
the Commonwealth of Pennsylvania are authorized or obligated to
close. |
|
|
Cash Amount means that portion of the Merger
Consideration not consisting of Parent Common Stock. |
|
|
Cash Election has the meaning set forth in
Section 3.3(a). |
|
|
Cash Proration Factor has the meaning set
forth in Section 3.3(c)(iii)(C). |
|
|
Certificate means any certificate that
immediately prior to the Effective Time represented shares of
Legacy Common Stock. |
|
|
Change in Legacy Recommendation has the
meaning set forth in Section 6.8(b). |
|
|
Closing and Closing Date
have the meanings set forth in Section 2.2(b). |
|
|
Code has the meaning set forth in the
recitals to this Agreement. |
|
|
Combination Cash Election has the meaning set
forth in Section 3.3(a). |
|
|
Combination Stock Election has the meaning
set forth in Section 3.3(a). |
|
|
Community Reinvestment Act means the
Community Reinvestment Act of 1977, as amended. |
|
|
Confidentiality Agreements has the meaning
set forth in Section 6.6(c). |
|
|
Department means the Pennsylvania Department
of Banking. |
|
|
Derivatives Contract has the meaning set
forth in Section 5.3(q). |
|
|
Determination Date means the date on which
the last required Bank Regulatory Authority is obtained with
respect to the Transaction, without regard to a requisite
waiting period. |
|
|
Disclosure Schedule has the meaning set forth
in Section 5.1. |
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Dissenting Shares means shares of Legacy
Common Stock as to which appraisal rights are perfected under
Section 215a of the National Bank Act. |
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DOL means the Department of Labor. |
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DRSP Plan has the meaning set forth in
Section 3.1(e). |
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Effective Date has the meaning set forth in
Section 2.2(a). |
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Effective Time has the meaning set forth in
Section 2.2(a). |
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Election has the meaning set forth in
Section 3.3(a). |
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Election Deadline has the meaning set forth
in Section 3.3(b). |
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Election Form has the meaning set forth in
Section 3.3(a). |
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Election Form Record Date has the
meaning set forth in Section 3.3(a). |
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Employees has the meaning set forth in
Section 5.3(m)(i). |
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Employment Agreements means the Employment
Agreements between Parent Bank and each of George H. Groves,
Thomas W. Lennox and Joseph L. Paese in the form of Annex D. |
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Environmental Laws has the meaning set forth
in Section 5.3(o)(i). |
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Equal Credit Opportunity Act means the Equal
Credit Opportunity Act, as amended. |
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Equity Investment means (i) an Equity
Security, (ii) any ownership interest in any company or
other entity, any membership interest that includes a voting
right in any company or other entity or any interest in real
estate or (iii) any investment or transaction that in
substance falls into any of these categories even though it may
be structured as some other form of investment or transaction. |
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Equity Security means any stock (other than
adjustable-rate preferred stock, money market (auction rate)
preferred stock or other instrument determined by the OCC to
have the character of debt securities), certificate of interest
or participation in any profit-sharing agreement,
collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, or
voting-trust certificate; any security convertible into such a
security; any security carrying any warrant or right to
subscribe to or purchase any such security and any certificate
of interest or participation in, any temporary or interim
certificate for or receipt for any of the foregoing. |
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ERISA means the Employee Retirement Income
Security Act of 1974, as amended. |
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ERISA Affiliate has the meaning set forth in
Section 5.3(m)(iii). |
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Exchange Act means the Securities Exchange
Act of 1934, as amended, and the rules and regulations
thereunder. |
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Exchange Agent means such entity selected by
Parent to effect the exchange of Legacy Common Stock for Parent
Common Stock and/or cash. |
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Exchange Fund has the meaning set forth in
Section 3.4(a). |
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Exchange Ratio shall mean 1.00, subject to
adjustment pursuant to Section 3.5. |
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Fair Housing Act means the Fair Housing Act,
as amended. |
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FDIC means the Federal Deposit Insurance
Corporation. |
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Federal Reserve Act means the Federal Reserve
Act, as amended. |
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Federal Reserve Board means the Board of
Governors of the Federal Reserve System. |
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GAAP means generally accepted accounting
principles and practices as in effect from time to time in the
United States. |
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Governmental Authority means any federal,
state or local court, administrative agency or commission or
other governmental authority or instrumentality. |
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Hazardous Substance has the meaning set forth
in Section 5.3(o)(i). |
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Home Mortgage Disclosure Act means the Home
Mortgage Disclosure Act, as amended. |
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Indemnified Parties and Indemnifying
Party have the meanings set forth in
Section 6.11(a). |
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Index Closing Price means the average closing
price of the Nasdaq Bank Index for each of the
20 consecutive trading days ending on and including the
second such trading day prior to the Determination Date rounded
to the nearest whole cent. |
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Index Ratio has the meaning set forth in
Section 8.01(h)(ii). |
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Insurance Amount has the meaning set forth in
Section 6.11(c). |
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Insurance Policies has the meaning set forth
in Section 5.3(w). |
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IRS means the Internal Revenue Service. |
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Legacy has the meaning set forth in the
preamble to this Agreement. |
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Legacy Advisory Board has the meaning set
forth in Section 6.17(c). |
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Legacy Articles means the Articles of
Incorporation of Legacy, as amended. |
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Legacy Board means the Board of Directors of
Legacy. |
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Legacy Bylaws means the Bylaws of Legacy, as
amended. |
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Legacy Common Stock means the common stock,
par value $5.00 per share, of Legacy. |
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Legacy Convertible Debentures mean the
outstanding convertible debentures of Legacy that are
convertible into an aggregate of 355,400 shares of Legacy
Common Stock. |
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Legacy Group means any affiliated
group, as defined in Section 1504(a) of the Code
without regard to the limitations contained in
Section 1504(b) of the Code, that includes Legacy and its
Subsidiaries or any predecessor of or any successor to Legacy,
or to another such predecessor or successor. |
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Legacy Insiders means those officers,
directors and 10% or greater stockholders of Legacy who are
subject to the reporting requirements of Section 16(a) of
the Exchange Act and who are listed in the Section 16
Information. |
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Legacy Loan Property has the meaning set
forth in Section 5.3(o)(i). |
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Legacy Meeting has the meaning set forth in
Section 6.2. |
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Legacy Options means the options to acquire
Legacy Common Stock issued under the Legacy Stock Option Plans. |
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Legacy Parent Bank Designee has the meaning
set forth in Section 6.13(b). |
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Legacy Preferred Stock means the preferred
stock, par value $5.00 per share, of Legacy. |
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Legacy Regulatory Authorities has the meaning set
forth in Section 5.3(i)(i). |
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Legacy Stock Option Plans means Legacys
1999 Equity Incentive Stock Option Plan for Organizers, 1999
Equity Incentive Stock Option Plan, as amended,
1999 Directors Compensation Plan, as amended and
Northern State Banks 1999 Stock Incentive Plan. |
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Legacy Warrants means Northern State
Banks Transferable Stock Purchase Warrants, as amended,
and Northern State Banks Non-Transferable Stock Purchase
Warrants, as amended. |
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Liens means any charge, mortgage, pledge,
security interest, restriction, claim, lien or encumbrance. |
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Loans has the meaning set forth in
Section 4.1(q). |
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Mailing Date has the meaning set forth in
Section 3.3(a). |
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Material Adverse Effect means, with respect
to Parent or Legacy any effect that (i) is material and
adverse to the financial position, results of operations or
business of Parent and its Subsidiaries taken as a whole or
Legacy and its Subsidiaries taken as a whole, as the case may
be, or (ii) would materially impair the ability of any of
Parent and its Subsidiaries or Legacy and its Subsidiaries to
perform their respective obligations under this Agreement and
the Trust Company Merger Agreement or otherwise materially
impede the consummation of the Transaction; provided, however,
that Material Adverse Effect shall not be deemed to include the
impact of (a) changes after the date hereof in banking and
similar laws of general applicability or interpretations thereof
by Governmental Authorities, (b) changes after the date
hereof in GAAP or regulatory accounting requirements applicable
to banks, federal savings institutions and their holding
companies generally, (c) changes after the date hereof in
general economic |
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or market conditions affecting banks and their holding companies
generally, including changes in interest rates, (d) public
disclosure of the Transaction contemplated hereby,
(e) costs incurred in connection with the Transaction
including, without limitation, change in control and severance
payments, investment banking fees, legal fees, accounting fees
and printing costs, in each case in accordance with GAAP and
(f) any action or omission of Legacy or Parent taken with
the prior consent of the other or as otherwise contemplated by
this Agreement in connection with the consummation of the
Transaction. |
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Material Contract has the meaning set forth
in Section 5.3(k)(i). |
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Merger has the meaning set forth in
Section 2.1(a). |
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Merger Consideration means the number of
whole shares of Parent Common Stock, cash or a combination
thereof, plus cash in lieu of any fractional share interest into
which shares of Legacy Common Stock shall be converted pursuant
to the provisions of Article III. |
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NASD means the National Association of
Securities Dealers, Inc. |
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National Bank Act means the National Bank
Act, as amended. |
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National Labor Relations Act means the
National Labor Relations Act, as amended. |
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NYSE means The New York Stock Exchange, Inc. |
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OCC means the Office of the Comptroller of
the Currency. |
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Option Consideration shall have the meaning
set forth in Section 3.8. |
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OREO means other real estate owned. |
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Parent has the meaning set forth in the
preamble to this Agreement. |
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Parent Articles means the Articles of
Incorporation of Parent, as amended. |
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Parent Bank has the meaning set forth in the
preamble to this Agreement. |
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Parent Bank Board means the Board of
Directors of Parent Bank. |
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Parent Benefit Plans has the meaning set
forth in Section 6.12(a). |
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Parent Common Stock means the common stock,
$.01 par value per share, of Parent. |
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Parent Option means an option to purchase
Parent Common Stock. |
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Parent Preferred Stock means the preferred
stock, $.01 par value per share, of Parent. |
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Parent Ratio has the meaning set forth in
Section 8.1(h)(2). |
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Parent Regulatory Authorities has the meaning
set forth in Section 5.4(i)(i). |
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Parent Trust Company means First National
Trust Company. |
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Payment Event has the meaning set forth in
Section 6.8(g). |
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PBCL means the Pennsylvania Business
Corporation Law of 1988, as amended. |
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Pension Plan has the meaning set forth in
Section 5.3(m)(ii). |
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Person means a natural Person or any legal,
commercial, or governmental entity, such as, but not limited to,
a corporation, general partnership, joint venture, limited
partnership, limited liability company, trust, business
association, group acting in concert, a common enterprise, or
any person acting in a representative capacity. |
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Previously Disclosed by a party shall mean
information set forth in a section of its Disclosure Schedule
corresponding to the section of this Agreement where such term
is used. |
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Price Per Share means $18.40. |
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Proxy Statement has the meaning set forth in
Section 6.3(a). |
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Registration Statement has the meaning set
forth in Section 6.3(a). |
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Representatives has the meaning set forth in
Section 6.8(a). |
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Required Vote has the meaning set forth in
Section 5.3(e). |
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Rights means, with respect to any Person,
warrants, options, rights, convertible securities and other
arrangements or commitments that obligate the Person to issue or
dispose of any of its capital stock or other ownership interests. |
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SEC means the Securities and Exchange
Commission. |
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Section 16 Information means information
accurate in all respects regarding the Legacy Insiders, the
number of shares of Legacy Common Stock held by each such Legacy
Insider and the number and description of the Legacy Options
held by each such Legacy Insider. |
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Securities Act means the Securities Act of
1933, as amended, and the rules and regulations thereunder. |
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Securities Documents has the meaning set
forth in Sections 5.3(g)(i) and 5.4(g)(i) in the case of
Legacy and Parent, respectively. |
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Starting Date means the trading day on the
NYSE immediately preceding the day on which the parties publicly
announced the signing of this Agreement. |
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Starting Index Price means the closing price
of the Nasdaq Bank Index on the Starting Date. |
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Starting Price means the closing price of
Parent Common Stock on the Starting Date, subject to adjustment
pursuant to Section 3.04 and rounded to the nearest whole
cent. |
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Stock Amount means 2,468,845 shares of
Parent Common Stock plus such number of additional shares of
Parent Common Stock as is equal to 70% of any shares of Legacy
Common Stock issued between the date hereof and the Election
Deadline, subject to adjustment pursuant to Sections 3.3
and 3.5. |
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Stock Election has the meaning set forth in
Section 3.3(a). |
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Stock Proration Factor has the meaning set
forth in Section 3.3(c)(ii). |
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Subsidiary has the meaning ascribed thereto
in Rule 1-02 of
Regulation S-X of
the SEC. |
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Superior Proposal has the meaning set forth
in Section 6.8(e)(ii). |
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Surviving Bank has the meaning set forth in
Section 2.1(a). |
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Tax and Taxes mean all federal,
state, local or foreign income, gross income, gains, gross
receipts, sales, use, ad valorem, goods and services, capital,
production, transfer, franchise, windfall profits, license,
withholding, payroll, employment, disability, employer health,
excise, estimated, severance, stamp, occupation, property,
environmental, custom duties, unemployment or other taxes of any
kind whatsoever, together with any interest, additions or
penalties thereto and any interest in respect of such interest
and penalties. |
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Tax Returns means any return, declaration or
other report (including elections, declarations, schedules,
estimates and information returns) with respect to any Taxes. |
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Third Party has the meaning set forth in
Section 6.8(g)(iv). |
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Transaction means the Merger and any other
transactions contemplated by this Agreement. |
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Treasury Shares means shares of Legacy Common
Stock held by Legacy or any of its Subsidiaries or by Parent or
any of its Subsidiaries, other than in a fiduciary, including
custodial or agency, capacity or as a result of debts previously
contracted in good faith. |
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Trust Company Merger has the meaning set
forth in Section 3.9. |
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Trust Company Merger Agreement means the
Agreement of Merger by and between Parent Trust Company and The
Legacy Trust Company, the form of which is attached hereto as
Annex A. |
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Undesignated Shares has the meaning set forth
in Section 3.3(a). |
ARTICLE II
THE MERGER
2.1 The Merger.
(a) The Merger. Subject to the terms and
conditions of this Agreement, at the Effective Time, Legacy
shall merge with and into Parent Bank in accordance with the
applicable laws of the United States and the Commonwealth of
Pennsylvania (the Merger), the separate corporate
existence of Legacy shall cease and Parent Bank shall survive
and continue to exist as a national banking association (Parent
Bank, as the surviving corporation in the Merger, sometimes
being referred to herein as the Surviving Bank).
(b) Name and Main Office. The name of the
Surviving Bank shall be First National Bank of
Pennsylvania. The main office of the Surviving Bank shall
be the main office of Parent Bank immediately prior to the
Effective Time. All branch offices of Legacy and Parent Bank
that were in lawful operation immediately prior to the Effective
Time shall be the branch offices of the Surviving Bank upon
consummation of the Merger, subject to the opening or closing of
any offices that may be authorized by Legacy and Parent Bank.
Schedule I hereto contains a list of each of the deposit
taking offices of Legacy and Parent Bank that shall be operated
by the Surviving Bank, subject to the opening or closing of any
offices that may be authorized by Legacy, Parent Bank, the OCC
and the Department after the date hereof.
(c) Charter and Bylaws. The charter and
bylaws of the Surviving Bank immediately after the Merger shall
be the charter and the bylaws of Parent Bank as in effect
immediately prior to the Merger, in each case until thereafter
amended in accordance with applicable law.
(d) Directors and Executive Officers of the Surviving
Bank. The directors of the Surviving Bank immediately
after the Merger shall be (i) the directors of Parent Bank
immediately prior to the Merger and (ii) George H. Groves
(the Legacy Parent Bank Designee), each of whom
shall serve until such time as his or her successor shall be
duly elected and qualified and as further provided in
Section 6.13(a). The executive officers of the Surviving
Bank immediately after the Merger shall be the executive
officers of Parent Bank immediately prior to the Merger, each of
whom shall serve until such time as their successors shall be
duly elected and qualified.
(e) Effect on Shares of Stock.
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(i) Each share of Parent Bank common stock issued and
outstanding immediately prior to the Effective Time shall be
unchanged and shall remain issued and outstanding. |
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(ii) At the Effective Time, each share of Legacy capital
stock issued and outstanding prior to the Merger shall, by
virtue of the Merger and without any action on the part of the
holder thereof, be canceled and converted into the right to
receive the Merger Consideration. Any shares of Legacy capital
stock held in the treasury of Legacy immediately prior to the
Effective Time shall be retired and canceled. |
(f) Effects of the Merger. Upon consummation
of the Merger, and in addition to the effects set forth at
12 U.S.C. § 215a and the Pennsylvania Banking
Code and other applicable law:
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(i) all rights, franchises and interests of Legacy in and
to every type of property (real, personal and mixed), tangible
and intangible, and choses in action shall be transferred to and
vested in the Surviving Bank by virtue of the Merger without any
deed or other transfer, and the Surviving Bank, without any
order or other action on the part of any court or otherwise,
shall hold and enjoy all rights of property, franchises and
interests, including appointments, designations and nominations,
and all other rights and |
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interests as trustee, executor, administrator, registrar of
stocks and bonds, guardian of estates, assignee, receiver and
committee, and in every other fiduciary capacity, in the same
manner and to the same extent as such rights, franchises and
interest were held or enjoyed by Legacy immediately prior to the
Effective Time; and |
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(ii) the Surviving Bank shall be liable for all liabilities
of Legacy, fixed or contingent, including all deposits,
accounts, debts, obligations and contracts thereof, matured or
unmatured, whether accrued, absolute, contingent or otherwise,
and whether or not reflected or reserved against on balance
sheets, books of account or records thereof, and all rights of
creditors or obligees and all liens on property of Legacy shall
be preserved unimpaired; after the Effective Time, the Surviving
Bank will continue to issue savings accounts on the same basis
as immediately prior to the Effective Time. |
(g) Additional Actions. If, at any time after
the Effective Time, the Surviving Bank shall consider that any
further assignments or assurances in law or any other acts are
necessary or desirable to (a) vest, perfect or confirm, of
record or otherwise, in the Surviving Bank its rights, title or
interest in, to or under any of the rights, properties or assets
of Legacy acquired or to be acquired by the Surviving Bank as a
result of, or in connection with, the Merger, or
(b) otherwise carry out the purposes of this Agreement,
Legacy and its proper officers and directors shall be deemed to
have granted to the Surviving Bank an irrevocable power of
attorney to (i) execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary
or proper to vest, perfect or confirm title to and possession of
such rights, properties or assets in the Surviving Bank and
(ii) otherwise to carry out the purposes of this Agreement.
The proper officers and directors of the Surviving Bank are
fully authorized in the name of Legacy or otherwise to take any
and all such action.
2.2 Effective Date and
Effective Time; Closing.
(a) Subject to the satisfaction or waiver of the conditions
set forth in Article VII, other than those conditions that
by their nature are to be satisfied at the consummation of the
Merger, but subject to the fulfillment or waiver of those
conditions, the parties shall cause Articles of Combination
relating to the Merger to be filed with the OCC pursuant to the
National Bank Act and Articles of Merger to be filed with the
Pennsylvania Department of State as soon as possible after the
receipt of all required approvals from Bank Regulatory
Authorities on (i) a date selected by Parent after such
satisfaction or waiver that is no later than five Business Days
after such satisfaction or waiver, or (ii) such other date
to which the parties may mutually agree in writing, provided
that in either case, such date shall be no later than ten days
following the Legacy Meeting. The Merger provided for herein
shall become effective upon such filings or on such date as may
be specified therein. The date of such filings or such later
effective date is herein called the Effective Date.
The Effective Time of the Merger shall be the time
of such filings or as set forth in such filings.
(b) A closing (the Closing) shall take place
immediately prior to the Effective Time as of the close of
business, prevailing time, at the principal offices of Parent in
Hermitage, Pennsylvania, or at such other place, at such other
time, or on such other date as the parties may mutually agree
upon (such date, the Closing Date). At the Closing,
there shall be delivered to Parent, Parent Bank and Legacy the
opinions, certificates and other documents required to be
delivered under Article VII.
ARTICLE III
MERGER CONSIDERATION; EXCHANGE PROCEDURES
3.1 Conversion of
Shares.
(a) Subject to the provisions of this Agreement, each share
of Legacy Common Stock issued and outstanding immediately prior
to the Effective Time other than Dissenting Shares and Treasury
Stock shall, by virtue of the Merger, no longer be outstanding
and shall as of the Effective Time automatically be
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converted into and shall thereafter only represent the right to
receive, at the election of the holder thereof as provided in
Section 3.3, any of the following:
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(i) Parent Common Stock equal to the Exchange Ratio; |
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(ii) cash in the amount of the Price Per Share; or |
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(iii) a combination of Parent Common Stock and cash as set
forth in Section 3.3(a), provided that all elections shall
be made as to whole shares only. |
(b) At and after the Effective Time, each Treasury Share
shall be cancelled and retired and no shares of Parent Common
Stock, cash or other consideration shall be issued in exchange
therefor.
(c) At the Effective Time, the stock transfer books of
Legacy shall be closed as to holders of Legacy Common Stock
immediately prior to the Effective Time and no transfer of
Legacy Common Stock by any such holder shall thereafter be made
or recognized. If, after the Effective Time, certificates are
properly presented in accordance with Section 3.4 of this
Agreement to the Exchange Agent, such certificates shall be
canceled and exchanged for certificates representing the number
of whole shares of Parent Common Stock, if any, and/or a check
representing the amount of cash, if any, into which the Legacy
Common Stock represented thereby was converted in the Merger,
plus any payment for any fractional share of Parent Common Stock
without any interest thereon.
(d) At and after the Effective Time, each share of Parent
Common Stock issued and outstanding immediately prior to the
Effective Time shall remain issued and outstanding and shall not
be affected by the Merger.
(e) Each holder of Legacy Common Stock shall have the
option of enrolling the whole shares of Parent Common Stock
issuable to such stockholder upon the consummation of the Merger
in Parents Dividend Reinvestment and Stock Purchase Plan
(the DRSP Plan). Each Legacy stockholder electing to
enroll in the DRSP Plan shall be issued a certificate
representing the number of whole shares of Parent Common Stock
received in the Merger, and any future dividends will be
reinvested in accordance with the DSRP Plan.
3.2 Fractional
Shares. Notwithstanding any other provision of this
Agreement, each holder of Legacy Common Stock who would
otherwise be entitled to receive a fractional share of Parent
Common Stock, after taking into account all Certificates
delivered by such holder, shall receive an amount in cash,
without interest, rounded to the nearest cent, equal to the
product obtained by multiplying (a) the Average Closing
Price determined as of the Effective Date by (b) the
fraction, calculated to the nearest ten-thousandth of the share
of Parent Common Stock, to which such holder would otherwise be
entitled. No such holder shall be entitled to dividends or other
rights in respect of any such fractional shares.
3.3 Election and Proration
Procedures.
(a) An election form and other appropriate and customary
transmittal materials, which shall specify that delivery shall
be effected, and risk of loss and title to the certificates
theretofore representing shares of Legacy Common Stock shall
pass, only upon proper delivery of such certificates to the
Exchange Agent in such form as Parent and Legacy shall mutually
agree (Election Form) shall be mailed by or on
behalf of Parent no less than 40 days prior to the
anticipated Effective Time of the Merger, as jointly determined
by Parent and Legacy, or on such other date as Parent and Legacy
shall mutually agree (Mailing Date) to each holder
of record of Legacy Common Stock as of the close of business on
the fifth business day prior to the mailing date (the
Election Form Record Date). Parent shall make
available one or more Election Forms as may be reasonably
requested by all persons who become holders (or beneficial
owners) (the term beneficial owner and
beneficial ownership for purposes of this Agreement
shall have the meaning set forth in Section 13(d) of the
Exchange Act) of Legacy Common Stock after the Election
Form Record Date and prior to the Election Deadline, and
Legacy shall provide to the Exchange Agent all information
reasonably necessary for it to perform its obligations as
specified herein. Each Election Form shall permit the holder or
the beneficial owner through appropriate and customary
documentation and instructions to elect (an
Election) to receive (i) Parent Common Stock (a
Stock Election) with respect to all of such
holders Legacy Common Stock, or (ii) cash (a
Cash Election) with respect to all of such
holders Legacy Common Stock, or (iii) Parent
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Common Stock for a specified number of shares of Legacy Common
Stock (a Combination Stock Election) and cash for
the remaining number of shares of Legacy Common Stock held by
such holder (a Combination Cash Election). Any
Legacy Common Stock other than Dissenting Shares and Treasury
Shares, with respect to which the Exchange Agent has not
received an effective, properly completed Election Form prior to
the Election Deadline shall be deemed to be Undesignated
Shares hereunder.
(b) Any Election shall have been properly made and
effective only if the Exchange Agent shall have actually
received a properly completed Election Form that has not been
revoked by 5:00 p.m., prevailing time, by the 30th day
following the Mailing Date (or such other time and date as
Parent and Legacy may mutually agree) (the Election
Deadline). An Election Form shall be deemed properly
completed only if an Election is indicated for each share of
Legacy Common Stock covered by such Election Form and if
accompanied by one or more certificates (or customary affidavits
and indemnification regarding the loss or destruction of such
certificates or the guaranteed delivery of such certificates)
representing all shares of Legacy Common Stock covered by such
Election Form, together with duly executed transmittal materials
included in or required by the Election Form. Any Election Form
may be revoked by the person submitting such Election Form at or
prior to the Election Deadline, provided that the Exchange Agent
shall have actually received prior to the Election Deadline a
written notice revoking such Election Form and specifying the
shares of Legacy Common Stock covered by such revoked Election
Form. In the event an Election Form is revoked prior to the
Election Deadline, the shares of Legacy Common Stock
representing such Election Form shall automatically become
Undesignated Shares unless and until a new Election is properly
made with respect to such shares on or before the Election
Deadline, and Parent shall cause the certificates representing
such shares of Legacy Common Stock to be promptly returned
without charge to the person submitting the revoked Election
Form upon written request to that effect from the holder who
submitted such Election Form. Subject to the terms of this
Agreement and of the Election Form, the Exchange Agent shall
have reasonable discretion to determine whether any Election or
revocation has been properly or timely made and to disregard
immaterial defects in the Election Forms, and any decisions of
Legacy and Parent required by the Exchange Agent and made in
good faith in determining such matters shall be binding and
conclusive. Neither Parent nor the Exchange Agent shall be under
any obligation to notify any person of any defect in an Election
Form.
(c) As promptly as practicable but not later than five
Business Days prior to the Effective Time of the Merger, Parent
shall cause the Exchange Agent to effect the allocation among
the holders of Legacy Common Stock of rights to receive Parent
Common Stock or cash in the Merger in accordance with the
Election Forms as follows:
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(i) if the aggregate number of shares of Legacy Common
Stock as to which Stock Elections and Combination Stock
Elections shall have effectively been made times the Exchange
Ratio is approximately equal to the Stock Amount, then: |
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(A) Each holder of Legacy Common Stock who made an
effective Stock Election or Combination Stock Election shall
receive the number of shares of Parent Common Stock that is
equal to the product of the Exchange Ratio multiplied by the
number of shares of Legacy Common Stock covered by such Stock
Election or Combination Stock Election; and |
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(B) Each holder of Legacy Common Stock who made an
effective Cash Election or Combination Cash Election, and each
holder of Undesignated Shares shall receive the Price Per Share
in cash for each such share of Legacy Common Stock or
Undesignated Share. |
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(ii) if the aggregate number of shares of Legacy Common
Stock as to which Stock Elections and Combination Stock
Elections shall have effectively been made times the Exchange
Ratio exceeds, and is not approximately equal to, the Stock
Amount, then Parent shall have the option to issue Parent Common
Stock in accordance with such elections. If Parent chooses not
to exercise such option, then: |
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(A) Each holder of Legacy Common Stock who made an
effective Cash Election or Combination Cash Election shall
receive the Price Per Share in cash for each such share of
Legacy Common Stock; |
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(B) Each holder of Undesignated Shares shall be deemed to
have made Cash Elections and shall receive the Price Per Share
in cash for each such Undesignated Share; and |
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(C) A stock proration factor (the Stock Proration
Factor) shall be determined by dividing (1) the Stock
Amount by (2) the product of the Exchange Ratio and the
number of shares of Legacy Common Stock with respect to which
effective Stock Elections and Combination Stock Elections were
made. Each holder of Legacy Common Stock who made an effective
Stock Election or Combination Stock Election shall be entitled
to: |
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(1) the number of shares of Parent Common Stock equal to
the product of (x) the Exchange Ratio, multiplied by
(y) the number of shares of Legacy Common Stock covered by
such Stock Election or Combination Stock Election, multiplied by
(z) the Stock Proration Factor, and |
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(2) cash in an amount equal to the product of (x) the
Price Per Share, multiplied by (y) the number of shares of
Legacy Common Stock covered by such Stock Election or
Combination Stock Election, multiplied by (z) one minus the
Stock Proration Factor. |
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(iii) if the aggregate number of shares of Legacy Common
Stock as to which Stock Elections and Combination Stock
Elections shall have effectively been made times the Exchange
Ratio is less than, and is not approximately equal to, the Stock
Amount, then: |
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(A) Each holder of Legacy Common Stock who made an
effective Stock Election or Combination Stock Election shall
receive the number of shares of Parent Common Stock equal to the
product of the Exchange Ratio multiplied by the number of shares
of Legacy Common Stock covered by such Stock Election or
Combination Stock Election; |
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(B) The Exchange Agent shall select, by pro rata allocation
according to the number of Legacy shares held, among those
holders of Undesignated Shares (other than holders of
Undesignated Shares who voted against or gave notice to the
presiding officer of the Legacy Meeting at or prior to the
Legacy Meeting that the holder dissents from the Merger as
required by Section 215a of the National Bank Act), such
number of shares of Parent Common Stock as shall be necessary so
that the shares of Parent Common Stock to be received by those
holders, when combined with the number of shares for which a
Stock Election or Combination Stock Election has been made,
multiplied by the Exchange Ratio shall be approximately equal to
the Stock Amount. If all of said Undesignated Shares plus all
shares as to which Stock Elections and Combination Stock
Elections have been made together multiplied by the Exchange
Ratio are less than, and not approximately equal to, the Stock
Amount, then: |
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(C) A cash proration factor (the Cash Proration
Factor) shall be determined by dividing (1) the
amount which is the difference between (x) the number
obtained by dividing the Stock Amount by the Exchange Ratio and
(y) the sum of the number of shares of Legacy Common Stock
with respect to which effective Stock Elections and Combination
Stock Elections were made and the number of Undesignated Shares
selected pursuant to subparagraph (iii)(B) above by
(2) the number of shares of Legacy Common Stock with
respect to which effective Cash Elections and Combination Cash
Elections were made. Each holder of Legacy Common Stock who made
an effective Cash Election or Combination Cash Election shall be
entitled to: |
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(1) cash equal to the product of (x) the Price Per
Share, multiplied by (y) the number of shares of Legacy
Common Stock covered by such Cash Election or Combination Cash
Election, multiplied by (z) one minus the Cash Proration
Factor, and |
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(2) the number of shares of Parent Common Stock equal to
the product of (x) the Exchange Ratio, multiplied by
(y) the number of shares of Legacy Common Stock covered by
such Cash Election or Combination Cash Election, multiplied by
(z) the Cash Proration Factor. |
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(iv) The prorata allocation process to be used by the
Exchange Agent shall consist of such procedures as Parent and
Legacy shall mutually determine. |
(d) For purposes of this Section 3.3, the shares of
which Parent Common Stock is to be issued as consideration in
the Merger shall be deemed to be approximately equal
to the Stock Amount if such number is within 10,000 shares
of Parent Common Stock of such amount.
3.4 Exchange
Procedures.
(a) Not later than three days prior to the Effective Time
of the Merger, Parent shall deposit with the Exchange Agent for
the benefit of the holders of shares of Legacy Common Stock, for
exchange in accordance with this Section 3.4, certificates
representing the aggregate number of shares of Parent Common
Stock and cash issuable pursuant to Section 3.1 in exchange
for shares of Legacy Common Stock outstanding immediately prior
to the Effective Time of the Merger and funds in an amount not
less than the amount of cash payable in lieu of fractional
shares of Parent Common Stock that would otherwise be issuable
in connection with Section 3.1, but for the operation of
Section 3.2 of this Agreement (the Exchange
Fund).
(b) After the Effective Time of the Merger, each holder of
a certificate (Certificate) formerly representing
Legacy Common Stock, other than Dissenting Shares and Treasury
Shares, who surrenders or has surrendered such Certificate or
customary affidavits and indemnification regarding the loss or
destruction of such Certificate, together with duly executed
transmittal materials included in or required by the Election
Form to the Exchange Agent, shall, upon acceptance thereof, be
entitled to (i) a certificate representing the Parent
Common Stock and/or (ii) cash into which the shares of
Legacy Common Stock shall have been converted pursuant to
Sections 3.1 and 3.3, as well as cash in lieu of any
fractional share of Parent Common Stock to which such holder
would otherwise be entitled, if applicable. The Exchange Agent
shall accept such Certificate upon compliance with such
reasonable and customary terms and conditions as the Exchange
Agent may impose to effect an orderly exchange thereof in
accordance with normal practices. Until surrendered as
contemplated by this Section 3.4, each Certificate
representing Legacy Common Stock shall be deemed from and after
the Effective Time of the Merger to evidence only the right to
receive the Merger Consideration to which it is entitled
hereunder upon such surrender. Parent shall not be obligated to
deliver the Merger Consideration to which any former holder of
Legacy Common Stock is entitled as a result of the Merger until
such holder surrenders his Certificate or Certificates for
exchange as provided in this Section 3.4. If any
certificate for shares of Parent Common Stock, or any check
representing cash and/or declared but unpaid dividends, is to be
issued in a name other than that in which a Certificate
surrendered for exchange is issued, the Certificate so
surrendered shall be properly endorsed and otherwise in proper
form for transfer and the person requesting such exchange shall
affix any requisite stock transfer tax stamps to the Certificate
surrendered or provide funds for their purchase or establish to
the satisfaction of the Exchange Agent that such taxes are not
payable.
(c) No dividends or other distributions declared or made
after the Effective Time of the Merger with respect to Parent
Common Stock with a record date after the Effective Time of the
Merger shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Parent Common Stock
represented thereby, and no cash payment in lieu of a fractional
share shall be paid to any such holder pursuant to
Section 3.2, until the holder of record of such Certificate
shall surrender such Certificate. Subject to the effect of
applicable laws, following surrender of any such Certificate,
there shall be paid to the record holder of the certificates
representing whole shares of Parent Common Stock issued in
exchange therefor, without interest, (i) at the time of
such surrender, the amount of any cash payable in lieu of a
fractional share of Parent Common Stock to which such holder is
entitled pursuant to Section 3.2 and the amount of
dividends or other distributions with a record date after the
Effective Time of the Merger theretofore paid with respect to
such whole shares of Parent Common Stock, and (ii) at the
appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time of the
Merger but prior to surrender and a payment date subsequent to
surrender payable with respect to such whole shares of Parent
Common Stock.
(d) All cash and shares of Parent Common Stock issued upon
the surrender for exchange of shares of Legacy Common Stock or
the provision of customary affidavits and indemnification for
lost or mutilated certificates in accordance with the terms
hereof, including any cash paid pursuant to Section 3.2,
shall be
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deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Legacy Common Stock, and there
shall be no further registration of transfers on the stock
transfer books of Parent, after the Merger, of the shares of
Legacy Common Stock that were outstanding immediately prior to
the Effective Time of the Merger. If, after the Effective Time
of the Merger, Certificates are presented to Parent for any
reason, they shall be canceled and exchanged as provided in this
Agreement.
(e) Any portion of the Exchange Fund, including any
interest thereon, that remains undistributed to the stockholders
of Legacy following the passage of nine months after the
Effective Time of the Merger shall be delivered to Parent, upon
demand, and any stockholders of Legacy who have not theretofore
complied with this Section 3.4 shall thereafter look only
to Parent for payment of their claim for cash and for Parent
Common Stock, any cash in lieu of fractional shares of Parent
Common Stock and any dividends or distributions with respect to
Parent Common Stock.
(f) Neither Legacy nor Parent shall be liable to any holder
of shares of Legacy Common Stock or Parent Common Stock, as the
case may be, for such shares, or dividends or distributions with
respect thereto, or cash from the Exchange Fund delivered to a
public official pursuant to any applicable abandoned property,
escheat or similar law.
(g) The Exchange Agent shall not be entitled to vote or
exercise any rights of ownership with respect to the shares of
Parent Common Stock held by it from time to time hereunder,
except that it shall receive and hold all dividends or other
distributions paid or distributed with respect to such shares of
Parent Common Stock for the account of the Persons entitled
thereto.
(h) Certificates surrendered for exchange by any Person
constituting an Affiliate of Legacy for purposes of
Rule 144(a) under the Securities Act shall not be exchanged
for certificates representing whole shares of Parent Common
Stock until Parent has received a written agreement from such
person as provided in Section 6.7.
3.5 Adjustments for Dilution
and Other Matters. If prior to the Effective Time of the
Merger, (a) Parent shall declare a stock dividend or
distribution on Parent Common Stock with a record date prior to
the Effective Time of the Merger, or subdivide, split up,
reclassify or combine Parent Common Stock, or make a
distribution other than a regular quarterly cash dividend not in
excess of $.30 per share, on Parent Common Stock in any
security convertible into Parent Common Stock, in each case with
a record date prior to the Effective Time of the Merger, or
(b) the outstanding shares of Parent Common Stock shall
have been increased, decreased, changed into or exchanged for a
different number or kind of shares or securities, in each case
as a result of a reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock
split or other similar change in Parents capitalization
other than a transaction in which Parent shall have received
fair, as determined by its Board of Directors, consideration for
the shares issued, then a proportionate adjustment or
adjustments will be made to the Exchange Ratio, the Stock Amount
and the Average Closing Price, which adjustment or adjustments
may include, as appropriate, the issuance of securities,
property or cash on the same basis as that on which any of the
foregoing shall have been issued, distributed or paid to holders
of Parent Common Stock generally.
3.6 Dissenting
Shares. Notwithstanding anything to the contrary
contained in this Agreement, any holder of Legacy Common Stock
who shall be entitled to be paid the fair value of
such holders Dissenting Shares of Legacy Common Stock, as
provided in Section 215a of the National Bank Act, shall
not be entitled to the consideration to which such holder would
otherwise have been entitled pursuant to Sections 2.1, 3.1
and 3.3, unless and until such holder shall have failed to
perfect or withdrawn or lost such holders rights as a
dissenter under Section 215a of the National Bank Act, and
shall be entitled to receive only such payment as is provided
for by Section 215a of the National Bank Act.
3.7 Withholding
Rights. Parent, directly or through the Exchange Agent,
shall be entitled to deduct and withhold from any amounts
otherwise payable pursuant to this Agreement to any holder of
shares of Legacy Common Stock such amounts as Parent is required
under the Code or any state, local or foreign tax law or
regulation thereunder to deduct and withhold with respect to the
making of such payment. Any
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amounts so withheld shall be treated for all purposes of this
Agreement as having been paid to the holder of Legacy Common
Stock in respect of which such deduction and withholding was
made by Parent.
3.8 Legacy Options, Warrants
and Convertible Debentures.
(a) At the Effective Time, each Legacy Option that is then
outstanding shall cease to represent a right to acquire shares
of Legacy Common Stock and shall be converted automatically into
an option to acquire shares of Parent Common Stock on the terms
hereinafter set forth. Parent shall assume each such Legacy
Option in accordance with the terms of the relevant Legacy Stock
Option Plan and stock option or other agreement by which it is
evidenced, except that from and after the Effective Time:
(i) Parent and the Compensation Committee of its Board of
Directors shall be substituted for Legacy and the committee of
the Board of Directors of Legacy, including, if applicable, the
entire Board of Directors of Legacy, administering such Legacy
Stock Option Plan, (ii) each Legacy Option assumed by
Parent may be exercised solely for shares of Parent Common
Stock, (iii) the number of shares of Parent Common Stock
subject to such Legacy Option shall be equal to the number of
shares of Legacy Common Stock subject to such Legacy Option
immediately prior to the Effective Time multiplied by the
Exchange Ratio, provided that any fractional shares of Parent
Common Stock resulting from such multiplication shall be rounded
down to the nearest share, and (iv) the per share exercise
price under each such Legacy Option shall be adjusted by
dividing the per share exercise price under each such Legacy
Option by the Exchange Ratio, provided that such exercise price
shall be rounded up to the nearest cent. Notwithstanding
clauses (iii) and (iv) of the preceding sentence, each
Legacy Option that is an incentive stock option
shall be adjusted as required by Section 424 of the Code,
and the regulations promulgated thereunder, so as not to
constitute a modification, extension or renewal of the option
within the meaning of Section 424(h) of the Code. Parent
and Legacy agree to take all necessary steps to effect the
provisions of this Section 3.8(a). As of the Effective
Time, Parent shall issue to each holder of each outstanding
Legacy Option that has been assumed by Parent a document
evidencing the conversion and assumption of such Legacy Option
by Parent pursuant to this Section 3.8(a).
(b) At the Effective Time, each Legacy Warrant that is then
outstanding shall cease to represent a right to purchase shares
of Legacy Common Stock and shall be converted automatically into
a warrant to purchase shares of Parent Common Stock, and Parent
shall assume each such warrant and the agreement or certificate
by which it is evidenced, except that from and after the
Effective Time (i) each Legacy Warrant assumed by Parent
may be exercised solely for shares of Parent Common Stock,
(ii) the number of shares of Parent Common Stock subject to
such Legacy Warrant shall be equal to the number of shares of
Legacy Common Stock subject to such Legacy Warrant immediately
prior to the Effective Time multiplied by the Exchange Ratio,
provided that any fractional share of Parent Common Stock
resulting from such multiplication shall be rounded down to the
nearest share and (iii) the per share purchase price under
each such Legacy Warrant shall be adjusted by dividing the per
share purchase price under each such Legacy Warrant by the
Exchange Ratio, provided that such exercise price shall be
rounded up to the nearest cent. Parent and Legacy agree to take
all necessary steps to effect the provisions of this
Section 3.8(b). As of the Effective Time, Parent shall
issue to each holder of an outstanding Legacy Warrant that has
been assumed by Parent a document evidencing the conversion and
assumption of the Legacy Warrant by Parent pursuant to this
Section 3.8(b).
(c) At the Effective Time, each Legacy Convertible
Debenture that is then outstanding shall cease to represent a
right to be converted into shares of Legacy Common Stock and
shall be converted automatically into a convertible debenture
convertible into shares of Parent Common Stock, and Parent shall
assume each such convertible debenture and the agreement or
certificate by which it is evidenced, except that from and after
the Effective Time (i) each Legacy Convertible Debenture
assumed by Parent may be converted solely into shares of Parent
Common Stock, (ii) the number of shares of Parent Common
Stock subject to such Legacy Convertible Debenture shall be
equal to the number of shares of Legacy Common Stock subject to
such Legacy Convertible Debenture immediately prior to the
Effective Time multiplied by the Exchange Ratio, provided that
any fractional share of Parent Common Stock resulting from such
multiplication shall be rounded down to the nearest share and
(iii) the conversion price under each such Legacy
Convertible Debenture shall be adjusted by dividing the per
share purchase price under each such Legacy Convertible
Debenture by the Exchange Ratio, provided that such exercise
price shall be rounded up to the nearest cent. Parent and Legacy
agree to take all necessary steps to effect the provisions of
this Section 3.8(c), including
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the execution by Parent of an appropriate supplemental indenture
relating to the Legacy Convertible Debentures. As of the
Effective Time, Parent shall issue to each holder of an
outstanding Legacy Convertible Debenture that has been assumed
by Parent a document evidencing the conversion and assumption of
the Legacy Convertible Debenture by Parent pursuant to this
Section 3.8(c).
(d) No later than 10 business days following the Effective
Date, Parent shall file with the SEC one or more registration
statements on
Form S-8 or
Form S-3, as
applicable (or any other successor or appropriate form) with
respect to the shares of Parent Common Stock issuable pursuant
to the Legacy Options, Legacy Warrants and Legacy Convertible
Debentures assumed by Parent in accordance with this
Section 3.8 and shall use its commercially reasonable
efforts to maintain the current status of the prospectus or
prospectuses contained therein for so long as such options and
warrants remain outstanding.
3.9 Trust Company
Merger. As soon as practicable after the execution of
this Agreement, Legacy and Parent shall cause The Legacy Trust
Company and First National Trust Company (Parent Trust
Company) to enter into the Trust Company Merger Agreement,
the form of which is attached hereto as Annex A, that
provides for the merger of The Legacy Trust Company with and
into Parent Trust Company (the Trust Company
Merger), in accordance with applicable laws and
regulations and the terms of the Trust Company Merger Agreement
and as soon as practicable after consummation of the Merger. The
Trust Company Merger Agreement provides that the executive
officers and directors of Parent Trust Company upon consummation
of the Trust Company Merger shall be the executive officers and
directors of Parent Trust Company immediately prior to the Trust
Company Merger.
ARTICLE IV
ACTIONS PENDING CLOSING
4.1 Forbearances of
Legacy. From the date hereof until the Effective Time,
except as expressly contemplated or permitted by this Agreement
or as Previously Disclosed, without the prior written consent of
Parent, not to be unreasonably withheld, Legacy will not, and
will cause each of its Subsidiaries not to:
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(i) Conduct its business other than in the ordinary and
usual course consistent with past practice or fail to use
commercially reasonable efforts to preserve intact its business
organization and advantageous business relationships; |
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(ii) Fail to use commercially reasonable efforts to keep
available the present services of its employees and preserve for
itself and Parent the goodwill of the customers of Legacy and
its Subsidiaries and others with whom business relations
exist; and |
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(iii) Take any action that would adversely affect or
materially delay the ability of either Legacy or Parent to
obtain any necessary approvals of any regulatory agency required
for the transactions contemplated hereby or to perform its
covenants and agreements under this Agreement or to consummate
the transactions contemplated hereby. |
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(b) Capital Stock. Other than pursuant to
Rights set forth on Schedule 4.1(b) of the Legacy
Disclosure Schedule and outstanding on the date hereof,
(i) issue, sell or otherwise permit to become outstanding,
or authorize the creation of, any additional shares of stock or
any Rights or (ii) permit any additional shares of stock to
become subject to grants of employee or director stock options
or other Rights. |
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(c) Dividends; Etc. |
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(i) Make, declare, pay or set aside for payment any
dividend on or in respect of, or declare or make any other
distribution on any shares of Legacy capital stock, other than
dividends from wholly owned Subsidiaries to Legacy or another
wholly owned Subsidiary of Legacy; or |
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(ii) Directly or indirectly adjust, split, combine, redeem,
reclassify, purchase or otherwise acquire, any shares of its
capital stock. |
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(d) Compensation; Employment Agreements; Etc.
Enter into or amend or renew any employment, consulting,
severance or similar agreements or arrangements with any
director, officer or employee of Legacy or its Subsidiaries or
grant any salary or wage increase or increase any employee
benefit, including discretionary or other incentive or bonus
payments, except in accordance with the terms of any applicable
Legacy incentive plan, or accelerate the vesting of any unvested
stock options, except: |
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(i) for normal increases in compensation and bonuses to
employees in the ordinary course of business consistent with
past practice, provided that no such increases shall result in
an annual aggregate adjustment in compensation or bonus of more
than 3.5%, provided, however, that no increase for any
individual shall result in an annual adjustment in compensation
or bonus of more than 5%, unless mutually agreed to by Legacy
and Parent; |
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(ii) for other changes that are required by applicable law
or are advisable in order to comply with Section 409A of
the Code; |
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(iii) to pay the amounts or to provide payments under plans
and/or commitments set forth in Schedule 4.1(d) of the
Legacy Disclosure Schedule; |
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(iv) for retention bonuses to such persons and in such
amounts as are mutually agreed by Parent and Legacy, provided,
however, that the aggregate amount of such retention bonuses
shall not exceed $200,000 unless mutually agreed to by Legacy
and Parent; |
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(v) severance payments pursuant to the severance agreements
or employment agreements that are set forth in
Schedule 4.1(d) of the Legacy Disclosure Schedule; or |
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(vi) for grants of awards to newly hired employees
consistent with past practice. |
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(e) Hiring. Hire any person as an employee of
Legacy or any of its Subsidiaries or promote any employee,
except (i) to satisfy contractual obligations existing as
of the date hereof and set forth on Schedule 4.1(e) of the
Legacy Disclosure Schedule, or (ii) to fill any vacancies
existing as of the date hereof and described in
Schedule 4.1(e) of the Legacy Disclosure Schedule or
(iii) to fill any vacancies arising after the date hereof
at a comparable level of compensation with persons whose
employment is terminable at the will of Legacy or a Subsidiary
of Legacy, as applicable, provided, however, that such total
compensation may not exceed $40,000. |
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(f) Benefit Plans. Enter into, establish,
adopt, amend or make any contributions to, except (i) as
may be required by applicable law or (ii) to satisfy
contractual obligations existing as of the date hereof and set
forth on Schedule 4.1(f) of the Legacy Disclosure Schedule,
any pension, retirement, stock option, stock purchase, savings,
profit sharing, deferred compensation, consulting, bonus, group
insurance or other employee benefit, incentive or welfare
contract, plan or arrangement, or any trust agreement or similar
arrangement related thereto, in respect of any director, officer
or employee of Legacy or its Subsidiaries or take any action to
accelerate the vesting or exercisability of stock options,
restricted stock or other compensation or benefits payable
thereunder. |
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(g) Dispositions. Sell, transfer, mortgage,
encumber or otherwise dispose of or discontinue any of its
assets, deposits, business or properties except in the ordinary
course of business consistent with past practice and in a
transaction that, together with all other such transactions, is
not material to Legacy and its Subsidiaries taken as a whole. |
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(h) Acquisitions. Acquire, other than by way
of foreclosures or acquisitions of control in a bona fide
fiduciary capacity or in satisfaction of debts previously
contracted in good faith, in each case in the ordinary and usual
course of business consistent with past practice, all or any
portion of the assets, business, deposits or properties of any
other entity. |
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(i) Capital Expenditures. Make any capital
expenditures other than capital expenditures in the ordinary
course of business consistent with past practice in amounts not
exceeding $15,000 individually or |
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$50,000 in the aggregate, provided, however, that if Parent does
not object to a written request for approval within two business
days after receipt, the request shall be deemed approved. |
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(j) Governing Documents. Amend the Legacy
Articles or the Legacy Bylaws or the articles of incorporation
or bylaws (or equivalent documents) of any Subsidiary of Legacy,
except as may be required by law. |
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(k) Accounting Methods. Implement or adopt
any change in its tax accounting or financial accounting
principles, practices or methods, other than as may be required
by changes in laws or regulations or GAAP. |
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(l) Contracts. Except in the ordinary course
of business consistent with past practice or as otherwise
permitted under this Section 4.1, enter into or terminate
any Material Contract or amend or modify in any material respect
any of its existing Material Contracts. |
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(m) Claims. Enter into any settlement or
similar agreement with respect to any action, suit, proceeding,
order or investigation to which Legacy or any of its
Subsidiaries is or becomes a party, which settlement, agreement
or action involves payment by Legacy or any of its Subsidiaries
of an amount that exceeds $50,000 and/or would impose any
material restriction on the business of Legacy or any of its
Subsidiaries or create precedent for claims that are reasonably
likely to be material to Legacy and its Subsidiaries taken as a
whole. |
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(n) Banking Operations. Enter into any new
material line of business; change its material lending,
investment, underwriting, risk and asset liability management
and other material banking and operating policies, except as
required by applicable law, regulation or policies imposed by
any Governmental Authority; or file any application or make any
contract with respect to opening or closing a branching or site
location or branching or site relocation. |
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(o) Indebtedness. (i) Incur any
indebtedness for borrowed money, other than deposits, federal
funds purchased, cash management accounts, Federal Home
Loan Bank borrowings that mature within one year and
securities sold under agreements to repurchase that mature
within 90 days, in each case in the ordinary course of
business consistent with past practice, or assume, guarantee,
endorse or otherwise as an accommodation become responsible for
the obligations of any other Person, other than in the ordinary
course of business consistent with past practice or
(ii) prepay any indebtedness. |
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(p) Investment Securities. (i) Acquire,
other than by way of foreclosures or acquisitions in a bona fide
fiduciary capacity or in satisfaction of debts previously
contracted in good faith, in each case in the ordinary course of
business consistent with past practice, any debt security or
Equity Investment other than federal funds or United States
Government securities or United States Government agency
securities, in each case with a term of one (1) year or
less, (ii) restructure or materially change its investment
securities portfolio or its gap position or (iii) enter in
any Derivatives Contract, provided, however, that if Parent does
not object to a written request for approval within two business
days after receipt, the request shall be deemed approved. |
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(q) Loans. Make, renew or otherwise modify
any loan, loan commitment, letter of credit or other extension
of credit (individually, a Loan and collectively,
Loans) to any Person if, immediately after making an
unsecured Loan or Loans, such Person would be indebted to Legacy
in an aggregate amount in excess of $250,000, or make any fully
secured Loan or Loans to any Person (except for any Loan secured
by a first mortgage on single family owner-occupied real estate)
if, immediately after making a secured Loan, such Person would
be indebted to Legacy in an aggregate amount in excess of
$2,000,000 or, without approval of Parent, shall not make, renew
or otherwise modify any Loan or Loans secured by an
owner-occupied 1-4 single-family residence with a principal
balance in excess of $500,000 or in any event if such Loan does
not conform with Legacys Credit Policy Manual if, in the
case of any of the foregoing types of Loan or Loans, Parent
shall object thereto within three business days after receipt of
notice of such proposed Loan, and the failure to provide a
written objection within three business days after receipt of
notice of such proposed Loan from Legacy shall be deemed as the
approval of Parent to make such Loan or Loans. |
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(r) Investments in Real Estate. Make any
investment or commitment to invest in real estate or in any real
estate development project, other than by way of foreclosure or
acquisitions in a bona fide fiduciary capacity or in
satisfaction of a debt previously contracted in good faith, in
each case in the ordinary course of business consistent with
past practice. |
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(s) Adverse Actions. Take any action that
(i) would, or is reasonably likely to, prevent or impede
the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code, (ii) is
intended or is reasonably likely to result in (x) any of
its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect at any time at
or prior to the Effective Time, (y) any of the conditions
to the Merger set forth in Article VII not being satisfied
or (z) a material violation of any provision of this
Agreement or the Trust Company Merger Agreement, except as may
be required by applicable law or regulation and (iii) would
adversely affect or materially delay the ability of either
Parent or Legacy to obtain any necessary approvals required of
any regulatory agency for the transactions contemplated hereby
or to perform its covenants and agreements under this Agreement
or to consummate the transactions contemplated hereby. |
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(t) Commitments. Enter into any contract with
respect to, or otherwise agree or commit to do, any of the
foregoing. |
4.2 Forbearances of
Parent. From the date hereof until the Effective Time,
except as expressly contemplated or permitted by this Agreement
or as Previously Disclosed, without the prior written consent of
Legacy, not to be unreasonably withheld, Parent will not, and
will cause each of its Subsidiaries not to:
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(a) Adverse Actions. Take any action that
(i) would, or is reasonably likely to, prevent or impede
the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code, (ii) is
intended or is reasonably likely to result in (x) any of
its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect at any time at
or prior to the Effective Time, (y) any of the conditions
to the Merger set forth in Article VII not being satisfied
or (z) a material violation of any provision of this
Agreement or the Trust Company Merger Agreement, except as may
be required by applicable law or regulation or (iii) would
adversely affect or materially delay the ability of either
Parent or Legacy to obtain any necessary approvals required of
any regulatory agency for the transactions contemplated hereby
or to perform its covenants and agreements under this Agreement
or to consummate the transactions contemplated hereby. |
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(b) Commitments. Enter into any contract with
respect to, or otherwise agree or commit to do, any of the
foregoing. |
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Disclosure
Schedules. On or prior to the date hereof, Parent has
delivered to Legacy a schedule and Legacy has delivered to
Parent a schedule (respectively, its Disclosure
Schedule) setting forth, among other things, items the
disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a
provision hereof or as an exception to one or more
representations or warranties contained in Section 5.3 or
5.4 or to one or more of its covenants contained in
Article IV; provided, however, that (a) no such item
is required to be set forth in a Disclosure Schedule as an
exception to a representation or warranty or as an exception to
a covenant in Article IV if its absence would not be
reasonably likely to result in the related representation or
warranty being deemed untrue or incorrect under the standard
established by Section 5.2 and (b) the mere inclusion
of an item in a Disclosure Schedule as an exception to a
representation or warranty shall not be deemed an admission by a
party that such item represents a material exception or fact,
event or circumstance or that, absent such inclusion in the
Disclosure Schedule, such item is or would be reasonably likely
to result in a Material Adverse Effect.
5.2 Standard. No
representation or warranty of Legacy or Parent contained in
Sections 5.3 or 5.4, respectively, shall be deemed untrue
or incorrect for any purpose under this Agreement, and no party
hereto
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shall be deemed to have breached a representation or warranty,
in any case, as a consequence of the existence of any fact,
event or circumstance unless such fact, circumstance or event,
individually or taken together with all other facts, events or
circumstances inconsistent with any representation or warranty
contained in Sections 5.3 or 5.4, has had or would be
reasonably likely to have a Material Adverse Effect on the party
making such representation or warranty disregarding for the
purposes of this Section 5.2 any materiality or Material
Adverse Effect qualification contained in any representations or
warranties.
5.3 Representations and
Warranties of Legacy. Subject to Sections 5.1 and
5.2, Legacy hereby represents and warrants to Parent:
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(a) Organization, Standing and Authority.
Legacy is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of
Pennsylvania. Legacy is duly qualified to do business and is in
good standing in each jurisdiction where its ownership or
leasing of property or assets or the conduct of its business
requires it to be so qualified. Legacy has in effect all
federal, state, local and foreign governmental authorizations
necessary for it to own or lease its properties and assets and
to carry on its business as now conducted. |
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(b) Legacy Capital Stock. The authorized
capital stock of Legacy consists of
(i) 5,000,000 shares of Legacy Common Stock, of which
3,526,922 shares are issued and outstanding as of the date
hereof and options to purchase 366,000 shares are
outstanding as of the date hereof and
(ii) 1,000,000 shares of Preferred Stock, of which no
shares are issued and outstanding as of the date hereof. As of
the date hereof, 109,627 shares of Legacy Common Stock were
held in treasury by Legacy or otherwise directly or indirectly
owned by Legacy. Legacy also has outstanding Legacy Warrants
exercisable for the purchase of 38,080 shares of Legacy
Common Stock and Legacy Convertible Debentures convertible into
an aggregate of 355,400 shares of Legacy Common Stock. The
outstanding shares of Legacy Common Stock, the Legacy Warrants
and the Legacy Convertible Debentures have been duly authorized
and validly issued and are fully paid and non-assessable, and
neither the outstanding shares of Legacy Common Stock have been
nor the shares of Legacy Common Stock issuable upon exercise of
the Legacy Warrants or the conversion of the Legacy Convertible
Debentures will be upon issuance, issued in violation of the
preemptive rights of any Person. Schedule 5.3(b) of the
Legacy Disclosure Schedule sets forth for each Legacy Option the
name of the grantee, the date of the grant, the type of grant,
the status of the option grant as qualified or non-qualified
under Section 422 of the Code (with respect to the Legacy
Options), the number of shares of Legacy Common Stock subject to
each Legacy Option, the number of shares of Legacy Common Stock
subject to Legacy Options that are currently exercisable and the
exercise price per share. Except as set forth in the preceding
sentences of this Section 5.3(b) and the Legacy Rights as
set forth in Schedule 5.3(b) of the Legacy Disclosure
Schedule there are no shares of Legacy Common Stock reserved for
issuance, Legacy does not have any Rights issued or outstanding
with respect to Legacy Common Stock and Legacy does not have any
commitment to authorize, issue or sell any Legacy Common Stock
or Rights. |
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(c) Subsidiaries. |
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(i) (A) Schedule 5.3(c) of the Legacy Disclosure
Schedule sets forth a list of all of its Subsidiaries together
with the jurisdiction of organization of each such Subsidiary;
(B) except as set forth on Schedule 5.3(c) of the
Legacy Disclosure Schedule, Legacy owns, directly or indirectly,
all the issued and outstanding equity securities of each of its
Subsidiaries; (C) no equity securities of any of its
Subsidiaries are or may become required to be issued (other than
to Legacy) by reason of any Right or otherwise; (D) there
are no contracts, commitments, understandings or arrangements by
which any of its Subsidiaries is or may be bound to sell or
otherwise transfer any of its equity securities other than to
Legacy or any of its wholly owned Subsidiaries; (E) there
are no contracts, commitments, understandings or arrangements
relating to Legacys rights to vote or to dispose of such
equity securities of Legacys subsidiaries and (F) all
the equity securities of Legacys Subsidiaries held by
Legacy or its Subsidiaries are fully paid and nonassessable and
are owned by Legacy or its Subsidiaries free and clear of any
Liens. |
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(ii) Except as set forth in Schedule 5.3(c) of the
Legacy Disclosure Schedules and except for securities and other
interests held in a fiduciary capacity and beneficially owned by
third parties or taken in consideration of debts previously
contracted, ownership interests in Legacys Subsidiaries
and stock in the Federal Home Loan Bank of Pittsburgh,
Legacy does not own beneficially, directly or indirectly, any
equity securities or similar interests of any Person or any
interest in a partnership or joint venture of any kind. |
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(iii) Each of Legacys Subsidiaries has been duly
organized and is validly existing in good standing under the
laws of the jurisdiction of its organization and is duly
qualified to do business and in good standing in the
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified. |
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(iv) The deposit accounts of Legacy are insured by the Bank
Insurance Fund, in the manner and to the maximum extent provided
by applicable law, and Legacy has paid all deposit insurance
premiums and assessments required by applicable laws and
regulations. |
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(d) Corporate Power. Each of Legacy and its
Subsidiaries has the corporate power and authority to carry on
its business as it is now being conducted and to own all its
properties and assets; and Legacy has the corporate power and
authority to execute, deliver and perform its obligations under
this Agreement and to consummate the Transaction, subject to
receipt of all necessary approvals of Governmental Authorities
and the approval of Legacys stockholders of this
Agreement, and no other corporate proceedings are necessary on
the part of Legacy to approve this Agreement or to consummate
the Transaction. |
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(e) Corporate Authority. Subject to the
approval of this Agreement by the holders of not less than
two-thirds of the outstanding shares of Legacy Common Stock (a
Required Vote), this Agreement and the Transaction
have been authorized by all necessary corporate action of Legacy
and the Legacy Board on or prior to the date hereof. Legacy has
duly executed and delivered this Agreement and, assuming due
authorization, execution and delivery by Parent of this
Agreement, this Agreement is a valid and legally binding
obligation of Legacy, enforceable in accordance with its terms,
except as enforceability may be limited by applicable
bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium, fraudulent transfer and similar laws
of general applicability relating to or affecting
creditors rights or by general equity principles. |
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(f) Regulatory Approvals; No Defaults. |
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(i) No consents or approvals of, or waivers by, or filings
or registrations with, any Governmental Authority or with any
third party are required to be made or obtained by Legacy or any
of its Subsidiaries in connection with the execution, delivery
or performance by Legacy and The Legacy Trust Company of this
Agreement and the Trust Company Merger Agreement or to
consummate the Transaction except for (A) filings of
applications or notices with, and approvals or waivers by, the
OCC, the FDIC, the Department and the Federal Reserve Board,
(B) filings with the SEC and state securities authorities,
as applicable, in connection with the submission of this
Agreement for the approval of the holders of Legacy Common Stock
and the registration of Parent Common Stock issuable in the
Merger, (C) the notification of the Merger to the
Department and the filing with the Department and the Secretary
of State of the Commonwealth of Pennsylvania of a certificate of
approval of the Merger by the OCC, (D) the filing of
Articles of Merger with the Secretary of State of the
Commonwealth of Pennsylvania pursuant to the PBCL and the
Articles of Combination with the OCC with respect to the Merger
and (E) the approval and adoption of this Agreement by a
Required Vote. As of the date hereof, Legacy is not aware of any
reason why the approvals set forth above and referred to in
Section 7.1(b) will not be received in a timely manner and
without the imposition of a condition, restriction or
requirement of the type described in Section 7.1(b). |
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(ii) Subject to receipt, or the making, of the consents,
approvals, waivers and filings referred to in the preceding
paragraph and the expiration of related waiting periods, the
execution, delivery and performance of this Agreement and the
Trust Company Merger Agreement by Legacy and The |
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Legacy Trust Company, respectively, and the consummation of the
Transaction do not and will not (A) except as Previously
Disclosed, constitute a breach or violation of, or a default
under, or give rise to any Lien, any acceleration of remedies or
any right of termination under, any law, rule or regulation or
any judgment, decree, order, governmental permit or license, or
agreement, indenture or instrument of Legacy or any of its
Subsidiaries or to which Legacy or any of its Subsidiaries or
any of their respective properties is subject or bound,
(B) constitute a breach or violation of, or a default
under, the Legacy Articles, the Legacy Bylaws or similar
governing documents of Legacys Subsidiaries or
(C) require any consent or approval under any such law,
rule, regulation, judgment, decree, order, governmental permit
or license, agreement, indenture or instrument. |
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(g) Financial Reports; Undisclosed
Liabilities. |
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(i) Legacys Annual Report on
Form 10-K for the
fiscal year ended December 31, 2004 and all other reports,
registration statements, definitive proxy statements or
information statements filed or to be filed by it subsequent to
December 31, 2003 with the FDIC (collectively,
Legacys Securities Documents), as of the date
filed or to be filed and as amended prior to the date hereof,
(A) complied or will comply in all material respects as to
form with the applicable regulations of the FDIC and the SEC as
the case may be and (B) did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that information as
of a later date shall be deemed to modify information as of an
earlier date; and each of the consolidated statements of
financial condition contained in any such Securities Documents,
including the related notes and schedules thereto, fairly
presents, or will fairly present, the consolidated financial
position of Legacy and its Subsidiaries as of its date, and each
of the consolidated statements of income, stockholders
equity and cash flows or equivalent statements in Legacys
Securities Documents, including any related notes and schedules
thereto, fairly presents, or will fairly present, the
consolidated results of operations, changes in
stockholders equity and changes in cash flows, as the case
may be, of Legacy and its Subsidiaries for the periods to which
they relate, in each case in accordance with GAAP consistently
applied during the periods involved, except in each case as may
be noted therein. |
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(ii) Since December 31, 2004, neither Legacy nor any
of its Subsidiaries has incurred any liability other than in the
ordinary course of business consistent with past practice,
excluding the incurrence of expenses related to this Agreement
and the Transaction. |
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(iii) Since September 30, 2005, (A) Legacy and
its Subsidiaries have conducted their respective businesses in
the ordinary and usual course consistent with past practice,
excluding the incurrence of expenses related to this Agreement
and the Transaction; (B) neither Legacy nor any of its
Subsidiaries has taken nor permitted or entered into any
contract with respect to, or otherwise agreed or committed to do
or take, any of the actions set forth in Sections 4.1(d),
(f), (g), (h), (j), (k) and (n) hereof between
September 30, 2005 and the date hereof; (C) neither
Legacy nor any of its Subsidiaries has taken or permitted or
entered into any contract with respect to, or otherwise agreed
or committed to do or take, any of the actions set forth in
Sections 4.1(e), (i), (l), (m), (p), (q) and
(r) between September 30, 2005 and the date hereof and
(D) except as set forth in the Legacy Securities Documents,
since September 30, 2005, no event has occurred or
circumstance arisen that, individually or taken together with
all other facts, circumstances and events described in any
paragraph of this Section 5.3 or otherwise, is reasonably
likely to have a Material Adverse Effect with respect to Legacy. |
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(iv) No agreement pursuant to which any loans or other
assets have been or shall be sold by Legacy or its Subsidiaries
entitled the buyer of such loans or other assets, unless there
is material breach of a representation or covenant by Legacy or
its Subsidiaries, to cause Legacy or its Subsidiaries to
repurchase such loan or other asset or the buyer to pursue any
other form of recourse against Legacy or its Subsidiaries. To
the knowledge of Legacy, there has been no material breach of a
representation or covenant by Legacy or its Subsidiaries in any
such agreement. Except as |
A-24
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disclosed in Legacys Securities Documents filed prior to
the date hereof, since December 31, 2002, no cash, stock or
other dividend or any other distribution with respect to the
capital stock of Legacy or any of its Subsidiaries has been
declared, set aside or paid. Except as disclosed in
Legacys Securities Documents filed prior to the date
hereof, no shares of capital stock of Legacy have been
purchased, redeemed or otherwise acquired, directly or
indirectly, by Legacy since December 31, 2004, and no
agreements have been made to do the foregoing. |
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(v) Legacy maintains disclosure controls and procedures
required by
Rule 13a-15 or
15d-15 under the
Exchange Act; such controls and procedures are effective to
ensure that all material information concerning Legacy and its
Subsidiaries is made known on a timely basis to the individuals
responsible for the preparation of Legacys Securities
Documents and other public disclosure documents. The President
and the Chief Financial Officer of Legacy have signed, and
Legacy has furnished to the FDIC, all certifications required by
Rule 13a-14 or
15d-14 under the
Exchange Act or 18 U.S.C. § 1350; such
certifications contain no qualifications or exceptions to the
matters certified therein and have not been modified or
withdrawn; and neither Legacy nor any of its officers has
received notice from any Governmental Authorities questioning or
challenging the accuracy, completeness, form or manner of filing
or submission of such certifications. |
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(vi) Except as reflected, noted or adequately reserved
against in the consolidated financial statements of Legacy
included in its Quarterly Report on
Form 10-Q for the
nine months ended September 30, 2005 as filed with the
FDIC, at September 30, 2005 neither Legacy nor the Legacy
Trust Company had any liabilities, whether accrued, absolute,
contingent or otherwise, that are required to be reflected,
noted or reserved against therein under GAAP or that are in any
case or in the aggregate material. |
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(h) Litigation. Except as set forth in
Schedule 5.3(h) to the Legacy Disclosure Schedule, no
litigation, claim or other proceeding before any court or
governmental agency is pending against Legacy or any of its
Subsidiaries and, to Legacys knowledge, no such
litigation, claim or other proceeding has been threatened and
there are no facts that could reasonably give rise to such
litigation, claim or other proceeding. Neither Legacy nor any of
its Subsidiaries is a party to any order, judgment or decree
that has or could reasonably be expected to have a Material
Adverse Effect with respect to Legacy. |
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(i) Regulatory Matters. |
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(i) Neither Legacy nor any of its Subsidiaries nor any of
their respective properties is a party to or is subject to any
order, decree, agreement, memorandum of understanding or similar
arrangement with, or a commitment letter or similar submission
to, or extraordinary supervisory letter from, any Bank
Regulatory Authority or any federal or state governmental agency
or authority charged with the supervision or regulation of
issuers of securities or the supervision or regulation of it
(collectively, the Legacy Regulatory Authorities).
Legacy and its Subsidiaries have paid all assessments made or
imposed by any Legacy Regulatory Authority. |
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(ii) Neither Legacy nor any of its Subsidiaries has been
advised by, nor does it have any knowledge of facts that could
give rise to an advisory notice by, any Legacy Regulatory
Authority that such Legacy Regulatory Authority is contemplating
issuing or requesting, or is considering the appropriateness of
issuing or requesting, any such order, decree, agreement,
memorandum of understanding, commitment letter, supervisory
letter or similar submission. |
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(iii) Legacy and each of its Subsidiaries have timely filed
all reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they
were required to file since January 1, 2002 with
(A) the Federal Reserve Board, (B) the FDIC,
(C) the Department, (D) any other state or federal
regulatory authority, and (E) the SEC, and all other
reports and statements required to be filed by them since
January 1, 2002, and have paid all fees and assessments due
and payable in connection therewith. Except as set forth in
Schedule 5.3(i) of the Legacy Disclosure Schedule and
except for normal examinations conducted by Bank Regulatory
Authorities, (A) no Bank Regulatory Authority has initiated
or has pending any proceeding or, to |
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the knowledge of Legacy, investigation into the business or
operations of Legacy or any of its Subsidiaries since
January 1, 2002, except where such proceedings or
investigation are not reasonably likely to have, either
individually or in the aggregate, a Legacy Material Adverse
Effect, and (B) there is no unresolved violation, criticism
or exception by any Bank Regulatory Authority with respect to
the business, operations, policies or procedures of Legacy or
The Legacy Trust Company since January 1, 2002 that are
reasonably likely to have, either individually or in the
aggregate, a Legacy Material Adverse Effect. |
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(j) Compliance With Laws. Each of Legacy and
its Subsidiaries: |
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(i) is in material compliance with all applicable federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable
thereto or to the employees conducting such businesses,
including, without limitation, Sections 23A and 23B of the
Federal Reserve Act and FDIC, Department and OCC regulations
pursuant thereto, the Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act, the Bank Secrecy Act and all other applicable
fair lending laws and other laws relating to discriminatory
business practices; |
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(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Governmental Authorities that are
required in order to permit it to own or lease its properties
and to conduct its business as presently conducted; all such
permits, licenses, certificates of authority, orders and
approvals are in full force and effect and, to Legacys
knowledge, no suspension or cancellation of any of them is
threatened; and |
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(iii) has received, since December 31, 2002, no
notification or communication from any Governmental Authority
(A) asserting that Legacy or any of its Subsidiaries is not
in compliance with any of the statutes, regulations or
ordinances that such Governmental Authority enforces or
(B) threatening to revoke any license, franchise, permit or
governmental authorization nor, to Legacys knowledge, do
any grounds for any of the foregoing exist. |
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(k) Material Contracts; Defaults. |
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(i) Except for documents listed as exhibits to
Legacys Securities Documents or as set forth in
Schedule 5.3(k) of the Legacy Disclosure Schedule, neither
Legacy nor any of its Subsidiaries is a party to, bound by or
subject to any agreement, contract, arrangement, commitment or
understanding, whether written or oral, (A) with respect to
the employment of any of its directors, officers, employees or
consultants; (B) that would entitle any present or former
director, officer, employee or agent of Legacy or any of its
Subsidiaries to indemnification from Legacy or any of its
Subsidiaries; (C) that is a material contract as defined in
Item 601(b)(10) of
Regulation S-K of
the SEC; (D) that is a consulting agreement, including data
processing, software programming and licensing contracts, not
terminable on 60 days or less notice and involving the
payment of more than $25,000 per annum or (E) that
materially restricts the conduct of any business by Legacy or by
any of its Subsidiaries (collectively, Material
Contracts). Legacy has identified in Schedule 5.3(k)
of the Legacy Disclosure Schedule and made available to Parent
true, correct and complete copies of each such Material Contract. |
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(ii) Neither Legacy nor any of its Subsidiaries is in
material default under any contract, agreement, commitment,
arrangement, lease, insurance policy or other instrument to
which it is a party, by which its assets, business or operations
may be bound or affected, or under which it or its respective
assets, business or operations receives benefits, and there has
not occurred any event that, with the lapse of time or the
giving of notice or both, would constitute such a default.
Except as provided in this Agreement, no power of attorney or
similar authorization given directly or indirectly by Legacy or
any of its Subsidiaries is currently outstanding. |
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(l) No Brokers. Except as set forth in
Schedule 5.3(l) of the Legacy Disclosure Schedule, no
action has been taken by Legacy or any of its Subsidiaries that
would give rise to any valid claim against |
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any party hereto for a brokerage commission, finders fee
or other like payment with respect to the Transaction. |
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(m) Employee Benefit Plans. |
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(i) All benefit and compensation plans, contracts, policies
or arrangements covering current or former employees of Legacy
and its Subsidiaries and current or former directors of Legacy
and its Subsidiaries including, but not limited to,
employee benefit plans within the meaning of
Sections 3(1), 3(2), 3(3) and 3(37) of ERISA, and deferred
compensation, stock option, stock purchase, stock appreciation
rights, stock based, incentive and bonus plans (the
Benefit Plans), have been set forth in
Schedule 5.3(m) of the Legacy Disclosure Schedule. True and
complete copies of the following have been provided or made
available to Parent: (A) all Benefit Plans including, but
not limited to, any trust instruments and insurance contracts
forming a part of any Benefit Plans and all amendments thereto;
(B) the most recent annual report (Form 5500),
together with all schedules, as required, filed with the
Internal Revenue Service (IRS) or Department of
Labor (the DOL), as applicable, and any financial
statements and opinions required by Section 103(e)(3) of
ERISA with respect to each Benefit Plan; (C) for each
Benefit Plan that is a top-hat plan, a copy of
filings with the DOL; (D) the most recent determination
letter issued by the IRS for each Benefit Plan that is intended
to be qualified under Section 401(a) of the
Code; (E) the most recent summary plan description and any
summary of material modifications, as required, for each Benefit
Plan; (F) the most recent actuarial report, if any,
relating to each Benefit Plan; (G) the most recent
actuarial valuation, study or estimate of any retiree medical
and life insurance benefits plan or supplemental retirement
benefits plan and (H) the most recent summary annual report
for each Benefit Plan required to provide summary annual reports
by Section 104 of ERISA. |
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(ii) Each Benefit Plan has been administered to date in all
material respects in accordance with the applicable provisions
of ERISA, the Code and applicable law and with the terms and
provisions of all documents, contracts or agreements pursuant to
which such Benefit Plan is maintained. Each Benefit Plan that is
an employee pension benefit plan within the meaning
of Section 3(2) of ERISA (a Pension Plan) and
that is intended to be qualified under Section 401(a) of
the Code, has received a favorable determination letter from the
IRS or is the adoption of a prototype plan for which the
prototype sponsor has a favorable determination letter from the
IRS, and Legacy is not aware of any circumstances likely to
result in revocation of any such favorable determination letter
or the loss of the qualification of such Pension Plan under
Section 401(a) of the Code. Neither Legacy nor any of its
Subsidiaries has received any correspondence or written or
verbal notice from the IRS, DOL, any other governmental agency,
any participant in or beneficiary of, a Benefit Plan or any
agent representing any of the foregoing that brings into
question the qualification of any such Benefit Plan. There is no
material pending or, to Legacys knowledge, threatened
litigation relating to the Benefit Plans. Neither Legacy nor any
of its Subsidiaries has engaged in a transaction with respect to
any Benefit Plan or Pension Plan that, assuming the taxable
period of such transaction expired as of the date hereof, could
subject Legacy or any of its Subsidiaries to a tax or penalty
imposed by either Section 4975 of the Code or
Section 502(i) of ERISA. There are no matters pending
before the IRS, DOL or other governmental agency with respect to
any Benefit Plans, nor does Legacy have knowledge that any is
threatened. |
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(iii) No liability under Subtitle C or D of Title IV
of ERISA has been or to Legacys knowledge is presently
expected to be incurred by Legacy or any of its Subsidiaries
with respect to any ongoing, frozen or terminated
single-employer plan, within the meaning of
Section 4001(a)(15) of ERISA, currently or formerly
maintained by any of them or the single-employer plan of any
entity that is considered one employer with Legacy under
Section 4001 of ERISA or Section 414 of the Code (an
ERISA Affiliate). Neither Legacy nor any of its
Subsidiaries has incurred, and neither expects to incur, to
Legacys knowledge, any withdrawal liability with respect
to a multiemployer plan under Subtitle E of Title IV of
ERISA, regardless of whether based on contributions of an ERISA
Affiliate. No notice of a reportable event, within
the |
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meaning of Section 4043 of ERISA for which the
30-day reporting
requirement has not been waived, has been required to be filed
for any Pension Plan or by any ERISA Affiliate. |
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(iv) All contributions required to be made under the terms
of any Benefit Plan have been timely made. Neither any Pension
Plan nor any single-employer plan of an ERISA Affiliate has an
accumulated funding deficiency, whether or not
waived, within the meaning of Section 412 of the Code or
Section 302 of ERISA and no ERISA Affiliate has an
outstanding funding waiver. Except as set forth in
Schedule 5.3(m) of the Legacy Disclosure Schedule, neither
Legacy nor any of its Subsidiaries has provided, or is required
to provide, security to any Pension Plan or to any
single-employer plan of an ERISA Affiliate pursuant to
Section 401(a)(29) of the Code. |
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(v) Except as set forth in Schedule 5.3(m) of the
Legacy Disclosure Schedule, neither Legacy nor any of its
Subsidiaries has any obligations for retiree health and life
benefits under any Benefit Plan, other than coverage as may be
required under Section 4980B of the Code or Part 6 of
Title I of ERISA, or under the continuation of coverage
provisions of the laws of any state or locality. No event or
condition exists with respect to a Benefit Plan that could
subject Legacy to tax under Section 4980B of the Code. |
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(vi) Except as set forth in Schedule 5.3(m) of the
Legacy Disclosure Schedule, none of the execution of this
Agreement, stockholder approval of this Agreement or
consummation of the Transaction will, except as set forth in
Schedule 5.3(m) of the Legacy Disclosure Schedule,
(A) entitle any employees of Legacy or any of its
Subsidiaries to severance pay or any increase in severance pay
upon any termination of employment after the date hereof,
(B) accelerate the time of payment or vesting or trigger
any payment or funding, through a grantor trust or otherwise, of
compensation or benefits under, increase the amount payable or
trigger any other material obligation pursuant to, any of the
Benefit Plans, (C) result in any breach or violation of, or
a default under, any of the Benefit Plans or (D) result in
any payment that would be a parachute payment to a
disqualified individual as those terms are defined
in Section 280G of the Code, without regard to whether such
payment is reasonable compensation for personal services
performed or to be performed in the future. |
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(vii) All required reports and descriptions, including but
not limited to Form 5500 annual reports and required
attachments, Forms 1099-R, summary annual reports,
Forms PBGC-1 and summary plan descriptions, have been filed
or distributed appropriately with respect to each Benefit Plan.
All required tax filings with respect to each Benefit Plan have
been made, and any taxes due in connection with such filings
have been paid. |
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(n) Labor Matters. Neither Legacy nor any of
its Subsidiaries is a party to or is bound by any collective
bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is
Legacy or any of its Subsidiaries the subject of a proceeding
asserting that it has committed an unfair labor practice within
the meaning of the National Labor Relations Act or seeking to
compel Legacy or any of its Subsidiaries to bargain with any
labor organization as to wages or conditions of employment, nor
is there any strike or other labor dispute involving it or any
of its Subsidiaries pending or, to Legacys knowledge,
threatened, nor is Legacy or any of its Subsidiaries aware of
any activity involving its employees seeking to certify a
collective bargaining unit or engaging in other organizational
activity. |
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(o) Environmental Matters. |
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(i) Except as Previously Disclosed or as set forth in
Schedule 5.3(o) of the Legacy Disclosure Schedule, to
Legacys Knowledge, (A) Legacy and its Subsidiaries
are in material compliance with applicable environmental laws;
(B) no real property, including buildings or other
structures, currently or formerly owned or operated by Legacy or
any of its Subsidiaries, or any property in which Legacy or any
of its Subsidiaries has held a security interest, Lien or a
fiduciary or management role (Legacy Loan Property),
has been contaminated with, or has had any release of, any
Hazardous Substance except in material compliance with
Environmental Laws; (C) neither |
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Legacy nor any of its Subsidiaries could be deemed the owner or
operator of, or have actively participated in the management
regarding Hazardous Substances of, any Legacy Loan Property that
has been contaminated with, or has had any material and unlawful
release to the environment of, any regulated quantity of any
Hazardous Substance; (D) neither Legacy nor any of its
Subsidiaries has any material liability for any Hazardous
Substance disposal or contamination on any third party property;
(E) neither Legacy nor any of its Subsidiaries has received
any notice, demand letter, claim or request for information
alleging any material violation of, or liability under, any
Environmental Law; (F) neither Legacy nor any of its
Subsidiaries is subject to any order, decree, injunction or
other agreement with any Governmental Authority or any third
party relating to any Environmental Law; (G) there are no
circumstances or conditions (including the presence of
unencapsulated friable asbestos, underground storage tanks, lead
products, polychlorinated biphenyls, prior manufacturing
operations, dry-cleaning or automotive services) involving
Legacy or any of its Subsidiaries, any currently or formerly
owned or operated property, or any Legacy Loan Property, that
could reasonably be expected to result in any material claims,
liability or investigations against Legacy or any of its
Subsidiaries, result in any material restrictions on the
ownership, use or transfer of any property pursuant to any
Environmental Law or materially and adversely affect the value
of any Legacy Loan Property, (H) Legacy has set forth in
Schedule 5.3(o) of the Legacy Disclosure Schedule and made
available to Parent copies of all environmental reports or
studies, sampling data, correspondence and filings in its
possession or reasonably available to it relating to Legacy, its
Subsidiaries and any currently owned or operated property of
Legacy which were prepared in the last five years and
(I) Legacy has made available to Parent copies of all
environmental reports or studies, sampling data, correspondence
and filings in the possession or reasonably available to it
relating to any currently outstanding Legacy Loan and which were
prepared for Legacy in the last five years. |
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(ii) As used herein, (A) the term Environmental
Laws means any federal, state or local law, regulation,
order, decree or permit relating to: (1) the protection or
restoration of the environment, human health, safety or natural
resources in regard to any Hazardous Substance; (2) the
handling, use, presence, disposal, release or threatened release
to the environment of any Hazardous Substance or
(3) material effects of any Hazardous Substance on any
legally delineated wetlands, indoor air spaces; (4) any
material physical damage injury or any injury or threat of
injury to persons or property in connection with any Hazardous
Substance; and (B) the term Hazardous Substance
means any regulated quantity of any substance other than at
concentrations and in locations that are naturally occurring
that are: (1) listed, classified or regulated pursuant to
any Environmental Law; (2) any petroleum product or
by-product, asbestos-containing material, lead-containing paint
or plumbing, polychlorinated biphenyls, radioactive materials or
radon or (3) any other substance that is the subject of
regulatory action by any Governmental Authority in connection
with any Environmental Law and (C) the term
Legacys Knowledge means the actual knowledge,
immediately prior to the Effective Time and Effective Date, of
any officer or director of Legacy or of Legacys Manager of
Environmental Health and Safety. |
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(i) (A) All Tax Returns that are required to be filed
on or before the Effective Date (taking into account any
extensions of time within which to file that have not expired)
by or with respect to the Legacy Group, including Legacy and its
Subsidiaries, have been or will be timely filed on or before the
Effective Date; (B) all such Tax Returns are or will be
true and complete in all material respects; (C) all Taxes
due of the Legacy Group, including Legacy and its Subsidiaries,
whether or not shown on the Tax Returns referred to in
clause (A) have been or will be timely paid in full;
(D) the Tax Returns referred to in
clause (A) have not been examined by the IRS or the
appropriate Tax authority and the Legacy Group has not extended
the statute of limitations for any such Tax Returns;
(E) all deficiencies asserted or assessments made as a
result of examinations conducted by any taxing authority have
been paid in full; (F) no issues that have been raised by
the relevant taxing authority in connection with the examination
of any of the Tax Returns referred to in |
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clause (A) are currently pending and (G) no
member of the Legacy Group has extended any statutes of
limitation with respect to any Taxes of Legacy. |
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(ii) Legacy has made available to Parent true and correct
copies of the United States federal income Tax Returns filed by
Legacy for each of the three most recent fiscal years for which
such returns have been filed. |
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(iii) Neither Legacy nor any of its Subsidiaries has any
liability with respect to income, franchise or similar Taxes
that accrued on or before the end of the most recent period
covered by Legacys Securities Documents filed prior to the
date hereof in excess of the amounts accrued or subject to a
reserve with respect thereto that are reflected in the financial
statements included in Legacys Securities Documents filed
on or prior to the date hereof. |
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(iv) Neither Legacy nor any of its Subsidiaries is a party
to any Tax allocation or sharing agreement (other than an
agreement exclusively between Legacy and a Legacy Subsidiary),
is or has been a member of an affiliated group filing
consolidated or combined Tax Returns other than a group the
common parent of which is or was Legacy or otherwise has any
liability for the Taxes of any Person other than a member of the
Legacy Group. |
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(v) No closing agreements, private letter rulings,
technical advice memoranda or similar agreements or rulings have
been entered into or issued by any taxing authority with respect
to Legacy and its Subsidiaries. |
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(vi) Neither Legacy nor any of its Subsidiaries maintains
any compensation plans, programs or arrangements the payments
under which would not be deductible as a result of the
limitations under Section 162(m) or Section 280G of
the Code and the regulations issued thereunder, nor would result
in the imposition of an excise tax under Section 409A or
4999 of the Code. |
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(vii) As of the date hereof, Legacy has no reason to
believe that any conditions exist that might prevent or impede
the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code. |
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(viii) (A) No Tax is required to be withheld pursuant
to Section 1445 of the Code as a result of the Transaction
and (B) all Taxes that Legacy or any of its Subsidiaries is
or was required by law to withhold or collect have been duly
withheld or collected and, to the extent required by applicable
law, have been paid to the proper Governmental Authority or
other Person. |
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(ix) There are no Liens for Taxes on any of the assets of
Legacy or any of its Subsidiaries, except for Liens for Taxes
not yet due and payable. |
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(x) Neither Legacy nor any of its Subsidiaries (A) has
agreed, or is required, to make any adjustment under
Section 481(a) of the Code or any comparable provision of
state, local or foreign law or has any knowledge that a
Governmental Authority has proposed any such adjustment or
change in accounting method with respect to Legacy or its
Subsidiaries or (B) has any application pending with any
Governmental Authority requesting permission for any change in
accounting method. |
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(xi) Neither Legacy nor any of its Subsidiaries is a
successor for Tax purposes to any Person by way of merger,
reorganization or similar transaction other than Northern State
Bank. |
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(xii) No claim has ever been made by a Governmental
Authority in a jurisdiction where Legacy or any of its
Subsidiaries does not file Tax Returns that Legacy or such
Subsidiaries is or may be subject to taxation by that
jurisdiction. |
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(xiii) Neither Legacy nor any of its Subsidiaries has been
the distributing corporation within the meaning of
Section 355(c)(2) of the Code or has been the subject of a
distribution with respect to a transaction described in
Section 355 of the Code within the five-year period ending
as of the date of this Agreement. |
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(xiv) Neither Legacy nor any of its Subsidiaries has
participated in any reportable transaction or
listed transaction that is required to be reported
pursuant to Section 1.6011-4 of the Treasury Regulations. |
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(xv) To the Knowledge of the Legacy and its Subsidiaries,
no audit of any Tax Return of Legacy or any of its Subsidiaries
is threatened. |
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(xvi) Neither Legacy nor any of its Subsidiaries is a party
to any agreement providing for the allocation, indemnification
or sharing of Taxes other than any agreement among members of an
affiliated group that includes Legacy as the common parent. |
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(xvii) Neither Legacy nor any of its Subsidiaries will be
required to include any item of income in, or exclude any item
of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Closing Date as a result of
any: |
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(A) closing agreement as described in Code
Section 7121 (or any corresponding or similar provision of
state, local or foreign income Tax law) executed on or prior to
the Closing Date; |
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(B) intercompany transaction or excess loss account
described in Treasury Regulations under Code Section 1502
(or any corresponding or similar provision of state, local or
foreign income tax law); |
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(C) installment sale or open transaction disposition made
on or prior to the Closing Date; or |
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(D) prepaid amount received on or prior to the Closing Date. |
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(xviii) Schedule 5.3(p) of the Legacy Disclosure
Schedule lists all federal, state, local and foreign income and
franchise Tax Returns filed with respect to Legacy or any of its
Subsidiaries for the three-year period ending on (and including)
the Closing Date and lists all Tax Returns that currently are
the subject of audit by any Tax Authority or for which a
deficiency has been asserted or assessed. |
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(xix) Neither Legacy nor any of its Subsidiaries is a party
in any joint venture, partnership or other arrangement or
contract that could be treated as a partnership for federal
income tax purposes. |
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(xx) Neither Legacy nor any of its Subsidiaries has any
liability for the Taxes of any Person other than Legacy and its
Subsidiaries (A) under Treasury
Regulation Section 1.1502-6 (or any similar provision
of state, local or foreign law), (B) as a transferee or
successor (other than as successor by merger to Northern State
Bank), (C) by contract or (iv) otherwise. |
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(xxi) Legacy and its Subsidiaries are in compliance in all
material respects with all state and federal laws, rules and
regulations related to the escheat, or other similar laws, rules
and regulations, of monies and other properties held by any of
them. |
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(q) Risk Management Instruments. Neither
Legacy nor any of its Subsidiaries is a party or has agreed to
enter into an exchange traded or
over-the-counter
equity, interest rate, foreign exchange or other swap, forward,
future, option, cap, floor or collar or any other contract that
is not included on Legacys consolidated statement of
financial condition and is a derivatives contract (including
various combinations thereof) (each, a Derivatives
Contract) nor does Legacy or any of its Subsidiaries own
securities that (i) are referred to generically as
structured notes, high risk mortgage
derivatives, capped floating rate notes or
capped floating rate mortgage derivatives or
(ii) are likely to have changes in value as a result of
interest or exchange rate changes that significantly exceed
normal changes in value attributable to interest or exchange
rate changes. |
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(r) Loans; Nonperforming and Classified
Assets. |
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(i) Except as set forth in Schedule 5.3(r) of the
Legacy Disclosure Schedule, each Loan on the books and records
of Legacy and its Subsidiaries was made and has been serviced in
all material |
A-31
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respects in accordance with their customary lending standards in
the ordinary course of business, is evidenced in all material
respects by appropriate and sufficient documentation and, to the
knowledge of Legacy, constitutes the legal, valid and binding
obligation of the obligor named therein, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting
creditors rights or by general equity principles. |
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(ii) Legacy has set forth in Schedule 5.3(r) of the
Legacy Disclosure Schedule as to Legacy and each Legacy
Subsidiary as of the latest practicable date prior to the date
of this Agreement: (A) any written or, to Legacys
knowledge, oral Loan under the terms of which the obligor is 90
or more days delinquent in payment of principal or interest, or
to Legacys knowledge, in default of any other material
provision thereof; (B) each Loan that has been classified
as substandard, doubtful,
loss or special mention or words of
similar import by Legacy, a Legacy Subsidiary or an applicable
regulatory authority; (C) a listing of the OREO acquired by
foreclosure or by
deed-in-lieu thereof,
including the book value thereof and (D) each Loan with any
director, executive officer or five percent or greater
stockholder of Legacy or a Legacy Subsidiary, or to the
knowledge of Legacy, any Person controlling, controlled by or
under common control with any of the foregoing. |
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(s) Properties. All real and personal
property owned by Legacy or a Subsidiary of Legacy or presently
used by any of them in their respective business is in an
adequate condition, ordinary wear and tear excepted, and is
sufficient to carry on its business in the ordinary course of
business consistent with its past practices. Legacy has good and
marketable fee simple title free and clear of all Liens to all
of the material properties and assets, real and personal, other
than properties sold by Legacy in the ordinary course of
business, except (i) Liens for current taxes and
assessments not yet due or payable, (ii) pledges to secure
deposits and other Liens incurred in the ordinary course of its
banking business and (iii) such imperfections of title,
easements and encumbrances, if any, as are not material in
character, amount or extent. Except as set forth in
Schedule 5.3(s) of the Legacy Disclosure Schedule, all real
and personal property that is material to Legacys business
on a consolidated basis and leased or licensed by Legacy or a
Subsidiary of Legacy is held pursuant to leases or licenses that
are valid and enforceable in accordance with their respective
terms and such leases will not terminate or lapse prior to the
Effective Time. |
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(t) Intellectual Property. Except as set
forth in Schedule 5.3(t) of the Legacy Disclosure Schedule,
Legacy and each Subsidiary of Legacy owns or possesses valid and
binding licenses and other rights to use without payment of any
material amount all material patents, copyrights, trade secrets,
trade names, service marks and trademarks used in its
businesses, all of which have been Previously Disclosed by
Legacy, and none of Legacy or any of its Subsidiaries has
received any notice of conflict with respect thereto that
asserts the right of others. Legacy and each of its Subsidiaries
have performed in all material respects all the obligations
required to be performed by them and are not in default under
any contract, agreement, arrangement or commitment relating to
any of the foregoing. Schedule 5.3(t) to the Legacy
Disclosure Schedule sets forth a description of all intellectual
property rights of Legacy and each Subsidiary of Legacy,
including, without limitation, patents, trademarks, copyrights,
service marks and all licenses relating thereto. |
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(u) Fiduciary Accounts. Legacy and each of
its Subsidiaries has properly administered all accounts for
which it acts as a fiduciary, including but not limited to
accounts for which it serves as a trustee, agent, custodian,
personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents
and applicable laws and regulations. Neither Legacy nor any of
its Subsidiaries, nor any of their respective directors,
officers or employees, has committed any breach of trust to
Legacys knowledge with respect to any fiduciary account
and the records for each such fiduciary account are true and
correct and accurately reflect the assets of such fiduciary
account. |
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(v) Books and Records. The books and records
of Legacy and its Subsidiaries have been fully, properly and
accurately maintained in material compliance with applicable
legal and accounting |
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requirements, and such books and records accurately reflect in
all material respects all dealings and transactions in respect
of the business, assets, liabilities and affairs of Legacy and
its Subsidiaries. |
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(w) Insurance. Legacy has set forth in
Schedule 5.3(w) of the Legacy Disclosure Schedule a
description of all of the material insurance policies, binders
or bonds currently maintained by Legacy and its Subsidiaries
(Insurance Policies). Legacy and its Subsidiaries
are insured with reputable insurers against such risks and in
such amounts as the management of Legacy reasonably has
determined to be prudent in accordance with industry practices.
All the Insurance Policies are in full force and effect; Legacy
and its Subsidiaries are not in material default thereunder and
all claims thereunder have been filed in due and timely fashion. |
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(x) Allowance For Loan Losses. Legacys
allowance for loan losses is sufficient at the date of this
Agreement for its reasonably anticipated loan losses, is in
compliance with the standards established by applicable
Governmental Authorities and GAAP and, to the knowledge of
Legacy, is adequate. |
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(y) Required Vote. The affirmative vote of
the holders of two-thirds of the outstanding shares of Legacy
Common Stock is necessary to approve this Agreement and the
Merger on behalf of Legacy. No other vote of the stockholders of
Legacy is required by law, the Legacy Articles, the Legacy
Bylaws or otherwise to approve this Agreement and the Merger. |
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(z) Fairness Opinion. The Legacy Board has
received an opinion of Griffin Financial Group LLP
(Griffin) to the effect that as of the date hereof
the Merger Consideration is fair to the holders of Legacy Common
Stock from a financial point of view. The total fees and
expenses payable to Griffin assuming consummation of the Merger
will not exceed $850,000. |
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(aa) Absence of Certain Changes or Events. |
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(i) Except as publicly disclosed in the Legacy Securities
Documents filed prior to the date of this Agreement, since
September 30, 2005, no event or events have occurred that
have had or are reasonably likely to have, either individually
or in the aggregate, a Legacy Material Adverse Effect. |
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(ii) Except as publicly disclosed in the Legacy Securities
Documents filed prior to the date of this Agreement, Legacy and
its Subsidiaries have carried on their respective business in
all material respects in the ordinary course. |
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(bb) State Takeover Laws. The Board of
Directors of Legacy has approved this Agreement and the
Transaction contemplated hereby as required to render
inapplicable to such Agreement and the Transaction any statutory
anti-takeover provisions applicable to Legacy. |
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(cc) Disclosure. The representations and
warranties contained in this Section 5.3, when considered
as a whole, do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements and information contained in this
Section 5.3 not misleading. |
5.4 Representations and
Warranties of Parent. Subject to Sections 5.1 and
5.2, Parent hereby represents and warrants to Legacy as follows:
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(a) Organization, Standing and Authority.
Parent is duly organized, validly existing and in good standing
under the laws of the State of Florida. Parent is duly qualified
to do business and is in good standing in each jurisdiction
where its ownership or leasing of property or assets or the
conduct of its business requires it to be so qualified, except
where the failure to be so qualified would not have a Material
Adverse Effect on Parent. Parent has in effect all federal,
state, local and foreign governmental authorizations necessary
for it to own or lease its properties and assets and to carry on
its business as it is now conducted. |
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(b) Parent Stock. |
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(i) As of the date hereof, the authorized capital stock of
Parent consists solely of 500,000,000 shares of Parent
Common Stock, of which 57,321,962 shares were issued and
outstanding as of October 31, 2005, and
20,000,000 shares of Parent Preferred Stock, of which no |
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shares were issued and outstanding as of the date hereof. The
outstanding shares of Parent Common Stock have been duly
authorized and validly issued and are fully paid and
non-assessable, and none of the shares of Parent Common Stock
have been issued in violation of the preemptive rights of any
Person. As of the date hereof, there are no Rights authorized,
issued or outstanding with respect to the capital stock of
Parent, except for shares of Parent Common Stock issuable
pursuant to the Parent Benefits Plans and by virtue of this
Agreement. |
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(ii) The shares of Parent Common Stock to be issued in
exchange for shares of Legacy Common Stock in the Merger, when
issued in accordance with the terms of this Agreement, will be
duly authorized, validly issued, fully paid and nonassessable
and the issuance thereof is not subject to any preemptive right. |
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(i) Each of Parents Subsidiaries has been duly
organized and is validly existing in good standing under the
laws of the jurisdiction of its organization, and is duly
qualified to do business and is in good standing in the
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified, except
where the failure to be so qualified would not have a Material
Adverse Effect on Parent. Parent Bank is duly licensed by the
OCC and its deposits are insured by the Bank Insurance Fund in
the manner and to the maximum extent provided by law. |
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(ii) As of the date hereof, (A) except as set forth in
Schedule 5.4(c) of Parents Disclosure Schedule,
Parent owns, directly or indirectly, all the issued and
outstanding equity securities of each of its Subsidiaries;
(B) no equity securities of any of Parents
Subsidiaries are or may become required to be issued other than
to Parent by reason of any Right or otherwise; (C) there
are no contracts, commitments, understandings or arrangements by
which Parents Subsidiaries are or may be bound to sell or
otherwise transfer any of its equity securities other than to
Parent or any of its wholly owned Subsidiaries and
(D) there are no contracts, commitments, understandings or
arrangements relating to Parents right to vote or to
dispose of such securities. |
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(d) Corporate Power. Each of Parent and its
Subsidiaries has the corporate power and authority to carry on
its business as it is now being conducted and to own all its
properties and assets. Parent and Parent Bank have the
respective corporate power and authority to execute, deliver and
perform their respective obligations under this Agreement and to
consummate the Transaction, subject to the receipt of all
necessary approvals of Governmental Authorities, and no other
corporate proceedings are necessary on the part of Parent or
Parent Bank to approve this Agreement or for the consummation of
the Transaction. |
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(e) Corporate Authority. This Agreement and
the Transaction have been authorized by all necessary corporate
action of Parent, the Parent Board, Parent Bank and Parent Bank
Board. This Agreement has been duly executed and delivered by
Parent and Parent Bank and, assuming due authorization,
execution and delivery by Legacy, this Agreement is a valid and
legally binding agreement of Parent enforceable in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability
relating to or affecting creditors rights or by general
equity principles. |
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(f) Regulatory Approvals; No Defaults. |
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(i) No consents or approvals of, or waivers by, or filings
or registrations with, any Governmental Authority or with any
third party are required to be made or obtained by Parent or any
of its Subsidiaries in connection with the execution, delivery
or performance by Parent, Parent Bank and Parent Trust Company
of this Agreement and the Trust Company Merger Agreement or to
consummate the Transaction, except as Previously Disclosed, and
except for (A) filings of applications or notices with and
approvals or waivers by the Federal Reserve Board, the OCC and
the Department; (B) filings with the SEC and state
securities authorities, as applicable, in connection with the
registration of Parent Common Stock issuable in the Merger;
(C) the approval of the listing on the NYSE of the Parent
Common Stock to be issued in the Merger and (D) the filing
of Articles of Merger with the Secretary of State of the
Commonwealth of Pennsylvania |
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pursuant to the PBCL and the filing of Articles of Combination
with the OCC pursuant to the National Banking Act with respect
to the Merger. As of the date hereof, Parent is not aware of any
reason why the approvals set forth above and referred to in
Section 7.1(b) will not be received in a timely manner and
without the imposition of a condition, restriction or
requirement of the type described in Section 7.1(b). |
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(ii) Subject to receipt, or the making, of the consents,
approvals, waivers and filings referred to in the preceding
paragraph and expiration of the related waiting periods, the
execution, delivery and performance of this Agreement and the
Trust Company Merger Agreement by Parent, Parent Bank and Parent
Trust Company and the consummation of the Transaction do not and
will not (A) constitute a breach or violation of, or a
default under, or give rise to any Lien, any acceleration of
remedies or any right of termination under, any law, rule or
regulation or any judgment, decree, order, governmental permit
or license, or agreement, indenture or instrument of Parent or
of any of its Subsidiaries or to which Parent or any of its
Subsidiaries or properties is subject or bound,
(B) constitute a breach or violation of, or a default
under, the articles of incorporation or bylaws or similar
governing documents of Parent or any of its Subsidiaries or
(C) require any consent or approval under any such law,
rule, regulation, judgment, decree, order, governmental permit
or license, agreement, indenture or instrument. |
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(g) Financial Reports and Securities Documents;
Material Adverse Effect. |
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(i) Parents Annual Report on
Form 10-K for the
years ended December 31, 2004, 2003 and 2002 and all other
reports, registration statements, definitive proxy statements or
information statements filed or to be filed by it subsequent to
December 31, 2002 under the Securities Act, or under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act in
the form filed or to be filed (collectively, Parents
Securities Documents) with the SEC, as of the date
filed or to be filed, (A) complied or will comply in all
material respects as to form with the applicable requirements
under the Securities Act or the Exchange Act, as the case may be
and (B) did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading, except that information as of a later date shall
be deemed to modify information as of an earlier date. Each of
the consolidated statements of financial condition contained in
or incorporated by reference into any such Securities Document,
including the related notes and schedules thereto, fairly
presents, or will fairly present, the consolidated financial
position of Parent and its Subsidiaries as of its date, and each
of the consolidated statements of operations, stockholders
equity and comprehensive income and cash flows or equivalent
statements in such Securities Documents, including any related
notes and schedules thereto, fairly presents, or will fairly
present, the consolidated results of operations, changes in
stockholders equity and cash flows, as the case may be, of
Parent and its Subsidiaries for the periods to which they
relate, in each case in accordance with GAAP consistently
applied during the periods involved, except in each case as may
be noted therein. |
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(ii) Except as described in Schedule 5.4(g) of the
Parent Disclosure Schedule, since December 31, 2004,
neither Parent nor any of its Subsidiaries has incurred any
liability other than in the ordinary course of business
consistent with past practice, excluding the incurrence of
expenses related to this Agreement and the Transaction. |
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(iii) Since December 31, 2004, (A) Parent and its
Subsidiaries have conducted their respective businesses in the
ordinary and usual course consistent with past practice,
excluding the incurrence of expenses related to this Agreement
and the Transaction; (B) except as Previously Disclosed,
neither Parent nor any of its Subsidiaries has taken nor
permitted any of the actions set forth in Section 4.2
between December 31, 2004 and the date hereof and
(C) no event has occurred or circumstance arisen that,
individually or taken together with all other facts,
circumstances and events described in any paragraph of this
Section 5.4 or otherwise, is reasonably likely to have a
Material Adverse Effect with respect to Parent. |
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(iv) Parent maintains disclosure controls and procedures
required by
Rule 13a-15 or
15d-15 under the
Exchange Act; such controls and procedures are effective to
ensure that all material information concerning Parent and its
Subsidiaries is made known on a timely basis to the individuals
responsible for the preparation of Parents Securities
Documents and other public disclosure documents. The Chief
Executive Officer and the Chief Financial Officer of Parent have
signed, and Parent has furnished to the SEC, all certifications
required by
Rule 13a-14 or
15d-14 under the
Exchange Act or 18 U.S.C. § 1350; such
certifications contain no qualifications or exceptions to the
matters certified therein and have not been modified or
withdrawn; and neither Parent nor any of its officers has
received notice from any Governmental Authorities questioning or
challenging the accuracy, completeness, form or manner of filing
or submission of such certifications. |
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(v) Except as reflected, noted or adequately reserved
against in the consolidated financial statements of Parent
included in its Quarterly Report on
Form 10-Q for the
nine months ended September 30, 2005 as filed with the SEC,
at September 30, 2005 neither Parent nor any Parent
Subsidiary had any liabilities, whether accrued, absolute,
contingent or otherwise, that are required to be reflected,
noted or reserved against therein under GAAP or that are in any
case or in the aggregate material. |
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(h) Litigation. No litigation, claim or other
proceeding before any court or governmental agency is pending
against Parent or its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect with respect to
Parent and, to Parents knowledge, no such litigation,
claim or other proceeding has been threatened and there are no
facts that could reasonably give rise to such litigation, claim
or other proceeding. Neither Parent nor any of its Subsidiaries
is a party to any order, judgment or decree that has or could
reasonably be expected to have a Material Adverse Effect with
respect to Parent. |
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(i) Regulatory Matters. |
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(i) Neither Parent nor any of its Subsidiaries nor any of
any of their respective properties is a party to or is subject
to any order or decree, agreement, memorandum of understanding
or similar arrangement with, or commitment letter or similar
submission to, or extraordinary supervisory letter from, any
federal or state governmental agency or authority charged with
the supervision or regulation of financial institutions or
issuers of securities or engaged in the insurance of deposits or
the supervision or regulation of it. Parent and its Subsidiaries
have paid all assessments made or imposed by any Parent
Regulatory Authority. |
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(ii) Neither Parent nor any its Subsidiaries has been
advised by, and does not have any knowledge of facts that could
give rise to an advisory notice by, any Parent Regulatory
Authority that such Parent Regulatory Authority is contemplating
issuing or requesting, or is considering the appropriateness of
issuing or requesting, any such order, decree, agreement,
memorandum of understanding, commitment letter, supervisory
letter or similar submission. |
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(iii) Parent and each of its Subsidiaries have timely filed
all reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they
were required to file since January 1, 2002 with
(A) the Federal Reserve Board, (B) the FDIC,
(C) the OCC, (D) any state regulatory authority and
(E) the SEC, and all other reports and statements required
to be filed by them since January 1, 2002, and have paid
all fees and assessments due and payable in connection
therewith. Except as set forth in Schedule 5.4(i) of Parent
Disclosure Schedule and except for normal examinations conducted
by Bank Regulatory Authorities, (A) no Bank Regulatory
Authority has initiated or has pending any proceeding or, to the
knowledge of Parent, investigation into the business or
operations of Parent or any of its Subsidiaries since
January 1, 2002, except where such proceedings or
investigation are not reasonably likely to have, either
individually or in the aggregate, a Parent Material Adverse
Effect and (B) there is no unresolved violation, criticism
or exception by any Bank Regulatory Authority with respect to
the business, operations, policies or procedures of Parent or
Parent Bank since January 1, 2002 that are reasonably
likely to have, either individually or in the aggregate, a
Parent Material Adverse Effect. |
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(j) Compliance With Laws. Except for matters
that could not reasonably be expected to have a Material Adverse
Effect with respect to Parent and its Subsidiaries, each of
Parent and its Subsidiaries: |
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(i) is in material compliance with all applicable federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable
thereto or to the employees conducting such businesses,
including without limitation Sections 23A and 23B of the
Federal Reserve Act and OCC regulations pursuant thereto, the
Equal Credit Opportunity Act, the Fair Housing Act, the
Community Reinvestment Act, the Home Mortgage Disclosure Act,
the Bank Secrecy Act and all other applicable fair lending laws
and other laws relating to discriminatory business practices; |
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(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Governmental Authorities that are
required in order to permit them to own or lease their
properties and to conduct their businesses as presently
conducted; all such permits, licenses, certificates of
authority, orders and approvals are in full force and effect
and, to Parents knowledge, no suspension or cancellation
of any of them is threatened; and |
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(iii) has received, since December 31, 2002, no
notification or communication from any Governmental Authority
(A) asserting that Parent or any of its Subsidiaries is not
in compliance with any of the statutes, regulations or
ordinances which such Governmental Authority enforces or
(B) threatening to revoke any license, franchise, permit or
governmental authorization nor, to Parents knowledge, do
any grounds for any of the foregoing exist. |
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(k) No Brokers. No action has been taken by
Parent or its Subsidiaries that would give rise to any valid
claim against any party hereto for a brokerage commission,
finders fee or other like payment with respect to the
Transaction, except a fee to be paid to Keefe,
Bruyette & Woods, Inc. |
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(l) Tax Matters. As of the date hereof,
Parent does not have any reason to believe that any conditions
exist that might prevent or impede the Merger from qualifying as
a reorganization within the meaning of Section 368(a) of
the Code. |
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(m) Risk Management Instruments. Neither
Parent nor any of its Subsidiaries is a party or has agreed to
enter into any Derivatives Contract that is not included on
Parents consolidated statement of financial condition nor
does Parent or any of its Subsidiaries own securities that
(i) are referred to generically as structured
notes, high risk mortgage derivatives,
capped floating rate notes or capped floating
rate mortgage derivatives or (ii) are likely to have
changes in value as a result of interest or exchange rate
changes that significantly exceed normal changes in value
attributable to interest or exchange rate changes. |
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(n) Ownership of Legacy Common Stock. Except
as set forth on Schedule 5.4(n) of the Parent Disclosure
Schedule, none of Parent or any of its Subsidiaries, or to
Parents knowledge, any of its other affiliates or
associates as such terms are defined under the Exchange Act,
owns beneficially or of record, directly or indirectly, or is a
party to any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of, shares of
Legacy Common Stock other than shares held in a fiduciary
capacity that are beneficially owned by third parties or as a
result of debts previously contracted. |
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(o) Disclosure. The representations and
warranties contained in this Section 5.4, when considered
as a whole, do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements and information contained in this
Section 5.4 not misleading. |
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(p) Absence of Certain Changes or Events. |
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(i) Except as publicly disclosed in the Parent Securities
Documents filed prior to the date of this Agreement, since
September 30, 2005, no event or events have occurred that
have had or are reasonably likely to have, either individually
or in the aggregate, a Parent Material Adverse Effect. |
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(ii) Except as publicly disclosed in the Parent Securities
Documents filed prior to the date of this Agreement, Parent and
its Subsidiaries have carried on their respective businesses in
all material respects in the ordinary course. |
ARTICLE VI
COVENANTS
6.1 Commercially Reasonable
Efforts. Subject to the terms and conditions of this
Agreement, each of Legacy, Parent and their Subsidiaries agrees
to use its commercially reasonable efforts in good faith to
take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or desirable, or advisable
under applicable laws, so as to permit consummation of the
Transaction as promptly as practicable and otherwise to enable
consummation of the Transaction, including the satisfaction of
the conditions set forth in Article VII, and shall
cooperate fully with the other party hereto to that end.
6.2 Stockholders
Meeting. Legacy shall take, in accordance with
applicable law and the Legacy Articles and the Legacy Bylaws,
all action necessary to duly call, give notice of, convene and
hold as soon as reasonably practicable after the date on which
the Registration Statement becomes effective a special meeting
of its stockholders (including any adjournment or postponement,
the Legacy Meeting) to consider and vote upon the
approval of this Agreement and any other matters required to be
approved by Legacys stockholders for consummation of the
Transaction unless this Agreement shall have been terminated in
accordance with its terms. Subject to the right of Legacy and
its Board of Directors to take any action permitted by
Section 6.8(b) with respect to a Superior Proposal, Legacy
shall, through its Board of Directors, recommend to its
stockholders approval of this Agreement and the transactions
contemplated hereby and shall take all reasonable lawful action
to solicit such approval by its stockholders (the Approval
Recommendation).
6.3 Registration
Statement.
(a) Parent agrees to prepare a registration statement on
Form S-4 or other
applicable form (the Registration Statement) to be
filed by Parent with the SEC in connection with the issuance of
Parent Common Stock in the Merger including the proxy statement
and prospectus and other proxy solicitation materials of Legacy
constituting a part thereof (the Proxy Statement)
and all related documents. Legacy shall prepare and furnish such
information relating to it and its directors, officers and
stockholders as may be reasonably required in connection with
the above referenced documents based on its knowledge of and
access to the information required for said documents, and
Legacy, and its legal, financial and accounting advisors, shall
have the right to review in advance and approve, which approval
shall not be unreasonably withheld such Registration Statement
prior to its filing. Legacy agrees to cooperate with Parent and
Parents counsel and accountants in requesting and
obtaining appropriate opinions, consents and letters from its
financial advisor and independent auditor in connection with the
Registration Statement and the Proxy Statement. Provided that
Legacy has cooperated as described above, Parent agrees to file,
or cause to be filed, the Registration Statement and the Proxy
Statement with the SEC as promptly as reasonably practicable.
Each of Legacy and Parent agrees to use its commercially
reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as
reasonably practicable after the filing thereof. Parent also
agrees to use its reasonable best efforts to obtain all
necessary state securities law or Blue Sky permits
and approvals required to carry out the transactions
contemplated by this Agreement. After the Registration Statement
is declared effective under the Securities Act, Legacy shall
promptly mail at its expense the Proxy Statement to its
stockholders.
(b) Each of Legacy and Parent agree that none of the
information supplied or to be supplied by it for inclusion or
incorporation by reference in the Registration Statement shall,
at the time the Registration Statement and each amendment or
supplement thereto, if any, becomes effective under the
Securities Act, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. Each
of Legacy and Parent agree that none of the information supplied
or to be supplied by it for inclusion or incorporation by
reference in the Proxy Statement and any amendment or supplement
thereto shall, at the date of mailing to Legacys
stockholders and at the
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time of the Legacy Meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. Each of Legacy and Parent further agree that if such
party shall become aware prior to the Effective Date of any
information furnished by such party that would cause any of the
statements in the Registration Statement or the Proxy Statement
to be false or misleading with respect to any material fact, or
to omit to state any material fact necessary to make the
statements therein not false or misleading, to promptly inform
the other parties thereof and to take the necessary steps to
correct the Registration Statement or the Proxy Statement.
(c) Parent agrees to advise Legacy, promptly after Parent
receives notice thereof, of the time when the Registration
Statement has become effective or any supplement or amendment
has been filed, of the issuance of any stop order or the
suspension of the qualification of Parent Common Stock for
offering or sale in any jurisdiction, of the initiation or, to
the extent Parent is aware thereof, threat of any proceeding for
any such purpose, or of any request by the SEC for the amendment
or supplement of the Registration Statement or for additional
information.
6.4 Regulatory
Filings.
(a) Each of Parent and Legacy and their respective
Subsidiaries shall cooperate and use their respective
commercially reasonable efforts to prepare all documentation, to
effect all filings and to obtain all permits, consents,
approvals and authorizations of all third parties and
Governmental Authorities necessary to consummate the
Transaction; and any initial filings with Governmental
Authorities shall be made by Parent as soon as reasonably
practicable after the execution hereof. Each of Parent and
Legacy shall have the right to review in advance, and to the
extent practicable each shall consult with the other, in each
case subject to applicable laws relating to the exchange of
information, all written information submitted to any third
party or any Governmental Authority in connection with the
Transaction. In exercising the foregoing right, each of such
parties agrees to act reasonably and as promptly as practicable
and shall, in any event, provide its response to any proposed
filing within five business days after its receipt of the
proposed filing from the other party. Each party hereto agrees
that it shall consult with the other party with respect to the
obtaining of all permits, consents, approvals, waivers and
authorizations of all third parties and Governmental Authorities
necessary or advisable to consummate the Transaction, and each
party shall keep the other parties apprised of the status of
material matters relating to completion of the Transaction.
(b) Each party agrees, upon request, to furnish the other
parties with all information concerning itself, its
Subsidiaries, directors, officers and stockholders and such
other matters as may be reasonably necessary or advisable in
connection with any filing, notice or application made by or on
behalf of such other parties or any of their respective
Subsidiaries to any third party or Governmental Authority.
6.5 Press Releases.
Legacy and Parent shall consult with each other before issuing
any press release with respect to the Transaction or this
Agreement and shall not issue any such press release or make any
such public statements without the prior consent of the other
party, which shall not be unreasonably withheld; provided,
however, that a party may, without the prior consent of the
other party, but after such consultation, to the extent
practicable under the circumstances, issue such press release or
make such public statements as may upon the advice of outside
counsel be required by law or the rules or regulations of the
SEC, the FDIC, the NYSE or the NASD. In addition, the Chief
Executive Officer of Legacy shall be permitted to respond to
appropriate questions about the Merger from the press. Legacy
and Parent shall cooperate to develop all public announcement
materials and make appropriate management available at
presentations related to the Transaction as reasonably requested
by the other party.
6.6 Access;
Information.
(a) Legacy agrees that upon reasonable notice and subject
to applicable laws relating to the exchange of information, it
shall afford Parent and Parents officers, employees,
counsel, accountants and other authorized representatives such
access during normal business hours throughout the period prior
to the Effective Time to the books, records, including, without
limitation, Tax Returns and work papers of independent auditors,
properties and personnel of Legacy and to such other information
relating to Legacy as Parent may reasonably
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request and, during such period, it shall furnish promptly to
Parent all information concerning the business, properties and
personnel of Legacy as Parent may reasonably request.
(b) Parent agrees that upon reasonable notice and subject
to applicable laws relating to the exchange of information, it
shall afford Legacy and Legacys officers, employees,
counsel, accountants and other authorized representatives such
access during normal business hours throughout the period prior
to the Effective Time to the books, records, including without
limitation, Tax Returns and work papers of independent auditors,
properties and personnel of Parent and to such other information
relating to Parent as Legacy may reasonably request and, during
such period, it shall furnish promptly to Legacy all information
concerning the business, properties and personnel of Parent and
its Subsidiaries as Legacy may reasonably request.
(c) All information furnished to either party by the other
party pursuant to this Section 6.6 shall be subject to, and
such receiving party shall hold all such information in
confidence in accordance with the provisions of the
Confidentiality Agreement, dated October 3, 2005 between
Parent and Legacy (the Confidentiality Agreement).
(d) As soon as reasonably available but in no event more
than five business days after filing, Legacy will deliver to
Parent each report, financial or otherwise, filed by it or The
Legacy Trust Company with any Bank Regulatory Authority or the
SEC.
(e) Within 20 calendar days after the end of each month,
Legacy will deliver to Parent the unaudited consolidated balance
sheet and unaudited consolidated statement of operations of
Legacy for the immediately preceding month prepared in
accordance with GAAP except for the absence of footnotes and
subject to year end audit adjustments or as otherwise noted
therein.
(f) Within 20 calendar days after the end of each month,
Parent will deliver to Legacy the unaudited consolidated balance
sheet and unaudited consolidated statement of operations of
Parent for the immediately preceding month prepared in
accordance with GAAP except for the absence of footnotes and
subject to year end audit adjustments or as otherwise noted
therein.
6.7 Affiliates.
Legacy shall use its commercially reasonable efforts to identify
those persons who may be deemed to be affiliates of
Legacy within the meaning of Rule 145 promulgated by the
SEC under the Securities Act and to cause each person so
identified to deliver to Parent as soon as practicable, and in
any event prior to the date of the Legacy Meeting, a written
agreement to comply with the requirements of Rule 145 under
the Securities Act in connection with the sale or other transfer
of Parent Common Stock received in the Merger, which agreement
shall be in the form attached as Annex A (the
Affiliate Letter).
6.8 Certain Actions.
(a) From the date of this Agreement through the Effective
Time, except as otherwise permitted by this Section 6.8,
Legacy will not, and will not authorize or permit any of its
directors, officers, agents, employees, investment bankers,
attorneys, accountants, advisors, agents, Affiliates or
representatives (collectively, Representatives) to,
directly or indirectly, (i) initiate, solicit, encourage or
take any action to facilitate, including by way of furnishing
information, any Acquisition Proposal (as defined below) or any
inquiries with respect to or the making of any Acquisition
Proposal, (ii) enter into or participate in any discussions
or negotiations with, furnish any information relating to Legacy
or any of its Subsidiaries or afford access to the business,
properties, assets, books or records of Legacy or any of its
Subsidiaries to, otherwise cooperate in any way with, or
knowingly assist, participate in, facilitate or encourage any
effort by any third party that is seeking to make, or has made,
an Acquisition Proposal or (iii) except in accordance with
Section 8.1(g), approve, endorse or recommend or enter into
any letter of intent or similar document or any contract,
agreement or commitment contemplating or otherwise relating to
an Acquisition Proposal.
(b) Notwithstanding anything herein to the contrary, Legacy
and its Board of Directors shall be permitted (i) to comply
with Rule 14d-9
and Rule 14e-2
promulgated under the Exchange Act with regard to an Acquisition
Proposal provided that the Board of Directors of Legacy shall
not withdraw or modify in a manner adverse to Parent its
Approval Recommendation except as set forth in
subsection (iii) below; (ii) to
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engage in any discussions or negotiations with, and provide any
information to, any person in response to a Superior Proposal
(as defined below) by any such person, if and only to the extent
that (x) Legacys Board of Directors concludes in good
faith, after consultation with outside counsel, that failure to
do so could reasonably be expected to breach its fiduciary
duties to Legacys stockholders under applicable law,
(y) prior to providing any information or data to any
person in connection with a Superior Proposal by any such
person, Legacys Board of Directors receives from such
person an executed confidentiality agreement, which
confidentiality terms shall be no less favorable to Legacy than
those contained in the Confidentiality Agreement between Legacy
and Parent, a copy of which executed confidentiality agreement
shall have been provided to Parent for informational purposes
and (z) at least 72 hours prior to providing any
information or data to any person or entering into discussions
or negotiations with any person, Legacy promptly notifies Parent
in writing of the name of such person and the material terms and
conditions of any such Superior Proposal and (iii) to
withdraw, modify, qualify in a manner adverse to Parent,
condition or refuse to make its Approval Recommendation (the
Change in Legacy Recommendation) if Legacys
Board of Directors concludes in good faith, after consultation
with outside counsel and financial advisors, that failure to do
so could reasonably be expected to breach its fiduciary duties
to Legacys stockholders under applicable law.
(c) Legacy will promptly, and in any event within
24 hours, notify Parent in writing of the receipt of any
Acquisition Proposal or any information related thereto, which
notification shall describe the Acquisition Proposal and
identify the third party making the same.
(d) Legacy agrees that it will, and will cause its
Representatives to, immediately cease and cause to be terminated
any activities, discussions or negotiations existing as of the
date of this Agreement with any parties conducted heretofore
with respect to any Acquisition Proposal.
(e) For purposes of this Agreement:
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(i) The term Acquisition Proposal means any
inquiry, proposal or offer, filing of any regulatory application
or notice, whether in draft or final form, or disclosure of an
intention to do any of the foregoing from any person relating to
any (w) direct or indirect acquisition or purchase of a
business that constitutes a substantial portion of the net
revenues, net income or net assets of Legacy or any of its
Subsidiaries, (x) direct or indirect acquisition or
purchase of Legacy Common Stock after the date of this Agreement
by a Person who on the date of this Agreement does not own 10%
or more of Legacys Common Stock and such Person by reason
of such purchase or acquisition first becomes the owner of 10%
or more of Legacys Common Stock after the date of this
Agreement or the direct or indirect acquisition or purchase of
5% or more of Legacys Common Stock after the date of this
Agreement by a Person who on the date of this Agreement owns 10%
or more of Legacys Common Stock, (y) tender offer or
exchange offer that if consummated would result in any person
beneficially owning 10% or more of any class of equity
securities of Legacy or (z) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or
similar transaction involving Legacy other than the transactions
contemplated by this Agreement. |
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(ii) The term Superior Proposal means any bona
fide, unsolicited written Acquisition Proposal made by a Third
Party to acquire more than 50% of the combined voting power of
the shares of Legacy Common Stock then outstanding or all or
substantially all of Legacys consolidated assets for
consideration consisting of cash and/or securities that is on
terms that the Board of Directors of Legacy in good faith
concludes, after consultation with its financial advisors and
outside counsel, taking into account, among other things, all
legal, financial, regulatory and other aspects of the proposal
and the person making the proposal, including any
break-up fees, expense
reimbursement provisions and conditions to consummation,
(A) is on terms that the Board of Directors of Legacy in
its good faith judgment believes to be more favorable from a
financial point of view to its stockholders than the Merger;
(B) for which financing, to the extent required, is then
fully committed or reasonably determined to be available by the
Board of Directors of Legacy and (C) is reasonably capable
of being completed. |
(f) If a Payment Event (as hereinafter defined) occurs,
Legacy shall pay to Parent by wire transfer of immediately
available funds, within two business days following such Payment
Event, a fee of $3,000,000 (the
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Break-up
Fee), provided, however, that if a Payment Event occurs,
Legacy shall have no obligation to pay Parents expenses
under Section 9.5(b).
(g) The term Payment Event means any of the
following:
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(i) the termination of this Agreement by Parent pursuant to
Section 8.1(f); |
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(ii) the termination of this Agreement by Legacy pursuant
to Section 8.1(g); |
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(iii) the termination of this Agreement pursuant to any
other Section following the commencement of a tender offer or
exchange offer for 25% or more of the outstanding common stock
of Legacy and Legacy shall not have sent to its stockholders,
within 10 business days after the commencement of such tender
offer or exchange offer, a statement that the Legacy Board
recommends rejection of such tender offer or exchange
offer; or |
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(iv) the occurrence of any of the following events within
eighteen months of the termination of this Agreement pursuant to
Section 8.1(e), provided that an Acquisition Proposal shall
have been made by a Third Party after the date hereof and prior
to such termination that shall not have been withdrawn in good
faith prior to such termination: (A) Legacy enters into an
agreement to merge with or into, or be acquired, directly or
indirectly, by merger or otherwise by, such Third Party;
(B) such Third Party, directly or indirectly, acquires
substantially all of the total assets of Legacy and its
Subsidiaries, taken as a whole; or (C) such Third Party,
directly or indirectly, acquires more than 50% of the
outstanding Legacy Common Stock. As used herein, Third
Party means any person as defined in Section 13(d) of
the Exchange Act other than Parent or its Affiliates. |
(h) Legacy acknowledges that the agreements contained in
Section 6.8(e) are an integral part of the transactions
contemplated in this Agreement and that without these agreements
Parent would not enter into this Agreement. Accordingly, in the
event Legacy fails to pay to Parent the
Break-up Fee, promptly
when due, Legacy shall, in addition thereto, pay to Parent all
costs and expenses, including attorneys fees and
disbursements, incurred in collecting such
Break-up Fee together
with interest on the amount of the
Break-up Fee or any
unpaid portion thereof, from the date such payment was due until
the date such payment is received by Parent, accrued at the
fluctuating prime rate as quoted in The Wall Street Journal as
in effect from time to time during the period.
6.9 Certain Policies.
Prior to the Effective Date, each of Legacy and its Subsidiaries
shall, consistent with GAAP, the rules and regulations of the
SEC and applicable banking laws and regulations, modify or
change its loan, OREO, accrual, reserve, tax, litigation and
real estate valuation policies and practices, including loan
classifications and levels of reserves, so as to be applied on a
basis that is consistent with that of Parent; provided, however,
that no such modifications or changes need be made prior to the
satisfaction of the conditions set forth in Section 7.1(b);
and further provided that in any event, no accrual or reserve
made by Legacy or any of its Subsidiaries pursuant to this
Section 6.9 shall constitute or be deemed to be a breach,
violation of or failure to satisfy any representation, warranty,
covenant, agreement, condition or other provision of this
Agreement or otherwise be considered in determining whether any
such breach, violation or failure to satisfy shall have
occurred. The recording of any such adjustments shall not be
deemed to imply any misstatement of previously furnished
financial statements or information and shall not be construed
as a concurrence of Legacy or its management with any such
adjustments.
6.10 NYSE Listing.
Parent agrees to use its reasonable best efforts to list on the
NYSE, upon official notice of issuance prior to the Effective
Date, the shares of Parent Common Stock to be issued in
connection with the Merger.
6.11 Indemnification.
(a) From and after the Effective Time through the sixth
anniversary of the Effective Time, Parent (the
Indemnifying Party) shall indemnify and hold
harmless each present and former director, officer and employee
of Legacy or a Legacy Subsidiary, as applicable, (the
Indemnified Parties) against any costs or expenses,
including reasonable attorneys fees, judgments, fines,
losses, claims, damages or liabilities incurred in connection
with any claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative
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or investigative, arising out of matters existing or occurring
at or prior to the Effective Time, whether asserted or claimed
prior to, at or after the Effective Time, arising in whole or in
part out of or pertaining to the fact that he or she was a
director, officer, employee, fiduciary or agent of Legacy or any
Legacy Subsidiary or is or was serving at the request of Legacy
or any of the Legacy Subsidiaries as a director, officer,
employee, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise, including
without limitation matters related to the negotiation, execution
and performance of this Agreement or consummation of the
Transaction, to the fullest extent that such Indemnified Parties
would be entitled under the Legacy Articles and the Legacy
Bylaws or equivalent documents of any Legacy Subsidiary, as
applicable, or any agreement, arrangement or understanding that
has been Previously Disclosed by Legacy pursuant to this
Section, in each case as in effect on the date hereof.
(b) Any Indemnified Party wishing to claim indemnification
under this Section 6.11, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify
the Indemnifying Party, but the failure to so notify shall not
relieve the Indemnifying Party of any liability it may have to
such Indemnified Party if such failure does not actually
prejudice the Indemnifying Party. In the event of any such
claim, action, suit, proceeding or investigation, whether
arising before or after the Effective Time, (i) the
Indemnifying Party shall have the right to assume the defense
thereof and the Indemnifying Party shall not be liable to such
Indemnified Parties for any legal expenses of other counsel or
any other expenses subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if
the Indemnifying Party elects not to assume such defense or
counsel for the Indemnified Parties advises that there are
issues that raise conflicts of interest between the Indemnifying
Party and the Indemnified Parties, the Indemnified Parties may
retain counsel which is reasonably satisfactory to the
Indemnifying Party, and the Indemnifying Party shall pay,
promptly as statements therefor are received, the reasonable
fees and expenses of such counsel for the Indemnified Parties,
which may not exceed one firm in any jurisdiction, (ii) the
Indemnified Parties will cooperate in the defense of any such
matter, (iii) the Indemnifying Party shall not be liable
for any settlement effected without its prior written consent
which shall not be unreasonably withheld and (iv) the
Indemnifying Party shall have no obligation hereunder in the
event that a federal or state banking agency or a court of
competent jurisdiction shall determine that indemnification of
an Indemnified Party in the manner contemplated hereby is
prohibited by applicable laws and regulations.
(c) Prior to the Effective Time, Parent shall cause the
persons serving as directors and officers of Legacy immediately
prior to the Effective Time to be covered by the directors
and officers liability insurance policy maintained by
Legacy for a period of six years after the Effective Time,
provided that Parent may substitute therefor policies of at
least the same coverage and amounts containing terms and
conditions that are not materially less advantageous than such
policy or single premium tail coverage with policy limits equal
to Legacys existing coverage limits, with respect to acts
or omissions occurring prior to the Effective Time that were
committed by such directors and officers in their capacities as
such, provided that in no event shall Parent be required to
expend for any one year an amount in excess of 150% of the
annual premium currently paid by Legacy for such insurance (the
Insurance Amount), and further provided that if
Parent is unable to maintain or obtain the insurance called for
by this Section 6.11(c) as a result of the preceding
provision, Parent shall use its commercially reasonable best
efforts to obtain the most advantageous coverage as is available
for the Insurance Amount.
(d) The provisions of this Section 6.11 are intended
to be for the benefit of and shall be enforceable by each of the
Indemnified Parties and his or her heirs.
6.12 Benefit Plans.
(a) As soon as administratively practicable after the
Effective Time, Parent shall take all reasonable action so that
employees of Legacy and its Subsidiaries shall be entitled to
participate in each employee benefit plan, program or
arrangement of Parent of general applicability as in effect from
and after the Effective Time (the Parent Benefit
Plans) to the same extent as similarly-situated employees
of Parent and its Subsidiaries, it being understood that
inclusion of the employees of Legacy and its Subsidiaries in the
Parent Benefit Plans may occur at different times with respect
to different plans, provided that coverage shall be continued
under corresponding Benefit Plans of Legacy and its Subsidiaries
until such employees are
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permitted to participate in the Parent Benefit Plans and
provided further, however, that nothing contained herein shall
require Parent or any of its Subsidiaries to make any grants to
any former employee of Legacy under any discretionary equity
compensation plan of Parent, except as otherwise provided in
this Agreement. Parent shall cause each Parent Benefit Plan in
which employees of Legacy and its Subsidiaries are eligible to
participate to recognize, for purposes of determining
eligibility to participate in, the vesting of benefits and for
all other purposes, but not for accrual of pension benefits,
under the Parent Benefit Plans, the service of such employees
with Legacy and its Subsidiaries to the same extent as such
service was credited for such purpose by Legacy, provided,
however, that such service shall not be recognized to the extent
that such recognition would result in a duplication of benefits.
Except for the commitment to continue those Benefit Plans of
Legacy and its Subsidiaries that correspond to Parent Benefit
Plans until employees of Legacy and its Subsidiaries are
included in such Parent Benefit Plans, nothing herein shall
limit the ability of Parent to amend or terminate any of
Legacys Benefit Plans in accordance with and to the extent
permitted by their terms at any time permitted by such terms.
(b) At and following the Effective Time, and except as
otherwise provided in Section 6.12(d) Parent shall honor,
and the Surviving Bank shall continue to be obligated to
perform, in accordance with their terms, all benefit obligations
to, and contractual rights of, current and former employees of
Legacy and its Subsidiaries and current and former directors of
Legacy and its Subsidiaries existing as of the Effective Date,
as well as all employment, executive severance or
change-in-control
or similar agreements, plans or policies of Legacy that are set
forth on Schedule 6.12(b) of the Legacy Disclosure
Schedule, subject to the receipt of any necessary approval from
any Bank Regulatory Authority. The severance or termination
payments that are payable pursuant to such agreements, plans or
policies of Legacy are set forth on Schedule 6.12(b) of the
Legacy Disclosure Schedule. Following the consummation of the
Merger and for one year thereafter, Parent shall, to the extent
not duplicative of other severance benefits, pay employees of
Legacy or its Subsidiaries who are terminated for other than
cause, severance as set forth on Schedule 6.12(b) of the
Parent Disclosure Schedule. Following the expiration of the
foregoing severance policy, any years of service recognized for
purposes of this Section 6.12(b) will be taken into account
under the terms of any applicable severance policy of Parent or
its Subsidiaries.
(c) At such time as employees of Legacy and its
Subsidiaries become eligible to participate in a medical, dental
or health plan of Parent or its Subsidiaries, Parent shall cause
each such plan to (i) waive any preexisting condition
limitations to the extent such conditions are covered under the
applicable medical, health or dental plans of Parent,
(ii) provide full credit under such plans for any
deductibles, co-payment and
out-of-pocket expenses
incurred by the employees and their dependents during the
portion of the calendar year prior to such participation and
(iii) waive any waiting period limitation or evidence of
insurability requirement that would otherwise be applicable to
such employee or dependent on or after the Effective Time to the
extent such employee or dependent had satisfied any similar
limitation or requirement under an analogous Benefit Plan prior
to the Effective Time.
(d) Immediately prior to the Effective Time, Legacy shall,
at the written request of Parent, freeze or terminate such of
the Legacy Benefit Plans as is requested by Parent.
6.13 Parent Bank
Board. Parent Bank agrees to take all action necessary
to appoint or elect, effective as of the Effective Time, George
H. Groves, a director of Parent Bank, who shall serve for not
less than two years following the Effective Date and until his
successor is elected and qualified. Parent also agrees to take
all action necessary to appoint or elect Mr. Groves as a
director of First National Insurance Agency, LLC, Parent Trust
Company and Penn-Ohio Life Insurance Company for the same
two-year period.
6.14 Notification of Certain
Matters. Each of Legacy and Parent shall give prompt
notice to the other of any fact, event or circumstance known to
it that (i) is reasonably likely, individually or taken
together with all other facts, events and circumstances known to
it, to result in any Material Adverse Effect with respect to it
or (ii) would cause or constitute a material breach of any
of its representations, warranties, covenants or agreements
contained herein.
6.15 Regulatory
Conditions. In the event of the imposition of any
conditions, restrictions or requirements in connection with the
regulatory approvals required by Section 7.1(b) that Parent
determines would
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materially reduce the benefits of the Merger as provided in
Section 7.1(b), Parent shall use its commercially
reasonable efforts to obtain the removal of any such condition,
restriction or requirement.
6.16 Exemption From
Liability Under Section 16(b). Assuming that Legacy
delivers to Parent the Section 16 Information not less than
five Business Days in advance of the Effective Time, the Board
of Directors of Parent, or a committee of Non-Employee Directors
thereof (as such term is defined for purposes of
Rule 16b-3(d)
under the Exchange Act), shall reasonably promptly thereafter
and in any event prior to the Effective Time adopt a resolution
providing that the receipt by the Legacy Insiders of Parent
Common Stock in exchange for shares of Legacy Common Stock, and
of options to purchase Parent Common Stock upon conversion of
Legacy Options pursuant to the transactions contemplated hereby
and to the extent such securities are listed in the
Section 16 Information provided by Legacy to Parent prior
to the Effective Time, are intended to be exempt from liability
pursuant to Section 16(b) under the Exchange Act such that
any such receipt shall be so exempt.
6.17 Certain Post-Closing
Matters.
(a) From and after the Effective Time, Parent shall cause
Parent Bank to establish a new Harrisburg Region that will
consist of the existing branches of Legacy and that will be
called, consistent with applicable regulations, Legacy
Bank, a Division of First National Bank of Pennsylvania
(the Legacy Division). Parent shall cause Parent
Bank to operate the Legacy Division for a period of at least two
years after the Effective Date.
(b) At the Effective Time, Parent shall cause Parent Bank
to name George H. Groves as Chairman of Parent Banks
Harrisburg Region to serve in such position in accordance with
the terms of his Employment Agreement with Parent Bank.
(c) Parent shall cause Parent Bank to establish and
maintain for at least three years after the Effective Date a
community advisory board of directors for the Legacy Division
(the Legacy Advisory Board). The Legacy Advisory
Board shall be formed by Parent Bank and be operated in a manner
that is consistent with Parent Banks past practices with
respect to its existing community advisory boards. For not less
than two years following the Effective Date, the membership of
the Legacy Advisory Board shall consist of 14 current members of
the Legacy Board of Directors as selected by George H. Groves,
subject to confirmation of such initial members by the
Nominating and Corporate Governance Committee of Parent.
(d) The commitments set forth in this Section 6.17
shall survive the Effective Time as reflected in a formal
resolution of the Parent Bank Board to be reflected in the
minutes of Parent Bank as the Surviving Bank in the Merger. The
members of the Legacy Advisory Board shall be deemed to be third
party beneficiaries of the commitments set forth in this
Section 6.17.
6.18 Employment
Matters. Parent agrees to cause Parent Bank to enter
into employment agreements with terms of two years commencing on
the Effective Date in substantially the form of Annex D
with George H. Groves, as Chairman of FNBs Harrisburg
Region, with Thomas W. Lennox as President of FNBs
Harrisburg Region and with Joseph L. Paese as Market Executive
of Wealth Management of FNBs Harrisburg Region,
simultaneously with the execution of this Agreement.
6.19 Director
Agreements. Parent shall have received from each
director of Legacy an executed Voting Agreement in the form of
Annex B dated the date hereof.
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ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.1 Conditions to Each
Partys Obligation to Effect the Merger. The
respective obligation of each of the parties hereto to
consummate the Merger is subject to the fulfillment or, to the
extent permitted by applicable law, written waiver by the
parties hereto prior to the Closing Date of each of the
following conditions:
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(a) Stockholder Approval. This Agreement and
the Merger shall have been duly approved by the requisite vote
of the holders of outstanding shares of Legacy Common Stock. |
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(b) Regulatory Approvals. All regulatory
approvals required to consummate the Merger shall have been
obtained, including the receipt of any necessary regulatory
approval to operate the main and branch offices of Legacy as
offices of the Surviving Bank, and shall remain in full force
and effect and all statutory waiting periods in respect thereof
shall have expired and no such approvals shall contain any
conditions, restrictions or requirements that the Parent Board
reasonably determines in good faith would, individually or in
the aggregate, materially reduce the benefits of the Transaction
to such a degree that Parent would not have entered into this
Agreement had such conditions, restrictions or requirements been
known at the date hereof. |
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(c) No Injunction. No Governmental Authority
of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation,
judgment, decree, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and prohibits
consummation of the Transaction. |
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(d) Registration Statement. The Registration
Statement shall have become effective under the Securities Act
and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been initiated by the SEC and not
withdrawn. |
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(e) Listing. The shares of Parent Common Stock to be issued
in the Merger shall have been approved for listing on the NYSE. |
7.2 Conditions to Obligation
of Legacy. The obligation of Legacy to consummate the
Merger is also subject to the fulfillment by Parent or written
waiver by Legacy prior to the Closing Date of each of the
following conditions:
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(a) Representations and Warranties. The
representations and warranties of Parent set forth in this
Agreement, subject in all cases to the standard set forth in
Section 5.2, shall be true and correct as of the date of
this Agreement and as of the Effective Date as though made on
and as of the Effective Date, except that representations and
warranties that by their terms speak as of the date of this
Agreement or some other date shall be true and correct as of
such date, and Legacy shall have received a certificate, dated
the Effective Date, signed on behalf of Parent by the Chief
Executive Officer and the Chief Financial Officer of Parent to
such effect. |
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(b) Performance of Obligations of Parent.
Parent shall have performed in all material respects all
obligations required to be performed by it under this Agreement
at or prior to the Effective Time in order to consummate the
Merger, and Legacy shall have received a certificate, dated the
Effective Date, signed on behalf of Parent by the Chief
Executive Officer and the Chief Financial Officer of Parent to
such effect. |
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(c) Tax Opinion. Legacy shall have received
the written opinion of Stevens & Lee, dated as of the
Effective Date, which shall be based on such written
representations from Parent, Legacy and others as such counsel
shall reasonably request, to the effect that the Merger will
constitute a reorganization within the meaning of
Section 368(a) of the Code. |
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(d) Other Actions. Parent shall have
furnished Legacy with such certificates of its respective
officers or others and such other documents to evidence
fulfillment of the conditions set forth in Sections 7.1 and
7.2 as Legacy may reasonably request. |
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7.3 Conditions to Obligation
of Parent. The obligation of Parent to consummate the
Merger is also subject to the fulfillment by Legacy or written
waiver by Parent prior to the Closing Date of each of the
following conditions:
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(a) Representations and Warranties. The
representations and warranties of Legacy set forth in this
Agreement, subject in all cases to the standard set forth in
Section 5.2, shall be true and correct as of the date of
this Agreement and as of the Effective Date as though made on
and as of the Effective Date, except that representations and
warranties that by their terms speak as of the date of this
Agreement or some other date shall be true and correct as of
such date, and Parent shall have received a certificate, dated
the Effective Date, signed on behalf of Legacy by the Chairman
and Chief Executive Officer and the Chief Financial Officer of
Legacy to such effect. |
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(b) Performance of Obligations of Legacy.
Legacy shall have performed in all material respects all
obligations required to be performed by it under this Agreement
at or prior to the Effective Time in order to consummate the
Merger, and Parent shall have received a certificate, dated the
Effective Date, signed on behalf of Legacy by the Chairman and
Chief Executive Officer and the Chief Financial Officer of
Legacy to such effect. |
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(c) Tax Opinion. Parent shall have received
the written opinion of Duane Morris LLP, dated as of the
Effective Date, which shall be based on such written
representations from Parent, Legacy and others as such counsel
shall reasonably request, to the effect that the Merger will
constitute a reorganization within the meaning of
Section 368(a) of the Code. |
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(d) Environmental Reports. Legacy shall have
furnished Parent with a Phase I environmental study with
respect to all real property owned by Legacy or any of its
Subsidiaries (which Phase I environmental studies shall be
at the sole cost and expense of Parent), the findings of which
studies shall be commercially acceptable to Parent who shall not
unreasonably withhold such acceptance. |
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(e) Other Actions. Legacy shall have
furnished Parent with such certificates of its officers or
others and such other documents to evidence fulfillment of the
conditions set forth in Sections 7.1 and 7.3 as Parent may
reasonably request. |
ARTICLE VIII
TERMINATION
8.1 Termination. This
Agreement may be terminated at any time prior to the Effective
Date, and the Transaction may be abandoned:
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(a) Mutual Consent. By the mutual consent in
writing of Parent and Legacy if the Board of Directors of each
so determines by vote of a majority of the members of its entire
Board. |
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(b) Breach. Provided that the terminating
party is not then in material breach of any representation,
warranty, covenant or agreement contained therein, subject in
all cases to the standard set forth in Section 5.2, by
Parent or Legacy, if its Board of Directors so determines by
vote of a majority of the members of its entire Board, in the
event of: (i) a breach by Parent, on the one hand, or
Legacy, on the other hand, as the case may be, of any
representation or warranty contained herein, subject to the
standard set forth in Section 5.2, which breach cannot be
or has not been cured within 30 days after the giving of
written notice to the breaching party or parties of such breach;
or (ii) a breach by Parent, on the one hand, or Legacy, on
the other hand, as the case may be, of any of the covenants or
agreements contained herein, which breach cannot be or has not
been cured within 30 days after the giving of written
notice to the breaching party or parties of such breach, which
breach, whether under (i) or (ii), would be reasonably
expected, individually or in the aggregate with other breaches,
to result in a Material Adverse Effect with respect to Parent or
Legacy, as the case may be. |
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(c) Delay. By Parent or Legacy, if its Board
of Directors so determines by vote of a majority of the members
of its entire Board, in the event that the Merger is not
consummated by September 30, 2006, |
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except to the extent that the failure of the Merger then to be
consummated by such date shall be due to the failure of the
party seeking to terminate pursuant to this Section 8.1(c)
to perform or observe the covenants and agreements of such party
set forth in this Agreement. |
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(d) No Regulatory Approval. By Parent or
Legacy, if its Board of Directors so determines by a vote of a
majority of the members of its entire Board, in the event the
approval of any Governmental Authority required for consummation
of the Merger and the other transactions contemplated by this
Agreement shall have been denied by final nonappealable action
of such Governmental Authority or an application therefor shall
have been permanently withdrawn at the request of a Governmental
Authority, provided, however, that no party shall have the right
to terminate this Agreement pursuant to this Section 8.1(d)
if such denial shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants
of such party set forth herein. |
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(e) No Legacy Stockholder Approval. By
Parent, or by Legacy provided that Legacy shall not be in
material breach of any of its obligations under
Section 6.2, if any approval of the stockholders of Legacy
contemplated by this Agreement shall not have been obtained by
reason of the failure to obtain the required vote at the Legacy
Meeting or at any adjournment or postponement thereof. |
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(f) Legacy Failure to Recommend. At any time
prior to the Legacy Meeting, by Parent if (i) Legacy shall
have breached Section 6.8 in any respect materially adverse
to Parent, (ii) the Legacy Board shall have failed to make
its Approval Recommendation or shall have effected a Change in
Legacy Recommendation, (iii) the Legacy Board shall have
recommended approval of an Acquisition Proposal or
(iv) Legacy shall have materially breached its obligations
under Section 6.2 by failing to call, give notice of,
convene and hold the Legacy Meeting. |
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(g) Superior Proposal. At any time prior to
the date of mailing of the Proxy Statement, by Legacy in order
to enter concurrently into an Acquisition Proposal that has been
received by Legacy and the Legacy Board of Directors in
compliance with Sections 6.8(a) and (b) and that
Legacys Board of Directors concludes in good faith, in
consultation with its financial and legal advisors, that such
Acquisition Proposal is a Superior Proposal; provided, however,
that this Agreement may be terminated by Legacy pursuant to this
Section 8.1(g) only after the fifth Business Day following
Legacys provision of written notice to Parent advising
Parent, that the Legacy Board of Directors is prepared to accept
a Superior Proposal (it being agreed that the delivery of such
notice shall not entitle Parent to terminate this Agreement
pursuant to Section 8.1(g)) and only if (i) during
such five-Business Day period, Legacy has caused its financial
and legal advisors to negotiate with Parent in good faith to
make such adjustments in the terms and conditions of this
Agreement such that such Acquisition Proposal would no longer
constitute a Superior Proposal, (ii) Legacys Board of
Directors has considered such adjustments in the terms and
conditions of this Agreement resulting from such negotiations
and has concluded in good faith, based upon consultation with
its financial and legal advisers, that such Acquisition Proposal
remains a Superior Proposal even after giving effect to the
adjustments proposed by Parent and further provided that such
termination shall not be effective until Legacy has paid the
Break-up Fee to Parent. |
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(h) Possible Adjustment. By Legacy at any
time during the two-business- day period following the
Determination Date, if both of the following conditions
(i) and (ii) are satisfied: |
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(i) the Average Closing Price determined as of the
Determination Date shall be less than the product of 0.800 and
the Starting Price; and |
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(ii) the number obtained by dividing the Average Closing
Price on the Determination Date by the Starting Price, such
number being referred to herein as the Parent Ratio,
shall be less than the number obtained by dividing the Index
Closing Price by the Starting Index Price, such number being
referred to herein as the Index Ratio, and
subtracting 0.200 from such quotient; |
provided, that if Legacy elects to exercise such termination
right, it shall give prompt written notice to Parent, and
further provided that such notice of election to terminate may
be withdrawn at any time within the aforementioned period.
Notwithstanding the foregoing, if within two business days after
the date of receipt of such notice from Legacy, Parent notifies
Legacy in writing that Parent will increase the Exchange Ratio to
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(A) a number equal to a quotient, the numerator of which is
the product of (x) 0.800, (y) the Starting Price and
(z) the Exchange Ratio, and the denominator of which is the
Average Closing Price or (B) if the Index Ratio is less
than 1.0, a number equal to a quotient, the numerator of which
is the product of (w) the Index Ratio, (x) 0.800,
(y) the Starting Price and (z) the Exchange Ratio and
the denominator of which is the Average Closing Price, the
Exchange Ratio shall be so adjusted and no termination shall
have occurred pursuant to this Section 8.1(h).
8.2 Effect of
Termination. In the event of termination of this
Agreement by either Parent or Legacy as provided in
Section 8.1, this Agreement shall forthwith become void and
have no effect except (i) Sections 6.6(c), 6.8(e) and
(f), 8.2 and 9.5 shall survive any termination of this Agreement
and (ii) notwithstanding anything to the contrary contained
in this Agreement, no party shall be relieved or released from
any liability or damages arising out of its willful breach of
any of the provisions of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Survival. No
representations, warranties, agreements and covenants contained
in this Agreement shall survive the Effective Time, other than
agreements or covenants contained herein that by their express
terms are to be performed in whole or in part after the
Effective Time, or the termination of this Agreement if this
Agreement is terminated prior to the Effective Time, other than
Sections 6.6(c), 8.2 and, excepting Section 9.12, this
Article IX, which shall survive any such termination.
Notwithstanding anything in the foregoing to the contrary, no
representations, warranties, agreements and covenants contained
in this Agreement shall be deemed to be terminated or
extinguished so as to deprive a party hereto or any of its
affiliates of any defense at law or in equity that otherwise
would be available against the claims of any Person, including
without limitation any stockholder or former stockholder.
9.2 Waiver;
Amendment. Prior to the Effective Time, any provision of
this Agreement may be (i) waived, by the party benefited by
the provision or (ii) amended or modified at any time, by
an agreement in writing among the parties hereto executed in the
same manner as this Agreement, except that after the Legacy
Meeting no amendment shall be made that by law requires further
approval by the stockholders of Legacy without obtaining such
approval.
9.3 Counterparts.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed to constitute an original.
9.4 Governing Law.
This Agreement shall be governed by, and interpreted in
accordance with, the laws of the Commonwealth of Pennsylvania
applicable to contracts made and to be performed entirely within
such State.
9.5 Expenses.
(a) Except as set forth in Section 9.5(b), each party
hereto will bear all expenses incurred by it in connection with
this Agreement and the transactions contemplated hereby,
including fees and expenses of its own financial consultants,
accountants and counsel, except that expenses of printing the
Proxy Statement and the registration fee to be paid to the SEC
in connection with the Registration Statement shall be shared
equally between Legacy and Parent, and provided further that
nothing contained herein shall limit either partys rights
to recover any liabilities or damages arising out of the other
partys willful breach of any provision of this Agreement.
(b) In the event that this Agreement is terminated by
either Legacy or Parent pursuant to Section 8.1(b), then
the breaching party shall pay to the terminating party, or by
Parent pursuant to Section 8.1(e), then Legacy shall pay
Parent, by wire transfer of immediately available funds, within
two business days following delivery of a statement of such
expenses, all
out-of-pocket costs and
expenses (including without limitation, professional fees of
legal counsel, financial advisors and accountants, and their
A-49
expenses) actually incurred by the terminating party or Parent,
as the case may be, in connection with the Merger and this
Agreement.
9.6 Notices. All
notices, requests and other communications hereunder to a party
shall be in writing and shall be deemed given if personally
delivered, telecopied (with confirmation) or mailed by
registered or certified mail (return receipt requested) to such
party at its address set forth below or such other address as
such party may specify by notice to the parties hereto.
If to Legacy to:
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The Legacy Bank |
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2600 Commerce Drive |
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Harrisburg, Pennsylvania 17110 |
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Attention: |
George H. Groves |
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Chairman and Chief Executive Officer |
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Fax: 717-441-3410 |
With a copy to:
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Stevens & Lee |
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25 N. Queen Street, Suite 602 |
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Lancaster, PA 17608-1594 |
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Attention: Clinton W. Kemp, Esq. |
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Fax: 610-236-4177 |
If to Parent to:
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F.N.B. Corporation |
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One F.N.B. Boulevard |
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Hermitage, Pennsylvania 16148 |
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Attention: |
Stephen J. Gurgovits |
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President and Chief Executive Officer |
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Fax: (724) 983-3515 |
With a copy to:
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Duane Morris LLP |
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30 South 17th Street |
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Philadelphia, PA 19103 |
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Attention: Frederick W. Dreher, Esq. |
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Fax: (215) 979-1213 |
9.7 Entire Understanding; No
Third Party Beneficiaries. This Agreement and the
Confidentiality Agreement represent the entire understanding of
the parties hereto and thereto with reference to the
Transaction, and this Agreement and the Confidentiality
Agreement supersede any and all other oral or written agreements
heretofore made. Except for the Indemnified Parties right
to enforce Parents obligations under Section 6.11,
which is expressly intended to be for the irrevocable benefit
of, and shall be enforceable by, each Indemnified Party and his
or her heirs and representatives, and except for the right of
the members of the Legacy Advisory Board to enforce
Parents commitments under Section 6.17, nothing in
this Agreement, expressed or implied, is intended to confer upon
any Person, other than the parties hereto or their respective
successors, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
9.8 Severability.
Except to the extent that application of this Section 9.8
would have a Material Adverse Effect on Legacy or Parent, any
term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision
shall be
A-50
interpreted to be only so broad as is enforceable. In all such
cases, the parties shall use their reasonable best efforts to
substitute a valid, legal and enforceable provision that,
insofar as practicable, implements the original purposes and
intents of this Agreement.
9.9 Enforcement. The
parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms
and provisions hereof in any court of the United States or any
state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity. In the
event attorneys fees or other costs are incurred to secure
performance of any of the obligations herein provided for, or to
establish damages for the breach thereof, or to obtain any other
appropriate relief, whether by way of prosecution or defense,
the prevailing party shall be entitled to recover reasonable
attorneys fees and costs incurred therein.
9.10 Interpretation.
When a reference is made in this Agreement to Sections, Annexes
or Schedules, such reference shall be to a Section of, or Annex
or Schedule to, this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement.
Whenever the words include, includes or
including are used in this Agreement, they shall be
deemed to be followed by the words without
limitation. Whenever the words as of the date
hereof are used in this Agreement, they shall be deemed to
mean the day and year first above written.
9.11 Assignment. No
party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written
approval of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective
successors and permitted assigns.
9.12 Alternative
Structure. Notwithstanding any provision of this
Agreement to the contrary, until the Registration Statement is
declared effective, Parent may at any time modify the structure
of the acquisition of Legacy set forth herein, subject to the
prior written consent of Legacy, which consent shall not be
unreasonably withheld or delayed, provided that (i) the
Merger Consideration to be paid to the holders of Legacy Common
Stock is not thereby changed in kind or reduced in amount as a
result of such modification, (ii) such modification will
not adversely affect the tax treatment to Legacys
stockholders as a result of receiving the Merger Consideration
and (iii) such modification will not materially delay or
jeopardize receipt of any required approvals of Governmental
Authorities.
A-51
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in counterparts by their duly
authorized officers, all as of the day and year first above
written.
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Stephen J. Gurgovits, |
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President and Chief Executive Officer |
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FIRST NATIONAL BANK OF PENNSYLVANIA |
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Stephen J. Gurgovits, |
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Chairman |
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THE LEGACY BANK |
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George H. Groves, |
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Chairman and Chief Executive Officer |
A-52
ANNEX A
AGREEMENT OF MERGER
Agreement of Merger, dated as
of ,
2006, by and between First National Trust Company (the
Parent Trust Company) and The Legacy Trust Company
(The Legacy Trust Company). All capitalized terms
used herein but not defined herein shall have the respective
meanings assigned to them in the Agreement and Plan of Merger
(the Agreement) dated as of December 21, 2005
among F.N.B. Corporation (Parent), First
National Bank of Pennsylvania (Parent Bank) and The
Legacy Bank (Legacy).
WlTNESSETH:
WHEREAS, The Legacy Trust Company is a Pennsylvania trust
company and a wholly owned subsidiary of Legacy; and
WHEREAS, Parent Trust Company is a national association and a
wholly owned subsidiary of Parent Bank; and
WHEREAS, Parent and Legacy have entered into the Agreement,
pursuant to which Legacy will merge with and into Parent (the
Parent Merger); and
WHEREAS, The Legacy Trust Company and Parent Trust Company
desire to merge on the terms and conditions herein provided
immediately following the effective time of the Parent Merger.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto,
intending to be legally bound hereby, agree as follows:
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1. The Merger. Subject to the terms and
conditions of the Agreement and this Agreement of Merger, at the
Effective Time (as defined in Section 2), The Legacy Trust
Company shall merge with and into Parent Trust Company (the
Trust Company Merger) under the laws of the United
States and of the Commonwealth of Pennsylvania. Parent Trust
Company shall be the surviving bank of the Trust Company Merger
(the Surviving Trust Company). |
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2. Effective Time. The Trust Company Merger
shall become effective on the date and at the time that Articles
of Combination are filed with the Office of the Comptroller of
the Currency (the OCC) and Articles of Merger are
filed with the Pennsylvania Department of State (the
Department) unless a later date and time is
specified as the Effective Time in such Articles of Combination
and Articles of Merger (the Effective Time). |
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3. Charter; Bylaws. The Charter and Bylaws of
Parent Trust Company in effect immediately prior to the
Effective Time shall be the Charter and Bylaws of the Surviving
Trust Company, until altered, amended or repealed in accordance
with their terms and applicable law. |
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4. Name; Offices. The name of the Surviving
Trust Company shall be First National Trust Company.
The main office of the Surviving Trust Company shall be the main
office of Parent Trust Company immediately prior to the
Effective Time. All offices of The Legacy Trust Company and
Parent Trust Company that were in lawful operation immediately
prior to the Effective Time shall be the offices of the
Surviving Trust Company upon consummation of the Trust Company
Merger, subject to the opening or closing of any offices that
may be authorized by The Legacy Trust Company, Parent Trust
Company, the OCC or the Department after the date hereof.
Schedule I hereto contains a list of each of the offices of
The Legacy Trust Company and Parent Trust Company that shall be
operated by the Surviving Trust Company, subject to the opening
or closing of any offices that may be authorized by The Legacy
Trust Company, Parent Trust Company, the OCC and the Department
after the date hereof. |
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5. Directors and Executive Officers. Upon
consummation of the Merger, (i) the directors of the
Surviving Trust Company immediately prior to the Effective Time
shall continue as directors of the |
A-53
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Surviving Trust Company to serve until the first annual meeting
of stockholders following the Effective Time and (ii) the
executive officers of the Surviving Trust Company shall be the
executive officers of Parent Trust Company immediately prior to
the Effective Time. |
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6. Effects of the Merger. Upon consummation
of the Trust Company Merger, and in addition to the effects set
forth at 12 U.S.C. § 215a and the Pennsylvania
Banking Code and other applicable law: |
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(a) all rights, franchises and interests of The Legacy
Trust Company in and to every type of property (real, personal
and mixed), tangible and intangible, and choses in action shall
be transferred to and vested in the Surviving Trust Company by
virtue of the Trust Company Merger without any deed or other
transfer, and the Surviving Trust Company, without any order or
other action on the part of any court or otherwise, shall hold
and enjoy all rights of property, franchises and interests,
including appointments, designations and nominations, and all
other rights and interests as trustee, executor, administrator,
registrar of stocks and bonds, guardian of estates, assignee,
receiver and committee, and in every other fiduciary capacity,
in the same manner and to the same extent as such rights,
franchises and interest were held or enjoyed by The Legacy Trust
Company immediately prior to the Effective Time; and |
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(b) the Surviving Trust Company shall be liable for all
liabilities of The Legacy Trust Company, fixed or contingent,
including all deposits, accounts, debts, obligations and
contracts thereof, matured or unmatured, whether accrued,
absolute, contingent or otherwise, and whether or not reflected
or reserved against on balance sheets, books of account or
records thereof, and all rights of creditors or obligees and all
liens on property of The Legacy Trust Company shall be preserved
unimpaired; after the Effective Time, the Surviving Trust
Company will continue to issue savings accounts on the same
basis as immediately prior to the Effective Time. |
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7. Effect on Shares of Stock. |
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(a) Each share of Parent Trust Company common stock issued
and outstanding immediately prior to the Effective Time shall be
unchanged and shall remain issued and outstanding. |
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(b) At the Effective Time, each share of The Legacy Trust
Company capital stock issued and outstanding prior to the Trust
Company Merger shall, by virtue of the Trust Company Merger and
without any action on the part of the holder thereof, be
canceled. Any shares of The Legacy Trust Company capital stock
held in the treasury of The Legacy Trust Company immediately
prior to the Effective Time shall be retired and canceled. |
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8. Additional Actions. If, at any time after
the Effective Time, the Surviving Trust Company shall consider
that any further assignments or assurances in law or any other
acts are necessary or desirable to (a) vest, perfect or
confirm, of record or otherwise, in the Surviving Trust Company
its rights, title or interest in, to or under any of the rights,
properties or assets of The Legacy Trust Company acquired or to
be acquired by the Surviving Trust Company as a result of, or in
connection with, the Trust Company Merger, or (b) otherwise
carry out the purposes of this Agreement of Merger, The Legacy
Trust Company and its proper officers and directors shall be
deemed to have granted to the Surviving Trust Company an
irrevocable power of attorney to (i) execute and deliver
all such proper deeds, assignments and assurances in law and to
do all acts necessary or proper to vest, perfect or confirm
title to and possession of such rights, properties or assets in
the Surviving Trust Company and (ii) otherwise to carry out
the purposes of this Agreement of Merger. The proper officers
and directors of the Surviving Trust Company are fully
authorized in the name of The Legacy Trust Company or otherwise
to take any and all such action. |
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9. Counterparts. This Agreement of Merger may
be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall
constitute one agreement. |
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10. Governing Law. This Agreement of Merger
shall be governed in all respects, including, but not limited
to, validity, interpretation, effect and performance, by the
laws of the United States and the Commonwealth of Pennsylvania. |
A-54
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11. Amendment. Subject to applicable law,
this Agreement of Merger may be amended, modified or
supplemented only by written agreement of Parent Trust Company
and The Legacy Trust Company at any time prior to the Effective
Time. |
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12. Waiver. Any of the terms or conditions of
this Agreement of Merger may be waived at any time by whichever
of the parties hereto is, or the shareholders of which are,
entitled to the benefit thereof by action taken by the Board of
Directors of such waiving party. |
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13. Assignment. This Agreement of Merger may
not be assigned by any party hereto without the prior written
consent of the other party. |
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14. Termination. This Agreement of Merger
shall terminate upon the termination of the Agreement in
accordance with its terms. |
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15. Procurement of Approvals. This Agreement
of Merger shall be subject to the approval of Parent as the sole
stockholder of Parent Trust Company and Legacy as the sole
shareholder of The Legacy Trust Company at meetings to be called
and held or by consent in lieu thereof in accordance with the
applicable provisions of law and their respective organizational
documents. Parent Trust Company and The Legacy Trust Company
shall proceed expeditiously and cooperate fully in the
procurement of any other consents and approvals and in the
taking of any other action, and the satisfaction of all other
requirements prescribed by law or otherwise necessary for
consummation of the Merger on the terms provided herein,
including without limitation the preparation and submission of
such applications or other filings for approval of the Merger to
the OCC and the Department as may be required by applicable laws
and regulations. |
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16. Conditions Precedent. The obligations of
the parties under this Agreement of Merger shall be subject to:
(i) the approval of this Agreement of Merger by Parent as
the sole shareholder of Parent Trust Company and Legacy as the
sole stockholder of The Legacy Trust Company at meetings of
shareholders duly called and held or by consent or consents in
lieu thereof, in each case without any exercise of such
dissenters rights as may be applicable; (ii) receipt
of approval of the Merger from all governmental and banking
authorities whose approval is required; (iii) receipt of
any necessary regulatory approval to operate the main office and
the offices of The Legacy Trust Company as offices of the
Surviving Trust Company and (iv) the consummation of the
Parent Merger pursuant to the Agreement on or before the
Effective Time. |
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17. Effectiveness of Agreement.
Notwithstanding anything to the contrary contained herein, the
execution and delivery of this Agreement of Merger by the
parties hereto shall not be deemed to be effective unless and
until the requirements of 12 C.F.R. § 5.33 are
met. |
A-55
IN WITNESS WHEREOF, each of Parent Trust Company and The Legacy
Trust Company has caused this Agreement of Merger to be executed
on its behalf by its duly authorized officers.
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FIRST NATIONAL TRUST COMPANY |
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President and Chief Executive Officer |
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THE LEGACY TRUST COMPANY |
A-56
ANNEX B
,
2006
F.N.B. Corporation
One F.N.B. Boulevard
Hermitage, PA 16148
Ladies and Gentlemen:
I have been advised that I may be deemed an
affiliate of The Legacy Bank, a Pennsylvania banking
institution (Legacy), as affiliate is
defined in Rule 144 and used in Rule 145 promulgated
by the Securities and Exchange Commission (the SEC)
under the Securities Act of 1933, as amended (the
Securities Act). I understand that pursuant to the
terms of the Agreement and Plan of Merger, dated as of
December 21, 2005 (the Agreement), among F.N.B.
Corporation, a Florida corporation (Parent), First
National Bank of Pennsylvania (Parent Bank) and
Legacy, Legacy plans to merge with and into Parent Bank (the
Merger).
I further understand that as a result of the Merger, I will be
entitled to receive shares of common stock, par value
$.01 per share, of Parent (Parent Common Stock)
in exchange for shares of common stock, par value $5.00 per
share, of Legacy (Legacy Common Stock).
I have carefully read this letter and reviewed the Agreement,
discussed its requirements and other applicable limitations upon
my ability to sell, transfer or otherwise dispose of Parent
Common Stock, to the extent I felt necessary, with my counsel or
counsel for Legacy.
I represent, warrant and covenant with and to Parent with
respect to the shares of Parent Common Stock I receive as a
result of the Merger:
I shall not make any sale, transfer or other disposition of such
shares of Parent Common Stock unless (i) such sale,
transfer or other disposition has been registered under the
Securities Act, (ii) such sale, transfer or other
disposition is made in conformity with the provisions of
Rule 145 under the Securities Act or (iii) in the
opinion of counsel in form and substance reasonably satisfactory
to Parent or under a no-action letter obtained by me
from the staff of the SEC, such sale, transfer or other
disposition will not violate the registration requirements of,
or is otherwise exempt from registration under, the Securities
Act.
I understand that Parent is under no obligation to register the
sale, transfer or other disposition of shares of Parent Common
Stock by me or on my behalf under the Securities Act or to take
any other action necessary in order to make compliance with an
exemption from such registration available.
I understand that stop transfer instructions will be given to
Parents transfer agent with respect to shares of Parent
Common Stock issued to me as a result of the Merger and that
there will be placed on the certificates for such shares, or any
substitutions therefor, a legend stating in substance:
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The shares represented by this certificate were issued as
a result of the merger of The Legacy Bank with and into F.N.B.
Corporation,
on ,
2006 in a transaction to which Rule 145 promulgated under
the Securities Act of 1933 applies. The shares represented by
this certificate may be transferred only in accordance with the
terms of a letter agreement between the registered holder hereof
and F.N.B. Corporation, a copy of which agreement is on file at
the principal offices of F.N.B. Corporation. |
I understand that, unless transfer by me of the Parent Common
Stock issued to me as a result of the Merger has been registered
under the Securities Act or such transfer is made in conformity
with the provisions of Rule 145(d) under the Securities
Act, Parent reserves the right, in its sole discretion, to place
the following legend on the certificates issued to my transferee:
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The shares represented by this certificate have not been
registered under the Securities Act of 1933 and were acquired
from [SHAREHOLDER] who, in turn, received such shares as a
result of the |
A-57
F.N.B. Corporation
Page 2
,
2006
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merger of The Legacy Bank with and into F.N.B. Corporation
on ,
2006 in a transaction to which Rule 145 under the
Securities Act of 1933 applies. The shares have been acquired by
the holder not with a view to, or for resale in connection with,
any distribution thereof within the meaning of the Securities
Act of 1933 and may not be offered, sold, pledged or otherwise
transferred except in accordance with an exemption from the
registration requirements of the Securities Act of 1933. |
It is understood and agreed that the legends set forth above
shall be removed by delivery of substitute certificates without
such legends if I shall have delivered to Parent (i) a copy
of a no action letter from the staff of the SEC, or
an opinion of counsel in form and substance reasonably
satisfactory to Parent, to the effect that such legend is not
required for purposes of the Securities Act, or
(ii) evidence or representations satisfactory to Parent
that the Parent Common Stock represented by such certificates is
being or has been sold in conformity with the provisions of
Rule 145(d).
I further understand and agree that the provisions of
Rule 145 shall apply to all shares of Parent Common Stock
that (i) my spouse, (ii) any relative of mine or my
spouse occupying my home, (iii) any trust or estate in
which I, my spouse or any such relative owns at least a 10%
beneficial interest or of which any of us serves as trustee,
executor or in any similar capacity and (iv) any
corporation or other organization in which I, my spouse or
any such relative owns at least 10% of any class of equity
securities or of the equity interest, receives as a result of
the Merger and I further represent, warrant and covenant with
and to Parent that I will have, and will cause each of such
persons to have, all shares of Legacy Common Stock owned, other
than shares held through tax qualified retirement or benefit
plans, by me or such persons registered in my name or the name
of such persons, as applicable, prior to the effective date of
the Merger and not in the name of any bank, broker or dealer,
nominee or clearing house.
By acceptance hereof, Parent agrees, for a period of one year
after the Effective Time (as defined in the Agreement) that, so
long as it is obligated to file reports pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, it will use its reasonable best efforts to timely
file such reports so that the public information requirements of
Rule 144(c) promulgated under the Securities Act are
satisfied and the resale provisions of Rule 145(d)(1) and
(2) are therefore available to me in the event I desire to
transfer any Parent Common Stock issued to me in the Merger.
It is understood and agreed that this letter shall terminate and
be of no further force and effect if the Agreement is terminated
in accordance with its terms.
A-58
F.N.B. Corporation
Page 3
,
2006
Execution of this letter should not be construed as an admission
on my part that I am an affiliate of Legacy as
described in the first paragraph of this letter or as a waiver
of any rights I might have to object to any claim that I am such
an affiliate on or after the date of this letter.
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Acknowledged
this day
of ,
2006. |
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F.N.B. CORPORATION |
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A-59
ANNEX C
FORM OF VOTING AGREEMENT
December 21, 2005
The Legacy Bank
2600 Commerce Drive
Harrisburg, PA 17110
F.N.B. Corporation
One F.N.B. Boulevard
Hermitage, PA 16148
Ladies and Gentlemen:
F.N.B. Corporation (FNB), First National Bank of
Pennsylvania (FNB Bank) and The Legacy Bank
(Legacy) have entered into an Agreement and Plan of
Merger dated as of December 21, 2005 (the
Agreement) whereby Legacy will merge with and into
FNB Bank (the Merger) and shareholders of Legacy
will receive shares of FNB common stock or cash or a combination
of such stock and cash equal to $18.40 for each share of Legacy
common stock owned on the closing date of the Merger. All
defined terms used but not defined herein shall have the
meanings ascribed thereto in the Agreement.
A condition to FNBs obligations under the Agreement is
that I execute and deliver this Letter Agreement to FNB.
Intending to be legally bound hereby, I irrevocably agree and
represent as follows:
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(a) I agree to vote or cause to be voted for approval and
adoption of the Agreement and the transactions contemplated
thereby all shares of Legacy common stock over which I have or
share voting power, individually or, to the extent of my
proportionate interest, jointly with other persons, and will use
my reasonable best efforts to cause any shares of Legacy common
stock over which I share voting power to be voted for approval
and adoption of the Agreement and the transactions contemplated
thereby. Beneficial ownership shall have the meaning assigned to
it under the Securities Exchange Act of 1934. |
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(b) On or prior to the record date for the meeting of the
Legacy shareholders to vote on approval and adoption of the
Agreement and the transactions contemplated thereby, I agree not
to offer, sell, transfer or otherwise dispose of, or to permit
the offer, sale, transfer or other disposition of, any shares of
Legacy common stock over which I have sole or shared voting
power and beneficial ownership, except to the extent that I may
be permitted under law to make charitable gifts or as permitted
by paragraph (g) hereof. |
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(c) I have sole or shared beneficial ownership over the
number of shares of Legacy common stock, and hold stock options
for the number of shares of Legacy common stock, if any, set
forth below opposite my name below. |
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(d) I agree that Legacy shall not be bound by any attempted
sale of any shares of Legacy common stock over which I have sole
voting power, and Legacys transfer agent shall be given
appropriate stop transfer orders and shall not be required to
register any such attempted sale, unless the sale has been
effected in compliance with the terms of this Letter Agreement. |
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(e) I agree that, if I exercise any options to purchase
common stock, I will not sell any of the shares of Legacy common
stock so acquired except as part of a cashless exercise
transaction from the date of such exercise until the Effective
Time. |
A-60
The Legacy Bank
F.N.B. Corporation
Page 2
December 21, 2005
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(f) I represent that I have the capacity to enter into this
Letter Agreement and that it is a valid and binding obligation
enforceable against me in accordance with its terms, subject to
bankruptcy, insolvency and other laws affecting creditors
rights and general equitable principles. |
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(g) I may transfer any or all of the shares of Legacy
common stock over which I have sole or shared beneficial
ownership to my spouse, ancestors or descendants; provided,
however, that in any such case, prior to and as a condition to
the effectiveness of such transfer, each person to which any of
such shares or any interest in any of such shares is or may be
transferred shall have executed and delivered to FNB an
agreement to be bound by the terms of this Letter Agreement. In
addition, I may sell, transfer or assign shares of Legacy Common
Stock to the extent and on behalf of trusts or estates of which
I am not a beneficiary in order to comply with fiduciary
obligations or legal requirements. |
I am signing this Letter Agreement solely in my capacity as a
shareholder of Legacy, and as an optionholder if I am an
optionholder, and not in any other capacity, such as a director
or officer of Legacy or as a fiduciary of any trusts in which I
am not a beneficiary. Notwithstanding anything herein to the
contrary: (a) I make no agreement or understanding herein
in any capacity other than in my capacity as a beneficial owner
of Legacy common stock and (b) nothing herein shall be
construed to limit or affect any action or inaction by me or any
of my representatives, as applicable, serving on Legacys
Board of Directors or as an officer of Legacy, acting in my
capacity as a director, officer or fiduciary of Legacy or as
fiduciary of any trust of which I am not a beneficiary.
This Letter Agreement shall be effective upon acceptance by FNB.
A-61
The Legacy Bank
F.N.B. Corporation
Page 3
December 21, 2005
This Letter Agreement shall terminate and be of no further force
and effect concurrently with, and automatically upon, the
earlier to occur of (a) the consummation of the Merger,
(b) September 30, 2006 and (c) any termination of
the Agreement in accordance with its terms, except that any such
termination shall be without prejudice to FNBs rights
arising out of my willful breach of any covenant or
representation contained herein.
Number of Shares, and Shares Subject to Stock Options, Held:
Shares:
[ shares
held individually]
Acknowledged and Agreed:
THE LEGACY BANK
George H. Groves
Chairman and Chief Executive Officer
F.N.B. CORPORATION
Stephen J. Gurgovits
President and Chief Executive Officer
A-62
ANNEX D
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, entered into as of this
21st day of December, 2005, by and between:
GEORGE H. GROVES
(the Officer),
and
FIRST NATIONAL BANK OF PENNSYLVANIA
(the Company),
WITNESSETH THAT:
WHEREAS, the Legacy Bank (Bank) contemplates
a consummation of an Agreement and Plan of Merger among F.N.B.
Corporation (FNB), First National Bank of
Pennsylvania (the Company) and Bank (Merger
Agreement) whereby Bank will be merged with the Company
(Merger); and
WHEREAS, the Officer is presently employed by Bank and
Bank desires to assure itself of the continued benefit of the
Officers services and experience following consummation of
the proposed Merger, and the parties desire that said employment
relationship continue upon the terms and conditions herein set
forth; and
WHEREAS, the Officer has heretofore been employed by the
Bank under an employment agreement dated February 17, 2005,
as amended (the Prior Agreement); and
WHEREAS, by reason of the provisions of the Merger
Agreement and the position and duties that the Officer will hold
and have after the effective date of the Merger (the
Effective Date), the parties hereto acknowledge that
a change in control (as defined in the Prior
Agreement) will occur upon the Effective Date and the Officer
will be entitled to forthwith terminate his employment under the
Prior Agreement and receive the payments and benefits described
in Section 1(d)(i) of the Prior Agreement; and
WHEREAS, Section 1(d)(i) of the Prior Agreement also
provides that in the event the Officer is so entitled to
terminate his employment and receive such payments and benefits,
but the acquiring company and/or affiliate thereof desires to
retain the Officer as an employee of either or both of such
companies, then he need not terminate his employment as a
prerequisite to entitlement to his termination payments and
benefits, as specified therein; provided the relevant
transaction is described in Section 409A(a)(2)(A)(v) of the
Internal Revenue Code of 1986, as amended (the
Code); and
WHEREAS,, the parties hereto agree that the proposed
Merger constitutes a transaction described in Code
Section 409A(a)(2)(A)(v); and
WHEREAS, the Company desires to retain the services of
the Officer following the Effective Date, and the Officer
desires to be so employed by the Company, under the terms set
forth in this Agreement in lieu of the terms of the Prior
Agreement, but subject to the completion of the contemplated
Merger and compliance by the Company with the recitals
hereof; and
WHEREAS, this Agreement shall not become effective until
the Effective Date and shall be null and void if the Merger
Agreement is terminated by any party thereto prior to the
Effective Date.
NOW, THEREFORE, in consideration of the premises and
covenants herein contained, contingent, however, upon the
conditions subsequent of the consummation of the Merger and
intending to be legally bound, the parties hereto agree as
follows:
Section 1 Recitals;
Termination of Prior Agreement; Payments.
(a) The foregoing recitals are incorporated by reference as
if fully set forth herein.
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(b) As of the Effective Date, the Prior Agreement shall be
terminated and the terms set forth in this Agreement shall
become effective.
(c) The Company shall (i) pay the Officers
accrued but unpaid base salary under the Prior Agreement as of
the Effective Date and (ii) pay, in one lump sum within
30 days after the Effective Date, the three times highest
base salary and bonus described in Section 1(d)(i) of the
Prior Agreement and any related
gross-up amount for
this or any other payment or benefit.
Section 2 Title;
Term of Agreement.
(a) Title; Initial Term. The Company hereby
employs the Officer as the Chairman of its Harrisburg,
Pennsylvania region. The term of employment of the Officer under
this Agreement shall be, initially, a two (2) year term
commencing on the Effective Date of the Merger (the
Commencement Date) and ending on the second
anniversary of the Commencement Date (the Termination
Date). Said term shall be subject to automatic extension
by operation of the provisions of Section 2(b) hereof.
(b) Renewal Extension Term. On the first
anniversary of the Commencement Date and on each succeeding
anniversary date thereafter (Renewal Commencement
Date), the term of employment of the Officer under this
Agreement shall be automatically extended for one
(1) additional year, thereby extending the contract to the
second anniversary of the Renewal Commencement Date, unless
either party shall have elected to fix the expiration date of
the Officers term of employment.
(c) Termination of Automatic Renewal.
(1) Each of the parties shall have the right to terminate
the automatic renewal by written notice 60 days prior to
the Renewal Commencement Date and thereby fix the expiration of
the term of the Agreement under this Section;
(2) If either party provides a notice of termination of
automatic renewal to the other, the term of the Agreement of the
Officer under this Section shall continue until the later of:
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(a) the Termination Date of the Initial Term as described
in Section 2(a) herein; or |
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(b) the anniversary as determined by the Renewal
Commencement Date as described in Section 2(b) herein. |
(3) Said term shall not continue after December 31,
2010 whether or not such notice shall have been given in the
year 2010 as aforesaid.
(d) Examples of Operation of this Section.
The following are offered merely by way of illustration, and
strictly for purposes of providing examples of the operation of
Section 2(a) (Initial Term) and (b) (Renewal Extension
Term) of this Agreement:
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Example of Initial Term: In the event the
Commencement Date is December 15, 2005, the Initial Term is
December 15, 2005, to December 14, 2007; |
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Example of Renewal Extension Term: The Renewal
Extension Term of this Agreement will automatically renew for an
additional one (1) year term on December 15, 2006, and
on each
December 15th thereafter
for an additional one (1) year term; therefore, on
December 15, 2006, the Renewal Extension Term runs from
December 15, 2006 to December 14, 2008; and |
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Example of Non-Renewal: In the event written
notice of non-renewal is provided to the Officer prior to
October 15, 2006 (or any
October 15th thereafter),
the term of this Agreement will end on December 14, 2007
(or any
December 14th thereafter). |
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Section 3 Compensation.
In consideration for services rendered to the Company under this
Agreement, the Company shall pay and provide to the Officer the
following compensation and benefits:
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(a) Salary. The Company shall pay the Officer an
annual minimum base salary of $196,000 to be paid in accordance
with the Companys normal payroll practice to be adjusted
from time to time to reflect such merit increases as the Company
may determine are appropriate (Base Salary). |
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(b) Participation in Performance and Incentive
Compensation and Bonus Plans. At the discretion of the
Compensation Committee of FNB, the Officer shall be entitled to
participate in incentive compensation and such other bonus plans
comparable to those given to similarly-positioned officers of
the Company or its present or future subsidiaries or affiliates
only during the term of Officers employment with the
Company. |
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(c) Fringe Benefits. The Officer shall be entitled
to vacations, retirement benefits and other fringe benefits,
including but not limited to group life, disability and health
insurance coverages comparable with those furnished to similarly
positioned officers of the Company and consistent with the
prevailing compensation policies and practices of the Company
(now and in the future) as they may change from time to time,
with respect to similarly-positioned officers of the Company or
its present or future subsidiaries or affiliates. |
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(d) Automobile Allowance. The Company shall provide
the Officer with the use of a corporate owned or leased
automobile of a model and year reasonably commensurate with his
position. Expenses for insurance, maintenance and operation
shall be borne by the Company. |
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(e) Group Life Insurance. The Officer shall be
entitled to participate in the Companys group life
insurance policy. The terms and other provisions relating to
such insurance shall comply with the provisions of
Section 409A of the Code. |
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(f) Disability Insurance. In addition to standard
group benefit provisions, the Company shall make available a
disability insurance policy for purchase by the Officer,
provided the Officer qualifies as a medically acceptable risk to
the issuing company on a standard underwriting basis, which
shall provide that in the event the Officer is unable to perform
his duties hereunder as a result of incapacity due to physical
or mental illness, he shall be entitled to receive at least
those benefits from all sources (Social Security, group
long-term disability and supplemental long-term disability)
equal to 75% of his current Base Salary until he reaches the age
of 65 or dies, whichever occurs first. The Company shall
continue to pay the Officer his current Base Salary during any
applicable elimination (waiting) period, but
not to exceed 90 days, under the disability insurance plan
purchased by the Officer. The terms and other provisions
relating to such insurance shall comply with Section 409A
of the Code. |
Section 4 Resignation.
If the Officer voluntarily resigns as an officer or employee of
the Company or its significant present or future subsidiaries or
affiliates, the Officer shall no longer be considered an
employee for any purpose and the Officer shall not be entitled
to any separation pay, compensation, or benefits after the
effective date of the Officers resignation.
Notwithstanding the foregoing, nothing contained herein shall
affect the Officers vested rights, if any.
Section 5 Death.
If the Officer dies during Officers employment with
Company, the Officers heirs and estate are not entitled to
any Separation Pay under the terms of this Agreement.
Section 6 Disability.
(a) The term of employment of the Officer under this
Agreement may be terminated at the election of the Company upon
a determination by the Board of Directors of the Company, in its
sole discretion, that the Officer will be unable by reason of
physical or mental incapacity to perform the reasonably-expected
duties
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assigned to him pursuant to this Agreement for a period longer
than six consecutive months or more than nine months in any
consecutive twelve-month period;
(b) The Board of Directors shall give due consideration to
such factors as it deems appropriate to the best interests of
the Company, including, but not limited to, the opinion of the
Officers personal physician or physicians and the opinion
of any physician or physicians selected by the Board of
Directors for these purposes;
(c) The Officer shall submit to examination by any
physician(s) so selected by the Board of Directors, and shall
otherwise cooperate with the Board of Directors in making its
determination contemplated hereunder (such cooperation to
include, without limitation, consenting to the release of
information by any such physician(s) to the Company);
(d) In the event of such termination, the Company shall
thereupon be relieved of its obligations to pay compensation and
benefits under Section 3 hereof (except for accrued and
unpaid items) but shall be obligated to pay or provide to the
Officer all rights and benefits available under the
Companys officer disability policy.
Section 7 Termination
for Proper Cause.
(a) The occurrence of any of the following events or
circumstances shall constitute Proper Cause for
termination, at the election of the Board of Directors of the
Company, of the employment of the Officer under this Agreement:
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(1) the perpetration of defalcations by the Officer
involving the Company or any of its present or future
subsidiaries or affiliates, or willful, reckless or grossly
negligent conduct of the Officer entailing a substantial
violation of any material provision of the laws, rules,
regulations or orders of any governmental agency applicable to
the Company or its subsidiaries and affiliates; |
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(2) the repeated and deliberate failure by the Officer,
after advance written notice, to comply with reasonable policies
or directives of the Board of Directors, President, any
executive officer or the Officers immediate
supervisor; or |
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(3) the Officer shall breach this Agreement in any other
material respect. |
(b) If Company terminates the Officer for Proper Cause, the
Officer shall not be an employee nor shall the Officer be
entitled to any separation pay, compensation, or benefits after
the effective date of the Officers termination.
Notwithstanding the foregoing, nothing contained herein shall
affect the Officers vested rights, if any.
Section 8 Termination
Without Cause.
(a) Separation Pay. Company may terminate this
Agreement at any time whether or not such termination
constitutes Proper Cause as defined in
Section 7 hereof. In the event Company terminates this
Agreement without Proper Cause as defined in Section 7
hereof:
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(1) The Officer shall not be considered an employee after
the effective date of the termination. |
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(2) Company shall pay to Officer an amount equal to two
(2) times Officers Base Salary at the time of
termination (Separation Pay). |
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(3) Company shall pay the Officer the Separation Pay over a
period of twenty-four (24) months in equal installments
less all withholdings required by law and authorized deductions,
at intervals consistent with Company payroll practices. |
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(4) Officer will not be entitled to receive any benefits or
bonuses described in Section 3(b) through (f) hereof. |
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(5) Officer will be entitled to receive such Separation Pay
only if the Officer executes and does not revoke a Release of
all claims and liabilities in form prescribed by Company. |
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(6) Following termination without cause, Officer is
entitled to elect insurance coverage under the Consolidated
Omnibus Budget Reconciliation Act (COBRA) for a period of
up to eighteen (18) months following officers termination,
and Company shall be obligated to pay on behalf of Officer the
monthly premium cost for Officers health/medical coverage
under COBRA, less the same contribution as required by
employees group life and health insurance coverages
pursuant to the prevailing policies and practices of the Company
(now and in the future) with respect to similarly positioned
officers of the Company or its present or future subsidiaries or
affiliates. |
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(7) Nothing herein shall restrict the Officers vested
rights, if any, pursuant to Companys 401(k) Plan,
Retirement Income Plan, Basic Retirement Plan, 2001 Incentive
Plan, or any similar plans. Notwithstanding the Officer
receiving any payments under the terms of this Section, on the
date of the Officers termination, all vesting, for
purposes of the Companys 401(k) Plan, Retirement Income
Plan, Basic Retirement Plan, 2001 Incentive Plan, or other such
plans, shall cease. |
(b) Suspension of Separation Pay. Without limitation
of the Companys rights and remedies under this Agreement
or as otherwise provided by law or in equity, it is understood
and agreed between the parties that the right of the Officer to
receive and retain any payments otherwise due under this
Agreement shall be suspended and canceled if and for so long as
Officer shall be in violation of this Agreement. If and when the
Officer shall have cured such violation within twenty
(20) days of receipt of written notice from Company and
shall have tendered to the Company any and all economic benefits
directly or indirectly received or receivable by the Officer
arising therefrom, the Officers right to receive payments
under this Agreement shall be automatically reinstated but only
for the remainder of the period during which such payments are
due him or her.
(c) Termination of Separation Pay. Notwithstanding
the foregoing or any other provision of this Agreement, the
Officer shall not be entitled to any further separation payments
and the separation pay period shall end upon the occurrence of
any of the following:
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(1) Officer files a claim, suit or submits any matter to
arbitration in violation of the Release executed in connection
with Section 8(a)(5) hereof. |
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(2) Officer violates any term or condition of this
Agreement, including, but not limited to, the Non-Competition,
Non-Solicitation and Confidentiality provisions of this
Agreement. |
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(3) Officers misappropriates any trade secrets. |
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(4) Company learns that the Officer committed a material
breach of the Agreement during the terms of this Agreement. |
(d) Reduction of Separation Pay. Officers
separation pay and COBRA reimbursement shall be reduced by an
amount equal to the amount Officer is receiving from any other
employment, including self-employment after the initial twelve
(12) months of Separation Pay, which will not be adjusted.
Section 9 Change
of Control.
A Change of Control (Change of Control) shall be
defined as any merger or consolidation of FNB with another
corporation, and as a result of such merger or consolidation,
the shareholders of FNB as of the day preceding such transaction
will own less than fifty-one percent (51%) of the outstanding
voting securities of the surviving corporation, or in the event
that there is (in a single transaction or series of related
transactions) a sale or exchange of eighty percent (80%) or more
of the Common Stock of FNB for securities of another entity in
which shareholders of FNB will own less than fifty-one percent
(51%) of such entitys outstanding voting securities, or in
the event of the sale by FNB of a substantial portion of its
assets (including the capital stock FNB owns in its
subsidiaries) to an unrelated third party. This Section 9
shall also be applied by substituting the Company for FNB,
wherever the word FNB appears.
Section 10 Termination
after Change of Control.
(a) In the event of a Change of Control, the Officer shall
have the right, at his option, to terminate his employment under
this Agreement upon 30 days advance written notice,
provided such written notice shall
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have been delivered to the Company during the period beginning
upon public announcement of the subject transaction and ending
not more than 90 days after the effective date of such
transaction. The Officer shall file with the Company a duly
executed statement satisfactory to Company, releasing the
Company and, if applicable, its insurance carriers, from any and
all obligations under the terms of this Agreement and thereupon
be entitled to receive from the Company a cash bonus (the
Cash Bonus) equal to two times his current Base
Salary. The Cash Bonus shall be paid in three installments as
follows: an amount equal to one-third
(1/3)
of the Cash Bonus shall be paid on the effective date of the
termination of his employment hereunder; an additional amount
equal to one-third of the Cash Bonus shall be paid on the last
day of the sixth month following such effective date; and a
final amount equal to one-third of the Cash Bonus shall be paid
on the last day of the twelfth month following such effective
date. If the Officer does not elect to terminate this Agreement
as aforesaid, then this Agreement shall remain in effect and be
assigned and transferred to the Companys or FNBs
successor in interest, as the case may be, and the Company or
FNB, as the case may be, shall cause such assignee to assume the
Companys obligations hereunder; and in such event the
Officer hereby confirms his agreement to continue to perform his
duties and obligations according to the terms and conditions
hereof for such assignee or transferee of this Agreement.
(b) Notwithstanding the other provisions of this
Section 10, Officer shall remain subject to all other
covenants and restrictions of this Agreement, including, but not
limited to Sections 11, 12 and 13.
Section 11 Confidential
Information; Non-Competition.
(a) The Officer understands that in the course of his
employment by the Company, the Officer will receive confidential
information concerning the business of the Company, and which
the Company desires to protect. The Officer agrees that he will
not at any time during or after the period of his employment by
the Company reveal to anyone outside the Company, or use for his
own benefit, any such information that has been designated as
confidential by the Company or understood by the Officer to be
confidential, without specific written authorization by the
Company. Upon termination of this Agreement at the request of
the Company, the Officer shall promptly deliver to the Company
any and all written materials, records and documents, including
all copies thereof, made by the Officer or coming into his
possession during the term of this Agreement and retained by the
Officer containing or concerning confidential information of the
Company and all other written materials furnished to and
retained by the Officer by the Company for his use during the
term of this Agreement, including all copies thereof, whether of
a confidential nature or otherwise.
(b) During the Officers employment with the Company
and for a period of one year after the termination of his
employment, unless such termination is made by the Company
without Proper Cause, the Officer shall not be engaged as an
officer, director, consultant, independent contractor or
employee of, or in any way be associated in any organization,
management or ownership capacity with, any corporation or other
entity that has or will have its corporate headquarters or a
banking office within
50-mile radius of any
banking office of the Company and which conducts a business in
competition with the business of the Company during the term of
this Agreement, provided, however, that nothing in this
Section 11 shall prohibit Officer from owning stock or
other securities less than 1% of the outstanding securities, or
equivalent equity interests, of such competitor.
(c) The provisions of this Section 11 shall survive
the termination of this Agreement and shall also apply with
respect to FNB.
(d) The covenants of Officer set forth in this
Section 11 are separate and independent covenants for which
valuable consideration has been paid, the receipt, adequacy and
sufficiency of which are acknowledged by Officer, and have also
been made by Officer to induce Company to enter into this
Agreement. Each of the aforesaid covenants may be availed of or
relied upon by Company in any court of competent jurisdiction,
and shall form the basis of injunctive relief and damages
including expenses of litigation (including but not limited to
reasonable attorneys fees) suffered by Company arising out
of any breach of the aforesaid covenants by Officer. The
covenants of Officer set forth in this Section 11 are
cumulative to each other and to all other covenants of Officer
in favor of Company contained in this Agreement and shall
survive the termination of this Agreement for the purposes
intended. Should any covenant, term, or condition contained in
this Section 11 become or be declared invalid or
unenforceable by a court of competent jurisdiction, then the
parties may
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request that such court judicially modify such unenforceable
provision consistent with the intent of this Section 11 so
that it shall be enforceable as modified, and in any event the
invalidity of any provision of this Section 11 shall not
affect the validity of any other provision in this
Section 11 or elsewhere in this Agreement.
Section 12 Non-Solicitation.
During the two (2) year period immediately following
termination of the Officers employment (which may include,
without limitation, the Officers resignation or any event
specified in Sections 7 and 8 hereof) (hereinafter referred
to as Restricted Period), the Officer shall not:
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(a) in any way, directly or indirectly, for the purpose of
selling any product or service that competes with a product or
service offered by the Company or its present or future
subsidiaries or affiliates, solicit, divert, or entice: |
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(1) any customer or existing business of Company, with whom
the Officer solicited, became aware of, or transacted business
during the Officers employment with Company; |
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(2) any potential customer or business identified by
Company, with whom the Officer solicited, became aware of, or
transacted business during the Officers employment with
Company; |
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(b) employ or assist in employing any present employee of
the Company or any of its affiliates (whether or not such
employment is full time or is pursuant to a written contract),
for the purpose of having such employee perform services for any
Competitive Enterprise or other organization in competition with
the business of the Company or any of its present or future
subsidiaries or affiliates; |
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(c) in any way, directly or indirectly, make any oral or
written statement, comments, or other communications designed or
intended to impugn, disparage or otherwise malign the
reputation, ethics, competency, morality or qualifications of
the Company or any of its directors or employees or customers. |
Section 13 Removal
of Documents or Objects.
The Officer agrees not to remove from the premises of the
Company or any of its present or future subsidiaries or
affiliates, except as an employee of the Company in pursuit of
the business of the Company or any of its present or future
subsidiaries or affiliates, or except as specifically permitted
in writing by the Company, any document or object containing or
reflecting any Proprietary Information. The Officer recognizes
that all such documents, tangible and intangible property and
objects, whether developed by him or her by someone else, are
the exclusive property of the Company.
Section 14 Remedies.
In addition to any other rights and remedies Company may have if
the Officer violates this Agreement, the Company and the Officer
agree as follows:
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(a) It is understood and agreed by and between the parties
hereto that the services to be rendered by the Officer hereunder
are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which
may not be reasonably or adequately compensated in damages, and
additionally that a breach by the Officer of the covenants set
out in Sections 11, 12 and 13 of this Agreement will cause
the Company great and irreparable injury and damage. The Officer
hereby expressly agrees that the Company shall be entitled to
the remedies of injunction, specific performance and other
equitable relief to prevent a breach of Sections 11, 12 and
13 of this Agreement by the Officer. This provision shall not,
however, be construed as a waiver of any of the remedies which
the Company may have for damages or otherwise. |
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(b) In the event the Officer shall be in violation of any
of the aforementioned restrictive covenants, the time limitation
thereof with respect to them shall be extended for a period of
time equal to the period of time during which breach or breaches
should occur; and in the event the Company should be required to
seek relief from such breach in any court, board of arbitration
or other tribunal, the covenants shall be extended for a period
of time equal to the pendency of such proceedings, including
appeals. |
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Section 15 Subsidiaries
and Affiliates.
It is understood and agreed by the parties hereto that, at the
election and direction of the Companys Board of Directors
and without modification of the terms and provisions hereof, the
Officer may be required to serve as an officer of any one or
more present or future subsidiaries or affiliates of the Company
and, when and as so determined by the Board and any such
subsidiary or affiliate, the rights, duties and obligations of
the Officer and Company expressed and implied in this Agreement
shall inure to the benefit of and bind any such subsidiary or
affiliate with the same force and effect as would be obtained if
the subsidiary or affiliate were a party hereto jointly and
severally with the Company.
Section 16 Successors,
Assigns, Etc.
(a) This Agreement shall be binding upon, and shall inure
to the benefit of, the Officer and the Company and their
respective permitted successors, assigns, heirs, legal
representatives and beneficiaries.
(b) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation or to execution, attachment, levy, or
similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action
shall be null, void and of no effect; provided, however, that
nothing in this Section shall preclude the assumption of such
rights by executors, administrators or other legal
representatives of the Officer or the Officers estate and
their assigning any rights hereunder to the person or persons
entitled thereto.
(c) Nothing in this Agreement shall preclude the Company
from consolidating or merging into or with or transferring all
or substantially all of its assets to another corporation which
assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger or
transfer of assets and assumption the term Company
as used herein shall mean such other corporation and this
Agreement shall continue in full force and effect.
Section 17 Notices.
(a) All notices and other communications which are required
or may be given under this Agreement shall be in writing and
shall be deemed to have been given on the date delivered
personally or if sent by registered or certified mail, return
receipt requested, postage prepaid, on the date deposited in the
mail.
(b) All notices shall be provided to the following address
or to such other place as either party shall have specified by
notice in writing to the other:
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(1) To the Company, at the address designated as its
headquarters, Attention: CEO. With a copy to F.N.B. Corporation,
One F.N.B. Boulevard, 1st Floor, Hermitage, Pennsylvania
16148, Attention: Corporate Counsel. |
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(2) To the Officer, at his/her address provided to Company
from time to time for salary and other similar purposes. |
Section 18 Governmental
Regulation.
Nothing contained in this Agreement shall be interpreted,
construed or applied to require the commission of any act
contrary to law and whenever there is any conflict between any
provision of this Agreement and any statute, law ordinance,
order or regulation, the latter shall prevail; but in such event
any such provision of this Agreement shall be curtailed and
limited only to the extent necessary to bring it within
applicable legal requirements.
Section 19 Arbitration.
Any dispute or controversy as to the validity, interpretation,
construction, application or enforcement of, or otherwise
arising under or in connection with this Agreement, shall be
submitted at the request of either party hereto for resolution
and settlement through arbitration in Pennsylvania in accordance
with the rules then prevailing of the American Arbitration
Association. Any award rendered therein shall be final and
binding on each of the parties hereto and their heirs,
executors, administrators, successors and assigns, and
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judgment may be entered thereon in any court having
jurisdiction. The foregoing provisions of this paragraph shall
not be deemed to limit the rights and remedies reserved to the
Company under and pursuant to Section 15 hereof which
rights and remedies may be pursued through arbitration.
Section 20 Indemnification.
The Officer shall be entitled to indemnification by the Company
in accordance with the provisions of the By-laws of the Company.
Section 21 Governing
Law.
This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without
regard to its conflicts of laws principles.
Section 22 Modification
to Satisfy Section 409A.
The parties intend that this Agreement not be subject to the
provisions of Code Section 409A. In the event that, as a
result of provision of this Agreement, or any payments to or for
the benefit of the Officer under this Agreement, the Officer
would be subject to the additional tax under Code
Section 409A(a)(1)(B) and any successor or comparable
provision, then the Company and the Officer agree to make such
modifications to this Agreement as are necessary to assure that
(i) the provisions of Code Section 409A shall not
apply to this Agreement, or (ii) the Officer will not be
subject to the additional tax under Code
Section 409A(a)(1)(B) and any successor or comparable
provision.
Section 23 Divisibility.
Should a court or arbitrator declare any provision hereof to be
invalid, such declaration shall not affect the validity of the
Agreement as a whole or any part thereof, other than the
specific portion declared to be invalid.
Section 24 Headings.
The headings to the Sections and paragraphs hereof are placed
herein for convenience of reference only and in case of any
conflict the text of this Agreement, rather than the headings,
shall control.
Section 25 Entire
Agreement; Amendment.
This Agreement sets forth the entire understanding of the
parties in respect of the subject matter contained herein and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter and may only be amended by a
written agreement signed by both parties hereto or their
duly-authorized representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement to be effective as of the date first above written.
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WITNESS:
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George Groves |
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ATTEST:
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FIRST NATIONAL BANK OF PENNSYLVANIA |
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By: |
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Secretary
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Stephen J.
Gurgovits Chairman |
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, entered into as of this
21st day of December, 2005, by and between:
THOMAS W. LENNOX
(the Officer),
and
FIRST NATIONAL BANK OF PENNSYLVANIA
(the Company),
WITNESSETH THAT:
WHEREAS, the Legacy Bank (Bank) contemplates
a consummation of an Agreement and Plan of Merger among F.N.B.
Corporation (FNB), First National Bank of
Pennsylvania (the Company) and Bank (Merger
Agreement) whereby Bank will be merged with the Company
(Merger); and
WHEREAS, the Officer is presently employed by Bank and
Bank desires to assure itself of the continued benefit of the
Officers services and experience following consummation of
the proposed Merger, and the parties desire that said employment
relationship continue upon the terms and conditions herein set
forth; and
WHEREAS, the Officer has heretofore been employed by the
Bank under an employment agreement dated February 17, 2005,
as amended (the Prior Agreement); and
WHEREAS, by reason of the provisions of the Merger
Agreement and the position and duties that the Officer will hold
and have after the effective date of the Merger (the
Effective Date), the parties hereto acknowledge that
a change in control (as defined in the Prior
Agreement) will occur upon the Effective Date and the Officer
will be entitled to forthwith terminate his employment under the
Prior Agreement and receive the payments and benefits described
in Section 1(d)(i) of the Prior Agreement; and
WHEREAS, Section 1(d)(i) of the Prior Agreement also
provides that in the event the Officer is so entitled to
terminate his employment and receive such payments and benefits,
but the acquiring company and/or affiliate thereof desires to
retain the Officer as an employee of either or both of such
companies, then he need not terminate his employment as a
prerequisite to entitlement to his termination payments and
benefits, as specified therein; provided the relevant
transaction is described in Section 409A(a)(2)(A)(v) of the
Internal Revenue Code of 1986, as amended (the
Code); and
WHEREAS, the parties hereto agree that the proposed
Merger constitutes a transaction described in Code
Section 409A(a)(2)(A)(v); and
WHEREAS, the Company desires to retain the services of
the Officer following the Effective Date, and the Officer
desires to be so employed by the Company, under the terms set
forth in this Agreement in lieu of the terms of the Prior
Agreement, but subject to the completion of the contemplated
Merger and compliance by the Company with the recitals
hereof; and
WHEREAS, this Agreement shall not become effective until
the Effective Date and shall be null and void if the Merger
Agreement is terminated by any party thereto prior to the
Effective Date.
NOW, THEREFORE, in consideration of the premises and
covenants herein contained, contingent, however, upon the
conditions subsequent of the consummation of the Merger and
intending to be legally bound, the parties hereto agree as
follows:
Section 1 Recitals;
Termination of Prior Agreement; Payments.
(a) The foregoing recitals are incorporated by reference as
if fully set forth herein.
(b) As of the Effective Date, the Prior Agreement shall be
terminated and the terms set forth in this Agreement shall
become effective.
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(c) The Company shall (i) pay the Officers
accrued but unpaid base salary under the Prior Agreement as of
the Effective Date and (ii) pay, in one lump sum within
30 days after the Effective Date, the three times highest
base salary and bonus described in Section 1(d)(i) of the
Prior Agreement and any related
gross-up amount for
this or any other payment or benefit.
Section 2 Term
of Agreement.
(a) Title; Initial Term. The Company hereby
employs the Officer as President of its Harrisburg, Pennsylvania
region. The term of employment of the Officer under this
Agreement shall be, initially, a two (2) year term
commencing on the date of consummation of the Merger (the
Commencement Date) and ending on the second
anniversary of the Commencement Date (the Termination
Date). Said term shall be subject to automatic extension
by operation of the provisions of Section 2(b) hereof.
(b) Renewal Extension Term. On the first
anniversary of the Commencement Date and on each succeeding
anniversary date thereafter (Renewal Commencement
Date), the term of employment of the Officer under this
Agreement shall be automatically extended for one
(1) additional year, thereby extending the contract to the
second anniversary of the Renewal Commencement Date, unless
either party shall have elected to fix the expiration date of
the Officers term of employment.
(c) Termination of Automatic Renewal.
(1) Each of the parties shall have the right to terminate
the automatic renewal by written notice 60 days prior to
the Renewal Commencement Date and thereby fix the expiration of
the term of the Agreement under this Section;
(2) If either party provides a notice of termination of
automatic renewal to the other, the term of the Agreement of the
Officer under this Section shall continue until the later of:
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(a) the Termination Date of the Initial Term as described
in Section 2(a) herein; or |
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(b) the anniversary as determined by the Renewal
Commencement Date as described in Section 2(b) herein. |
(4) Said term shall not continue after December 31 in
the year in which the Officer reaches 62 years of age.
(d) Examples of Operation of this Section.
The following are offered merely by way of illustration, and
strictly for purposes of providing examples of the operation of
Section 2(a) (Initial Term) and (b) (Renewal Extension
Term) of this Agreement:
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Example of Initial Term: In the event the
Commencement Date is December 15, 2005, the Initial Term is
December 15, 2005, to December 14, 2007; |
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Example of Renewal Extension Term: The Renewal
Extension Term of this Agreement will automatically renew for an
additional one (1) year term on December 15, 2006, and
on each
December 15th thereafter
for an additional one (1) year term; therefore, on
December 15, 2006, the Renewal Extension Term runs from
December 15, 2006 to December 14, 2008; and |
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Example of Non-Renewal: In the event written
notice of non-renewal is provided to the employee prior to
October 15, 2006 (or any
October 15th thereafter),
the term of this Agreement will end on December 14, 2007
(or any
December 14th thereafter). |
Section 3 Compensation.
In consideration for services rendered to the Company under this
Agreement, the Company shall pay and provide to the Officer the
following compensation and benefits:
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(a) Salary. The Company shall pay Officer an annual
minimum base salary of $165,000 to be paid in accordance with
the Companys normal payroll practice to be adjusted from
time to time to reflect such merit increases as the Company may
determine are appropriate. |
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(b) Participation in Performance and Incentive
Compensation and Bonus Plans. At the discretion of the
Compensation Committee of F.N.B. Corporation, the Officer shall
be entitled to participate in incentive compensation and such
other bonus plans comparable to those given to
similarly-positioned officers of the Company or its present or
future subsidiaries or affiliates only during the term of
Officers employment with the Company. |
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(c) Fringe Benefits. The Officer shall be entitled
to vacations, retirement benefits and other fringe benefits,
including but not limited to group life, disability and health
insurance coverages comparable with those furnished to similarly
positioned officers of the Company and consistent with the
prevailing compensation policies and practices of the Company
(now and in the future) as they may change from time to time,
with respect to similarly-positioned officers of the Company or
its present or future subsidiaries or affiliates. |
Section 4 Resignation.
If the Officer voluntarily resigns as an officer or employee of
the Company or its significant present or future subsidiaries or
affiliates, the Officer shall no longer be considered an
employee for any purpose and the Officer shall not be entitled
to any separation pay, compensation, or benefits after the
effective date of the Officers resignation.
Notwithstanding the foregoing, nothing contained herein shall
affect the Officers vested rights, if any.
Section 5 Death.
If the Officer dies during Officers employment with
Company, the Officers heirs and estate are not entitled to
any Separation Pay under the terms of this Agreement.
Section 6 Disability.
(a) The term of employment of the Officer under this
Agreement may be terminated at the election of the Company upon
a determination by the Board of Directors of the Company, in its
sole discretion, that the Officer will be unable by reason of
physical or mental incapacity to perform the reasonably-expected
duties assigned to him pursuant to this Agreement for a period
longer than six consecutive months or more than nine months in
any consecutive twelve-month period;
(b) The Board of Directors shall give due consideration to
such factors as it deems appropriate to the best interests of
the Company, including, but not limited to, the opinion of the
Officers personal physician or physicians and the opinion
of any physician or physicians selected by the Board of
Directors for these purposes;
(c) The Officer shall submit to examination by any
physician(s) so selected by the Board of Directors, and shall
otherwise cooperate with the Board of Directors in making its
determination contemplated hereunder (such cooperation to
include, without limitation, consenting to the release of
information by any such physician(s) to the Company);
(d) In the event of such termination, the Company shall
thereupon be relieved of its obligations to pay compensation and
benefits under Section 3 hereof (except for accrued and
unpaid items) but shall be obligated to pay or provide to the
Officer all rights and benefits available under the
Companys officer disability policy.
Section 7 Termination
for Proper Cause.
(a) The occurrence of any of the following events or
circumstances shall constitute Proper Cause for
termination, at the election of the Board of Directors of the
Company, of the employment of the Officer under this Agreement:
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(1) the perpetration of defalcations by the Officer
involving the Company or any of its present or future
subsidiaries or affiliates, or willful, reckless or grossly
negligent conduct of the Officer entailing a substantial
violation of any material provision of the laws, rules,
regulations or orders of any governmental agency applicable to
the Company or its subsidiaries and affiliates; |
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(2) the repeated and deliberate failure by the Officer,
after advance written notice, to comply with reasonable policies
or directives of the Board of Directors, President, any
executive officer or the Officers immediate
supervisor; or |
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(3) the Officer shall breach this Agreement in any other
material respect. |
(b) If Company terminates the Officer for Proper Cause, the
Officer shall not be an employee nor shall the Officer be
entitled to any separation pay, compensation, or benefits after
the effective date of the Officers termination.
Notwithstanding the foregoing, nothing contained herein shall
affect the Officers vested rights, if any.
Section 8 Termination
Without Cause.
(a) Separation Pay. Company may terminate this
Agreement at any time whether or not such termination
constitutes Proper Cause as defined in
Section 7 hereof. In the event Company terminates this
Agreement without Proper Cause as defined in Section 7
hereof:
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(1) The Officer shall not be considered an employee after
the effective date of the termination. |
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(2) Company shall pay to Officer an amount equal to two
(2) times Officers annual salary at the time of
termination (Separation Pay). |
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(3) Company shall pay the Officer the Separation Pay over a
period of twenty-four (24) months in equal installments
less all withholdings required by law and authorized deductions,
at intervals consistent with Company payroll practices. |
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(4) Officer will not be entitled to receive any benefits or
bonuses described in Section 3(b) and (c) hereof. |
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(5) Officer will be entitled to receive such Separation Pay
only if the Officer executes and does not revoke a Release of
all claims and liabilities in form prescribed by Company. |
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(6) Following termination without cause, Officer is
entitled to elect insurance coverage under the Consolidated
Omnibus Budget Reconciliation Act (COBRA) for a period of
up to eighteen (18) months following officers termination,
and Company shall be obligated to pay on behalf of Officer the
monthly premium cost for Officers health/medical coverage
under COBRA, less the same contribution as required by
employees group life and health insurance coverages
pursuant to the prevailing policies and practices of the Company
(now and in the future) with respect to similarly positioned
officers of the Company or its present or future subsidiaries or
affiliates. |
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(7) Nothing herein shall restrict the Officers vested
rights, if any, pursuant to Companys 401(k) Plan,
Retirement Income Plan, Basic Retirement Plan, 2001 Incentive
Plan, or any similar plans. Notwithstanding the Officer
receiving any payments under the terms of this Section, on the
date of the Officers termination, all vesting, for
purposes of the Companys 401(k) Plan, Retirement Income
Plan, Basic Retirement Plan, 2001 Incentive Plan, or other such
plans, shall cease. |
(b) Suspension of Separation Pay. Without limitation
of the Companys rights and remedies under this Agreement
or as otherwise provided by law or in equity, it is understood
and agreed between the parties that the right of the Officer to
receive and retain any payments otherwise due under this
Agreement shall be suspended and canceled if and for so long as
Officer shall be in violation of this Agreement.
If and when the Officer shall have cured such violation within
twenty (20) days of receipt of written notice from Company
and shall have tendered to the Company any and all economic
benefits directly or indirectly received or receivable by the
Officer arising therefrom, the Officers right to receive
payments under this Agreement shall be automatically reinstated
but only for the remainder of the period during which such
payments are due him or her.
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(c) Termination of Separation Pay. Notwithstanding
the foregoing or any other provision of this Agreement, the
Officer shall not be entitled to any further separation payments
and the separation pay period shall end upon the occurrence of
any of the following:
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(1) Officer files a claim, suit or submits any matter to
arbitration in violation of the Release executed in connection
with Section 8(a)(5) hereof. |
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(2) Officer violates any term or condition of this
Agreement, including, but not limited to, the Non-Competition,
Non-Solicitation and Confidentiality provisions of this
Agreement. |
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(3) Officers misappropriates any trade secrets. |
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(4) Company learns that the Officer committed a material
breach of the Agreement during the terms of this Agreement. |
(d) Reduction of Separation Pay. Officers
separation pay and COBRA reimbursement shall be reduced by an
amount equal to the amount Officer is receiving from any other
employment, including self-employment after the initial twelve
(12) months of Separation Pay, which will not be adjusted.
Section 9 Change
of Control.
A Change of Control (Change of Control) shall be
defined as any merger or consolidation of
F.N.B. Corporation with another corporation, and as a
result of such merger or consolidation, the shareholders of
F.N.B. Corporation as of the day preceding such transaction will
own less than fifty-one percent (51%) of the outstanding voting
securities of the surviving corporation, or in the event that
there is (in a single transaction or series of related
transactions) a sale or exchange of eighty percent (80%) or more
of the Common Stock of F.N.B. Corporation for securities of
another entity in which shareholders of F.N.B. Corporation
will own less than fifty-one percent (51%) of such entitys
outstanding voting securities, or in the event of the sale by
F.N.B. Corporation of a substantial portion of its assets
(including the capital stock F.N.B. Corporation owns in its
subsidiaries) to an unrelated third party.
Section 10 Termination
after Change of Control.
If Company terminates Employee without Proper Cause within
twelve months of an event constituting a Change of Control, and
if the Officer shall duly have complied with and observed the
covenants of this Agreement, the Officer will be discharged from
the covenants of Section 11 at any time during the
Restricted Period by filing with the Company a duly executed
statement satisfactory to Company, releasing the Company and, if
applicable, its insurance carriers, from any and all obligations
under the terms of this Agreement. Notwithstanding said Release,
Officer shall remain subject to all other covenants and
restrictions of this Agreement, including, but not limited to
Sections 12 and 13.
Section 11 Non-Competition.
(a) For purposes of this Agreement, reference to the term
Competitive Enterprise shall mean any bank holding
company, finance company or insured depository institution
(including an institution in the organization stage or in the
process of applying for or receiving appropriate regulatory
approval), including, without limitation, any federal or state
chartered bank, savings bank, savings and loan association,
credit union or other financial services provider or non-banking
affiliate thereof offering similar services or products as those
offered by the Company to its customers.
(b) During the term of this Agreement and during the two
(2) year period immediately following termination of
Officers employment (which may include, without
limitation, Officers resignation or any event specified in
Sections 7 and 8 hereof) (hereinafter referred to as
Restricted Period), the Officer shall not:
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(1) accept a position as director, employee, consultant,
advisor or agent of any Competitive Enterprise which is located
in any county in the Companys region to which Officer is
assigned at the time of Officers termination of employment
and any contiguous county and any county in the Companys
region to which Officer was assigned 24 months prior to
Officers termination of employment. |
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(2) acquire an ownership interest (individually or in
concert with others) in a Competitive Enterprise whereby said
ownership interest enables Officer to, directly or indirectly,
in any manner, control, direct, influence, affect or impact the
operations, services or business activities of the Competitive
Enterprise in any county, or county contiguous thereto, in which
Company or its subsidiaries operate an office at the time of
Officers termination of employment; |
Section 12 Non-Solicitation.
During the Restricted Period the Officer shall not:
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(a) in any way, directly or indirectly, for the purpose of
selling any product or service that competes with a product or
service offered by the Company or its present or future
subsidiaries or affiliates, solicit, divert, or entice: |
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(1) any customer or existing business of Company, with whom
the Officer solicited, became aware of, or transacted business
during Officers employment with Company; |
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(2) any potential customer or business identified by
Company, with whom the Officer solicited, became aware of, or
transacted business during Officers employment with
Company; |
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(b) employ or assist in employing any present employee of
the Company or any of its affiliates (whether or not such
employment is full time or is pursuant to a written contract),
for the purpose of having such employee perform services for any
Competitive Enterprise or other organization in competition with
the business of the Company or any of its present or future
subsidiaries or affiliates; |
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(c) in any way, directly or indirectly, make any oral or
written statement, comments, or other communications designed or
intended to impugn, disparage or otherwise malign the
reputation, ethics, competency, morality or qualifications of
the Company or any of its directors or employees or customers. |
Section 13 Confidentiality.
(a) For purposes of this Agreement, Proprietary
Information shall mean any information relating to the
business of the Company or any of its present or future
subsidiaries or affiliates that has not previously been publicly
released by authorized representatives of the Company or any
authorized representatives of any of its present or future
subsidiaries or affiliates, and shall include (but shall not be
limited to) Company information encompassed in all marketing and
business plans, financial information, costs, pricing
information, customer and client lists and relationships between
Company and dealers, distributors, sales representatives,
wholesalers, customers, clients, suppliers, and others who have
business dealings with Company, and all methods, concepts, or
ideas in or reasonably related to the business of the Company or
any of its present or future subsidiaries or affiliates and not
in the public domain.
(b) The Officer agrees to regard and preserve as
confidential all Proprietary Information that has been or may be
developed or obtained by the Officer in the course of
Officers employment with the Company and its subsidiaries
and affiliates, whether Officer has such information in
Officers memory, writing, electronic media or other
physical form, including information maintained by Officer on
any computer, electronic device, or other personal property
owned by Officer. The Officer shall not, without written
authorization from the Company, use for Officers benefit
or purposes, nor disclose to others at any time, either during
the term of Officers employment or thereafter, except as
required by the conditions of Officers employment
hereunder, any Proprietary Information connected with the
business or development of the Company or its subsidiaries or
affiliates. This prohibition shall not apply after the
Proprietary Information has been voluntarily disclosed to the
public, independently developed and disclosed by others, or
otherwise enters the public domain through lawful means.
Section 14 Removal
of Documents or Objects.
The Officer agrees not to remove from the premises of the
Company or any of its present or future subsidiaries or
affiliates, except as an employee of the Company in pursuit of
the business of the Company or any of its present or future
subsidiaries or affiliates, or except as specifically permitted
in writing by the Company, any document or object containing or
reflecting any Proprietary Information. The Officer
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recognizes that all such documents, tangible and intangible
property and objects, whether developed by him or her by someone
else, are the exclusive property of the Company.
Section 15 Remedies.
In addition to any other rights and remedies Company may have if
Officer violates this Agreement, the Company and Officer agree
as follows:
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(a) It is understood and agreed by and between the parties
hereto that the services to be rendered by the Officer hereunder
are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which
may not be reasonably or adequately compensated in damages, and
additionally that a breach by the Officer of the covenants set
out in Sections 11, 12, 13 and 14 of this Agreement
will cause the Company great and irreparable injury and damage.
The Officer hereby expressly agrees that the Company shall be
entitled to the remedies of injunction, specific performance and
other equitable relief to prevent a breach of
Sections 11, 12, 13 and 14 of this Agreement by the
Officer. This provision shall not, however, be construed as a
waiver of any of the remedies which the Company may have for
damages or otherwise. |
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(b) In the event Officer shall be in violation of any of
the aforementioned restrictive covenants, the time limitation
thereof with respect to them shall be extended for a period of
time equal to the period of time during which breach or breaches
should occur; and in the event the Company should be required to
seek relief from such breach in any court, board of arbitration
or other tribunal, the covenants shall be extended for a period
of time equal to the pendency of such proceedings, including
appeals. |
Section 16 Subsidiaries
and Affiliates.
It is understood and agreed by the parties hereto that, at the
election and direction of the Companys Board of Directors
and without modification of the terms and provisions hereof, the
Officer may be required to serve as an officer of any one or
more present or future subsidiaries or affiliates of the Company
and, when and as so determined by the Board and any such
subsidiary or affiliate, the rights, duties and obligations of
the Officer and Company expressed and implied in this Agreement
shall inure to the benefit of and bind any such subsidiary or
affiliate with the same force and effect as would be obtained if
the subsidiary or affiliate were a party hereto jointly and
severally with the Company.
Section 17 Successors,
Assigns, Etc.
(a) This Agreement shall be binding upon, and shall inure
to the benefit of, the Officer and the Company and their
respective permitted successors, assigns, heirs, legal
representatives and beneficiaries.
(b) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation or to execution, attachment, levy, or
similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action
shall be null, void and of no effect; provided, however, that
nothing in this Section shall preclude the assumption of such
rights by executors, administrators or other legal
representatives of the Officer or Officers estate and
their assigning any rights hereunder to the person or persons
entitled thereto.
(c) Nothing in this Agreement shall preclude the Company
from consolidating or merging into or with or transferring all
or substantially all of its assets to another corporation which
assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger or
transfer of assets and assumption the term Company
as used herein shall mean such other corporation and this
Agreement shall continue in full force and effect.
Section 18 Notices.
(a) All notices and other communications which are required
or may be given under this Agreement shall be in writing and
shall be deemed to have been given on the date delivered
personally or if sent by registered or certified mail, return
receipt requested, postage prepaid, on the date deposited in the
mail.
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(b) All notices shall be provided to the following address
or to such other place as either party shall have specified by
notice in writing to the other:
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(1) To the Company, at the address designated as its
headquarters, Attention: CEO. With a copy to F.N.B. Corporation,
One F.N.B. Boulevard,
1st Floor,
Hermitage, Pennsylvania 16148, Attention: Corporate Counsel. |
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(2) To the Officer, at his/her address provided to Company
from time to time for salary and other similar purposes. |
Section 19 Governmental
Regulation.
Nothing contained in this Agreement shall be interpreted,
construed or applied to require the commission of any act
contrary to law and whenever there is any conflict between any
provision of this Agreement and any statute, law ordinance,
order or regulation, the latter shall prevail; but in such event
any such provision of this Agreement shall be curtailed and
limited only to the extent necessary to bring it within
applicable legal requirements.
Section 20 Arbitration.
Any dispute or controversy as to the validity, interpretation,
construction, application or enforcement of, or otherwise
arising under or in connection with this Agreement, shall be
submitted at the request of either party hereto for resolution
and settlement through arbitration in Pennsylvania in accordance
with the rules then prevailing of the American Arbitration
Association. Any award rendered therein shall be final and
binding on each of the parties hereto and their heirs,
executors, administrators, successors and assigns, and judgment
may be entered thereon in any court having jurisdiction. The
foregoing provisions of this paragraph shall not be deemed to
limit the rights and remedies reserved to the Company under and
pursuant to Section 15 hereof which rights and remedies may
be pursued through arbitration.
Section 21 Governing
Law.
This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without
regard to its conflicts of laws principles.
Section 22 Divisibility.
Should a court or arbitrator declare any provision hereof to be
invalid, such declaration shall not affect the validity of the
Agreement as a whole or any part thereof, other than the
specific portion declared to be invalid.
Section 23 Headings.
The headings to the Sections and paragraphs hereof are placed
herein for convenience of reference only and in case of any
conflict the text of this Agreement, rather than the headings,
shall control.
Section 24 Entire
Agreement; Amendment.
This Agreement sets forth the entire understanding of the
parties in respect of the subject matter contained herein and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter and may only be amended by a
written agreement signed by both parties hereto or their
duly-authorized representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement to be effective as of the date first above written.
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WITNESS:
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Thomas W. Lennox |
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ATTEST:
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FIRST NATIONAL BANK OF PENNSYLVANIA |
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By: |
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Secretary
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Stephen J. Gurgovits
Chairman |
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, entered into as of this
21st day of December, 2005, by and between:
JOSEPH L. PAESE
(the Officer),
and
FIRST NATIONAL BANK OF PENNSYLVANIA
(the Company),
WITNESSETH THAT:
WHEREAS, the Legacy Bank (Bank) contemplates
a consummation of an Agreement and Plan of Merger among F.N.B.
Corporation (FNB), First National Bank of
Pennsylvania (the Company) and Bank (Merger
Agreement) whereby Bank will be merged with the Company
(Merger); and
WHEREAS, the Officer is presently employed by Bank and
Bank desires to assure itself of the continued benefit of the
Officers services and experience following consummation of
the proposed Merger, and the parties desire that said employment
relationship continue upon the terms and conditions herein set
forth; and
WHEREAS, the Officer has heretofore been employed by the
Bank under an employment agreement dated November 8, 1999,
as amended (the Prior Agreement); and
WHEREAS, by reason of the provisions of the Merger
Agreement and the position and duties that the Officer will hold
and have after the effective date of the Merger (the
Effective Date), the parties hereto acknowledge that
a change in control (as defined in the Prior
Agreement) will occur upon the Effective Date and the Officer
will be entitled to forthwith terminate his employment under the
Prior Agreement and receive the payments and benefits described
in Section 1(d)(i) of the Prior Agreement; and
WHEREAS, Section 1(d)(i) of the Prior Agreement also
provides that in the event the Officer is so entitled to
terminate his employment and receive such payments and benefits,
but the acquiring company and/or affiliate thereof desires to
retain the Officer as an employee of either or both of such
companies, then he need not terminate his employment as a
prerequisite to entitlement to his termination payments and
benefits, as specified therein; provided the relevant
transaction is described in Section 409A(a)(2)(A)(v) of the
Internal Revenue Code of 1986, as amended (the
Code); and
WHEREAS, the parties hereto agree that the proposed
Merger constitutes a transaction described in Code
Section 409A(a)(2)(A)(v); and
WHEREAS, the Company desires to retain the services of
the Officer following the Effective Date, and the Officer
desires to be so employed by the Company, under the terms set
forth in this Agreement in lieu of the terms of the Prior
Agreement, but subject to the completion of the contemplated
Merger and compliance by the Company with the recitals
hereof; and
WHEREAS, this Agreement shall not become effective until
the Effective Date and shall be null and void if the Merger
Agreement is terminated by any party thereto prior to the
Effective Date.
NOW, THEREFORE, in consideration of the premises and
covenants herein contained, contingent, however, upon the
conditions subsequent of the consummation of the Merger and
intending to be legally bound, the parties hereto agree as
follows:
Section 1 Recitals;
Termination of Prior Agreement; Payments.
(a) The foregoing recitals are incorporated by reference as
if fully set forth herein.
(b) As of the Effective Date, the Prior Agreement shall be
terminated and the terms set forth in this Agreement shall
become effective.
(c) The Company shall (i) pay the Officers
accrued but unpaid base salary under the Prior Agreement as of
the Effective Date and (ii) pay, in one lump sum within
30 days after the Effective Date, the 1.5 times
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highest base salary and bonus described in Section 1(d)(i)
of the Prior Agreement and any related
gross-up amount for
this or any other payment or benefit.
Section 2 Term
of Agreement.
(a) Title; Initial Term. The Company hereby
employs the Officer as Market Executive of Wealth Management of
its Harrisburg, Pennsylvania region. The term of employment of
the Officer under this Agreement shall be, initially, a two
(2) year term commencing on the date of consummation of the
Merger (the Commencement Date) and ending on the
second anniversary of the Commencement Date (the
Termination Date). Said term shall be subject to
automatic extension by operation of the provisions of
Section 2(b) hereof.
(b) Renewal Extension Term. On the first
anniversary of the Commencement Date and on each succeeding
anniversary date thereafter (Renewal Commencement
Date), the term of employment of the Officer under this
Agreement shall be automatically extended for one
(1) additional year, thereby extending the contract to the
second anniversary of the Renewal Commencement Date, unless
either party shall have elected to fix the expiration date of
the Officers term of employment.
(c) Termination of Automatic Renewal.
(1) Each of the parties shall have the right to terminate
the automatic renewal by written notice 60 days prior to
the Renewal Commencement Date and thereby fix the expiration of
the term of the Agreement under this Section;
(2) If either party provides a notice of termination of
automatic renewal to the other, the term of the Agreement of the
Officer under this Section shall continue until the later of:
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(c) the Termination Date of the Initial Term as described
in Section 2(a) herein; or |
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(d) the anniversary as determined by the Renewal
Commencement Date as described in Section 2(b) herein. |
(5) Said term shall not continue after December 31 in
the year in which the Officer reaches 62 years of age.
(d) Examples of Operation of this Section.
The following are offered merely by way of illustration, and
strictly for purposes of providing examples of the operation of
Section 2(a) (Initial Term) and (b) (Renewal Extension
Term) of this Agreement:
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Example of Initial Term: In the event the
Commencement Date is December 15, 2005, the Initial Term is
December 15, 2005, to December 14, 2007; |
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Example of Renewal Extension Term: The Renewal
Extension Term of this Agreement will automatically renew for an
additional one (1) year term on December 15, 2006, and
on each
December 15th thereafter
for an additional one (1) year term; therefore, on
December 15, 2006, the Renewal Extension Term runs from
December 15, 2006 to December 14, 2008; and |
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Example of Non-Renewal: In the event written
notice of non-renewal is provided to the employee prior to
October 15, 2006 (or any
October 15th thereafter),
the term of this Agreement will end on December 14, 2007
(or any
December 14th thereafter). |
Section 3 Compensation.
In consideration for services rendered to the Company under this
Agreement, the Company shall pay and provide to the Officer the
following compensation and benefits:
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(a) Salary. The Company shall pay Officer an annual
minimum base salary of $140,000 to be paid in accordance with
the Companys normal payroll practice to be adjusted from
time to time to reflect such merit increases as the Company may
determine are appropriate. |
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(b) Participation in Performance and Incentive
Compensation and Bonus Plans. At the discretion of the
Compensation Committee of F.N.B. Corporation, the Officer shall
be entitled to participate in incentive compensation and such
other bonus plans comparable to those given to
similarly-positioned officers of the Company or its present or
future subsidiaries or affiliates only during the term of
Officers employment with the Company. |
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(c) Fringe Benefits. The Officer shall be entitled
to vacations, retirement benefits and other fringe benefits,
including but not limited to group life, disability and health
insurance coverages comparable with those furnished to similarly
positioned officers of the Company and consistent with the
prevailing compensation policies and practices of the Company
(now and in the future) as they may change from time to time,
with respect to similarly-positioned officers of the Company or
its present or future subsidiaries or affiliates. |
Section 4 Resignation.
If the Officer voluntarily resigns as an officer or employee of
the Company or its significant present or future subsidiaries or
affiliates, the Officer shall no longer be considered an
employee for any purpose and the Officer shall not be entitled
to any separation pay, compensation, or benefits after the
effective date of the Officers resignation.
Notwithstanding the foregoing, nothing contained herein shall
affect the Officers vested rights, if any.
Section 5 Death.
If the Officer dies during Officers employment with
Company, the Officers heirs and estate are not entitled to
any Separation Pay under the terms of this Agreement.
Section 6 Disability.
(a) The term of employment of the Officer under this
Agreement may be terminated at the election of the Company upon
a determination by the Board of Directors of the Company, in its
sole discretion, that the Officer will be unable by reason of
physical or mental incapacity to perform the reasonably-expected
duties assigned to him pursuant to this Agreement for a period
longer than six consecutive months or more than nine months in
any consecutive twelve-month period;
(b) The Board of Directors shall give due consideration to
such factors as it deems appropriate to the best interests of
the Company, including, but not limited to, the opinion of the
Officers personal physician or physicians and the opinion
of any physician or physicians selected by the Board of
Directors for these purposes;
(c) The Officer shall submit to examination by any
physician(s) so selected by the Board of Directors, and shall
otherwise cooperate with the Board of Directors in making its
determination contemplated hereunder (such cooperation to
include, without limitation, consenting to the release of
information by any such physician(s) to the Company);
(d) In the event of such termination, the Company shall
thereupon be relieved of its obligations to pay compensation and
benefits under Section 3 hereof (except for accrued and
unpaid items) but shall be obligated to pay or provide to the
Officer all rights and benefits available under the
Companys officer disability policy.
Section 7 Termination
for Proper Cause.
(a) The occurrence of any of the following events or
circumstances shall constitute Proper Cause for
termination, at the election of the Board of Directors of the
Company, of the employment of the Officer under this Agreement:
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(1) the perpetration of defalcations by the Officer
involving the Company or any of its present or future
subsidiaries or affiliates, or willful, reckless or grossly
negligent conduct of the Officer entailing a substantial
violation of any material provision of the laws, rules,
regulations or orders of any governmental agency applicable to
the Company or its subsidiaries and affiliates; |
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(2) the repeated and deliberate failure by the Officer,
after advance written notice, to comply with reasonable policies
or directives of the Board of Directors, President, any
executive officer or the Officers immediate
supervisor; or |
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(3) the Officer shall breach this Agreement in any other
material respect. |
(b) If Company terminates the Officer for Proper Cause, the
Officer shall not be an employee nor shall the Officer be
entitled to any separation pay, compensation, or benefits after
the effective date of the Officers termination.
Notwithstanding the foregoing, nothing contained herein shall
affect the Officers vested rights, if any.
Section 8 Termination
Without Cause.
(a) Separation Pay. Company may terminate this
Agreement at any time whether or not such termination
constitutes Proper Cause as defined in
Section 7 hereof. In the event Company terminates this
Agreement without Proper Cause as defined in Section 7
hereof:
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(1) The Officer shall not be considered an employee after
the effective date of the termination. |
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(2) Company shall pay to Officer an amount equal to two
(2) times Officers annual salary at the time of
termination (Separation Pay). |
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(3) Company shall pay the Officer the Separation Pay over a
period of twenty-four (24) months in equal installments
less all withholdings required by law and authorized deductions,
at intervals consistent with Company payroll practices. |
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(4) Officer will not be entitled to receive any benefits or
bonuses described in Section 3(b) and (c) hereof. |
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(5) Officer will be entitled to receive such Separation Pay
only if the Officer executes and does not revoke a Release of
all claims and liabilities in form prescribed by Company. |
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(6) Following termination without cause, Officer is
entitled to elect insurance coverage under the Consolidated
Omnibus Budget Reconciliation Act (COBRA) for a period of
up to eighteen (18) months following officers termination,
and Company shall be obligated to pay on behalf of Officer the
monthly premium cost for Officers health/medical coverage
under COBRA, less the same contribution as required by
employees group life and health insurance coverages
pursuant to the prevailing policies and practices of the Company
(now and in the future) with respect to similarly positioned
officers of the Company or its present or future subsidiaries or
affiliates. |
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(7) Nothing herein shall restrict the Officers vested
rights, if any, pursuant to Companys 401(k) Plan,
Retirement Income Plan, Basic Retirement Plan, 2001 Incentive
Plan, or any similar plans. Notwithstanding the Officer
receiving any payments under the terms of this Section, on the
date of the Officers termination, all vesting, for
purposes of the Companys 401(k) Plan, Retirement Income
Plan, Basic Retirement Plan, 2001 Incentive Plan, or other such
plans, shall cease. |
(b) Suspension of Separation Pay. Without limitation
of the Companys rights and remedies under this Agreement
or as otherwise provided by law or in equity, it is understood
and agreed between the parties that the right of the Officer to
receive and retain any payments otherwise due under this
Agreement shall be suspended and canceled if and for so long as
Officer shall be in violation of this Agreement. If and when the
Officer shall have cured such violation within twenty
(20) days of receipt of written notice from Company and
shall have tendered to the Company any and all economic benefits
directly or indirectly received or receivable by the Officer
arising therefrom, the Officers right to receive payments
under this Agreement shall be automatically reinstated but only
for the remainder of the period during which such payments are
due him or her.
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(c) Termination of Separation Pay. Notwithstanding
the foregoing or any other provision of this Agreement, the
Officer shall not be entitled to any further separation payments
and the separation pay period shall end upon the occurrence of
any of the following:
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(1) Officer files a claim, suit or submits any matter to
arbitration in violation of the Release executed in connection
with Section 8(a)(5) hereof. |
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(2) Officer violates any term or condition of this
Agreement, including, but not limited to, the Non-Competition,
Non-Solicitation and Confidentiality provisions of this
Agreement. |
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(3) Officers misappropriates any trade secrets. |
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(4) Company learns that the Officer committed a material
breach of the Agreement during the terms of this Agreement. |
(d) Reduction of Separation Pay. Officers
separation pay and COBRA reimbursement shall be reduced by an
amount equal to the amount Officer is receiving from any other
employment, including self-employment after the initial twelve
(12) months of Separation Pay, which will not be adjusted.
Section 9 Change
of Control.
A Change of Control (Change of Control) shall be
defined as any merger or consolidation of
F.N.B. Corporation with another corporation, and as a
result of such merger or consolidation, the shareholders of
F.N.B. Corporation as of the day preceding such transaction will
own less than fifty-one percent (51%) of the outstanding voting
securities of the surviving corporation, or in the event that
there is (in a single transaction or series of related
transactions) a sale or exchange of eighty percent (80%) or more
of the Common Stock of F.N.B. Corporation for securities of
another entity in which shareholders of F.N.B. Corporation will
own less than fifty-one percent (51%) of such entitys
outstanding voting securities, or in the event of the sale by
F.N.B. Corporation of a substantial portion of its assets
(including the capital stock F.N.B. Corporation owns in its
subsidiaries) to an unrelated third party.
Section 10 Termination
after Change of Control.
If Company terminates Employee without Proper Cause within
twelve months of an event constituting a Change of Control, and
if the Officer shall duly have complied with and observed the
covenants of this Agreement, the Officer will be discharged from
the covenants of Section 11 at any time during the
Restricted Period by filing with the Company a duly executed
statement satisfactory to Company, releasing the Company and, if
applicable, its insurance carriers, from any and all obligations
under the terms of this Agreement. Notwithstanding said Release,
Officer shall remain subject to all other covenants and
restrictions of this Agreement, including, but not limited to
Sections 12 and 13.
Section 11 Non-Competition.
(a) For purposes of this Agreement, reference to the term
Competitive Enterprise shall mean any bank holding
company, finance company or insured depository institution
(including an institution in the organization stage or in the
process of applying for or receiving appropriate regulatory
approval), including, without limitation, any federal or state
chartered bank, savings bank, savings and loan association,
credit union or other financial services provider or non-banking
affiliate thereof offering similar services or products as those
offered by the Company to its customers.
(b) During the term of this Agreement and during the two
(2) year period immediately following termination of
Officers employment (which may include, without
limitation, Officers resignation or any event specified in
Sections 7 and 8 hereof) (hereinafter referred to as
Restricted Period), the Officer shall not:
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(1) accept a position as director, employee, consultant,
advisor or agent of any Competitive Enterprise which is located
in any county in the Companys region to which Officer is
assigned at the time of Officers termination of employment
and any contiguous county and any county in the Companys
region to which Officer was assigned 24 months prior to
Officers termination of employment. |
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(2) acquire an ownership interest (individually or in
concert with others) in a Competitive Enterprise whereby said
ownership interest enables Officer to, directly or indirectly,
in any manner, control, direct, influence, affect or impact the
operations, services or business activities of the Competitive
Enterprise in any county, or county contiguous thereto, in which
Company or its subsidiaries operate an office at the time of
Officers termination of employment; |
Section 12 Non-Solicitation.
During the Restricted Period the Officer shall not:
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(a) in any way, directly or indirectly, for the purpose of
selling any product or service that competes with a product or
service offered by the Company or its present or future
subsidiaries or affiliates, solicit, divert, or entice: |
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(1) any customer or existing business of Company, with whom
the Officer solicited, became aware of, or transacted business
during Officers employment with Company; |
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(2) any potential customer or business identified by
Company, with whom the Officer solicited, became aware of, or
transacted business during Officers employment with
Company; |
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(b) employ or assist in employing any present employee of
the Company or any of its affiliates (whether or not such
employment is full time or is pursuant to a written contract),
for the purpose of having such employee perform services for any
Competitive Enterprise or other organization in competition with
the business of the Company or any of its present or future
subsidiaries or affiliates; |
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(c) in any way, directly or indirectly, make any oral or
written statement, comments, or other communications designed or
intended to impugn, disparage or otherwise malign the
reputation, ethics, competency, morality or qualifications of
the Company or any of its directors or employees or customers. |
Section 13 Confidentiality.
(a) For purposes of this Agreement, Proprietary
Information shall mean any information relating to the
business of the Company or any of its present or future
subsidiaries or affiliates that has not previously been publicly
released by authorized representatives of the Company or any
authorized representatives of any of its present or future
subsidiaries or affiliates, and shall include (but shall not be
limited to) Company information encompassed in all marketing and
business plans, financial information, costs, pricing
information, customer and client lists and relationships between
Company and dealers, distributors, sales representatives,
wholesalers, customers, clients, suppliers, and others who have
business dealings with Company, and all methods, concepts, or
ideas in or reasonably related to the business of the Company or
any of its present or future subsidiaries or affiliates and not
in the public domain.
(b) The Officer agrees to regard and preserve as
confidential all Proprietary Information that has been or may be
developed or obtained by the Officer in the course of
Officers employment with the Company and its subsidiaries
and affiliates, whether Officer has such information in
Officers memory, writing, electronic media or other
physical form, including information maintained by Officer on
any computer, electronic device, or other personal property
owned by Officer. The Officer shall not, without written
authorization from the Company, use for Officers benefit
or purposes, nor disclose to others at any time, either during
the term of Officers employment or thereafter, except as
required by the conditions of Officers employment
hereunder, any Proprietary Information connected with the
business or development of the Company or its subsidiaries or
affiliates. This prohibition shall not apply after the
Proprietary Information has been voluntarily disclosed to the
public, independently developed and disclosed by others, or
otherwise enters the public domain through lawful means.
Section 14 Removal
of Documents or Objects.
The Officer agrees not to remove from the premises of the
Company or any of its present or future subsidiaries or
affiliates, except as an employee of the Company in pursuit of
the business of the Company or any of its present or future
subsidiaries or affiliates, or except as specifically permitted
in writing by the Company, any document or object containing or
reflecting any Proprietary Information. The Officer
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recognizes that all such documents, tangible and intangible
property and objects, whether developed by him or her by someone
else, are the exclusive property of the Company.
Section 15 Remedies.
In addition to any other rights and remedies Company may have if
Officer violates this Agreement, the Company and Officer agree
as follows:
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(a) It is understood and agreed by and between the parties
hereto that the services to be rendered by the Officer hereunder
are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which
may not be reasonably or adequately compensated in damages, and
additionally that a breach by the Officer of the covenants set
out in Sections 11, 12, 13 and 14 of this Agreement
will cause the Company great and irreparable injury and damage.
The Officer hereby expressly agrees that the Company shall be
entitled to the remedies of injunction, specific performance and
other equitable relief to prevent a breach of
Sections 11, 12, 13 and 14 of this Agreement by the
Officer. This provision shall not, however, be construed as a
waiver of any of the remedies which the Company may have for
damages or otherwise. |
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(b) In the event Officer shall be in violation of any of
the aforementioned restrictive covenants, the time limitation
thereof with respect to them shall be extended for a period of
time equal to the period of time during which breach or breaches
should occur; and in the event the Company should be required to
seek relief from such breach in any court, board of arbitration
or other tribunal, the covenants shall be extended for a period
of time equal to the pendency of such proceedings, including
appeals. |
Section 16 Subsidiaries
and Affiliates.
It is understood and agreed by the parties hereto that, at the
election and direction of the Companys Board of Directors
and without modification of the terms and provisions hereof, the
Officer may be required to serve as an officer of any one or
more present or future subsidiaries or affiliates of the Company
and, when and as so determined by the Board and any such
subsidiary or affiliate, the rights, duties and obligations of
the Officer and Company expressed and implied in this Agreement
shall inure to the benefit of and bind any such subsidiary or
affiliate with the same force and effect as would be obtained if
the subsidiary or affiliate were a party hereto jointly and
severally with the Company.
Section 17 Successors,
Assigns, Etc.
(a) This Agreement shall be binding upon, and shall inure
to the benefit of, the Officer and the Company and their
respective permitted successors, assigns, heirs, legal
representatives and beneficiaries.
(b) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation or to execution, attachment, levy, or
similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action
shall be null, void and of no effect; provided, however, that
nothing in this Section shall preclude the assumption of such
rights by executors, administrators or other legal
representatives of the Officer or Officers estate and
their assigning any rights hereunder to the person or persons
entitled thereto.
(c) Nothing in this Agreement shall preclude the Company
from consolidating or merging into or with or transferring all
or substantially all of its assets to another corporation which
assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger or
transfer of assets and assumption the term Company
as used herein shall mean such other corporation and this
Agreement shall continue in full force and effect.
Section 18 Notices.
(a) All notices and other communications which are required
or may be given under this Agreement shall be in writing and
shall be deemed to have been given on the date delivered
personally or if sent by registered or certified mail, return
receipt requested, postage prepaid, on the date deposited in the
mail.
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(b) All notices shall be provided to the following address
or to such other place as either party shall have specified by
notice in writing to the other:
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(1) To the Company, at the address designated as its
headquarters, Attention: CEO. With a copy to F.N.B. Corporation,
One F.N.B. Boulevard,
1st Floor,
Hermitage, Pennsylvania 16148, Attention: Corporate Counsel. |
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(2) To the Officer, at his/her address provided to Company
from time to time for salary and other similar purposes. |
Section 19 Governmental
Regulation.
Nothing contained in this Agreement shall be interpreted,
construed or applied to require the commission of any act
contrary to law and whenever there is any conflict between any
provision of this Agreement and any statute, law ordinance,
order or regulation, the latter shall prevail; but in such event
any such provision of this Agreement shall be curtailed and
limited only to the extent necessary to bring it within
applicable legal requirements.
Section 20 Arbitration.
Any dispute or controversy as to the validity, interpretation,
construction, application or enforcement of, or otherwise
arising under or in connection with this Agreement, shall be
submitted at the request of either party hereto for resolution
and settlement through arbitration in Pennsylvania in accordance
with the rules then prevailing of the American Arbitration
Association. Any award rendered therein shall be final and
binding on each of the parties hereto and their heirs,
executors, administrators, successors and assigns, and judgment
may be entered thereon in any court having jurisdiction. The
foregoing provisions of this paragraph shall not be deemed to
limit the rights and remedies reserved to the Company under and
pursuant to Section 15 hereof which rights and remedies may
be pursued through arbitration.
Section 21 Governing
Law.
This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without
regard to its conflicts of laws principles.
Section 22 Divisibility.
Should a court or arbitrator declare any provision hereof to be
invalid, such declaration shall not affect the validity of the
Agreement as a whole or any part thereof, other than the
specific portion declared to be invalid.
Section 23 Headings.
The headings to the Sections and paragraphs hereof are placed
herein for convenience of reference only and in case of any
conflict the text of this Agreement, rather than the headings,
shall control.
Section 24 Entire
Agreement; Amendment.
This Agreement sets forth the entire understanding of the
parties in respect of the subject matter contained herein and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter and may only be amended by a
written agreement signed by both parties hereto or their
duly-authorized representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement to be effective as of the date first above written.
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WITNESS:
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Joseph L. Paese |
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FIRST NATIONAL BANK OF PENNSYLVANIA |
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By: |
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Secretary |
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Stephen J. Gurgovits
Chairman |
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APPENDIX B
607 Washington Street
P.O. Box 1497
Reading, PA 19603
PHONE (610) 478-2105
EMAIL info@go2griffin.com
FAX (610) 478-2227
December 21, 2005
The Legacy Bank
2600 Commerce Drive
Harrisburg, PA 17112
Members of the Board:
F.N.B. Corporation (FNB) and The Legacy Bank
(Legacy) have entered into an Agreement and Plan of
Merger, dated as of December 21, 2005 (the Merger
Agreement), which provides, among other things, for the
merger of Legacy with and into a subsidiary bank of FNB (the
Transaction). Pursuant to the terms of the Merger
Agreement, upon completion of the Transaction, each share of
common stock, par value $5.00 per share, of Legacy issued
and outstanding immediately prior to the completion of the
Transaction (the Legacy Common Stock) will be
converted into the right to receive, at the election of the
holder thereof, either (i) 1.00 shares of FNB common
stock, par value $0.10 per share (FNB Common
Stock), or (ii) $18.40 in cash without interest
(collectively, the Merger Consideration), subject to
the election and proration procedures set forth in the Merger
Agreement, which provide generally, among other things, that
shares of FNB Common Stock shall be issued to holders of Legacy
Common Stock in exchange for 70% of the outstanding shares of
Legacy Common Stock. The terms and conditions of the Transaction
are more fully set forth in the Merger Agreement.
You have asked for our opinion as to whether the Merger
Consideration proposed to be paid for each share of Legacy
Common Stock in the Transaction is fair from a financial point
of view to Legacy.
For purposes of providing the opinion set forth herein, we have:
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(i) reviewed certain publicly available financial
statements and other information of FNB and Legacy,
respectively, which we believe to be relevant; |
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(ii) reviewed certain internal financial statements and
other financial and operating data concerning each of FNB and
Legacy; |
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(iii) discussed the past and current operations, financial
condition and the prospects of each of FNB and Legacy with
senior executives of FNB and Legacy, respectively, including
with respect to FNB (x) the potential impact on FNB of the
Transaction, including potential cost savings, synergies and
other strategic, financial and operational benefits which
management of FNB expects to realize from the combination of FNB
and Legacy, and (y) the forecasted impact of the proposed
Transaction on the future financial performance of FNB; |
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(iv) reviewed earnings per share consensus estimates for
FNB for the years ending December 31, 2005 and 2006; |
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(v) reviewed the publicly reported historical price and
trading activity for Legacy Common Stock and FNB Common Stock,
including a comparison of certain financial and stock market
information for Legacy and FNB with similar publicly available
information for certain other financial institutions the
securities of which are publicly traded; |
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(vi) participated in discussions and negotiations between
FNB and Legacy; |
B-1
The Legacy Bank
December 21, 2005
Page 2
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(vii) reviewed a draft of the Merger Agreement; |
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(viii) considered the competitive environment for financial
institutions; and |
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(ix) performed comparable company, selected reference
transaction, pro forma merger, and discounted dividend analyses. |
In connection with our review of Legacy, FNB and the proposed
Transaction, we have assumed and relied upon, the accuracy and
completeness of the information reviewed by us for the purposes
of this opinion, without independent verification. We have also
relied upon assurances from management of Legacy and FNB that
they are not aware of any facts and circumstances that may cause
the information reviewed by us to contain a misstatement or
omission of a fact material to our opinion. With respect to
financial and operating forecasts and profit plans, including
the synergies, cost savings and other strategic, financial and
operational benefits to be realized in connection with the
completion of the Transaction, we have assumed that such
financial and operating forecasts reflect the best available
estimates and judgments of the future financial performance of
FNB, after giving effect to the Transaction and are based on
reasonable assumptions, estimates and judgments of management.
We have also relied upon the advice Legacy and FNB have each
received from their respective legal counsel, tax advisors, and
independent public accountants as to all legal, tax and
accounting matters relating to the Transaction, including
without limitation, that the Transaction will be treated as a
tax-free reorganization for federal income tax purposes. We have
assumed that the Transaction will be completed in accordance
with the terms of the Merger Agreement and all laws and
regulations applicable to Legacy and FNB and that in the course
of obtaining the necessary regulatory approvals or other
approvals of the Transaction, no restrictions will be imposed
that may have a material adverse effect on the future results of
operation or financial condition of FNB, Legacy or the combined
entity, as the case may be, or on the contemplated benefits of
the Transaction. We have not made any independent valuation or
appraisal of either of Legacy or FNB or their respective assets
or liabilities (including any hedge, swap, foreign exchange,
derivative or off-balance sheet assets or liabilities), nor have
we been furnished with any such appraisals and we have not made
any review of the loans, loan loss reserves or reviewed any
individual loan credit files of Legacy or FNB. We have also
assumed that the published estimates of third party research
analysts constitute a reasonable basis upon which to evaluate
the future financial performance of FNB. In addition, we did not
conduct a physical inspection of any of the properties or
facilities of FNB or Legacy. We are not expressing an opinion as
to what the value of FNB common stock will actually be when
issued or the price at which FNB common stock will trade at any
time or whether FNB will realize the intended specific strategic
and operational objectives and benefits of the Transaction. This
opinion is based upon market, economic and other conditions as
they exist on, and could be evaluated, as a practical matter, as
of the date hereof. We have assumed, in all respects material to
our analyses, that all of the representations and warranties
contained in the Merger Agreement and all related agreements
were true and correct, that each party to such agreements would
perform all of the covenants required to be performed by such
party under such agreements and that the conditions precedent in
the Merger Agreement have not been nor will be waived. We also
have assumed that there has been no material change in
FNBs or Legacys assets, financial condition, results
of operations, business or prospects since the date of the last
financial statements made available to us, except that we are
aware of the information set forth in FNBs
December 7, 2005 press release in which FNB announced a
one-time restructuring charge and withdrew its previous earnings
guidance for 2006. Our opinion does not address the relative
merits of the Transaction as compared to any other business
strategy which might exist for Legacy, nor does it address the
underlying business dec ision of Legacy to engage in the
Transaction.
B-2
The Legacy Bank
December 21, 2005
Page 3
We have served as financial advisor to the Board of Directors of
Legacy in connection with this Transaction and will receive a
fee for our services, a part of which is contingent upon the
closing of the Transaction.
This letter is directed to the Board of Directors of Legacy
solely in connection with its evaluation of the Transaction and
speaks as of the date hereof and we assume no obligation to
update this opinion for any purpose. Our opinion is directed
only to the fairness, from a financial point of view, of the
Merger Consideration to be paid by FNB in the Transaction. This
opinion does not constitute a recommendation to any shareholder
of Legacy as to how such shareholder should vote as to the
Transaction. It may not be used for any other purpose without
our prior written consent, except that this opinion may be
included as an Annex to the Proxy Statement/ Prospectus of
Legacy and FNB and may be referred to therein.
Based upon and subject to the foregoing, it is our opinion that,
as of the date hereof, the Merger Consideration is fair, from a
financial point of view, to Legacy.
B-3
APPENDIX C
STATUTORY PROVISIONS CONCERNING DISSENTERS RIGHTS OF
LEGACY SHAREHOLDERS
UNITED STATES CODE
TITLE 12. BANKS AND BANKING
CHAPTER 2. NATIONAL BANKS
CONSOLIDATION AND MERGER
§ 215a. Mergers of
national banks or State banks into national banks.
(a) ....
(b) Dissenting shareholders. If a merger shall be
voted for at the called meetings by the necessary majorities of
the shareholders of each association or State bank participating
in the plan of merger, and thereafter the merger shall be
approved by the Comptroller, any shareholder of any association
or State bank to be merged into the receiving association who
has voted against such merger at the meeting of the association
or bank of which he is a stockholder, or has given notice in
writing at or prior to such meeting to the presiding officer
that he dissents from the plan of merger, shall be entitled to
receive the value of the shares so held by him when such merger
shall be approved by the Comptroller upon written request made
to the receiving association at any time before thirty days
after the date of consummation of the merger, accompanied by the
surrender of his stock certificates.
(c) Valuation of shares. The value of the shares of
any dissenting shareholder shall be ascertained, as of the
effective date of the merger, by an appraisal made by a
committee of three persons, composed of (1) one selected by
the vote of the holders of the majority of the stock, the owners
of which are entitled to payment in cash; (2) one selected
by the directors of the receiving association; and (3) one
selected by the two so selected. The valuation agreed upon by
any two of the three appraisers shall govern. If the value so
fixed shall not be satisfactory to any dissenting shareholder
who has requested payment, that shareholder may, within five
days after being notified of the appraised value of his shares,
appeal to the Comptroller, who shall cause a reappraisal to be
made which shall be final and binding as to the value of the
shares of the appellant.
(d) Application to shareholders of merging
associations. Appraisal by Comptroller; expenses of
receiving association; sale and resale of shares; State
appraisal and merger law. If, within ninety days from the date
of consummation of the merger, for any reason one or more of the
appraisers is not selected as herein provided, or the appraisers
fail to determine the value of such shares, the Comptroller
shall upon written request of any interested party cause an
appraisal to be made which shall be final and binding on all
parties. The expenses of the Comptroller in making the
reappraisal or the appraisal, as the case may be, shall be paid
by the receiving association. The value of the shares
ascertained shall be promptly paid to the dissenting
shareholders by the receiving association. The shares of stock
of the receiving association which would have been delivered to
such dissenting shareholders had they not requested payment
shall be sold by the receiving association at an advertised
public auction, and the receiving association shall have the
right to purchase any of such shares at such public auction, if
it is the highest bidder therefor, for the purpose of reselling
such shares within thirty days thereafter to such person or
persons and at such price not less than par as its board of
directors by resolution may determine. If the shares are sold at
public auction at a price greater than the amount paid to the
dissenting shareholders, the excess in such sale price shall be
paid to such dissenting shareholders. The appraisal of such
shares of stock in any State bank shall be determined in the
manner prescribed by the law of the State in such cases, rather
than as provided in this section, if such provision is made in
the State law; and no such merger shall be in contravention of
the law of the State under which such bank is incorporated. The
provisions of this subsection shall apply only to shareholders
of (and stock owned by them in) a bank or association being
merged into the receiving association.
C-1
PART II:
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 20. |
Indemnification of Directors and Officers. |
The Florida Business Corporations Act, as amended (the
Florida Act), provides that, in general, a business
corporation may indemnify any person who is or was a party to
any proceeding, other than an action by, or in the right of, the
corporation, by reason of the fact that he or she is or was a
director or officer of the corporation, against liability
incurred in connection with such proceeding, including any
appeal thereof, provided certain standards are met, including
that such officer or director acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation, and provided further
that, with respect to any criminal action or proceeding, the
officer or director had no reasonable cause to believe his or
her conduct was unlawful. In the case of proceedings by or in
the right of the corporation, the Florida Act provides that, in
general, a corporation may indemnify any person who was or is a
party to any such proceeding by reason of the fact that he or
she is or was a director or officer of the corporation against
expenses and amounts paid in settlement actually and reasonably
incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such
person acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made with
respect to any claim as to which such person is adjudged liable,
unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled
to indemnity. To the extent that any officer or director is
successful on the merits or otherwise in the defense of any of
such proceedings, the Florida Act provides that the corporation
is required to indemnify such officer or director against
expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in
general, indemnification or advancement of expenses shall not be
made to or on behalf of any officer or director if a judgment or
other final adjudication establishes that his or her actions, or
omissions to act, were material to the cause of action so
adjudicated and constitute: (i) a violation of the criminal
law, unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause
to believe it was unlawful; (ii) a transaction from which
the director or officer derived an improper personal benefit;
(iii) in the case of a director, a circumstance under which
the director has voted for or assented to a distribution made in
violation of the Florida Act or the corporations Articles
of Incorporation or (iv) willful misconduct or a conscious
disregard for the best interests of the corporation in a
proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a
shareholder.
The registrants Articles of Incorporation provide that the
registrant shall indemnify its directors and officers to the
fullest extent permitted by law in connection with any actual or
threatened action, suit or proceeding, civil, criminal,
administrative, investigative or other (whether brought by or in
the right of the registrant or otherwise) arising out of the
service to the registrant or to another organization at the
registrants request, or because of their positions with
the registrant. FNBs Articles of Incorporation further
provide that the registrant may purchase and maintain insurance
to protect itself and any such director or officer against any
liability, cost or expense asserted against or incurred by him
or her with respect to such service, whether or not the
registrant would have the power to indemnify him or her against
such liability by law or under the provisions of this paragraph.
The registrants By-laws provide that to the fullest extent
permitted by law, no director of the registrant shall be
personally liable for monetary damages for any action taken or
any failure to take any action.
II-1
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Item 21. |
Exhibits and Financial Statement Schedules. |
The following exhibits are filed with or incorporated by
reference in this Registration Statement:
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Exhibit No. |
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Description of Exhibit |
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2 |
.1 |
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Agreement and Plan of Merger dated as of December 21 2005 among
F.N.B. Corporation, First National Bank of Pennsylvania and The
Legacy Bank (included as Appendix A to this proxy
statement/ prospectus) |
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5 |
.1 |
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Opinion of Duane Morris LLP |
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8 |
.1 |
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Tax Opinion of Duane Morris LLP |
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10 |
.1 |
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Employment Agreement dated as of December 21, 2005 between
George H. Groves and First National Bank of Pennsylvania |
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10 |
.2 |
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Employment Agreement dated as of December 21, 2005 between
Thomas W. Lennox and First National Bank of Pennsylvania |
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10 |
.3 |
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Employment Agreement dated as of December 21, 2005 between
Joseph L. Paese and First National Bank of Pennsylvania |
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15 |
.1 |
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Acknowledgement of Ernst & Young LLP dated
January 30, 2006 to the Board of Directors and Stockholders
of F.N.B. Corporation |
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23 |
.1 |
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Consent of Ernst & Young LLP |
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23 |
.2 |
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Consent of Beard Miller Company LLP |
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23 |
.3 |
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Consent of Griffin Financial Group, LLC |
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23 |
.4 |
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Consent of Duane Morris LLP (included in Exhibits 5.1 and
8.1) |
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99 |
.1 |
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Proxy for Special Meeting of Shareholders of The Legacy Bank |
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99 |
.2 |
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Form of Election Form/ Transmittal Letter |
(a) The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement: |
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(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; |
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(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; |
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(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change in such
information in the registration statement. |
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(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. |
II-2
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(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. |
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans 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.
(c) The undersigned registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of
Rule 14a-3 or
Rule 14c-3 under
the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
(d) (1) The undersigned registrant hereby undertakes
as follows: that prior to any public reoffering of the
securities registered hereunder through use of a prospectus
which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of
Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the
applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(2) The registrant undertakes that every prospectus
(i) that is filed pursuant to
paragraph (1) immediately preceding, or (ii) that
purports to meet the requirements of Section 10(a)(3) of
the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes 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.
(e) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(f) The undersigned registrant hereby undertakes to respond
to requests for information that is incorporated by reference
into the prospectus pursuant to Items 4, 10(b), 11 or 13 of
this Form, within one business day of receipt of such request,
and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the
registration statement through the date of responding to the
request.
(g) The undersigned registrant hereby undertakes to supply
by means of a post-effective amendment all information
concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in
the registration statement when it became effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Hermitage, Commonwealth of
Pennsylvania, on January 31, 2006.
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By: |
/s/ Stephen J. Gurgovits |
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Stephen J. Gurgovits |
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President and Chief Executive Officer |
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Stephen J. Gurgovits and
Brian F. Lilly, and each or either of them, as such
persons true and lawful
attorneys-in-fact and
agents, with full power of substitution, for such person, and in
such persons name, place and stead, in any and all
capacities to sign any or all amendments or post-effective
amendments to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said
attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and
confirming all that said
attorneys-in-fact and
agents, or any of them or their substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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Peter Mortensen |
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Chairman of the Board |
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January 31, 2006 |
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/s/ Stephen J. Gurgovits
Stephen J. Gurgovits |
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President, Chief Executive Officer and Director (principal
executive officer) |
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January 31, 2006 |
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/s/ Brian F. Lilly
Brian F. Lilly |
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Vice President and Chief Financial Officer (principal financial
and accounting officer) |
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January 31, 2006 |
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William B. Campbell |
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Director |
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January 31, 2006 |
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/s/ Henry M. Ekker
Henry M. Ekker |
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Director |
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January 31, 2006 |
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/s/ Robert B. Goldstein
Robert B. Goldstein |
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Director |
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January 31, 2006 |
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/s/ David J. Malone
David J. Malone |
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Director |
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January 31, 2006 |
II-4
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Signature |
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Title |
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Date |
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Harry F. Radcliffe |
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Director |
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January 31, 2006 |
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John W. Rose |
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Director |
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January 31, 2006 |
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/s/ William J. Strimbu
William J. Strimbu |
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Director |
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January 31, 2006 |
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/s/ Earl K. Wahl, Jr.
Earl K. Wahl, Jr. |
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Director |
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January 31, 2006 |
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Archie O. Wallace |
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Director |
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January 31, 2006 |
II-5
EXHIBIT INDEX
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Exhibit No. |
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Description of Exhibit |
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2 |
.1 |
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Agreement and Plan of Merger dated as of December 21 2005 among
F.N.B. Corporation, First National Bank of Pennsylvania and The
Legacy Bank (included as Appendix A to this proxy
statement/ prospectus) |
|
5 |
.1 |
|
Opinion of Duane Morris LLP |
|
8 |
.1 |
|
Tax Opinion of Duane Morris LLP |
|
10 |
.1 |
|
Employment Agreement dated as of December 21, 2005 between
George H. Groves and First National Bank of Pennsylvania |
|
10 |
.2 |
|
Employment Agreement dated as of December 21, 2005 between
Thomas W. Lennox and First National Bank of Pennsylvania |
|
10 |
.3 |
|
Employment Agreement dated as of December 21, 2005 between
Joseph L. Paese and First National Bank of Pennsylvania |
|
15 |
.1 |
|
Acknowledgement of Ernst & Young LLP dated
January 30, 2006 to the Board of Directors and Stockholders
of F.N.B. Corporation |
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23 |
.1 |
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Consent of Ernst & Young LLP |
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23 |
.2 |
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Consent of Beard Miller Company LLP |
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23 |
.3 |
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Consent of Griffin Financial Group, LLC |
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23 |
.4 |
|
Consent of Duane Morris LLP (included in Exhibits 5.1 and
8.1) |
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99 |
.1 |
|
Proxy for Special Meeting of Shareholders of The Legacy Bank |
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99 |
.2 |
|
Form of Election Form/ Transmittal Letter |