<PAGE>
As filed with the Securities and Exchange Commission on January 30, 1994.
Registration No. 33-57033
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
AMENDMENT NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
WESTAMERICA BANCORPORATION
(Exact name of registrant as specified in its charter)
California 6025 94-2156203
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
________________
1108 Fifth Avenue, San Rafael, California 94901, (415) 257-8000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
________________
DAVID L. PAYNE
Chairman, President and Chief Executive Officer
Westamerica Bancorporation
1108 Fifth Avenue
San Rafael, California 94901
(415) 257-8000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
________________
Copies to:
JONATHAN D. JOSEPH, ESQ. JAMES E. TOPINKA, ESQ.
GABRIELLA A. LOMBARDI, ESQ. LAWRENCE B. LOW, ESQ.
Pillsbury Madison & Sutro Pettit & Martin
P.O. Box 7880 101 California Street
San Francisco, California 94120-7880 San Francisco, California 94111
(415) 983-1000 (415) 434-4000
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this Registration Statement becomes
effective.
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. [_]
________________
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.
================================================================================
<PAGE>
WESTAMERICA BANCORPORATION
Cross-Reference Sheet pursuant to Item 501(b) of Regulation S-K showing the
location in the Proxy Statement/Prospectus of the information required by Part I
of Form S-4.
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Form S-4 Caption Location in Proxy Statement/Prospectus
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<S> <C> <C>
A. INFORMATION ABOUT THE TRANSACTION.
---------------------------------
Item 1 Forepart of Registration Statement Outside front cover page; facing page
and Outside Front Cover Page of
Prospectus
Item 2 Inside Front and Outside Back Available Information; Incorporation
Cover Pages of Prospectus of Certain Documents by Reference;
Table of Contents
Item 3 Risk Factors, Ratio of Summary; The Meeting; Certain
Earnings to Fixed Charges and Other Considerations; The Merger;
Information Dissenters' Rights of Appraisal;
Market Price and Dividend Information
Item 4 Terms of the Transaction Summary; The Meeting; The Merger;
Dissenters' Rights of Appraisal;
Market Price and Dividend
Information; Management's Discussion
and Analysis of Financial Condition
and Results of Operations of
CapitolBank; Certain Differences in
Rights of Shareholders; Description
of Westamerica Capital Stock and
Indebtedness; Description of
CapitolBank Capital Stock
Item 5 Pro Forma Financial Summary; Pro Forma Combined Financial
Information Information
Item 6 Material Contracts with the Summary; The Meeting; Certain
Company Being Acquired Considerations; The Merger
Item 7 Additional Information Not Applicable
Required for Reoffering by Persons
and Parties Deemed to be Underwriters
Item 8 Interests of Named Experts Not Applicable
and Counsel
Item 9 Disclosure of Commission Not Applicable
Position on Indemnification for
Securities Act Liabilities
B. INFORMATION ABOUT THE REGISTRANT.
--------------------------------
Item 10 Information with Respect to Incorporation of Certain Documents by
S-3 Registrants Reference
Item 11 Incorporation of Certain Incorporation of Certain Documents by
Information by Reference Reference
</TABLE>
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<TABLE>
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Form S-4 Caption Location in Proxy Statement/Prospectus
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Item 12 Information with Respect to Not Applicable
S-2 or S-3 Registrants
Item 13 Incorporation of Certain Not Applicable
Information by Reference
Item 14 Information with Respect to Not Applicable
Registrants Other Than S-3 or S-2
Registrants
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED.
--------------------------------------------
Item 15 Information with Respect to Not Applicable
S-3 Companies
Item 16 Information with Respect to Available Information; Incorporation
S-2 or S-3 Companies of Certain Documents by Reference;
Summary; Information about
CapitolBank; Supplemental Historical
Information; Market Price and
Dividend Information; Management's
Discussion and Analysis of Financial
Condition and Results of Operations
of CapitolBank; Description of
CapitolBank Capital Stock; Index to
Financial Statements
Item 17 Information with Respect to Not Applicable
Companies Other Than S-2 or S-3
Companies
D. VOTING AND MANAGEMENT INFORMATION.
---------------------------------
Item 18 Information if Proxies, Consents Incorporation of Certain Documents by
or Authorizations are to be Reference; Summary; Introduction;
Solicited Information about Westamerica;
Information about CapitolBank; The
Meeting; The Merger; Dissenters'
Rights of Appraisal; Solicitation of
Proxies; Proposals of Security Holders
Item 19 Information if Proxies, Not Applicable
Consents or Authorizations are not
to be Solicited or in an Exchange
Offer
</TABLE>
<PAGE>
February __, 1995
Dear Shareholder:
You are cordially invited to attend a Special Meeting of the
Shareholders of CapitolBank Sacramento ("CapitolBank") to be held at 300
Capitol Mall, Sacramento, California, at 5:00 p.m., local time, on March 9,
1995 (the "Meeting").
At the Meeting, CapitolBank shareholders will be asked to consider and
vote upon a proposal to adopt and approve an Agreement and Plan of
Reorganization dated as of November 17, 1994 (the "Agreement"), by and
between Westamerica Bancorporation ("Westamerica") and CapitolBank, an
Agreement of Merger among Westamerica, CapitolBank and Westamerica Merger
Subsidiary, a wholly-owned subsidiary of Westamerica ("Merger Sub")
(collectively, the "Agreements"), and the transactions contemplated thereby,
including the merger of Merger Sub with and into CapitolBank (the "Merger"),
as more fully described in the accompanying Proxy Statement/Prospectus.
Copies of the Agreements are attached to the Proxy Statement/Prospectus as
Annex A. Shortly after the Merger, it is anticipated that CapitolBank will be
merged with and into Westamerica Bank, a wholly owned subsidiary of
Westamerica. No other business is expected to be transacted at the Meeting
other than matters incidental to the conduct of the Meeting.
As a result of the Merger, each share of CapitolBank common stock
("CapitolBank Common Stock") outstanding at the effective time of the Merger
(other than shares with respect to which dissenters' rights are perfected)
will be converted into .0938 of a share of Westamerica common stock, without
par value ("Westamerica Common Stock"), subject to certain potential downward
adjustments described in the Agreement and the accompanying Proxy
Statement/Prospectus. No fractional shares of Westamerica Common Stock shall
be issued to holders of shares of CapitolBank Common Stock, and, in lieu
thereof, cash will be paid to CapitolBank shareholders in accordance with the
Agreement.
Under the California General Corporation Law, the approval and adoption
of the Agreements and the transactions contemplated thereby requires the
affirmative vote of the holders of a majority of the outstanding shares of
CapitolBank Common Stock. The proposed Merger is also subject to certain
regulatory approvals and satisfaction of the conditions contained in the
Agreement.
THE CAPITOLBANK BOARD OF DIRECTORS, BY UNANIMOUS VOTE OF ALL DIRECTORS,
HAS APPROVED THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE MERGER, AND RECOMMENDS THAT THE SHAREHOLDERS VOTE FOR APPROVAL
---
AND ADOPTION OF THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE MERGER, AT THE MEETING.
The accompanying Notice and Proxy Statement/Prospectus describe the
matters to be acted upon at the Meeting. Shareholders are urged to review
carefully the attached Proxy Statement/Prospectus, including the annexes
thereto. Such documents contain a detailed description of the Merger, its
terms and conditions and the transactions contemplated thereby.
Your continuing interest in the business of CapitolBank is appreciated,
and we hope you will attend the Meeting in person. It is important that your
shares be represented at the Meeting. Accordingly, whether or not you plan
to attend the Meeting, please sign, date and return the enclosed Proxy
promptly in the postage-paid envelope that has been provided to you for your
convenience. If you wish to vote in accordance with the recommendation of
your Board of Directors, it is not necessary to specify your choices; you may
merely sign, date and return the enclosed Proxy.
Sincerely,
Thayer T. Prentice
Vice Chairman of the Board
<PAGE>
CAPITOLBANK SACRAMENTO
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON MARCH 9, 1995
NOTICE IS HEREBY GIVEN that a Special Meeting of Shareholders of
CapitolBank Sacramento ("CapitolBank") will be held at 300 Capitol Mall,
Sacramento, California, on March 9, 1995 at 5:00 p.m., local time (the
"Meeting"), for the following purposes, all of which are more fully described
in the accompanying Proxy Statement/Prospectus:
To consider and vote upon a proposal to adopt and approve the Agreement
and Plan of Reorganization dated as of November 17, 1994 (the
"Agreement"), by and between Westamerica Bancorporation ("Westamerica")
and CapitolBank, an Agreement of Merger among Westamerica, CapitolBank
and Westamerica Merger Subsidiary, a wholly-owned subsidiary of
Westamerica ("Merger Sub") (collectively, the "Agreements") and the
transactions contemplated thereby, including the merger of Merger Sub
with and into CapitolBank (the "Merger").
The Agreements are set forth in Annex A to the accompanying Proxy
Statement/Prospectus.
No other business will be transacted at the Meeting other than matters
incidental to the conduct of the Meeting.
THE BOARD OF DIRECTORS OF CAPITOLBANK UNANIMOUSLY
RECOMMENDS THAT YOU VOTE FOR THE MERGER.
---
The CapitolBank Board of Directors has fixed the close of business on
January 13, 1995, as the record date for the Meeting. Only CapitolBank
shareholders of record at the close of business on such date are entitled to
notice of and to vote at the Meeting. Approval of the Merger requires the
affirmative vote of the holders of not less than a majority of the
outstanding shares of CapitolBank common stock.
Your vote is important regardless of the number of shares you own. Each
shareholder, even though he or she may not plan to attend the Meeting in
person, is requested to sign, date and return the enclosed Proxy without
delay in the enclosed postage-paid envelope. You may revoke your Proxy at
any time prior to its exercise. Any shareholder present in person at the
Meeting or at any adjournments or postponements thereof may revoke his or her
Proxy and vote personally on each matter brought before the Meeting.
By Order of the Board of Directors,
Lawrence D. McGovern
Corporate Secretary
February __, 1995
Sacramento, California
PLEASE DATE AND SIGN THE ENCLOSED PROXY AND
RETURN IT PROMPTLY IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
<PAGE>
CAPITOLBANK SACRAMENTO
PROXY STATEMENT
For Special Meeting of Shareholders to be held on March 9, 1995
________________
WESTAMERICA BANCORPORATION
PROSPECTUS
This Proxy Statement/Prospectus (the "Proxy Statement/Prospectus") is being
furnished to shareholders of CapitolBank Sacramento ("CapitolBank") in
connection with the solicitation of Proxies by the Board of Directors of
CapitolBank for use at the Special Meeting of Shareholders of CapitolBank to be
held at 300 Capitol Mall, Sacramento, California, on March 9, 1995 at 5:00
p.m., local time, and at any adjournments or postponements thereof (the
"Meeting").
At the Meeting, the shareholders of record of CapitolBank common stock
("CapitolBank Common Stock" or "CapitolBank Shares"), as of the close of
business on January 13, 1995, will consider and vote upon a proposal to approve
and adopt an Agreement and Plan of Reorganization dated as of November 17, 1994
(the "Agreement"), by and between Westamerica Bancorporation ("Westamerica") and
CapitolBank, an Agreement of Merger among Westamerica, CapitolBank and
Westamerica Merger Subsidiary, a wholly-owned subsidiary of Westamerica ("Merger
Sub") (collectively, the "Agreements"), the merger of Merger Sub with and into
CapitolBank (the "Merger") and the transactions contemplated thereby as more
fully described herein. Copies of the Agreements are attached to this Proxy
Statement/Prospectus as Annex A. Pursuant to the Agreements, upon consummation
of the Merger, each share of CapitolBank Common Stock outstanding at the
Effective Time (as defined herein) of the Merger (other than fractional shares
and shares with respect to which dissenters' rights have been perfected) will be
converted into .0938 of a share (the "Exchange Ratio") of common stock of
Westamerica, without par value (the "Westamerica Common Stock" or "Westamerica
Shares"), subject to potential downward adjustments under certain circumstances.
Shortly thereafter, it is anticipated that CapitolBank will be merged with and
into Westamerica's principal banking subsidiary, Westamerica Bank. The Exchange
Ratio will be adjusted downward pursuant to formulas set forth in the Agreement
if (i) the average of the closing price per share of Westamerica Common Stock
quoted on the Nasdaq National Market (the "NNM") for the twenty consecutive
trading days prior to two business days prior to the effective date of the
Merger (the "Determination Date") (such average price, the "Average Price") is
more than $33.00; or (ii) certain Significant Liabilities (as defined herein
under "The Merger--Exchange Ratio; Conversion of Shares of CapitolBank Common
Stock," and "--Possible Adjustments to Exchange Ratio or Termination of the
Agreement") arise prior to the Determination Date, in which case, a maximum
adjustment not to exceed .0077 of a Westamerica Share could result, as more
fully described herein. If the Average Price on the Determination Date is less
than $30.20, CapitolBank may accept the Exchange Ratio, as adjusted for
Significant Liabilities, or the parties have the right, but not the obligation,
to renegotiate the Exchange Ratio. Should CapitolBank fail to accept the
Exchange Ratio, as adjusted, or should the parties fail to renegotiate the
Exchange Ratio, the Agreement may be terminated by CapitolBank.
Based on the closing price on the NNM of Westamerica Common Stock on
January __, 1995 of $_____ per share, each holder of CapitolBank Common Stock
would receive the equivalent of $______ per share for each share of CapitolBank
Common Stock, assuming the Average Price on the Determination Date is $_____ if
there is no adjustment for Significant Liabilities, and $_____ per share if the
maximum Significant Liabilities adjustment occurs. See "Certain Considerations--
Tyler v. Wickland."
This Proxy Statement/Prospectus and the accompanying letter of the Vice
Chairman of the Board, Notice of Special Meeting and Proxy are first being
mailed to shareholders of CapitolBank on or about February __, 1995.
This Proxy Statement/Prospectus also serves as a prospectus for Westamerica
under the Securities Act of 1933, as amended (the "Securities Act"), for the
issuance of shares of Westamerica Common Stock (including the associated
Westamerica Common Stock purchase rights described under "Description of
Westamerica Capital Stock and Indebtedness--Shareholder Rights Plan" with
respect to such shares) in the Merger. On ___________, 1995, the closing price
of Westamerica Common Stock on the NNM was $_____. There have been no trades of
CapitolBank Common Stock in 1995 to the date hereof. The last trade occurred on
December 21, 1994 at $2.00 per share. Preceding this sale, CapitolBank Common
Stock was traded on December 15, 1994 at $2.50 per share. See "Market Price and
Dividend Information."
THE ABOVE MATTERS ARE DISCUSSED IN DETAIL IN THIS PROXY STATEMENT/PROSPECTUS.
THE PROPOSED MERGER IS A COMPLEX TRANSACTION. SHAREHOLDERS ARE STRONGLY URGED
TO READ AND CONSIDER CAREFULLY THIS PROXY STATEMENT/PROSPECTUS IN ITS ENTIRETY.
-------------------------------
THE SECURITIES TO BE ISSUED IN THE MERGER HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION OR
THE FEDERAL DEPOSIT INSURANCE CORPORATION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR THE FEDERAL DEPOSIT INSURANCE
CORPORATION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES TO BE ISSUED IN THE MERGER ARE NOT DEPOSITS AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.
-----------------------------
The date of this Proxy Statement/Prospectus is February ___, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
AVAILABLE INFORMATION.............. 1
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE..................... 2
SUMMARY............................ 4
Information about the Parties.... 4
The Meeting and Vote Required.... 5
Certain Considerations........... 5
Reasons for the Merger;
Recommendation of the Board of
Directors....................... 5
Opinions of CapitolBank's
Financial Advisors.............. 6
Effective Date of the Merger..... 6
Exchange Ratio; Possible
Adjustments to Exchange Ratio... 6
Treatment of Stock Options....... 7
Conditions and Regulatory
Approvals....................... 8
Stock Option Agreement........... 8
Noncompetition Agreements........ 9
Certain Tax Consequences......... 9
Amendment and Termination........ 9
Expenses......................... 10
Accounting Treatment............. 10
Dissenters' Rights of Appraisal.. 11
Market Price and Dividend Data... 11
Differences in Applicable Law
and Rights of Shareholders...... 12
Westamerica Unaudited Summary of
Results for the Year Ended
December 31, 1994............... 12
Selected Historical and Pro Forma
Financial Data.................. 12
INTRODUCTION....................... 17
INFORMATION ABOUT WESTAMERICA...... 17
Recent and Pending Acquisitions.. 18
INFORMATION ABOUT CAPITOLBANK...... 19
THE MEETING........................ 19
Matters to be Considered at the
Meeting......................... 19
Benefical Ownership of Stock..... 20
Certain Agreements............... 20
CERTAIN CONSIDERATIONS............. 20
Tyler v. Wickland................ 21
Shares Eligible for Future Sale;
Dilution........................ 21
Interests of CapitolBank
Officers and Directors in the
Merger.......................... 22
Real Estate Lending Activities;
Nonperforming Assets............ 22
Organizational Structure and
Operations After the Merger..... 23
Effect of Shareholder Rights
Plan............................ 23
Legislative and Regulatory
Environment..................... 23
THE MERGER......................... 24
Background of the Merger......... 24
Reasons for the Merger;
Recommendation of the Board of
Directors....................... 25
Opinions of CapitolBank's
Financial Advisors.............. 26
Effective Date of the Merger..... 37
Exchange Ratio; Conversion of
Shares of CapitolBank Common
Stock........................... 37
Possible Adjustments to Exchange
Ratio or Termination of the
Agreement....................... 37
Exchange of CapitolBank Stock
Certificates; Fractional
Interests....................... 39
Treatment of Stock Options....... 40
Covenants of Westamerica and
CapitolBank; Conduct of Business
Prior to the Merger............. 41
Management and Operations
Following the Merger............ 42
Representations and Warranties;
Conditions to the Merger........ 43
</TABLE>
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Required Regulatory Approvals.... 44
Trading Markets for Stock........ 45
Stock Option Agreement........... 45
Noncompetition Agreements........ 48
Certain Tax Consequences......... 49
Amendment; Termination........... 50
Expenses......................... 52
Accounting Treatment............. 52
Resales of Westamerica Common
Stock........................... 52
DISSENTERS' RIGHTS OF APPRAISAL.... 52
PRO FORMA COMBINED FINANCIAL
INFORMATION....................... 54
SUPPLEMENTAL HISTORICAL
INFORMATION....................... 63
MARKET PRICE AND DIVIDEND
INFORMATION....................... 65
Market Quotations................ 65
Dividends and Dividend Policy.... 67
MANAGEMENT'S DISCUSSION AND
ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
OF CAPITOLBANK................... 68
Results of Operations............ 68
Commitments and Letters of
Credit.......................... 77
Liquidity........................ 78
Interest Rate Sensitivity........ 78
Capital.......................... 79
Investment Securities............ 80
Deposits......................... 81
Selected Ratios.................. 81
CERTAIN DIFFERENCES IN RIGHTS OF
SHAREHOLDERS...................... 81
General.......................... 81
Certain Anti-Takeover Measures... 82
Quorum Requirements.............. 82
Indemnification of Directors and
Executive Officers.............. 82
Shareholder Meetings and Action
by Written Consent.............. 84
Amendment of Bylaws.............. 84
Meetings Called by the
Superintendent.................. 85
Filling Vacancies on the Board
of Directors.................... 85
Notice of Shareholder Business... 85
Notice of Director Nominations... 86
Westamerica "Interested Person"
Provision....................... 86
DESCRIPTION OF WESTAMERICA CAPITAL
STOCK AND INDEBTEDNESS............ 87
Common Stock..................... 87
Preferred Stock and Class B
Common Stock.................... 87
Debt Agreements.................. 87
Shareholder Rights Plan.......... 88
DESCRIPTION OF CAPITOLBANK CAPITAL
STOCK............................. 89
Common Stock..................... 89
EXPERTS............................ 90
LEGAL MATTERS...................... 90
SOLICITATION OF PROXIES............ 90
PROPOSALS OF SECURITY HOLDERS...... 90
INDEX TO CAPITOLBANK'S FINANCIAL
STATEMENTS........................ F-1
</TABLE>
Annex A Agreement and Plan of Reorganization and Agreements of Merger
Annex B Fairness Opinion of Hoefer & Arnett Incorporated
Annex C Fairness Opinion of Smith & Crowley Inc.
Annex D Stock Option Agreement
Annex E California General Corporation Law Chapter 13-Dissenters' Rights
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<PAGE>
NO PERSON IS AUTHORIZED BY WESTAMERICA OR CAPITOLBANK TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION, OTHER THAN ANY INFORMATION OR
REPRESENTATION CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS, IN CONNECTION
WITH THE SOLICITATION AND THE OFFERING MADE BY THIS PROXY
STATEMENT/PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE THE SOLICITATION OF A PROXY
OR AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO PURCHASE, ANY
SECURITIES IN ANY JURISDICTION IN WHICH A SOLICITATION OR OFFERING MAY NOT
LAWFULLY BE MADE.
NEITHER THE DELIVERY OF THIS PROXY STATEMENT/PROSPECTUS NOR ANY
DISTRIBUTION OF SECURITIES MADE HEREUNDER SHALL IMPLY THAT THERE HAS BEEN
NO CHANGE IN THE INFORMATION SET FORTH HEREIN OR IN THE AFFAIRS OF
WESTAMERICA OR CAPITOLBANK SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
Westamerica is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). In
accordance therewith, Westamerica files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information filed
by Westamerica with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. and at the Chicago Regional
Office, Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois, and the New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York. Copies of such material also can
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
Westamerica, PV Financial, a bank holding company headquartered in
Modesto, California ("PV Financial"), and PV Financial's wholly-owned
subsidiary, Pacific Valley National Bank, a national banking association
("Pacific Valley National Bank"), entered into an Agreement and Plan of
Reorganization (as amended) dated as of July 25, 1994, whereby the parties
thereto agreed to merge PV Financial into Westamerica (the "PV Financial
Merger"). The PV Financial Merger was effective January 31, 1995. PV
Financial is subject to the informational requirements of the Exchange Act
and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information filed by PV Financial with the Commission can be inspected and
copied at, and copies obtained from, the public reference facilities
maintained by the Commission at the above addresses at prescribed rates.
Westamerica, North Bay Bancorp, a bank holding company headquartered in
Novato, California ("North Bay"), and North Bay's wholly-owned subsidiary,
Novato National Bank, a national banking association ("Novato National
Bank"), have entered into an Agreement and Plan of Reorganization dated as
of December 8, 1994, whereby the parties thereto agreed to merge North Bay
into Westamerica (the "North Bay Merger"). It is anticipated that the
North Bay Merger will be consummated in the second half of 1995 upon the
receipt of regulatory and shareholder approval and the satisfaction of
certain other conditions. North Bay is subject to the informational
requirements of the Exchange Act and, in accordance therewith, files
reports and other information with the Commission. Such reports and other
information filed by North Bay with the Commission can be inspected and
copied at, and copies obtained from, the public reference facilities
maintained by the Commission at the above addresses at prescribed rates.
CapitolBank is subject to the informational requirements of the Exchange
Act administered by the Federal Deposit Insurance Corporation (the
"FDIC"). In accordance therewith, CapitolBank files reports, proxy
statements and other information with the FDIC. Such reports, proxy
statements and other information can be inspected at, and copies obtained
from, the Registration and Disclosure Section of the FDIC, 1776 F Street
N.W., Room 643, Washington, D.C. 20429, at prescribed rates. These
documents may also be inspected at the Federal Reserve Bank of San
Francisco, 101 Market Street, San Francisco, California. Westamerica has
filed with the Commission a Current Report on Form 8-K which contains
reports, proxy statements and other information about CapitolBank
including its articles of incorporation, as amended, and bylaws, as
amended. Such reports, proxy statements and other information may be
inspected and copied at the public reference facilities maintained by the
Commission at the above addresses. Although to Westamerica's knowledge the
information concerning CapitolBank included in such Current Report on Form
8-K is accurate, Westamerica has not verified either its accuracy or its
completeness. Westamerica does not warrant that there have not occurred
events, not yet publicly disclosed by CapitolBank, which would affect
either the accuracy or the completeness of the information concerning
CapitolBank included in such Current Report on Form 8-K.
Westamerica has filed with the Commission a Registration Statement on
Form S-4 under the Securities Act of 1933, as amended relating to the
shares of Westamerica Common Stock to be issued in connection with the
Merger (together with any amendments thereto, the "Registration
Statement"). This Proxy Statement/Prospectus also constitutes the
Prospectus of Westamerica filed as part of the Registration Statement and
does not contain all of the information set forth in the Registration
Statement and exhibits thereto. The Registration Statement and the
exhibits thereto may be inspected and copied, at prescribed rates, at the
public reference facilities maintained by the Commission at the addresses
set forth above.
Statements contained in this Proxy Statement/Prospectus or in any
document incorporated by reference herein relating to the contents of any
contract or other
-1-
<PAGE>
document referred to herein or therein are not necessarily complete, and
in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement or such other
document, each such statement being qualified in all respects by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS
WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THE DOCUMENTS
INCORPORATED HEREIN BY REFERENCE BY WESTAMERICA (OTHER THAN CERTAIN
EXHIBITS TO SUCH DOCUMENTS) ARE AVAILABLE WITHOUT CHARGE UPON REQUEST FROM
MARY ANN BELL, ASSISTANT CORPORATE SECRETARY, WESTAMERICA BANCORPORATION,
1108 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 (TELEPHONE (415) 257-
8000). THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE BY CAPITOLBANK
(OTHER THAN CERTAIN EXHIBITS TO SUCH DOCUMENTS) ARE AVAILABLE WITHOUT
CHARGE UPON REQUEST FROM LAWRENCE D. McGOVERN, CORPORATE SECRETARY,
CAPITOLBANK, 300 CAPITOL MALL, SACRAMENTO, CALIFORNIA 95814 (TELEPHONE
(916) 449-8300). THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE BY PV
FINANCIAL (OTHER THAN CERTAIN EXHIBITS TO SUCH DOCUMENTS) ARE AVAILABLE
WITHOUT CHARGE UPON REQUEST FROM SYLVIA J. RUDY, CORPORATE SECRETARY, PV
FINANCIAL, 1524 McHENRY AVENUE, MODESTO, CALIFORNIA 95350 (TELEPHONE (209)
575-2900). THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE BY NORTH BAY
(OTHER THAN CERTAIN EXHIBITS TO SUCH DOCUMENTS) ARE AVAILABLE WITHOUT
CHARGE UPON REQUEST FROM NANCY R. DESOUSA , CORPORATE SECRETARY, NORTH
BAY BANCORP, 350 IGNACIO BOULEVARD, NOVATO, CALIFORNIA 94949 (TELEPHONE
(415)883-2265).IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS IN
ADVANCE OF THE MEETING TO WHICH THIS PROXY STATEMENT/PROSPECTUS RELATES,
ANY REQUEST SHOULD BE MADE BY MARCH 2, 1995.
The following documents of Westamerica are hereby incorporated by
reference in this Proxy Statement/Prospectus and shall be deemed to be a
part hereof from the date of filing of those documents: Westamerica's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993;
Westamerica's Quarterly Report on Form 10-Q for the quarter ended March
31, 1994; Westamerica's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1994; Westamerica's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1994; Westamerica's Current Report on Form 8-K
dated July 29, 1994; Westamerica's Current Report on Form 8-K dated
November 23, 1994; Westamerica's Current Report on Form 8-K dated December
12, 1994; Westamerica's Current Report on Form 8-K dated December 19,
1994; the financial statements of PV Financial as contained in.
Westamerica's Registration Statement on Form S-4 (No. 33-55417), the
Financial Statements of North Bay as contained in Westamerica's
Registration Statement on Form S-4 (No. 33-57411); and all other reports
and documents filed by Westamerica pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Proxy
Statement/Prospectus and prior to the termination of the offering of
Westamerica Common Stock to which this Proxy Statement/Prospectus relates.
The following documents of CapitolBank, filed with the Commission by
Westamerica under cover of a Current Report on Form 8-K filed December 19,
1994, are hereby incorporated by reference in this Proxy
Statement/Prospectus and shall be deemed to be a part hereof from the date
of filing of those documents: CapitolBank's Annual Report on Form F-2 for
the fiscal year ended December 31, 1993; CapitolBank's Quarterly Report on
Form F-4 for the quarter ended March 31, 1994; CapitolBank's Quarterly
Report on Form F-4 for the quarter ended June 30, 1994; CapitolBank's
Quarterly Report on Form F-4 for the quarter ended September 30, 1994;
CapitolBank's Proxy Statement, dated May 25, 1994; and all other reports
and documents filed by CapitolBank with the FDIC pursuant to 12 C.F.R.
Part 335 et seq, and subsequently filed by Westamerica with the Commission
pursuant to Sections 13(a) and 15(d) of the Exchange Act subsequent to the
date of this Proxy Statement/Prospectus and prior to the termination of
the offering of Westamerica Common Stock to which this Proxy
Statement/Prospectus relates.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Proxy Statement/Prospectus to the extent
that such statement is modified or replaced by a statement contained
herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference into this Proxy
Statement/Prospectus. Any such statement so modified or superseded shall
not be deemed, except as so modified or replaced, to constitute a part of
this Proxy Statement/Prospectus.
All information contained in this Proxy Statement/Prospectus relating to
Westamerica has been supplied by Westamerica, and all information relating
to CapitolBank has been supplied by CapitolBank. Neither Westamerica nor
CapitolBank warrants the accuracy or completeness of information relating
to
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the other party. Westamerica makes no representation as to the accuracy or
completeness of any CapitolBank documents filed by Westamerica with the
Commission pursuant to the Exchange Act.
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SUMMARY
The following is a summary of certain information contained elsewhere
in this Proxy Statement/Prospectus. Reference is made to, and this
Summary is qualified in its entirety by, the more detailed information
contained elsewhere in this Proxy Statement/Prospectus, in the attached
Annexes and in the documents incorporated herein by reference.
Shareholders are urged to read carefully this Proxy Statement/Prospectus
and the attached Annexes in their entirety. Certain capitalized terms
which are used but not defined in this Summary are defined elsewhere in
this Proxy Statement/Prospectus.
Information about the Parties
Westamerica is a bank holding company, headquartered in San Rafael,
California, incorporated under the laws of the State of California and
registered under the Bank Holding Company Act of 1956, as amended (the
"BHC Act"). Westamerica's banking subsidiaries, Westamerica Bank, Napa
Valley Bank and Bank of Lake County, are California state-chartered banks
insured by the Federal Deposit Insurance Corporation (the "FDIC").
Westamerica Bank is a member of the Federal Reserve System.
Westamerica's subsidiary banks presently operate 48 banking offices in
eleven counties in Northern California. Westamerica's subsidiary,
Community Banker Services Corporation ("CBSC"), provides centralized
services to Westamerica's banking subsidiaries. CBSC's subsidiary,
Weststar Mortgage Corporation, a California corporation, also conducts
mortgage servicing activities. Westamerica also owns all of the capital
stock of Westcore, an inactive California corporation ("Westcore"). The
Federal Reserve Bank of San Francisco recently approved Westamerica's
application to commence an employee benefit consulting business through
Westcore.
Westamerica, PV Financial, a bank holding company headquartered in
Modesto, California, with approximately $173 million in assets at
September 30, 1994 ("PV Financial"), and PV Financial's banking
subsidiary, Pacific Valley National Bank, a national banking association
("Pacific Valley National Bank"), entered into an Agreement and Plan
of Reorganization (as amended) dated as of July 25, 1994, whereby the
parties thereto agreed to merge PV Financial into Westamerica (the "PV
Financial Merger") and merge Pacific Valley National Bank with and into
Westamerica Bank with Westamerica Bank as the surviving entity. The PV
Financial Merger was effective January 31, 1995.
On December 8, 1994, Westamerica, North Bay Bancorp, a bank holding
company headquartered in Novato, California, with approximately $108
million in assets at September 30, 1994 ("North Bay"), and North Bay's
banking subsidiary, Novato National Bank, a national banking association
("Novato National Bank"), entered into an Agreement and Plan of
Reorganization dated as of December 8, 1994, whereby the parties thereto
agreed to merge North Bay into Westamerica (the "North Bay Merger"). The
North Bay Merger is subject to regulatory and shareholder approval and
the satisfaction of certain other conditions. It is anticipated that
shortly after completion of the North Bay Merger, Novato National Bank
will be merged with and into Westamerica Bank.
At September 30, 1994, Westamerica had consolidated assets of
approximately $2.05 billion, deposits of approximately $1.71 billion and
shareholders' equity of approximately $163 million. Westamerica's
principal executive offices are located at 1108 Fifth Avenue, San Rafael,
California 94901, and Westamerica's telephone number at that location is
(415) 257-8000.
CapitolBank is a California state-chartered bank, headquartered in
Sacramento, California. At September 30, 1994, CapitolBank had
consolidated assets of approximately $138 million, deposits of
approximately $126 million and shareholders' equity of approximately $9
million. CapitolBank's principal executive offices are located at 300
Capitol Mall, Sacramento, California 95814, and CapitolBank's telephone
number at that location is (916) 449-8300.
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The Meeting and Vote Required
The Meeting (including any adjournments or postponements thereof) will
be held at 300 Capitol Mall, Sacramento, California, on March 9, 1995,
at 5:00 p.m., local time. At the Meeting, holders of CapitolBank Common
Stock will consider and vote upon a proposal to adopt and approve the
Agreements and the transactions contemplated thereby, including the
Merger. Only holders of record of CapitolBank Common Stock at the close of
business on January 13, 1995 (the "Record Date") will be entitled to
notice of, and to vote at, the Meeting. See "The Meeting."
The approval of the Merger by the CapitolBank shareholders will
constitute approval and adoption of the Agreements and each of the
transactions contemplated thereby, including the Merger, as more fully
described herein. The affirmative vote of the holders of a majority of the
outstanding shares of CapitolBank Common Stock entitled to vote at the
Meeting is required to adopt and approve the Agreements and the
transactions contemplated thereby, including the Merger. Such approval is
a condition to, and required for, consummation of the Merger. See "The
Meeting" and "The Merger--Representations and Warranties; Conditions to
the Merger."
As of the Record Date, there were 4,080,302 shares of CapitolBank
Common Stock outstanding, of which 1,029,459 shares were beneficially
owned by directors of CapitolBank and their respective affiliates. The
directors of CapitolBank have agreed to vote the shares of CapitolBank
Common Stock held by them (which includes all shares as to which the
directors have sole or shared voting power) for the approval of the
Merger. To Westamerica's knowledge, as of the Record Date, directors and
executive officers of Westamerica did not beneficially own any shares of
CapitolBank Common Stock. Accordingly, approval of the Merger at the
Meeting is expected to require the affirmative vote of an additional
1,010,693 shares of CapitolBank Common Stock outstanding on the Record
Date voted by the remaining shareholders of CapitolBank.
Approval of the Agreements and the Merger by Westamerica's
shareholders is not required.
A CapitolBank shareholder giving a Proxy has the power to revoke that
Proxy prior to its exercise. See "The Meeting--Matters to be Considered
at the Meeting."
Certain Considerations
See "Certain Considerations" for a discussion of certain factors that
should be carefully considered by CapitolBank shareholders in deciding
whether to vote for approval of the Agreements and the Merger. Such
section discusses the Tyler v. Wickland lawsuit, Westamerica Shares
eligible for future sale which may have a dilutive effect, interests of
CapitolBank officers and directors in the Merger, real estate lending
activities, organizational structure and management, operations after the
Merger, the effect of the Westamerica shareholder rights plan and the
legislative and regulatory environment.
CapitolBank's Vice Chairman and Chief Executive Officer, Thayer T.
Prentice, and President and Chief Operating Officer, William J. Martin,
are parties to employment agreements with CapitolBank which provide that,
in the event such officers are terminated upon a reorganization of
CapitolBank, CapitolBank shall be obligated to pay, among other things,
their respective salaries through the date of termination, any bonus which
was earned but not paid on the date of such termination and $150,000 to
Mr. Prentice and $125,000 to Mr. Martin, the equivalent of one year's
salary for each.
In addition, pursuant to their employment agreements, Messrs. Prentice
and Martin were granted options to purchase shares of CapitolBank Common
Stock exercisable at $1.50 per share. The Stock Option Committee of the
CapitolBank Board of Directors has fully vested the options of Messrs.
Prentice and Martin so that such options may be exercised in full subject
the occurrence of the Merger on the Effective Date, using the share
withholding method.
CapitolBank maintains a directors' and officers' liability insurance
policy covering all of its directors and certain executive officers and
has entered into separate indemnification agreements with each director
and certain executive officers. See "Certain Differences in Rights of
Shareholders -- Indemnification of Directors and Executive Officers."
Pursuant to the Agreement, the CapitolBank directors and officers may also
obtain insurance coverage for claims made within one year after the
Effective Date, arising from facts or events (other than the Tyler v.
Wickland litigation) which occurred prior to such date. Upon the merger of
CapitolBank with and into Westamerica Bank, Westamerica Bank shall be
deemed to assume the liabilities of CapitolBank under its director and
officer indemnification agreements and shall be responsible and liable for
all of the liabilities and obligations of CapitolBank. See "Certain
Considerations --Interests of CapitolBank Officers and Directors in the
Merger."
Reasons for the Merger; Recommendation of the Board of Directors
The Board of Directors of CapitolBank believes that the Merger is in
the best interests of the shareholders of CapitolBank and offers the best
opportunity available for shareholders of CapitolBank to realize the value
of their CapitolBank Shares.
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In evaluating the recommendations of CapitolBank's Board of Directors,
shareholders of CapitolBank should carefully consider the matters
described under "Certain Considerations," "The Merger--Background of the
Merger" and "--Reasons for the Merger; Recommendation of the Board of
Directors."
Opinions of CapitolBank's Financial Advisors
Each of CapitolBank's investment advisors, Hoefer & Arnett Incorporated
("Hoefer") and Smith & Crowley Inc. ("Smith & Crowley"), has concluded
that the Exchange Ratio, as it may be adjusted pursuant to the Agreement,
is fair from a financial point of view to CapitolBank's shareholders.
The texts of the fairness opinions, which set forth certain assumptions
made, matters considered and limits on the review undertaken by Hoefer
and Smith & Crowley are attached to this Proxy Statement/Prospectus as
Annexes B and C, respectively. CapitolBank shareholders are urged to read
the fairness opinions in their entirety. The Agreement does not require
that such fairness opinions be updated prior to the Effective Date. See
"The Merger--Opinions of CapitolBank's Financial Advisors," which also
contains a discussion of the fees to be paid to Hoefer and Smith &
Crowley. A significant portion of the fees to be paid to Hoefer are
generally contingent upon consummation of the Merger.
Effective Date of the Merger
The Merger will be effective upon the date of the filing with the
California Secretary of State of a duly executed Merger Agreement and the
officers' certificates prescribed by Section 1103 of the California
General Corporation Law (the "GCL") or upon any subsequent date specified
in the Merger Agreement (the "Effective Time"). The date on which the
Merger is effective as specified in the Merger Agreement is referred to
herein as the "Effective Date." It is presently anticipated that the
Merger will be consummated on or prior to May 31, 1995. However it is
possible that the Effective Date may extend beyond such date.
Exchange Ratio; Possible Adjustments to Exchange Ratio
On the Effective Date, each issued and outstanding share of CapitolBank
Common Stock (except for fractional shares and shares as to which
dissenters' rights have been perfected) shall be converted into .0938 of a
share (the "Exchange Ratio") of Westamerica Common Stock subject to
potential downward adjustments in certain circumstances. Based on a
closing price of Westamerica Common Stock of $_____ on January ___, 1995
(and assuming this is the Average Price, as defined below), the Exchange
Ratio would be .____ (the equivalent of $____ per share of CapitolBank
Common Stock) if there is not an adjustment for Significant Liabilities,
as defined below and .____ (the equivalent of $____ per shares of
CapitolBank Common Stock) if the maximum adjustment for Significant
Liabilities occurs.
The Exchange Ratio will be adjusted downward for any Significant
Liabilities (regardless of whether the price or Westamerica Common Stock
changes) if in the aggregate these Significant Liabilities total more than
$150,000. As of the date hereof, certain expenses and costs associated
with bonuses payable to CapitolBank employees in the amount of $60,000
would constitute Significant Liabilities if the minimum threshold of
$150,000 is attained due to other liabilities or expenses being identified
as Significant Liabilities by Westamerica or CapitolBank prior to the
Effective Date. See "Certain Considerations--Tyler v. Wickland."
"Significant Liabilities" mean those liabilities or expenses (whether
operating or capital in nature) relating to those categories and events
described in the next sentence which have not been reflected as reductions
to CapitolBank's consolidated book value pursuant to generally accepted
accounting principles as of September 30, 1994; provided, however, that
any individual component of the $150,000 aggregate amount must reasonably
be estimated to exceed
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$25,000. Significant Liabilities consist of the following categories or
events to which Westamerica has not consented in writing: (i) new or
extended contractual obligations; (ii) new or extended leases of real or
personal property; (iii) acquisition of capital assets (or commitments to
do so); (iv) new or expanded contingent liabilities based upon threatened
or pending litigation or other proceedings or hazardous or toxic
substances and legal fees and costs (whether actual or estimated) related
thereto; (v) any expenses, fines, fees, penalties or similar obligations,
except those which arose in the Ordinary Course of Business (as defined in
the Agreement); (vi) any new, expanded or accelerated pension or other
benefits, including employment contracts and severance payments, whether
or not vested; and (vii) the aggregate amount of the difference between
the per share exercise price of any stock options or stock appreciation
rights granted after June 30, 1994, by CapitolBank and $3.00.
The amount of Significant Liabilities in the case of the arrangements
described in (i), (ii), and (vi) above shall (a) equal any payment that
could be made as of the Effective Date that would terminate the
arrangement without further liability or expense to CapitolBank or
Westamerica, or (b) if the arrangement does not provide for such a
payment, the present value of the amount of the remaining payments payable
pursuant to the arrangement after the Effective Date using a discount rate
equivalent to Westamerica's then current cost of funds. The amount of
Significant Liabilities in the case of (iii) above will equal the amount
expended or required to be expended under binding commitments for a
capital asset, minus the amount for which the capital asset could actually
be sold on a liquidation basis. Significant Liabilities do not include
fees of CapitolBank's financial advisors or CapitolBank's legal fees
directly attributable to this Merger. Significant Liabilities shall not
include approximately $200,000 already accrued for CapitolBank's 1994
bonus pool, approximately $116,000 for CapitolBank's employee retention
contracts and certain amounts payable to Thayer T. Prentice and William J.
Martin including $150,000 and $125,000, respectively, pursuant to their
respective employment agreements with CapitolBank. CapitolBank does not
intend to pay Messrs. Prentice and Martin bonuses attributable to their
employment during 1995, however, pursuant to their respective employment
agreements, it is expected they will be paid bonuses of $60,000 and
$50,000, respectively, attributable to their 1994 employment. As a result
of any Significant Liabilities through the close of business on the day
preceding the Effective Date, the Exchange Ratio shall be reduced to an
amount calculated as follows, provided that not more than $1,000,000 of
such Significant Liabilities shall be taken into account (the "Adjusted
Exchange Ratio"):
(Significant Liabilities)
Exchange - ------------------------- = Adjusted Exchange Ratio
Ratio $130 Million
If, as of two business days preceding the Effective Date, the average
of the closing price of Westamerica Common Stock quoted on the Nasdaq
National Market (the "NNM") (calculated by taking an average of the
closing prices quoted on the NNM as reported in The Wall Street Journal on
each of the twenty consecutive trading days prior to two business days
prior to the Effective Date, rounded to four decimal places, whether or
not trades occurred on those days) (the "Average Price") is below $30.20,
CapitolBank may accept the Exchange Ratio as adjusted for Significant
Liabilities, if any, or Westamerica and CapitolBank shall have the right,
but not the obligation, to renegotiate the Exchange Ratio. Should
CapitolBank fail to accept the Exchange Ratio as described in the
preceding sentence or should the parties fail to renegotiate the Exchange
Ratio, CapitolBank may terminate the Agreement. To the extent required by
applicable law, if the Average Price is below $30.20 and CapitolBank
accepts the Exchange Ratio (.0938) as it may be adjusted for any
Significant Liabilities or renegotiates the Exchange Ratio, CapitolBank
will seek approval from its shareholders at a new meeting of shareholders.
If the Average Price is above $33.00, the Exchange Ratio, as adjusted
for any Significant Liabilities, will also be adjusted downward by one-
half of the amount by which the Average Price is above $33.00, according
to a formula provided in the Agreement. There is no limit to the downward
adjustment of the Exchange Ratio where the Average Price exceeds $33.00.
There will be no adjustment to the Exchange Ratio (except for Significant
Liabilities) if the Average Price is between $30.20 and $33.00.
Shareholders are urged to carefully review the description of the Merger
under the captions "The Merger--Exchange Ratio; Conversion of Shares of
CapitolBank Common Stock" and "--Possible Adjustments to Exchange Ratio or
Termination of the Agreement" and the Agreements attached as Annex A
hereto.
Immediately following consummation of the Merger, based on the number
of shares of Westamerica Common Stock and CapitolBank Common Stock
outstanding on the Record Date, the former shareholders of CapitolBank
will hold approximately 4% of the shares of the issued and outstanding
common stock of Westamerica assuming the Exchange Ratio remains at .0938.
Each share of Westamerica Common Stock issued and outstanding immediately
prior to consummation of the Merger will remain outstanding and unchanged
as a result of the Merger. See "The Merger--Exchange Ratio; Conversion of
Shares of CapitolBank Common Stock."
Treatment of Stock Options
As of September 30, 1994, options to purchase 319,167 shares of
CapitolBank Common Stock were outstanding under the CapitolBank Sacramento
1992 Stock Option Plan (the "CapitolBank Stock Option Plan"). Following
the Effective Date, any then outstanding and unexercised options under the
CapitolBank Stock Option Plan will be replaced by options for shares of
Westamerica Common Stock in accordance with the terms of the Agreement.
The Agreement provides that, following the Effective Date, all outstanding
options under the CapitolBank Stock Option Plan will be replaced by
options for an equivalent number of shares of Westamerica Common Stock
with an equivalent exercise price, calculated in accordance with the
Exchange Ratio, but otherwise on terms and conditions that are consistent
with the terms and conditions of the existing CapitolBank Stock Option
Plan options. See "The Merger--Treatment of Stock Options."
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Conditions and Regulatory Approvals
The respective obligations of Westamerica and CapitolBank to effect
the Merger are subject to various conditions described in "The Merger--
Representations and Warranties; Conditions to the Merger."
The Merger will occur only if all required government approvals are
in effect or have been obtained (without the imposition of any materially
burdensome conditions as determined by Westamerica in its reasonable
judgment), the Agreements are approved by the majority of the outstanding
shares of CapitolBank Common Stock, the representations and warranties
of the parties are true and correct in all material respects on and as of
the Effective Date, and certain other conditions are satisfied.
Consummation of the Merger is subject to satisfaction of certain
other conditions or the waiver of such conditions by the party entitled to
do so. Such conditions include, among other things, the following: (i)
except as disclosed to Westamerica in writing prior to November 17, 1994,
the absence of a material adverse change since December 31, 1993, in the
business, financial condition or results of operations of either party;
(ii) the receipt of a letter from legal counsel to CapitolBank to the
effect that the expenses and other costs arising out of the Tyler v.
Wickland litigation would likely be covered by directors' and officers'
liability insurance; (iii) the absence of significant legal impediments to
the Merger; (iv) the effectiveness of a registration statement with
respect to the Westamerica Shares to be issued to CapitolBank shareholders
as a result of the Merger; (v) the receipt of a tax ruling or opinion of
legal counsel to Westamerica to the effect that, among other things, under
federal and state tax laws, the Merger will not result in any recognized
gain or loss to Westamerica or CapitolBank and, except for cash received
in lieu of fractional shares, no gain or loss will be recognized by
holders of CapitolBank Common Stock who receive Westamerica Common Stock
in exchange for the CapitolBank Common Stock which they hold; (vi) receipt
of letters and reports from CapitolBank's independent public accountants
relating to the Registration Statement and CapitolBank's unaudited
financial statements; (vii) receipt by CapitolBank of a fairness opinion
from each of its financial advisors; and (viii) receipt of a letter from
Westamerica's independent public accountants to the effect that the Merger
will qualify for the pooling of interests method of accounting in
accordance with generally accepted accounting principles.
In addition, certain other conditions must be satisfied, or must be
waived by Westamerica, in order for Westamerica to be obligated to
consummate the Merger, including but not limited to the conditions that
(i) the aggregate number of shares of CapitolBank Common Stock held by
persons who have taken all of the steps required to perfect their right
(if any) to be paid the fair market value of such shares as dissenting
shares under the GCL shall not exceed 9% of the outstanding shares of
CapitolBank Common Stock; (ii) CapitolBank has received all consents of
third parties which are required to be received by it, if any; and (iii)
the percentage determined by dividing Classified Loans (as defined in the
Agreement) by the sum of equity capital (excluding adjustments required by
Financial Accounting Standards Board Bulletin No. 115 ("FASB No. 115"))
plus reserves for loan losses as of December 31, 1994, at the month end
immediately preceding the Effective Date and two days prior to the
Effective Date, shall be no greater than 42%.
Stock Option Agreement
Immediately following the execution of the Agreement, CapitolBank, as
a condition to, and in consideration for entering into, the Agreement,
granted Westamerica an option, exercisable only in the event certain
triggering events occur, to purchase 9.9% of the then issued and
outstanding shares of CapitolBank Common Stock without giving effect to
the issuance of shares pursuant to an exercise of such stock option and
which, as of the Record Date, would involve the issuance of 403,949 fully
paid and nonassessable shares of CapitolBank Common Stock at an exercise
price, subject to certain adjustments, of $2.27 per share. See "The
Merger--Stock Option Agreement."
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Noncompetition Agreements
As a condition to consummation of the Merger under the Agreement, the
nonemployee directors of CapitolBank have each entered into a
noncompetition agreement (collectively, the "Noncompetition Agreements")
with Westamerica. Pursuant to the Noncompetition Agreements signed by
J. Al Wickland, Jr. and John A. Wickland III, those directors are not
permitted, without Westamerica's prior written consent, to engage in
activities within Sacramento County in the State of California which are
similar or competitive with the activities now engaged in by CapitolBank.
The Noncompetition Agreements signed by each of the other directors
provide that without the prior written consent of Westamerica, each such
director will not engage in soliciting or making loans to or attracting or
soliciting insured financial institution deposits from customers of, or
otherwise contacting individuals or entities doing business with,
CapitolBank. The Noncompetition Agreements expire two years after the
Effective Date.
In addition, each of the Noncompetition Agreements requires the
directors to treat as confidential all information concerning the records,
properties, books, contracts, commitments and affairs of Westamerica,
CapitolBank or their respective subsidiaries, even if a Noncompetition
Agreement is terminated or expires. See "The Merger--Noncompetition
Agreements."
Certain Tax Consequences
It is anticipated that the principal federal income tax consequences
of the Merger will be as follows: (a) the Merger will be part of a
reorganization within the meaning of section 368(a) of the Internal
Revenue Code of 1986, as amended; (b) no gain or loss will be recognized
by the shareholders of CapitolBank who receive Westamerica Common Stock in
exchange for the CapitolBank Common Stock which they hold, except in
respect of cash received for fractional shares; (c) the holding period of
the Westamerica Common Stock in the hands of the former CapitolBank
shareholders will generally include the holding period of their exchanged
CapitolBank Common Stock; and (d) the tax basis of the shares of
Westamerica Common Stock received by the shareholders of CapitolBank will
be the same as the tax basis of their exchanged CapitolBank Common Stock.
In order to satisfy one of the conditions to consummation of the Merger
(see "The Merger--Representations and Warranties; Conditions to the
Merger"), Westamerica and CapitolBank each expects to receive a tax ruling
or an opinion of Westamerica's legal counsel to the effect that the Merger
will have the foregoing and certain other tax consequences. For a detailed
discussion of the income tax consequences of the Merger, see "The Merger--
Certain Tax Consequences." CapitolBank shareholders should consult their
personal tax advisors as to the consequences of the Merger to them under
United States federal, state or local law, or applicable foreign tax laws.
Amendment and Termination
The Agreement may be amended by Westamerica and CapitolBank at any
time prior to the Effective Date without the approval of the shareholders
of Westamerica or the shareholders of CapitolBank with respect to any of
its terms except the terms relating to the form or amount of consideration
to be delivered to the CapitolBank shareholders in the Merger. The
Agreements may be terminated by the mutual consent of the Boards of
Directors of both Westamerica and CapitolBank at any time prior to the
consummation of the Merger.
The Agreement may be terminated by Westamerica as follows: (i) on or
after July 31, 1995, if (A) any of the conditions to which the obligations
of Westamerica are subject has not been fulfilled, or (B) such conditions
have been fulfilled or waived by Westamerica and CapitolBank shall have
failed to complete the Merger; (ii) if (A) Westamerica has become aware of
any facts or circumstances of which it was not aware on the date of the
Agreement and which materially adversely affect CapitolBank or its
properties, operations, financial condition or prospects, (B) a materially
adverse change shall have occurred since December 31, 1993, in the
business, financial condition, results of operations or properties of
CapitolBank, (C) there has been a failure (including any anticipatory
breach) on the part of CapitolBank to comply with its obligations under
the Agreement, or any failure
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(including any anticipatory breach) to comply with any of the conditions
to closing set forth in Section 7 of the Agreement, or (D) based on the
continuing fiduciary duties of the CapitolBank Board of Directors to the
shareholders of CapitolBank, CapitolBank fails to act or refrains from
doing any act required of CapitolBank pursuant to the Agreement as a
result of a bona fide offer for a Business Combination (as such term is
defined in the Agreement); (iii) if Westamerica determines that it would
be inadvisable or inexpedient to continue to carry out the terms of, or to
attempt to consummate, the Merger by reason of any significant legal
impediment to the Merger having arisen, or any material pending or
threatened litigation, investigation or proceeding; or (iv) if any person
(other than Westamerica or any subsidiary thereof) shall become the
beneficial owner of 20% or more of the then outstanding shares of
CapitolBank or any person (other than Westamerica or a subsidiary thereof)
shall have commenced a bona fide tender offer or exchange offer to acquire
at least 20% of the then outstanding shares of CapitolBank.
The Agreement may be terminated by CapitolBank as follows: (i) on
or after July 31, 1995, if (A) any of the conditions to which the
obligations of CapitolBank are subject have not been fulfilled, or (B)
such conditions have been fulfilled or waived but Westamerica shall have
failed to complete the Merger; provided, however, that if Westamerica is
engaged at the time in litigation relating to an attempt to obtain one or
more of the government approvals which are required to consummate the
Merger or if Westamerica shall be contesting in good faith any litigation
which seeks to prevent consummation of the Merger, such nonfulfillment
shall not give CapitolBank the right to terminate the Agreements until the
earlier of (X) 12 months after the date of the Agreement or (Y) 60 days
after the completion of such litigation and of any further regulatory or
judicial action pursuant thereto; or (ii) if on or before the Effective
Date (A) CapitolBank has become aware of any facts or circumstances of
which it was not aware on November 17, 1994 and which can or do materially
adversely affect Westamerica and its subsidiaries (taken as a whole) or
its properties, operations, financial condition, or prospects (taken as a
whole) (B) a materially adverse change shall have occurred since December
31, 1993, in the business, financial condition, results of operations or
assets of Westamerica and its subsidiaries (taken as a whole), (C) there
has been a failure (including any anticipatory breach) on the part of
Westamerica to comply with its obligations under the Agreement or any
failure (including any anticipatory breach) to comply with any condition
set forth in Section 8 of the Agreement, or (D) Westamerica shall make any
offer to any third party or accept any offer from any third party
regarding a Business Combination (as such term is defined in the
Agreement) of Westamerica with any other entity that is not conditioned
upon performance by Westamerica or its successor of the obligations of
Westamerica under the Agreement; or (iii) the Average Price of Westamerica
Common Stock is less than $30.20 and CapitolBank has not accepted the
Exchange Ratio, as adjusted for Significant Liabilities, if any, or the
parties fail to renegotiate the Exchange Ratio.
Expenses
Westamerica and CapitolBank have each agreed to pay their own costs
incurred incident to the performance of their obligations under the
Agreements. See "The Merger--Expenses" and "--Amendment; Termination."
The following reflects Westamerica and CapitolBank estimated Merger
related expenses as of September 30, 1994.
<TABLE>
<CAPTION>
Westamerica North Bay Total
----------- --------- -----
<S> <C> <C> <C>
Financial advisory....... $ 0 $ 225 $ 225
Professional fees........ 110 170 280
Printing and other....... 20 10 30
----- ----- -----
Total.................. $ 130 $ 405 $ 535
----- ----- -----
</TABLE>
Accounting Treatment
The Merger is expected to be accounted for as a pooling of interests,
and it is a condition to Westamerica's obligation to consummate the Merger
that Westamerica shall have received a letter from KPMG Peat Marwick LLP,
Westamerica's independent public accountants, to the effect that the
Merger will qualify for such accounting treatment. Among other things,
the Agreement provides that in the event the holders of 9% or more of the
shares of CapitolBank Common Stock outstanding immediately prior to the
Effective Date have taken all of the steps required to perfect dissenters'
rights under the GCL with respect to such shares, the Merger will not be
consummated if Westamerica is unable to receive, as a result of such
action, a letter from its accountants to the effect that the Merger will
qualify for pooling of interests accounting treatment. See "The Merger--
Representations and Warranties; Conditions to the Merger" and "--
Accounting Treatment."
-10-
<PAGE>
Dissenters' Rights of Appraisal
Shareholders of CapitolBank Common Stock who exercise dissenters'
rights with respect to the Merger in accordance with the statutory
procedures prescribed in the GCL may be entitled to receive cash for their
stock if such shareholders did not vote "FOR" the approval and adoption
---
of the Agreements and the transactions contemplated thereby and otherwise
act to perfect their rights as dissenting shareholders pursuant to the
GCL. If a holder of CapitolBank Common Stock votes "FOR" the approval and
adoption of the Agreements, including the Merger, and the transactions
contemplated thereby, (including by executing and returning a proxy to
CapitolBank with no voting instructions indicated thereon) such holder
will lose any dissenters' rights that may exist with respect to the
subject shares. For a description of dissenters' rights under the GCL
and the method of perfecting such rights, see "The Meeting" and
"Dissenters' Rights of Appraisal."
Market Price and Dividend Data
Westamerica Common Stock is listed and traded on the NNM under the
symbol "WABC." There is a limited trading market for CapitolBank Common
Stock which is traded on the over-the-counter market and quoted on the
"pink sheets" published by the National Quotation Bureau, Inc. (the "Pink
Sheets"). Hoefer, who has been engaged by CapitolBank in connection with
the Merger, is one of only two market makers in CapitolBank Common Stock.
See "The Merger--Opinions of CapitolBank's Financial Advisors."
The following table sets forth the average of the last reported bid
and asked price per share for CapitolBank Common Stock as quoted on the
Pink Sheets and the last reported sales price of Westamerica Common Stock
on the NNM, on November 17, 1994, the trading date prior to the public
announcement of the Merger, and on _________, 1995, the latest practicable
trading day before the printing of this Proxy Statement/Prospectus, and
equivalent per share prices for CapitolBank Common Stock based on the
prices of Westamerica Common Stock.
<TABLE>
<CAPTION>
Historical Equivalent
Market Value Pro Forma
Per Share Market Value(1)
-------------------------- ---------------
CapitolBank Westamerica CapitolBank
----------- ----------- ---------------
<S> <C> <C> <C>
Last Trade Prior to:
November 17, 1994....... $1.88 $30.50 $2.86
January ___ 1995.......
</TABLE>
- -----------------------------------
(1) The equivalent pro forma market value per share of CapitolBank Common Stock
represents the last reported sales price per share of Westamerica Common
Stock multiplied by the Exchange Ratio of .0938. The Exchange Ratio is
subject to downward adjustment as provided in the Agreement. See "The
Merger--Possible Adjustments to Exchange Ratio or Termination of the
Agreement."
Following the Merger, no shares of CapitolBank Common Stock will be
outstanding, and Westamerica Common Stock will continue to be traded on the NNM.
Westamerica has paid quarterly cash dividends since it commenced
operations on January 1, 1973. Westamerica's Board of Directors considers the
advisability and amount of proposed dividends each quarter. Westamerica's
primary source of funds for the payment of dividends is its principal banking
subsidiary, Westamerica Bank, whose ability to pay dividends to Westamerica is
subject to various legal and regulatory restrictions. See "Market Price and
Dividend Information--Dividends and Dividend Policy." Westamerica is subject to
certain restrictions on its ability to pay dividends under the terms of certain
of its debt agreements. See "Description of Westamerica Capital Stock and
Indebtedness--Debt Agreements."
CapitolBank was incorporated in 1975 and has not paid dividends since
1981. The ability of CapitolBank to pay dividends is subject to various legal
and regulatory restrictions, and CapitolBank is currently prohibited from paying
dividends. See "Market Price and Dividend Information--Dividends and Dividend
Policy."
-11-
<PAGE>
Differences in Applicable Law and Rights of Shareholders
Westamerica and CapitolBank are both organized under the California General
Corporation Law ("GCL") and, while similarities in rights exist for shareholders
of Westamerica and CapitolBank, there are significant differences in the laws
applicable to each company and in their respective charter documents. The
primary difference is that Westamerica is a bank holding company which
principally operates within the framework of the BHC Act and is regulated by the
Federal Reserve System, while CapitolBank is a commercial bank which operates
within the framework of the California Financial Code and the Federal Deposit
Insurance Act. CapitolBank's primary regulators are the California
Superintendent of Banks and the FDIC. See "Certain Considerations--Legislative
and Regulatory Environment," and "Certain Differences in Rights of
Shareholders."
Westamerica Unaudited Summary of Results for the Year Ended December 31, 1994
During the year ended December 31, 1994, on an unaudited basis, Westamerica
generated net income of $24.7 million, or $3.06 per share, a 161% increase over
1993 net income of $9.5 million, or $1.17 per share. Earnings in 1993 were
impaired due to charges related to the April 15, 1993 acquisition of Napa Valley
Bancorp. Return on assets for 1994 increased to 1.21% from 0.48% in 1993. Return
on equity in 1994 increased to 15.6% from 6.5% in 1993. Net interest income
(FTE) increased to $98.4 million, or a margin of 5.31%, compared to
$97.5 million in 1993, or a margin of 5.48%. The loan loss provision was reduced
38% to $5.9 million in 1994 compared to $9.5 million in 1993. Noninterest income
and noninterest expense declined to $19.4 million and $71.1 million in 1994
compared to $23.9 million and $96.7 million in 1993, respectively. The 1993 loan
loss provision, noninterest income and noninterest expense include charges,
income and costs related to the Napa Valley Bancorp acquisition.
Nonperforming assets were reduced to $14.9 million at December 31, 1994,
down 26% from $20.1 million at September 30, 1994 and down 45% from $27.3
million at December 31, 1993. Net loan losses totaled $1.2 million during the
fourth quarter of 1994, equal to 0.42% of average loans on an annualized basis.
Net loan losses totaled $3.9 million during 1994, equal to 0.36% of average
loans. At December 31, 1994, the reserve for loan losses totaled $27.6 million,
or 2.5% of loans, compared to $25.6 million, or 2.3% of loans, at December 31,
1993.
Total assets at December 31, 1994 were $2.0 billion, up 1% from December
31, 1993. At December 31, 1994, deposits totaled $1.7 billion and loans totaled
$1.1 billion. Shareholders' equity was $166.2 million at December 31, 1994, up
9% from $152.4 million at December 31, 1993. Westamerica's risk-based total
capital ratio rose to 15.3% at December 31, 1994 compared to 14.4% at December
31, 1993.
Selected Historical and Pro Forma Financial Data
The following tables present selected historical and pro forma combined
consolidated financial information for Westamerica (including its pending
acquisitions of PV Financial and North Bay) and CapitolBank. The following
financial data should be read in conjunction with the historical consolidated
financial statements, the unaudited interim historical consolidated financial
statements, and the unaudited pro forma combined consolidated financial
information and the notes to such statements, certain of which are included
elsewhere in this Proxy Statement/Prospectus or incorporated by reference
herein. The unaudited pro forma combined financial information presents selected
financial information based on the historical financial statements of the
parties, giving effect to the proposed Merger under the pooling of interests
method of accounting and the assumptions and adjustments described in the notes
thereto. See "Pro Forma Combined Financial Information." The unaudited pro forma
combined and pro forma equivalent financial statements do not indicate the
results or financial position that would have occurred if the Merger had been in
effect on the dates or for the periods indicated or that may occur in the
future.
-12-
<PAGE>
Westamerica, PV Financial and North Bay
Unaudited Historical Consolidated Financial Information
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
------------------------ ----------------------------------------------------------------
1994(1) 1993(1) 1993(1) 1992(1) 1991(1) 1990(1) 1989(1)
----------- ----------- ----------- ----------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
(In thousands, except ratios and per share data)
Results of operations:
Interest income....................... $ 115,283 $ 117,638 $ 155,992 $ 174,975 $ 199,683 $ 210,442 $ 201,954
Interest expense...................... 34,796 37,291 48,487 66,670 97,896 109,796 103,906
Net interest income................... 80,487 80,347 107,506 108,305 101,787 100,646 98,048
Provision for loan losses............. 4,944 8,381 10,145 7,890 11,134 8,498 8,557
Noninterest income.................... 19,552 25,258 33,650 30,420 27,612 24,158 21,016
Noninterest expense................... 65,069 90,100 114,803 103,288 96,043 90,849 90,398
Net income............................ 20,286 5,448 11,708 17,904 14,551 17,124 13,682
Balance sheet (end of period):
Total assets.......................... $2,332,633 $2,294,673 $2,305,455 $2,257,082 $2,218,068 $2,148,788 $2,101,035
Net loans............................. 1,251,464 1,287,682 1,289,040 1,344,384 1,419,073 1,445,336 1,420,036
Deposits.............................. 1,959,802 1,991,523 1,998,451 2,033,612 2,011,370 1,925,812 1,908,845
Other borrowed funds.................. 138,424 75,073 73,563 16,535 13,168 36,148 22,987
Shareholders' equity.................. 191,670 171,903 179,427 168,737 151,817 139,787 125,629
Financial ratios:
Total capital to
risk-adjusted assets................. 15.12% 12.31% 14.20% 12.20% 11.04% 10.65% 9.51%
Tier 1 capital to average
total assets......................... 8.30 7.68 7.84 7.70 7.00 6.58 6.34
Reserve for loan losses to
total loans.......................... 2.38 2.15 2.17 2.05 1.87 1.46 1.26
Return on average assets.............. 1.17 0.33 0.52 0.80 0.67 0.81 0.69
Return on average equity.............. 14.75 4.28 6.84 11.17 9.90 12.92 12.08
Nonperforming assets to
total assets......................... 0.99 1.63 1.30 2.36 2.53 1.88 1.32
Per share:
Net income............................ $ 2.10 $ 0.57 $ 1.21 $ 1.89 $ 1.55 $ 1.85 $ 1.49
Dividends declared.................... $ 0.43 $ 0.40 $ 0.54 $ 0.36 $ 0.37 $ 0.41 $ 0.36
Book value............................ 19.86 17.84 18.60 17.76 16.41 15.32 13.86
Average shares outstanding............ 9,651 9,614 9,665 9,494 9,393 9,271 9,161
</TABLE>
-13-
<PAGE>
Westamerica
Unaudited Historical Consolidated Financial Information
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
------------------ ----------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Results of operations:
Interest income....................... $ 99,866 $ 103,453 $ 136,916 $ 154,753 $ 176,552 $ 187,550 $ 181,645
Interest expense...................... 30,288 32,586 42,271 58,892 87,357 98,653 94,021
Net interest income................... 69,578 70,867 94,645 95,861 89,195 88,897 87,624
Provision for loan losses............. 4,680 7,847 9,452 7,005 10,418 8,138 7,958
Noninterest income.................... 14,752 18,937 23,946 23,827 23,976 22,339 19,121
Noninterest expense................... 53,110 77,153 96,645 89,604 84,943 81,641 82,242
Net income............................ 18,303 4,074 9,455 15,222 11,977 14,619 11,542
Balance sheet (end of period):
Total assets.......................... $2,052,084 $2,012,699 $2,004,419 $1,981,349 $1,966,081 $1,920,405 $1,903,758
Net loans............................. 1,063,123 1,089,955 1,089,152 1,166,205 1,242,108 1,277,417 1,274,900
Deposits.............................. 1,714,977 1,741,003 1,731,228 1,789,918 1,789,301 1,723,099 1,734,713
Other borrowed funds.................. 133,654 71,195 69,064 12,038 9,570 35,099 21,982
Shareholders equity................... 163,023 145,735 152,447 143,674 129,420 119,811 107,726
Financial ratios:
Total capital to
risk-adjusted assets................. 15.17% 12.16% 14.40% 12.01% 10.82% 10.55% 9.24%
Tier 1 capital to average
total assets......................... 8.04 7.41 7.57 7.43 6.69 6.26 5.98
Reserve for loan losses to
total loans.......................... 2.53 2.25 2.30 2.08 1.88 1.47 1.24
Return on average assets.............. 1.20 0.28 0.48 0.77 0.62 0.77 0.64
Return on average equity.............. 15.68 3.77 6.51 11.16 9.52 12.87 12.02
Nonperforming assets to
total assets......................... 0.98 1.69 1.36 2.55 2.69 2.09 1.46
Per share:(2)
Net income (loss)..................... $2.27 $0.51 $1.17 $1.92 $1.52 $1.89 $1.51
Dividends declared.................... $0.47 $0.42 $0.57 $0.38 $0.39 $0.43 $0.38
Book value............................ $20.19 $18.04 $18.87 $17.96 $16.49 $15.44 $13.98
Average shares outstanding............ 8,075 8,051 8,054 7,933 7,855 7,736 7,633
</TABLE>
-14-
<PAGE>
CapitolBank
Unaudited Historical Consolidated Financial Information
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
-------------------- ------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
--------- --------- --------- ---------- --------- --------- ---------
(In thousands, except ratios and per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Results of operations:
Interest income............... $ 7,500 $ 6,622 $ 8,951 $ 9,125 $ 12,488 $ 13,290 $ 11,363
Interest expense.............. 1,868 2,037 2,671 3,281 5,337 6,453 5,609
Net interest income........... 5,632 4,585 6,280 5,844 7,151 6,837 5,754
Provision for loan losses..... 285 336 436 520 1,067 525 250
Noninterest income............ 778 975 1,213 1,290 1,671 2,121 1,222
Noninterest expense........... 5,789 5,034 6,663 8,478 7,473 6,693 5,744
Net income (loss)............. 281 164 315 (1,864) 211 1,656 956
Balance sheet (end of period):
Total assets.................. $137,969 $122,598 $123,393 $119,946 $148,762 $150,448 $129,845
Net loans..................... 87,511 75,365 74,503 63,228 68,618 80,683 61,168
Deposits...................... 126,026 110,751 111,063 108,188 133,621 135,404 117,292
Other borrowed funds.......... 1,719 2,338 2,734 2,521 3,805 3,490 2,871
Shareholders' equity.......... 9,272 9,066 9,217 8,902 10,766 10,555 8,899
Financial ratios:
Total capital to
risk-adjusted assets......... 11.04% 12.38% 12.90% 14.58% 13.97% 12.84% 10.22%
Tier 1 capital to average
total assets................. 6.93 7.37 7.55 7.18 7.89 7.67 7.54
Reserve for loan losses to
total loans.................. 2.03 1.72 1.83 1.80 1.61 1.42 1.29
Return on average assets...... 0.30 0.13 0.26 (1.50) 0.16 1.21 0.82
Return on average equity...... 3.03 2.11 3.57 (21.65) 1.95 18.29 11.65
Nonperforming assets to
total assets................. 1.64 0.72 1.10 2.73 2.36 1.63 2.29
Per share:
Net income (loss)............. $ 0.07 $ 0.04 $ 0.08 $ (0.46) $ 0.05 $ 0.41 $ 0.23
Dividends declared............ $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
Book value.................... $ 2.27 $ 2.22 $ 2.26 $ 2.18 $ 2.64 $ 2.59 $ 2.18
Average shares outstanding.... 4,080 4,080 4,080 4,080 4,080 4,080 4,080
</TABLE>
-15-
<PAGE>
Westamerica, PV Financial, North Bay and CapitolBank
Unaudited Pro Forma Combined Consolidated Financial Information
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
------------------------ ---------------------------------------------------------------------
1994(1) 1993(1) 1993(1) 1992(1) 1991(1) 1990(1) 1989(1)
--------- --------- --------- --------- --------- --------- ---------
(In thousands, except ratios and per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Results of
operations:
Interest income.... $ 122,782 $ 124,260 $ 164,943 $ 184,100 $ 212,171 $ 223,731 $ 213,317
Interest expense... 36,664 39,328 51,157 69,951 103,233 116,249 109,515
Net interest income 86,118 84,932 113,786 114,149 108,938 107,482 103,802
Provision for loan
losses............ 5,229 8,717 10,581 8,410 12,201 9,023 8,807
Noninterest income. 20,330 26,233 34,862 31,710 29,283 26,279 22,238
Noninterest expense 70,857 95,134 121,466 111,765 103,516 97,542 96,142
Net income ........ 20,567 5,612 12,024 16,040 14,762 18,780 14,638
Balance sheet (end
of period):
Total assets....... $2,470,602 $2,417,271 $2,428,848 $2,377,028 $2,366,830 $2,299,216 $2,230,880
Net loans.......... 1,338,975 1,363,047 1,363,543 1,407,612 1,487,691 1,526,019 1,481,204
Deposits........... 2,085,828 2,112,274 2,109,514 2,141,800 2,144,991 2,061,216 2,026,137
Other borrowed
funds............. 140,143 77,411 76,297 19,056 16,973 39,638 25,858
Shareholders'
equity............ 199,217 180,969 188,644 177,639 162,583 150,342 134,527
Financial ratios:
Total capital to
risk-adjusted
assets............ 14.88% 12.32% 14.13% 12.30% 11.18% 10.78% 9.54%
Tier 1 capital to
average total
assets............ 8.22 7.66 7.83 7.67 7.05 6.64 6.41
Reserve for loan
losses to total
loans............. 2.36 2.13 2.15 2.03 1.85 1.46 1.26
Return on average
assets............ 1.12 0.32 0.51 0.68 0.64 0.83 0.70
Return on average
equity............ 14.23 4.27 6.72 9.49 9.35 13.26 12.05
Nonperforming
assets to total
assets............ 1.03 1.58 1.29 2.38 2.52 1.86 1.38
Per share:(2)(3)
Net income ........ $ 2.05 $ 0.56 $ 1.20 $ 1.62 $ 1.51 $ 1.95 $ 1.53
Dividends declared. $ 0.42 $ 0.38 $ 0.52 $ 0.34 $ 0.36 $ 0.39 $ 0.34
Book value......... $ 20.03 $ 18.06 $ 18.81 $ 17.97 $ 16.88 $ 15.81 $ 14.24
Average shares
outstanding....... 10,034 9,997 10,048 9,877 9,776 9,654 9,544
Equivalent pro forma
CapitolBank per
share:(4)
Net income......... $0.19 $0.05 $0.11 $0.15 $0.14 $0.18 $0.14
Dividends declared. $0.04 $0.04 $0.05 $0.03 $0.03 $0.04 $0.03
Book value......... $1.88 $1.69 $1.76 $1.69 $1.58 $1.48 $1.34
</TABLE>
(1) The financial data for Westamerica, PV Financial and North Bay and for
Westamerica, PV Financial, North Bay and CapitolBank (pro forma combined)
reflects restatements for Westamerica's acquisition of PV Financial which
was effective January 31, 1995 and its pending acquisition of North Bay,
which is expected to be completed in the second half of 1995, on a pooling
of interests basis.
-16-
<PAGE>
(2) The pro forma combined per share data for net income has been calculated
using pro forma combined average shares outstanding. Westamerica, PV
Financial and North Bay pro forma combined average shares outstanding has
been calculated using the average number of shares of Westamerica Common
Stock outstanding during the periods presented, increased by the maxiumum
number of shares of Westamerica Common Stock issuable to PV Financial and
North Bay shareholders using exchange ratios of .5450 and .3600 of a share
of Westamerica Common Stock, respectively, for each of the average shares
of PV Financial and North Bay common stock outstanding during each of the
periods presented as if these shares were outstanding during each of the
periods presented. Such Westamerica, PV Financial and North Bay pro forma
per share data assumes no dissenting PV Financial or North Bay
shareholders and no exercise of outstanding Westamerica, PV Financial or
North Bay stock options or stock appreciation rights. The exchange ratio
used in connection with the North Bay Merger is subject to potential
downward adjustments in certain circumstances as provided in the North Bay
agreement. The exchange ratio for the PV Financial Merger was .5348.
See "The Merger--Exchange Ratio; Conversion of Shares of CapitolBank
Common Stock" and "--Possible Adjustments to Exchange Ratio or Termination
of the Agreement." See also "Pro Forma Combined Financial
Information."
(3) The pro forma combined per share data for net income has been calculated
using pro forma combined average shares outstanding. Westamerica, PV
Financial, North Bay and CapitolBank pro forma combined average shares
outstanding has been calculated using the average number of Westamerica,
PV Financial and North Bay pro forma combined average shares outstanding
(assuming the same exchange ratios as stated in the preceding paragraph)
during the periods presented, increased by the shares of Westamerica
Common Stock expected to be issued to CapitolBank shareholders using an
Exchange Ratio of .0938 of a share of Westamerica Common Stock for each of
the average shares of CapitolBank Common Stock outstanding during each of
the periods presented as if these shares were outstanding during each of
the periods presented. Such pro forma per share data assumes no dissenting
CapitolBank shareholders and no exercise of outstanding CapitolBank stock
options. The Exchange Ratio is subject to potential downward adjustments
in certain circumstances as provided in the Agreement.
See "The Merger--Exchange Ratio; Conversion of Shares of CapitolBank
Common Stock" and "--Possible Adjustments to Exchange Ratio or Termination
of the Agreement." See also "Pro Forma Combined Financial
Information."
(4) The equivalent pro forma CapitolBank per share information has been
calculated by multiplying the pro forma combined per share data by the
Exchange Ratio.
-17-
<PAGE>
INTRODUCTION
This Proxy Statement/Prospectus is being furnished to shareholders of
CapitolBank Sacramento ("CapitolBank") in connection with the solicitation
of Proxies by the CapitolBank Board of Directors for use at the special
meeting of shareholders of CapitolBank to be held at 300 Capitol Mall,
Sacramento, California, on March 9, 1995 at 5:00 p.m., local time, and
at any adjournments or postponements thereof (the "Meeting").
At the Meeting, the shareholders of record of CapitolBank common
stock ("CapitolBank Common Stock" or "CapitolBank Shares"), as of the
close of business on January 13, 1995 (the "Record Date"), will consider
and vote upon a proposal to approve and adopt the Agreement and Plan of
Reorganization, dated as of November 17, 1994 (the "Agreement"), between
Westamerica Bancorporation ("Westamerica") and CapitolBank, an Agreement
of Merger (the "Merger Agreement") among Westamerica, CapitolBank and
Westamerica Merger Subsidiary, a wholly-owned subsidiary of Westamerica
("Merger Sub") (collectively, the "Agreements") and the transactions
contemplated thereby, including the Merger, as defined below. Copies of
the Agreements are attached as Annex A hereto and more fully described
herein. The Agreements provide, among other things, that Merger Sub will
merge with and into CapitolBank (the "Merger") and, except as described
herein, each share of CapitolBank Common Stock will be converted into
.0938 (the "Exchange Ratio") of a fully paid and nonassessable share of
Westamerica common stock, without par value ("Westamerica Common Stock" or
"Westamerica Shares"), subject to certain potential downward adjustments
as set forth in the Agreement. See "The Merger--Exchange Ratio; Conversion
of Shares of CapitolBank Common Stock," "--Possible Adjustments to
Exchange Ratio or Termination of the Agreement" and "--Treatment of Stock
Options." Shortly after the Merger, it is anticipated that CapitolBank
will merge with and into Westamerica Bank. The date on which this Proxy
Statement/Prospectus is first being sent to shareholders of CapitolBank is
on or about February ___, 1995.
This Proxy Statement/Prospectus also serves as a prospectus for
Westamerica under the Securities Act of 1933, as amended (the "Securities
Act"), for the Westamerica Common Stock and certain common stock purchase
rights associated therewith to be issued in connection with the
consummation of the Merger.
INFORMATION ABOUT WESTAMERICA
Westamerica is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended ("BHC Act"), and was incorporated
in the State of California in 1972. At September 30, 1994, Westamerica
had total consolidated assets of approximately $2.05 billion, deposits of
approximately $1.71 billion and shareholders' equity of approximately $163
million. Westamerica's banking subsidiaries, Westamerica Bank, Napa
Valley Bank and Bank of Lake County, are California state-chartered banks,
with 48 banking offices in eleven counties in Northern California.
Westamerica was formed pursuant to a plan of reorganization among
three previously unaffiliated banks: Bank of Marin, Bank of Sonoma County
and First National Bank of Mendocino County (formerly First National Bank
of Cloverdale). Subsequent to its incorporation, Westamerica acquired the
Bank of Lake County (1974), Gold Country Bank (1979) and Vaca Valley Bank
(1981). In 1983, Westamerica merged all of its banking subsidiaries into a
single commercial bank known as "Westamerica Bank, N.A." In 1988,
Westamerica created a new national bank called Bank of Lake County, N.A.,
which it promptly sold to Napa Valley Bancorp, a bank holding company
headquartered in Napa, California ("Napa Valley Bancorp"). In 1992,
Westamerica acquired John Muir National Bank and merged it with and into
Westamerica Bank. In 1993, Westamerica acquired by merger Napa Valley
Bancorp and its wholly-owned banking subsidiaries, Napa Valley Bank and
Suisun Valley Bank, and Napa Valley Development, a California corporation
which owned, developed and marketed real estate and provided real estate
consulting services to Napa Valley Bancorp. Napa Valley Development's
activities have been discontinued. Suisun Valley Bank was subsequently
merged with and into Westamerica Bank. In addition, as part of the Napa
Valley Bancorp merger, Westamerica reacquired Bank of Lake County, N.A.,
and acquired a majority interest in Sonoma Valley Bank, which was
subsequently sold. In 1993, Westamerica Bank, N.A., was converted to a
California state-chartered bank and became a member of the Federal Reserve
System. In 1994, Bank of Lake County, N.A., was converted to a California
state-chartered bank.
Westamerica's subsidiary, Community Banker Services Corporation
("CBSC"), provides centralized services to Westamerica's banking
subsidiaries. Through its subsidiary, Weststar Mortgage Corporation, CBSC
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conducts mortgage servicing activities. Westamerica also owns all of the
capital stock of Westcore, an inactive California corporation
("Westcore"). The Federal Reserve Bank of San Francisco (the "FRBSF") has
recently approved Westamerica's application to commence an employee
benefit consulting business through Westcore. It is anticipated that
Westcore will commence business during 1995.
Westamerica, through its banking subsidiaries, provides checking and
savings deposit services as well as commercial, real estate and personal
loans. In addition, most branches offer safe deposit facilities,
automated teller units, collection services and other investment services.
Westamerica's principal executive offices are located at 1108 Fifth
Avenue, San Rafael, California 94901, and its telephone number at that
location is (415) 257-8000.
Recent and Pending Acquisitions
Westamerica, PV Financial, a bank holding company headquartered in
Modesto, California ("PV Financial"), and PV Financial's wholly-owned
subsidiary, Pacific Valley National Bank, a national banking association
("Pacific Valley National Bank"), entered into an Agreement and Plan of
Reorganization (as amended) dated as of July 25, 1994, whereby the parties
thereto agreed to merge PV Financial into Westamerica (the "PV Financial
Merger"). The PV Financial Merger was effective on January 31, 1995. It is
currently contemplated that Pacific Valley National Bank will be merged
with and into Westamerica Bank with Westamerica Bank as the surviving
entity during February or March 1995. At September 30, 1994, PV Financial
had approximately $173 million in assets, $152 million in deposits and $19
million of shareholders' equity. Pacific Valley National Bank operates
five branches in the Central California cities of Modesto, Ceres, and
Turlock. As a result of the PV Financial Merger, Westamerica will be
issuing approximately 1.18 million new shares of Westamerica Common Stock
during the first quarter of 1995.
Pacific Valley National Bank, one of its directors and an employee
thereof are defendants in a lawsuit, filed in the United States District
Court, Eastern District of California, which claims that they and certain
other defendants violated the Sherman Antitrust Act of 1890, as amended
(the "Sherman Antitrust Act"), and the federal RICO statute. Pacific
Valley National Bank (and its director and employee) has denied all
allegations by the plaintiffs and has advised Westamerica that it will
vigorously defend against the claims. A motion by Pacific Valley National
Bank to dismiss the Sherman Antitrust Act and RICO claims was denied by
order dated April 14, 1993; however, by stipulation, in June of 1993 the
parties dismissed state common law claims for fraud, intentional
interference with a contractual relationship, unfair and deceptive trade
practices and civil conspiracy. The plaintiffs are seeking compensatory
damages, treble and punitive damages and attorneys' fees and costs.
Pacific Valley National Bank has filed a motion for summary judgment and
the plaintiffs have filed a motion seeking court approval to file a second
amended complaint alleging new state law claims for negligence, conversion
and an accounting. The motion for summary judgment and the motion by the
plaintiffs to introduce the new state law claims is scheduled to be heard
by the court in May 1995. Upon the merger of Pacific Valley National Bank
with and into Westamerica Bank, as successor to Pacific Valley National
Bank, Westamerica Bank would be responsible for any liabilities awarded by
a court to the plaintiffs. Westamerica intends to vigorously defend
against all claims and to exercise any and all rights available to it in
defense of this action.
On December 9, 1994, Westamerica announced the signing of a
definitive agreement by and between Westamerica and North Bay Bancorp, a
bank holding company headquartered in Novato, California ("North Bay"),
whereby the parties thereto agreed to merge North Bay into Westamerica
(the "North Bay Merger"). Upon completion of the North Bay Merger, the
shares of North Bay common stock, no par value, will be converted into
shares of Westamerica Common Stock. At September 30, 1994, North Bay had
approximately $108 million in assets, $92 million in deposits and $9.8
million in shareholders' equity. North Bay's wholly-owned subsidiary,
Novato National Bank, operates three branches in Novato and Santa Rosa,
California. The North Bay Merger
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will result not capitalized in the issuance of approximately 386,000 new
shares of Westamerica common stock. The North Bay Merger is subject to
regulatory and shareholder approval and the satisfaction of certain other
conditions. It is anticipated that the North Bay Merger will be
consummated in the second half of 1995. Shortly after the North Bay
Merger, it is anticipated that Novato National Bank will be merged with
and into Westamerica Bank.
For additional information relating to Westamerica and the combined
company that would result from the Merger and its pending acquisitions,
see "The Merger--Management and Operations Following the Merger" and "Pro
Forma Combined Financial Information."
INFORMATION ABOUT CAPITOLBANK
CapitolBank was incorporated under the laws of the State of
California on December 31, 1975, and was licensed by the California State
Banking Department and commenced operations as a California state-
chartered bank on April 22, 1976. At September 30, 1994, CapitolBank had
total assets of approximately $138 million, total deposits of
approximately $126 million and shareholders' equity of approximately
$9 million.
CapitolBank engages in commercial banking services, including the
acceptance of checking and savings deposits and the making of commercial,
real estate, home improvement, consumer and other installment and term
loans. Inventory and accounts receivable financing, fixture and equipment
financing and short-term operating loans are also provided. CapitolBank
also offers a full service trust department and safe deposit, night
depository, wire transfer and other customary bank services to its
customers. At September 30, 1994, CapitolBank's trust department had
trust assets under management totaling approximately $172 million.
At September 30, 1994, CapitolBank had 81 full-time-equivalent
employees.
CapitolBank's executive offices are located at 300 Capitol Mall,
Sacramento, California 95814, and its telephone number is (916) 449-8300.
Additional information regarding CapitolBank, including its
management, management's compensation, directors and certain transactions,
is included in CapitolBank's Proxy Statement dated May 25, 1994 and Annual
Report on Form F-2 for the fiscal year ended December 31, 1993. See
"Available Information" and "Incorporation of Certain Documents by
Reference."
THE MEETING
Matters to be Considered at the Meeting
At the Meeting, holders of record of CapitolBank Common Stock will
consider and vote upon a proposal to approve and adopt the Agreements and
the transactions contemplated thereby, including the Merger.
THE CAPITOLBANK BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE
AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE
MERGER, AND RECOMMENDS THAT CAPITOLBANK SHAREHOLDERS VOTE "FOR" APPROVAL
AND ADOPTION OF THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE MERGER.
Only holders of record of CapitolBank Common Stock at the close of
business on the Record Date will be entitled to notice of, and to vote at,
the Meeting. As of the Record Date, there were 4,080,302 shares of
CapitolBank Common Stock outstanding. Each CapitolBank Share will entitle
the holder thereof to one vote per share held.
Under the California General Corporation Law (the "GCL"), the
approval and adoption of the Agreements and the transactions contemplated
thereby, including the Merger, requires the affirmative vote of the
holders of a majority of the outstanding shares of CapitolBank Common
Stock. Holders of at least a majority of the outstanding shares of
CapitolBank Common Stock must be represented, either in person or by
proxy, at the Meeting for a quorum to be present.
Each properly completed Proxy returned in time for voting at the
Meeting, unless revoked by the CapitolBank shareholder, will be voted in
accordance with the instructions indicated on the Proxy, or, if no
instructions are provided, will be voted "FOR" approval and adoption of
the Agreements and the transactions contemplated thereby. No matters
other than those referred to in this Proxy Statement/Prospectus will be
brought
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before the Meeting, except for matters incidental to the conduct of the
Meeting. CapitolBank has agreed in the Agreement that neither CapitolBank
nor any member of the CapitolBank Board of Directors will submit any other
matters for approval at the Meeting, except with Westamerica's prior
approval. The grant of a Proxy will also confer discretionary authority on
the persons named in the Proxy to vote on matters incident to the conduct
of the Meeting, including any adjournment or postponement thereof.
A CapitolBank shareholder may revoke a Proxy at any time before it is
exercised by filing with the Corporate Secretary of CapitolBank, 300
Capitol Mall, Sacramento, California 95814, a written instrument revoking
the Proxy, by submitting a duly executed Proxy bearing a later date or by
attending the Meeting and voting in person.
CapitolBank Shares which abstain from voting and "broker nonvotes"
(shares as to which brokerage firms have not received voting instructions
from their clients and therefore do not have the authority to vote the
shares at the Meeting) will be counted for purposes of determining a
quorum. Because the affirmative vote of at least a majority of the
outstanding shares of CapitolBank Common Stock is required to approve the
Merger, both abstentions and broker nonvotes will have the same legal
effect as votes against the Merger. See "Dissenters' Rights of
Appraisal."
CAPITOLBANK SHAREHOLDERS SHOULD NOT SEND STOCK CERTIFICATES WITH
THEIR PROXIES. A TRANSMITTAL FORM WITH INSTRUCTIONS WITH RESPECT TO THE
SURRENDER OF CAPITOLBANK STOCK CERTIFICATES WILL BE MAILED TO EACH
CAPITOLBANK SHAREHOLDER AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF
THE MERGER.
On the Record Date, the directors of CapitolBank and their respective
affiliates as a group beneficially owned an aggregate of 1,029,459 shares
of the then outstanding shares of CapitolBank Common Stock, or
approximately 25.23% of the shares of CapitolBank Common Stock then
outstanding and entitled to vote at the Meeting. Each CapitolBank
director has entered into an agreement with Westamerica to vote all of the
CapitolBank Common Stock as to which such director has sole or shared
voting power for approval and adoption of the Agreements and the
transactions contemplated thereby. Accordingly, approval and adoption of
the Agreements, the Merger and the transactions contemplated thereby at
the Meeting is expected to require the affirmative vote of an additional
1,010,693 shares of CapitolBank Common Stock, or approximately 24.78% of
the shares of CapitolBank Common Stock outstanding on the Record Date,
voted by the remaining shareholders of CapitolBank.
Information regarding principal shareholders of CapitolBank Common
Stock and CapitolBank Common Stock beneficially owned by officers and
directors of CapitolBank is set forth below:
<TABLE>
<CAPTION>
Common Stock of
CapitalBank
Beneficially Owned on
the Record Date(1)
Year First --------------------------
Elected or Percentage
Appointed a Number of of Outstanding
Age Director Shares Shares
--- ----------- --------- --------------
<S> <C> <C> <C> <C>
Ralph Andersen................. 55 1994 2,500 0.06%
Louis G. Fifer................. 46 1991 500 0.01
Thomas J. Hammer, Jr. ......... 62 1991 1,500 0.04
Robert T. Jenkins.............. 51 1991 1,000 0.02
William J. Martin(2)........... 48 1994 27,042 0.66
Thayer T. Prentice(3).......... 56 1994 31,250 0.77
Carolyn G. Reid................ 56 1991 3,000 0.07
J. Al Wickland, Jr. ........... 74 1986 839,254 20.57
John A. Wickland, III.......... 50 1989 180,705 4.43
Directors and Principal
Officers as a Group (15
persons)(4)(5)............... 1,106,107 27.11%
</TABLE>
- -------------------------
(1) Unless otherwise indicated and subject to community property laws, each of
the above Directors holds sole voting and investment power as to all shares
owned.
(2) Includes 26,042 shares which may be acquired under stock options exercisable
within 60 days of the Record Date.
(3) Includes 31,250 shares which may be acquired under stock options exercisable
within 60 days of the Record Date.
(4) "Principal officer" means a Chairman of the Board of Directors, Vice
Chairman of the Board, President, Executive Vice Presidents, Senior Vice
Presidents, Corporate Secretary, Vice President, and any other person who
participates in major policy-making functions of CapitolBank.
(5) Includes 73,192 shares which may be acquired under stock options exercisable
within 60 days of the Record Date.
Principal Shareholders
The following table sets forth certain information regarding all
shareholders who beneficially own more than 5% of the outstanding shares
of Common Stock of CapitolBank (only class outstanding) as of the Record
Date.
<TABLE>
<CAPTION>
Number of Shares Percentage of
Directly or Outstanding
Name and Address of Beneficial Owner Beneficially Owned Shares
- ------------------------------------ ------------------ -------------
<S> <C> <C>
J. Al Wickland, Jr.
3640 American River Drive
Sacramento, California 95853 839,254(1) 20.57%
</TABLE>
- ----------------------------
(1) Mr. Wickland, a Director of CapitolBank, holds sole voting and investment
power with respect to all of his shares.
Benefical Ownership of Stock
Information regarding beneficial ownership of Westamerica Common
Stock by officers and directors of Westamerica and principal shareholders
of Westamerica may be found in Westamerica's 1994 Proxy Statement. See
"Available Information."
Certain Agreements
Pursuant to the Agreement, the members of CapitolBank's Board of
Directors each have entered into agreements with Westamerica in which they
have confirmed to Westamerica that they have voted in favor of the
Agreements in their capacities as directors, agreed to use their
reasonable efforts to cause the shareholders of CapitolBank to approve the
transactions contemplated by the Agreements and agreed to vote all
CapitolBank Shares as to which such director has sole or shared voting
power for approval and adoption of the Agreements and the transactions
contemplated thereby, including of the Merger.
Westamerica has the right to terminate the Agreement and not complete
the Merger if any of the directors of CapitolBank who signed such
agreements fails to perform and comply in all material respects with all
of the terms and conditions contained in such agreements. See "The
Merger--Amendment; Termination."
CERTAIN CONSIDERATIONS
In deciding whether to approve the Merger, CapitolBank shareholders
should carefully consider the following factors, in addition to the other
matters set forth or incorporated by reference herein:
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<PAGE>
Tyler v. Wickland
Three directors of CapitolBank are defendants in a lawsuit, pending
in the Sacramento County Superior Court, by shareholders of CapitolBank
claiming, among other things, that such directors breached their fiduciary
duties by failing to approve an alleged cash offer to purchase CapitolBank
in 1991 for approximately $3.50 per share of CapitolBank Common Stock. The
three directors have denied all allegations of wrongdoing and have denied
liability. Although CapitolBank is not a defendant in such litigation,
pursuant to the CapitolBank Bylaws (as defined herein) and indemnification
agreements between CapitolBank and the defendant directors entered into
prior to the filing of the lawsuit, CapitolBank is obligated to indemnify
such directors with respect to legal fees, expenses (including amounts
paid in settlement) and judgments related to the claims made in the
lawsuit, subject to certain limitations in the indemnification agreements
and under applicable law, including but not limited to circumstances under
which the directors are found to have acted in bad faith, engaged in
intentional or reckless misconduct or derived an improper personal
benefit. CapitolBank has made a claim under its directors' and officers'
liability insurance policy for reimbursement for any payments made by it
to the directors under its Bylaws and the relevant indemnification
agreements arising out of the alleged acts that gave rise to the claims in
the lawsuit. The insurer is investigating the claim and has reserved its
rights with regard thereto. Based on information currently available to
CapitolBank, it believes that it will be reimbursed by the insurer for
payments made to the directors pursuant to its Bylaws and the relevant
indemnification agreements. If CapitolBank is not reimbursed by the
insurer pursuant to the directors' and officers' liability insurance
policy for payments it makes to the directors pursuant to its Bylaws and
the indemnification agreements, Westamerica may have the right to
terminate the Agreements. See "The Merger--Possible Adjustments to
Exchange Ratio or Termination of the Agreement," "--Representations and
Warranties; Conditions to the Merger," and "--Amendment; Termination." See
also "Certain Differences in Rights of Shareholders--Indemnification of
Directors and Executive Officers."
Shares Eligible for Future Sale; Dilution
Shares of Westamerica Common Stock eligible for future sale could
have a dilutive effect on the market for Westamerica Common Stock and
could adversely affect the market price. The Articles of Incorporation of
Westamerica authorize the issuance of 20,000,000 shares of Westamerica
Common Stock of which 8,074,857 shares were outstanding at September 30,
1994. Pursuant to its stock option plans, at September 30, 1994,
Westamerica had outstanding restricted performance shares and options to
purchase an aggregate of 492,993 shares of Westamerica Common Stock. Such
options have exercise prices of between $8.50 and $28.06 per share. As of
September 30, 1994, 167,209 shares of Westamerica Common Stock remained
available for option grants under Westamerica's stock option plans. Sales
of substantial amounts of Westamerica Common Stock in the public market
following the Merger could adversely affect the market price of
Westamerica Common Stock. There are no restrictions in the Agreement
preventing Westamerica from issuing additional shares.
Westamerica has previously announced its intention to pursue
acquisitions of other financial institutions from time to time where such
acquisitions are believed by Westamerica to enhance shareholder value or
satisfy other strategic objectives of Westamerica, including its recent
acquisition of PV Financial and its recently announced proposed
acquisition of North Bay. Westamerica is also engaged in active
negotiations with several potential financial institution acquisition
targets. Other acquisitions, if any, could be accomplished by the issuance
of additional shares of Westamerica Common Stock (as is the case in
Westamerica's recent acquisition of PV Financial and proposed acquisitions
of CapitolBank and North Bay) or other securities convertible into or
exercisable for such Westamerica Common Stock. Westamerica intends to seek
shareholder approval at its 1995 annual meeting of shareholders (currently
expected to be held in April 1995) to increase the authorized number of
shares of Westamerica Common Stock to 50,000,000. See "Pro Forma Combined
Financial Information" and "Description of Westamerica Capital Stock and
Indebtedness."
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<PAGE>
There can be no assurance given as to the market value of Westamerica
Common Stock after the Merger which may be affected by future
acquisitions, if any, and other factors, including but not limited to,
general economic conditions and fluctuating interest rates.
Interests of CapitolBank Officers and Directors in the Merger
CapitolBank's Vice Chairman and Chief Executive Officer, Thayer T.
Prentice, and President and Chief Operating Officer, William J. Martin,
are parties to employment agreements with CapitolBank dated as of March
30, 1994 and April 2, 1994, respectively. Under the terms of the
employment agreements, in the event that Messrs. Prentice and Martin are
terminated upon a reorganization of CapitolBank, CapitolBank will be
obligated to pay Messrs. Prentice and Martin: (i) their respective
salaries through the date of termination; (ii) any bonus which was earned
but not paid on the date of such termination; (iii) an amount equal to all
accrued but unused paid vacation through the date of such termination;
(iv) their respective unreimbursed expenses; and (v) Mr. Prentice $150,000
and Mr. Martin $125,000, the equivalent of one year's salary for each. As
discussed below, the Merger is a reorganization as such term is defined in
the employment agreements and, therefore, CapitolBank will pay the
foregoing amounts to Messrs. Prentice and Martin. CapitolBank does not
intend to pay Messrs. Prentice and Martin bonuses attributable to their
employment during 1995, however, pursuant to their respective employment
agreements, it is expected they will be paid bonuses of $60,000 and
$50,000, respectively, attributable to their 1994 employment.
In addition, pursuant to their employment agreements, Messrs.
Prentice and Martin were granted options to purchase 125,000 and 104,167
shares, respectively, of CapitolBank Common Stock exercisable at $1.50 per
share. The options were granted under CapitolBank's 1992 Stock Option
Plan (the "CapitolBank Stock Option Plan") and were evidenced by stock
option agreements. Under the terms of the CapitolBank Stock Option Plan,
the Stock Option Committee of the CapitolBank Board of Directors (the
"Committee") has the power to interpret the CapitolBank Stock Option Plan
and agreements made thereunder and to accelerate the vesting schedule with
the consent of the optionee. The Committee exercised its discretion under
the CapitolBank Stock Option Plan to fully vest the options of Messrs.
Prentice and Martin so that such options may be exercised in full, subject
to the occurrence of the Merger on the Effective Date, using the share
withholding method. When Messrs. Prentice and Martin exercise their
options and the payment of taxes is made using the share withholding
method, CapitolBank will hold the net remaining shares until the Effective
Date, at which time the CapitolBank Shares will be exchanged for the
appropriate number of Westamerica Shares based on the Exchange Ratio. The
Westamerica Shares received by Messrs. Prentice and Martin may be resold
subject to applicable securities laws but no earlier than 30 days
after combined results of operations are released to the public.
CapitolBank maintains a directors' and officers' liability insurance
policy covering all of its directors, including Messrs. Prentice and
Martin and certain executive officers and has entered into separate
indemnification agreements with each director and certain executive
officers. See "Certain Differences in Rights of Shareholders--
Indemnification of Directors and Executive Officers." Pursuant to the
Agreement, the CapitolBank directors and officers may also obtain
insurance coverage for claims made within one year after the Effective
Date, arising from facts or events (other than the Tyler V. Wickland
litigation) which occurred prior to such date. Upon the merger of
CapitolBank with and into Westamerica Bank, Westamerica Bank shall be
deemed to assume the liabilities of CapitolBank under its director and
officer indemnification agreements and shall be responsible and liable for
all of the other liabilities and obligations of CapitolBank.
Real Estate Lending Activities; Nonperforming Assets
The loan portfolios of Westamerica and CapitolBank are dependent on
real estate. At September 30, 1994, real estate served as the principal
source of collateral with respect to approximately 71% of CapitolBank's
loan portfolio, 58% of Westamerica's loan portfolio (as combined with PV
Financial and North Bay's loan portfolios), and 59% of pro forma combined
Westamerica and CapitolBank loan portfolio. A worsening of current
economic conditions and rising interest rates could have an adverse effect
on the demand for new loans, the ability of borrowers to repay outstanding
loans and the value of real estate and other collateral securing loans as
well as Westamerica's financial condition in general and the market value
for Westamerica Common Stock. Acts of nature, including earthquakes, which
may cause uninsured damage and other loss of value to real estate that
secures these loans, may also negatively impact Westamerica's financial
condition.
CapitolBank's nonperforming assets were $2.3 million
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<PAGE>
or 1.64% of total assets at September 30, 1994, as compared to $1.4
million or 1.10% of total assets at December 31, 1993, $3.6 million or
2.73% of total assets at December 31, 1992, and $3.5 million or 2.36% of
total assets at December 31, 1991. Westamerica's nonperforming assets were
$20.2 million or 0.98% of total assets at September 30, 1994, as compared
to $27.3 million or 1.36% of total assets at December 31, 1993, $50.6
million or 2.55% of total assets at December 31, 1992, and $52.9 million
or 2.69% of total assets at December 31, 1991. There are no assurances
that nonperforming assets will not increase and adversely affect the
financial condition of CapitolBank and/or Westamerica. The Agreement
provides that a condition to Westamerica's obligation to consummate the
Merger is that at the month end immediately preceding the Effective Date
and two business days prior to the Effective Date, the percentage
determined by dividing Classified Loans (as defined in the Agreement) by
the sum of equity capital (excluding adjustments required by Financial
Accounting Standards Board Bulletin No. 115 ("FASB No. 115")) plus
reserves for loan losses as of December 31, 1994 shall be no greater than
42%. At December 31, 1994, such percentage was 32%, however, there are no
assurances that CapitolBank will be successful in satisfying this
condition prior to the Effective Date. See "The Merger--Reasons for the
Merger; Recommendation of the Board of Directors," "--Representations and
Warranties; Conditions to the Merger," "Management's Discussion and
Analysis of Financial Condition and Results of Operations of CapitolBank,"
and "Incorporation of Certain Documents by Reference."
Organizational Structure and Operations After the Merger
Upon the consummation of the Merger, the separate corporate existence
of Merger Sub will cease and Merger Sub will be merged with and into
CapitolBank, and CapitolBank will be a subsidiary of Westamerica. Subject
to receipt of regulatory approvals, it is anticipated that shortly after
the Effective Date, CapitolBank will be merged with and into Westamerica
Bank.
Westamerica anticipates that after the Effective Date, a significant
percentage of CapitolBank's existing employees and customers will be
retained. Messrs. Prentice and Martin will not continue as employees of
Westamerica Bank following the merger of CapitolBank with and into
Westamerica Bank. There are no assurances, however, that CapitolBank
customers will not move their banking relationships to other financial
institutions and that a greater than anticipated number of CapitolBank
employees will not remain employed by Westamerica Bank after the Merger.
In addition, while Westamerica expects to achieve operating cost savings
through the consolidation of certain operations, the elimination of
duplicative corporate and administrative expenses and the elimination of
certain positions at CapitolBank, there can be no assurance that
Westamerica will be able to realize such cost savings. See "The Merger--
Covenants of Westamerica and CapitolBank; Conduct of Business Prior to the
Merger" and "--Management and Operations Following the Merger."
Effect of Shareholder Rights Plan
Westamerica has a Shareholder Rights Plan which is implemented
pursuant to an Amended and Restated Rights Agreement (the "Amended and
Restated Rights Agreement") that could discourage potential takeover
attempts and which could eliminate the possibility that Westamerica
shareholders might realize a premium of the kind which often results from
actual or rumored takeover attempts. The Amended and Restated Rights
Agreement entitles the holders of each share of Westamerica Common Stock
to the right (each, a "Right") to purchase from Westamerica one share of
Westamerica Common Stock at a price of $65 per share, subject to
adjustment in certain circumstances. A Right is attached to each share of
Westamerica Common Stock. The Rights only become exercisable and trade
separately from Westamerica Common Stock following the earlier of (i) a
public announcement that a person or group of affiliated or associated
persons has become the beneficial owner of Westamerica securities having
15% or more of Westamerica's voting power (an "Acquiring Person") or (ii)
10 days following the commencement of, or a public announcement of an
intention to make, a tender or exchange offer which would result in any
person having beneficial ownership of securities having 15% or more of
such voting power. Each holder of a Right (other than an Acquiring Person
whose rights will thereupon become null and void) will, for at least a 60-
day period thereafter, have the right, upon payment of the exercise price
of $65, to receive upon exercise the number of shares of Westamerica
Common Stock equal to the number obtainied by dividing the exercise price
of the Right by one-half the market price of one share of Westamerica
Common Stock. For example, if the price of Westamerica Common Stock was
$32.50 on the date the Rights were exercisable, a holder of a Right would
be entitled to receive 4 shares of Westamerica Common Stock upon payment
of $65 ($65/ ($32.50/2)). See " Description of Westamerica Capital Stock
and Indebtedness--Shareholder Rights Plan."
Legislative and Regulatory Environment
The banking and financial services businesses in which Westamerica
and CapitolBank engage are highly regulated. The laws and regulations
affecting such businesses are under constant review by Congress and
applicable regulatory agencies and may be changed dramatically in the
future. Such changes could affect the business of bank holding companies
and banks. For example, in September 1994, the President signed
legislation amending the BHC Act, and the Federal Deposit Insurance Act
(the "FDI Act") to provide for interstate banking and branching. Such
changes may affect the competitive environment in which Westamerica Bank
and CapitolBank operate and may affect the amount of capital that banks
and bank holding companies are required to maintain, the premiums paid for
or the availability
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<PAGE>
of deposit insurance or other matters directly affecting earnings. It is
not certain what changes will occur or the effect that any such changes
would have on the profitability of the combined company, its ability to
achieve certain cost savings or compete effectively or its ability to take
advantage of new opportunities after the Merger. See "The Merger--
Management and Operations Following the Merger," "Supplemental Historical
Information," "Management's Discussion and Analysis of Financial Condition
and Results of Operations of CapitolBank--Results of Operations," and
"Incorporation of Certain Documents by Reference."
Westamerica and CapitolBank are both organized under the corporate
law of California. While similarities in rights exist for shareholders of
Westamerica and CapitolBank, there are significant differences in the laws
applicable to each company and in their respective charter documents. The
primary difference is that Westamerica is a bank holding company which
principally operates within the framework of the BHC Act and is regulated
by the Federal Reserve System, while CapitolBank is a commercial bank
which operates within the framework of the California Financial Code and
the FDI Act. CapitolBank's primary regulators are the Superintendent of
Banks of the State of California (the "Superintendant") and the FDIC. See
"Certain Differences in Rights of Shareholders."
THE MERGER
Background of the Merger
The following is a brief summary of the events that led to the
execution of the Agreement and the accompanying Stock Option Agreement
between CapitolBank and Westamerica, dated as of November 17, 1994, which
is attached to this Proxy Statement/Prospectus as Annex D (the "Stock
Option Agreement").
As reported to shareholders of CapitolBank at the last annual meeting
of shareholders in May 1994, the CapitolBank Board of Directors has been
considering various alternatives to increase the value of CapitolBank and
provide a return to its shareholders. CapitolBank has not paid a cash or
stock dividend since 1981, and the stock of CapitolBank has been
essentially illiquid with potential selling shareholders unable to sell
their stock immediately.
To assist in exploring possible alternatives for increasing the value
of CapitolBank, the CapitolBank Board of Directors retained Hoefer &
Arnett Incorporated ("Hoefer") in February 1994. To execute the
CapitolBank Board of Directors' plan to increase shareholder value, the
CapitolBank Board of Directors hired new executive management, including
Thayer T. Prentice, Vice Chairman and Chief Executive Officer, in March
1994. The CapitolBank Board of Directors requested that Mr. Prentice
explore possible merger candidates for CapitolBank. At various times
during the first half of 1994, Mr. Prentice met informally with numerous
different local banks to discuss the feasibility of their combining with
CapitolBank. The intent was to form a larger institution with a larger
shareholder base and stronger competitive ability in order to create
shareholder value and stock liquidity. One of the institutions with which
Mr. Prentice met delivered a letter dated July 11, 1994 expressing an
interest in acquiring CapitolBank.
After reviewing such letter, the CapitolBank Board of Directors
requested that Hoefer investigate whether other financial institutions may
have an interest in acquiring CapitolBank. Hoefer approached Westamerica
regarding the possibility of acquiring CapitolBank. Westamerica expressed
an interest in making a proposal to acquire CapitolBank and executed a
confidentiality agreement dated July 26, 1994. On July 27, 1994, the other
institution sent a proposed draft of a letter of intent to acquire
CapitolBank. In response to the active interest of both institutions and
its determination that a business combination with one of the prospective
acquirors was in the best interest of CapitolBank and its shareholders,
the CapitolBank Board of Directors met on August 4, 1994, appointed a
committee to pursue negotiations (the "Negotiating Committee") and
instructed Hoefer to continue negotiations with both institutions.
In the weeks that followed the August 4, 1994 CapitolBank Board of
Directors meeting, Hoefer continued to develop the terms of potential
transactions with both Westamerica and the other institution. During the
week of August 15, 1994, Westamerica performed limited due diligence on
CapitolBank. On September 16, 1994, CapitolBank engaged Financial
Institutions Analysts and Consultants, Inc., to perform due diligence on
both possible
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<PAGE>
acquirors. During the third week of September, 1994, the Chairman and Vice
Chairman of CapitolBank met with the Chairman of Westamerica to discuss
terms of a potential agreement. At approximately the same time, Hoefer
requested that the other institution perform on-site due diligence of
CapitolBank.
From August 4, to October 31, 1994, the Negotiating Committee met
eight times and the CapitolBank Board of Directors met ten times to review
the status of negotiations and to discuss the relative advantages of the
proposals received. At its October 3, 1994 meeting, the CapitolBank Board
of Directors decided to obtain a draft merger agreement from Westamerica,
and on October 13, 1994, representatives of Westamerica and CapitolBank
met to discuss and review a preliminary draft of a merger agreement. As a
result of that meeting, a number of material issues remained unresolved,
and the CapitolBank Board of Directors directed management and its
advisors to solicit from both Westamerica and the other institution by
November 4, 1994, final offers which addressed issues deemed important by
the CapitolBank Board of Directors, including price, break-up fees,
conditions, termination provisions and treatment of the Tyler v. Wickland
litigation.
On November 4, 1994, CapitolBank received final offers from both
institutions, and on November 7, 1994, the CapitolBank Board of Directors
met to evaluate the offers in detail. Even though the other institution
offered cash and stock consideration with a potentially higher per share
value than the consideration offered by Westamerica (based on the then
current stock prices of such institutions), the CapitolBank Board of
Directors concluded, based on advice from Hoefer, that the trading volume
of such other institution's stock relative to that of Westamerica might
not enhance the ability of the shareholders of CapitolBank to realize full
value for their shares. The CapitolBank Board of Directors was also
concerned that regulatory agreements applicable to such other institution
could significantly delay consummation of any transaction with it or make
regulatory approval of such transaction impossible. To address such
concern, the CapitolBank Board of Directors directed Hoefer to seek an
agreement from the other institution to appropriately compensate
CapitolBank for the risk it would assume that the transaction might be
delayed or not close due to the regulatory agreements. While the other
institution offered some compensation, it refused to agree to the
compensation deemed appropriate by the CapitolBank Board of Directors to
cover the risk. After attempting unsuccessfully to obtain further
concessions to address other concerns, the CapitolBank Board of Directors
decided to proceed to negotiate a definitive agreement with Westamerica.
On November 10, 1994, CapitolBank engaged Smith & Crowley Inc.
("Smith & Crowley") to act as a second investment advisor and render a
fairness opinion regarding the proposals to acquire it. On November 16,
1994, the CapitolBank Board of Directors approved the Agreement and a
Stock Option Agreement (see "--Stock Option Agreement") with Westamerica.
On November 17, 1994, Hoefer rendered to the CapitolBank Board of
Directors a fairness opinion to the effect that the Exchange Ratio in the
proposed Westamerica offer was fair from a financial point of view to the
shareholders of CapitolBank. The Agreement and the Stock Option Agreement
were executed on November 17, 1994.
See "--Reasons for the Merger; Recommendation of the Board of
Directors" and "--Opinions of CapitolBank's Financial Advisors."
Reasons for the Merger; Recommendation of the Board of Directors
The CapitolBank Board of Directors believes that the Merger is fair
and in the best interests of the shareholders of CapitolBank. In reaching
its conclusion to approve the Merger, the CapitolBank Board of Directors
considered numerous factors, including the following:
(1) the fact that CapitolBank management and Hoefer identified and
contacted a number of banking organizations regarding a
combination with of CapitolBank; that of those contacted, only
two expressed serious interest in proceeding within a reasonable
time; that of the two, Westamerica had the best chance of
receiving regulatory approval to consummate the transaction and
offered the best opportunity for shareholders to realize the
value of their CapitolBank Common Stock;
(2) the opinions of Hoefer and Smith & Crowley that the Exchange
Ratio is fair from a financial point of view to the shareholders
of CapitolBank; in this regard, the CapitolBank Board of
Directors considered the premium represented by the
consideration offered to shareholders in relation to the book
value per share of CapitolBank Common Stock;
-26-
<PAGE>
(3) the CapitolBank Board of Directors' review of the provisions of
the Agreements and related documents with Hoefer and
CapitolBank's legal advisors;
(4) the fact that the Merger will be tax-free for federal income tax
purposes to the holders of CapitolBank Common Stock (other than
in respect to cash paid in lieu of fractional shares and for
dissenters' rights) whereas the other offer of part cash would
have resulted in taxable income;
(5) the market liquidity and dividend history of Westamerica Common
Stock; and
(6) the current financial condition and prospects of CapitolBank as
an independent community bank.
THE CAPITOLBANK BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE
AGREEMENTS AND TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE MERGER, BE
ADOPTED AND APPROVED BY THE SHAREHOLDERS OF CAPITOLBANK.
Opinions of CapitolBank's Financial Advisors
Hoefer & Arnett
The CapitolBank Board of Directors retained Hoefer to render financial
advisory and investment banking services in connection with the Merger.
Hoefer has rendered a written opinion (the "Fairness Opinion") to the
CapitolBank Board of Directors to the effect that the Exchange Ratio in
the Agreement, as it may be adjusted for Significant Liabilities (as
defined herein), is fair to the holders of CapitolBank Common Stock from a
financial point of view. No limitations were imposed by the CapitolBank
Board of Directors upon Hoefer with respect to the investigations made or
procedures followed in rendering the Fairness Opinion.
A copy of the Fairness Opinion, dated as of November 17, 1994, which
sets forth certain assumptions made, matters considered and limits on the
review undertaken by Hoefer, is attached hereto as Annex B. The
shareholders of CapitolBank are urged to read the Fairness Opinion in its
entirety. The following summary of the procedures and analysis performed
and assumptions used by Hoefer is qualified in its entirety by reference
to the text of such Fairness Opinion. Hoefer's Fairness Opinion is
directed to the CapitolBank Board of Directors only and is directed only
to the Exchange Ratio and does not constitute a recommendation to any
shareholder of CapitolBank as to how such shareholder should vote at the
Meeting.
The financial projections and underlying assumptions included herein
were derived by Hoefer based partially upon information provided by
CapitolBank and Westamerica as well as Hoefer's own assessment of general
economic and market conditions. No other experts named elsewhere herein
have been involved in or consulted with respect to said projections and
assumptions.
In arriving at its opinion, Hoefer reviewed and analyzed, among other
things, the following: (i) the Agreement; (ii) Annual Reports to
Shareholders of CapitolBank and Westamerica and Annual Reports on Form 10-
K of Westamerica for the three years ended December 31, 1993, December 31,
1992 and December 31, 1991; (iii) Quarterly Reports on Form 10-Q of
Westamerica and Federal Deposit Insurance Corporation ("FDIC") Call
Reports for CapitolBank for the quarters ended March 31, 1994, June 30,
1994 and September 30, 1994; (iv) certain other publicly available
financial and other information concerning CapitolBank and Westamerica and
the trading markets for the publicly traded securities of CapitolBank and
Westamerica; (v) publicly available information concerning other banks and
holding companies, the trading markets for their securities and the nature
and terms of certain other merger transactions Hoefer believed relevant to
its inquiry; and (vi) evaluations and analyses prepared and presented to
the CapitolBank Board of Directors or a committee thereof in connection
with the business combination with Westamerica. Hoefer also held
discussions with senior management of CapitolBank and of Westamerica
concerning their past and current operations, financial condition and
prospects, as well as the results of regulatory examinations.
Hoefer reviewed with senior management of CapitolBank earnings
projections for 1995 through 1998 prepared by CapitolBank for CapitolBank,
assuming the Merger did not occur. Hoefer reviewed with the senior
management of Westamerica earnings projections for 1995 through 1998 for
Westamerica as a stand-alone entity, assuming the Merger did not occur, as
well as possible operating cost savings potentially attainable in each
such year resulting from the Merger. Such projections were prepared by
Hoefer based partially upon discussions with Westamerica senior
management and Hoefer's own assessment of the operating cost savings
realizable in the
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<PAGE>
Merger. Certain pro forma financial projections for the years 1995 through
1998 for the combined entity were derived by Hoefer based upon the
information discussed above, as well as Hoefer's assessment of general
economic, market and financial conditions. In certain cases, such combined
pro forma financial projections included the possible operating cost
savings believed by Hoefer to be realizable in the Merger.
In conducting its review and in arriving at its opinion, Hoefer relied
upon and assumed the accuracy and completeness of the financial and other
information provided to it or publicly available and did not attempt
independently to verify the same. Hoefer relied upon the managements of
CapitolBank and Westamerica as to the reasonableness of the financial and
operating forecasts, information and possible operating cost savings (and
the assumptions and bases therefor) provided to it, and Hoefer assumed
that such forecasts, information and possible operating cost savings
reflected the best currently available estimates and judgments of the
applicable managements. Hoefer also assumed, without independent
verification, that the aggregate allowances for loan losses for
CapitolBank and Westamerica are adequate to cover such losses. Hoefer did
not make or obtain any evaluations or appraisals of the properties of
CapitolBank or Westamerica, nor did it examine any individual loan credit
files. For purposes of its opinion, Hoefer assumed that the Merger will
have the tax, accounting and legal effects (including, without limitation,
that the Merger will be accounted for as a pooling of interest) described
in the Agreement. Hoefer's opinion is limited to the fairness, from a
financial point of view, to the holders of CapitolBank Common Stock of the
Exchange Ratio, as it may be adjusted, in the Merger and does not address
CapitolBank's underlying business decision to proceed with the Merger.
As more fully discussed below, Hoefer considered such financial and
other factors as Hoefer deemed appropriate under the circumstances,
including among others the following: (i) the historical and current
financial position and results of operations of CapitolBank and
Westamerica, including interest income, interest expense, net interest
income, net interest margin, provision for loan losses, noninterest
income, noninterest expense, earnings, dividends, internal capital
generation, book value, intangible assets, return on assets, return on
shareholders' equity, capitalization, the amount and type of nonperforming
assets, loan losses and the allowance for loan losses, all as set forth in
the financial statements for CapitolBank and for Westamerica; (ii) the
assets and liabilities of CapitolBank and Westamerica, including the loan,
investment and mortgage portfolios, deposits, other liabilities,
historical and current liability sources and costs and liquidity; and
(iii) the nature and terms of certain other merger transactions involving
banks and bank holding companies. Hoefer also took into account its
assessment of general economic, market and financial conditions and its
experience in other transactions, as well as its experience in securities
valuation and its knowledge of the banking industry generally. Hoefer's
opinion is necessarily based upon conditions as they existed and could be
evaluated on the date of the Fairness Opinion and the information made
available to it through that date.
In connection with rendering its Fairness Opinion to the CapitolBank
Board of Directors, Hoefer performed certain financial analyses, which are
summarized below. Hoefer believes that its analysis must be considered as
a whole and that selecting portions of such analysis and the factors
considered therein, without considering all factors and analysis, could
create an incomplete view of the analysis and the processes underlying
Hoefer's Fairness Opinion. The preparation of a fairness opinion is a
complex process involving subjective judgments and is not necessarily
susceptible to partial analysis or summary description. In its analyses,
Hoefer made numerous assumptions with respect to industry performance,
business and economic conditions, and other matters, many of which are
beyond the control of CapitolBank and Westamerica. Any estimates
contained in Hoefer's analyses are not necessarily indicative of future
results or values, which may be significantly more or less favorable than
such estimates. Estimates of values of companies do not purport to be
appraisals or necessarily reflect the prices at which companies or their
securities may actually be sold. None of the financial analyses performed
by Hoefer was assigned a greater significance by Hoefer than any other.
Financial forecasts and projections of CapitolBank and Westamerica
prepared by Hoefer were based on information provided by the respective
companies as well as Hoefer's own assessment of general economic, market
and financial conditions. All such information was reviewed with the
respective managements of CapitolBank and Westamerica. Neither
CapitolBank nor Westamerica publicly discloses internal management
financial forecasts and projections of the type provided to Hoefer in
connection with its review of the proposed Merger. Such forecasts and
projections were not prepared with a view towards public disclosure. The
forecasts, projections, and possible operating cost savings prepared by
Hoefer were based on numerous variables and assumptions which are
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<PAGE>
inherently uncertain, including, without limitation, factors related to
general economic and market conditions. Accordingly, actual results could
vary significantly from those set forth in such forecasts and projections.
Set forth below is a brief summary of the analyses performed by Hoefer
in preparation of the Fairness Opinion. Hoefer assumed for purposes of its
opinion that the Merger will be accounted for as a pooling of interests
transaction under generally accepted accounting principles. Unless
otherwise noted in this summary, Hoefer used an Exchange Ratio of .0938
times the level at which CapitolBank Common Stock would be exchanged if
the Effective Time (as defined herein) were the same as the date of the
Fairness Opinion. The Exchange Ratio and possible adjustments to the
Exchange Ratio were developed pursuant to extensive negotiations between
CapitolBank and Westamerica. Hoefer analyzed certain effects of the Merger
assuming Exchange Ratios, among others, of .0938 and .0861, the latter
representing the fully adjusted Exchange Ratio assuming the maximum
adjustment for Significant Liabilities. An Exchange Ratio of .0861 does
not necessarily reflect the lowest possible Exchange Ratio under the terms
of the Agreement, and there can be no assurance that the Exchange Ratio as
finally determined in accordance with the Agreement will not be lower than
.0861. The analysis also focused on core financial and operating
projections and statistics which were not specifically adjusted for
nonrecurring charges, unless otherwise stated.
Pro Forma Merger and Contribution Analysis. Hoefer compared the
changes in the amount of earnings, book value and dividends attributable
to one share of CapitolBank Common Stock before the Merger with the
amounts attributable to the shares of Westamerica Common Stock for which
such shares of CapitolBank would be exchanged under the Agreement. The
following assumptions regarding earnings and dividends underlie the pro
forma results.
The analysis assumes, unless otherwise stated, Merger-related
operating cost savings estimates prepared by Hoefer based partially upon
discussions with the senior management of Westamerica and Hoefer's own
assessment of the cost savings realizable in the Merger, assuming the
Merger is completed during the first half of 1995. These possible
operating cost savings represent approximately 20% of CapitolBank's
projected noninterest expense in 1994 on a pre-tax basis. The possible
operating cost savings, expressed as a percentage of CapitolBank's
projected noninterest expense, is within the range of operating cost
savings, expressed as a percentage of the acquiree's projected noninterest
expense announced in similar transactions reviewed by Hoefer.
Hoefer performed pro forma merger analyses assuming the stated
earnings projections for Westamerica and CapitolBank and the Merger-
related projected operating cost savings by Westamerica. In addition,
Hoefer analyzed certain pro forma merger scenarios in order to assess the
impact on CapitolBank of different levels of projected earnings as well as
various degrees of projected Merger-related operating cost savings.
The impact on CapitolBank of volatility in Westamerica's earnings and
the level of Merger-related operating cost savings was shown by
calculating pro forma results assuming Westamerica's earnings as
projected, as well as 75% and 125% of Westamerica's projected earnings.
In order to measure the impact on CapitolBank of volatility of
CapitolBank's earnings to the pro forma results, Hoefer also examined the
earnings impact on CapitolBank resulting at those levels of Westamerica
earnings if CapitolBank achieved 75% and 125% of its projected earnings.
The .0938 Exchange Ratio was used to make the calculations in each case,
unless otherwise stated.
In order to assess the impact on CapitolBank shareholders of
variability of the possible operating cost savings projected by Hoefer to
be realizable in the Merger, Hoefer compared the earnings, book value and
dividends attributable to one share of CapitolBank Common Stock before the
Merger with the earnings, book value and dividends attributable to the
shares of Westamerica Common Stock for which such shares of CapitolBank
would be exchanged, assuming 75% and 50% of the possible operating cost
savings are realized. In general, failure to fully realize the projected
operating cost savings in the Merger does not significantly affect the
conclusions of the analysis, although the changes in earnings, book value
and indicated dividends attributable to one share of CapitolBank Common
Stock as a result of the Merger are less favorable than those shown for
the analysis assuming full realization of the possible operating cost
savings.
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<PAGE>
Hoefer concluded that changes in earnings per share, dividends and book
value attributable to one share of CapitolBank Common Stock as a result of the
Merger are favorable compared to those of CapitolBank as a stand-alone entity.
The following table presents the results of an analysis of differences in
earnings, book value and dividends attributable to one share of CapitolBank
Common Stock before the Merger and attributable to the portion of a share of
Westamerica Common Stock for which such shares of CapitolBank would be exchanged
using Exchange Ratios of .0938 and .0861, under the above described
methodologies:
Projected Changes in Book Value and Earnings Per Share
(Exchange Ratio .0938)
<TABLE>
<CAPTION>
Comparative changes in projected earnings
Percentage of Projected (stand-alone compared to pro forma)
Earnings Achieved By: ----------------------------------------
CapitolBank/Westamerica 1995 1996 1997 1998
- ----------------------- ------ ------ ------ ------
<S> <C> <C> <C> <C>
100% / 100%
Change in book value (6.24)% (1.34)% 3.03% 6.72%
Change in earnings per share 172.24 149.56 126.87 110.06
Change in dividend $0.07 $0.08 $0.09 $0.09
75% / 125%
Change in book value 1.66% 11.63% 21.89% 32.34%
Change in earnings per share 379.78 372.09 358.25 348.29
Change in dividend $0.07 $0.08 $0.09 $0.10
125% / 75%
Change in book value (13.78)% (13.30)% (13.75)% (15.17)%
Change in earnings per share 60.30 33.81 15.97 3.48
Change in dividend $0.07 $0.08 $0.08 $0.09
</TABLE>
Projected Changes in Book Value and Earnings Per Share
(Exchange Ratio .0861)
<TABLE>
<CAPTION>
Comparative changes in projected earnings
Percentage of Projected (stand-alone compared to pro forma)
Earnings Achieved By: ---------------------------------------------------------
CapitolBank/Westamerica 1995 1996 1997 1998
- ----------------------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
100% / 100%
Change in book value (13.64)% (9.12)% (5.10)% (1.70)%
Change in earnings per share 154.09 126.87 114.26 94.31
Change in dividend $0.07 $0.07 $0.08 $0.09
75% / 125%
Change in book value (6.37)% 2.82% 12.27% 21.90%
Change in earnings per share 341.90 328.18 320.06 306.78
Change in dividend $0.07 $0.07 $0.08 $0.09
125% / 75%
Change in book value (20.58)% (20.15)% (20.56)% (21.86)%
Change in earnings per share 46.36 22.66 7.05 (7.22)
Change in dividend $0.07 $0.07 $0.08 $0.08
</TABLE>
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<PAGE>
Analysis of Other Merger Transactions. Hoefer analyzed other bank and bank
holding company merger and acquisition transactions in California completed
during the period from January 1, 1988 to November 30, 1994 where the total
consideration paid had a value between $5 million and $100 million. Hoefer
compared price to earnings, price to book value and price to tangible book value
multiples of the assumed Exchange Ratio to the high, median and low multiples of
all transactions. California-specific transactions were reviewed due to the
difference in the economic climate between California and the rest of the
country and as a comparison with non-California transactions could be
misleading. Hoefer assumed a Westamerica stock price of $30.50, the closing
market price at November 17, 1994, and CapitolBank's annualized earnings and
book value for or at the period ended September 30, 1994.
Set forth below is certain information relating to the Exchange Ratio
described above, and the high, median and low transaction multiples summarized
above:
<TABLE>
<CAPTION>
California transactions greater Proposed Westamerica/
than $5 million and less than CapitolBank Merger
$100 million from January 1, 1988 Exchange Exchange
to November 30, 1994 Ratio .0938x* Ratio .0861x
----------------------------------------------- ---------------- ---------------------
<S> <C> <C> <C> <C> <C>
High Median Low
------ ------ -------
Price to earnings 48.35x 16.13x (2.94)x 32.00x 23.82x
Price to book value 2.98 1.66 0.61 1.30 1.15
Price less tangible book
value to total deposits 14.82% 6.63% (5.38)% 2.20% 1.13%
</TABLE>
- ---------------------------------------
* Not adjusted for potential Significant Liabilities as set forth in the
Agreement.
The bank merger and acquisition transactions for the period from
January 1, 1988 to November 17, 1994 included in the above multiples are set
forth below. Except as otherwise noted, the acquiror and the acquiree are both
located in the State of California.
<TABLE>
<CAPTION>
Acquiror Acquiree
- ----------------------------- -----------------------------
<S> <C>
Westamerica Bancorp PV Financial
Comerica Inc. (Michigan) University National
First Interstate Bancorp Levy Bancorp
Business & Professional Bank Sacramento First National
ValliCorp Holdings Bank One Fresno
Natl. Bank of the Redwoods Codding Bank
ValliCorp Holdings Mineral King Bancorp
SJNB Financial Corp. Business Bancorp
Mid Peninsula Bancorp San Mateo County Bancorp
California Bancshares Bank of Livermore
California State Bank Bank of Anaheim
CVB Financial Western Industrial National Bank
Trico Bancshares Country National Bank
California Bancshares MBC Corp.
First Interstate Bancorp First State Bank of the Oaks
First Interstate Bancorp Cal Rep Bancorp
Westamerica Bancorp Napa Valley Bancorp
CVB Financial Fontana First National Bank
ValliCorp Holdings Pacific Bancorporation
Westamerica Bancorp John Muir National Bank
</TABLE>
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<PAGE>
Acquiror Acquiree
- ----------------------------- -----------------------------
El Dorado Bancorp San Clemente Bancorp
Wells Fargo & Co Citizens Holdings
Bank of Fresno Madera Valley Bank
Home Interstate Bancorp Torrance National Bank
Citicorp DeAnza Bank
California State Bank Empire Bancorp
Comerica Inc. (Michigan) InBancshares
Security Pacific Santa Clarita National Bank
City National Warner Center Bank
Pacific Capital Bancorp Pajaro Valley Bancorp
Security Pacific La Jolla Bancorp
Bank of the West Central Banking System
Wells Fargo & Co Torrey Pines Group. Inc.
Wells Fargo & Co Valley National Bank
Alameda Bancorp Westside Bank
Commerce Bancorp California City Bank
Security Pacific Southwest Bank
Commercial Bank of Pasadena Bank of Redlands
First Interstate Bancorp Alex Brown Financial
Discounted Cash Flow Analysis. Hoefer examined the results of a
discounted cash flow analysis designed to compare the present value, under
certain assumptions, of cash flows that would be attained if CapitolBank
remained independent through 1998, with the present value of the earnings
projected to be achieved by the combined entities during the same period. The
results produced in the analysis did not purport to be indicative of actual
values or expected values of CapitolBank or the shares of CapitolBank Common
Stock.
In calculating the present values through the discounted cash flow
analysis, Hoefer analyzed the effect of possible earnings variability and
possible Merger-related operating cost savings variability, among other items,
by assuming varying levels of projected earnings for CapitolBank and
Westamerica. The three cases examined were: (1) CapitolBank earnings as
projected and Westamerica earnings as projected; (2) CapitolBank earnings at 75%
of projected earnings and Westamerica earnings at 125% of projected earnings;
and (3) CapitolBank earnings at 125% of projected earnings and Westamerica
earnings at 75% of projected earnings. Pro forma combined cash flows were
calculated assuming the combinations of the cash flows in each of these cases
and were compared to the cash flows of CapitolBank on a stand-alone basis as
well as to the cash flows of CapitolBank acquired in 1998 by a larger financial
institution. All cases were analyzed assuming realization of the operating cost
savings, prepared by Hoefer, in the amounts and time periods previously
indicated, unless otherwise stated. See "--Pro Forma Merger and Contribution
Analysis."
The discount rates used ranged from 10.0% to 18.0%. For the CapitolBank
stand-alone analyses, the terminal price multiples applied to 1998 estimated
book value ranged from 1.00x to 2.00x. The lower levels of the price/book value
multiples range reflected an estimated future trading range of CapitolBank,
while the higher levels of the price/book value multiples range were more
indicative of a future sale of CapitolBank's stock to a larger financial
institution. For the pro forma combined analyses, the terminal price/book
multiples also ranged from 1.00x to 2.00x.
For the CapitolBank stand-alone analyses, the cash flows were comprised of
the projected stand-alone dividends per share in years 1994 through 1998 plus
the terminal value of CapitolBank's Common Stock at year-end 1998 (calculated by
applying each one of the assumed terminal price/book value multiples as stated
above to 1998 projected CapitolBank book value per share). For the pro forma
combined analyses, the cash flows were comprised of the projected pro forma
combined dividends per share in years 1994 through 1998 plus the terminal value
of the pro forma combined entity's stock at year-end 1998 (calculated by
applying each one of the assumed terminal price/book value multiples as stated
above to 1998 projected pro forma combined book value per share).
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<PAGE>
The discount rates described above were then applied to these cash flows to
obtain the present values per share of CapitolBank Common Stock.
The following table presents the results of the discounted cash flow
analysis described above using a discount rate of 14%, the mid-point of the
range of discount rates employed in the analysis:
Projected Present Value of Discounted Cash Flows
(Exchange Ratio .0938)*
<TABLE>
<CAPTION>
Percentage of Projected Percentage of Possible Cost Savings Realized
Earnings Achieved by ------------------------------------------------
CapitolBank/Westamerica 1.50x Book Value 2.00x Book Value
- ----------------------- ------------------ ------------------
<S> <C> <C>
100%/100%
CapitolBank stand-alone $2.32 $3.09
Pro forma combined 2.71 3.54
Percentage change
in CapitolBank 16.81% 14.56%
75%/125%
CapitolBank stand-alone $2.15 $2.87
Pro forma combined 3.09 4.04
Percentage change
in CapitolBank 43.72% 40.77%
125%/75%
CapitolBank stand-alone $2.52 $3.36
Pro forma combined 2.37 3.08
Percentage change
in CapitolBank (5.95)% (8.33)%
</TABLE>
* Not adjusted for Potential Significant liabilities as set forth in the
Agreement.
Projected Present Value of Discounted Cash Flows
(Exchange Ratio .0861)
<TABLE>
<CAPTION>
Percentage of Projected Percentage of Possible Cost Savings Realized
Earnings Achieved by ---------------------------------------------------
CapitolBank/Westamerica 1.50x Book Value 2.00x Book Value
- ----------------------- ------------------ ------------------
<S> <C> <C>
100%/100%
CapitolBank stand-alone $2.32 $3.09
Pro forma combined 2.50 3.26
Percentage change
in CapitolBank 7.76% 5.50%
75%/125%
CapitolBank stand-alone $2.15 $2.87
Pro forma combined 2.85 3.72
Percentage change
in CapitolBank 32.56% 29.62%
125%/75%
CapitolBank stand-alone $2.52 $3.36
Pro forma combined 2.18 2.84
Percentage change
in CapitolBank (13.49)% (15.48)%
</TABLE>
-33-
<PAGE>
The analysis showed that use of a higher (lower) level of projected
Westamerica earnings raised (lowered) the resulting present value for a given
level of CapitolBank earnings, on a pro forma combined basis. The analysis also
showed that use of a lower (higher) discount rate or a higher (lower) terminal
price/book value multiple raised (lowered) the calculated present values. In all
cases, for a given discount rate and a given price/book value multiple, the
analysis showed that the financial terms of the Merger offered a higher present
value per share of CapitolBank Common Stock than if CapitolBank remained
independent through 1998 or was acquired in 1998 by a larger financial
institution. However, the examples shown above do not necessarily indicate that
a direct comparison of the present values obtained using the same terminal
price/book value multiple and/or discount rate for the CapitolBank stand-alone,
CapitolBank acquired in 1998 by a larger financial institution, and pro forma
combined entity cash flows, are the only comparisons which can be made.
Comparable Company Analysis. Hoefer examined recent historical data on
CapitolBank and Westamerica based upon information from the companies' 1993
Annual Reports to Shareholders and subsequent quarterly information. Hoefer
analyzed certain credit and operating statistics for CapitolBank and
Westamerica, comparing these statistics to data for a peer group of California
banks using the publicly published Hoefer California Independent Bank Index (the
"Index"), comprised of 48 institutions. Both Westamerica and CapitolBank are
participants in the Index. The comparisons made are as of or for the period
ending September 30, 1994, unless otherwise noted. The following table presents
the results of the comparable company analysis described above:
Comparable Company Analysis
(as of September 30, 1994)
<TABLE>
<CAPTION>
Westamerica CapitolBank Index Median
----------- ----------- ------------
<S> <C> <C> <C>
Total assets........................... $2,052,084 $138,060 $230,517
Market capitalization.................. $ 244,264 $10,201 $18,311
Price to tangible equity per share..... 1.50x 1.09x 0.95x
Tangible equity to tangible assets..... 7.94% 6.78% 8.31%
Risk based capital ratio............... 15.17 11.04 13.55
Nonperforming assets to total assets... 0.98 1.64 1.69
Loan loss reserve to nonperforming
assets............................... 136.75 79.89 69.79
Return on assets....................... 1.23 0.66 0.99
Return on equity....................... 15.65 9.53 11.45
Net interest margin.................... 4.95 6.63 6.11
Noninterest expense to average earning
assets............................... 3.43 5.92 4.73
</TABLE>
Hoefer concluded based on the comparable company analysis that the
attributes of ownership of shares of Westamerica Common Stock as a result of the
Merger are more favorable than the attributes of ownership of shares of
CapitolBank Common Stock as a stand-alone entity.
Hoefer is an investment banking firm continually engaged in the valuation
of businesses and securities, including financial institutions and their
securities, in connection with mergers and acquisitions, negotiated
underwritings, private offerings of securities, secondary distributions of
listed and unlisted securities and valuations for estate, corporate and other
purposes.
As a normal part of its business, Hoefer analyzes securities of financial
institutions for the purposes of providing, among other things, transactional
advice and assistance, investment research and capital financing activities.
Hoefer currently conducts dealer markets in the shares of more than 120
independent financial institutions, including Westamerica and CapitolBank. In
addition, the principals of Hoefer have substantial experience in investment and
commercial banking, some of which may be deemed applicable to the Fairness
Opinion. Hoefer has not previously provided services to either Westamerica or
CapitolBank, however, Hoefer and certain of its principals own approximately
0.1% of Westamerica's Common Stock.
-34-
<PAGE>
Financial Advisory Fees. CapitolBank has agreed to pay Hoefer for merger
advisory and other services, including its Fairness Opinion, as follows:
(a) $50,000 payable upon the signing of the Agreement;
(b) An additional fee equal to 1.50% of the aggregate consideration
paid; such additional fee to be reduced by the amount payable under the
immediately preceding clause (a).
CapitolBank has also agreed to reimburse Hoefer for all out-of-pocket
expenses which may be incurred by it in connection with the rendering of the
Fairness Opinion, not to exceed $25,500 without the consent of CapitolBank, and
to indemnify Hoefer against certain liabilities. No portion of the fee is
contingent upon the conclusions reached in the Fairness Opinion.
Smith & Crowley
Pursuant to an engagement letter dated November 10, 1994, CapitolBank
engaged Smith & Crowley to act as a financial advisor in connection with its
evaluation of strategic alternatives, including the possible merger of
CapitolBank with Westamerica or another potential purchaser. Smith & Crowley is
an investment banking firm specializing in commercial banks, savings and loan
associations, savings banks and other financial intermediaries, and, as part of
its investment banking activities, is called upon to advise clients in mergers,
acquisitions, valuations and business activities involving financial
institutions. CapitolBank selected Smith & Crowley as its financial advisor on
the basis of this experience and the expertise of Smith & Crowley and its
principals in transactions similar to this Merger.
Immediately prior to the November 17, 1994 meeting of the CapitolBank
Board of Directors, the management of CapitolBank presented the Exchange Ratio
to Smith & Crowley, upon which Smith & Crowley delivered its verbal opinion,
subsequently confirmed in writing as of the date hereof, that the Exchange
Ratio, including any adjustments thereto pursuant to the Agreements, is fair to
CapitolBank and its shareholders from a financial point of view. No limitations
were imposed by CapitolBank on Smith & Crowley with respect to the
investigations made or procedures followed in rendering its opinion. The full
text of Smith & Crowley's written opinion to the CapitolBank Board of
Directors, which sets forth the assumptions made, matters considered, and
limitations of the review by Smith & Crowley, is attached hereto as Annex C and
is incorporated herein by reference and should be read carefully and in its
entirety in connection with this Proxy Statement/Prospectus. Smith & Crowley's
opinion is addressed to the CapitolBank Board of Directors only and does not
constitute a recommendation to any shareholder of CapitolBank as to how such
shareholder should vote at the Meeting.
In connection with its opinion, Smith & Crowley, among other things:
(i) reviewed certain publicly available financial and other data with respect to
CapitolBank and Westamerica, including the annual audited consolidated financial
statements for 1989 through 1993, unaudited interim periods to September 30,
1994, and certain other relevant financial and operating data relating to
CapitolBank and Westamerica made available to Smith & Crowley from published
sources and from the internal records of CapitolBank and Westamerica; (ii)
reviewed the form of the Agreement and made inquiries regarding and discussed
the Merger, the Agreement and other matters related thereto with CapitolBank's
management and counsel; in addition, Smith & Crowley analyzed the Exchange Ratio
of .0938 and the effect of adjustments in the Exchange Ratio potentially
attributable to Significant Liabilities as defined in the Agreement, including
the effect of the maximum Significant Liabilities adjustment, which would reduce
the Exchange Ratio to .0861; (iii) compared CapitolBank and Westamerica from a
financial point of view with certain other companies and groups of companies in
the banking industry that Smith & Crowley deemed to be relevant; (iv) considered
the financial terms, to the extent publicly available, of selected recent
business combinations of companies in the banking industry, which Smith &
Crowley deemed to be comparable, in whole or in part, to the Merger; (v)
reviewed and discussed with representatives of the management of CapitolBank
certain information of a business and financial nature regarding CapitolBank,
furnished to Smith & Crowley by CapitolBank, including legal matters, lease
agreements, credit quality data, financial forecasts and related assumptions of
CapitolBank; (vi) reviewed and discussed with representatives of the management
of Westamerica certain information of a business and financial nature regarding
Westamerica, furnished to Smith & Crowley by Westamerica concerning the holding
company and its principal subsidiaries,
-35-
<PAGE>
including current financial condition, credit quality data, other pending
transactions, and general business plans; (vii) reviewed the price history,
trading volume and valuation of Westamerica Common Stock and, subject to more
limited availability of information, that of CapitolBank as well; (viii) met
with various officers and other members of management of CapitolBank and
Westamerica to discuss the foregoing, as well as other matters Smith & Crowley
viewed as relevant to its analysis; and (ix) considered such other information,
financial data and analyses, and economic and market criteria and performed such
other analyses and examinations as Smith & Crowley deemed appropriate.
In connection with its review, Smith & Crowley did not assume any
responsibility for independent verification of any of the foregoing information,
and relied on all such information and assumed all such information was complete
and accurate in all material respects. With respect to financial forecasts for
CapitolBank provided to Smith & Crowley by CapitolBank's management, Smith &
Crowley assumed for purposes of its opinion that such forecasts were reasonably
prepared on bases reflecting the best available estimates and judgments of
CapitolBank's management at the time of preparation as to the future financial
performance of CapitolBank and provided a reasonable basis upon which Smith &
Crowley could form its opinion. Smith & Crowley also assumed that there were no
material changes in CapitolBank's assets, financial condition, results of
operations, business or prospects since the respective dates of the last
financial statements made available to Smith & Crowley. Smith & Crowley is not
expert in the evaluation of loan portfolios for purposes of assessing the
adequacy of the allowance for losses with respect thereto and assumed for
purposes of its opinion that such allowances for CapitolBank are in the
aggregate adequate to cover such losses. In addition, Smith & Crowley did not
review any individual credit files, did not make an independent evaluation,
appraisal or physical inspection of the assets or individual properties of
CapitolBank, and was not furnished with any such appraisals. Further, Smith &
Crowley's opinion was based on economic, monetary, market and other conditions
as in effect on, and the information made available to Smith & Crowley as of,
the date of the opinion, and on the assumption that the Merger will be
consummated in accordance with its terms, without any amendment thereto and
without waiver by Westamerica or CapitolBank of any of the conditions to their
obligations thereunder.
Set forth below is a brief summary of the analysis made by Smith & Crowley
in conjunction with its opinion, which has been delivered in written form as of
the date hereof and which is expected to be confirmed in writing as of the date
of the Meeting.
Comparable Company Analysis. Using public and other available
information, including FDIC call report data, Smith & Crowley compared certain
financial ratios of CapitolBank (including the ratio of net income to average
total assets, "return on average assets" or "ROA," the ratio of net income to
average total equity, "return on average equity" or "ROE," certain capital
adequacy ratios, certain credit quality ratios, net interest margin, certain
cost control ratios and percentage dependence on certain large denomination
deposit sources) for 1992, 1993, and 1994 ending June 30, 1994, to five
proxy groups:
(a) a representative sampling of the commercial banking industry
nationally;
(b) 360 independent California banks;
(c) 197 California banks with total assets of between $50 million
and $200 million;
(d) 89 Northern California banks with assets of $50 to $200 million;
and
(e) 10 Sacramento-based commercial banks.
Analysis of profitability (ROA and ROE) showed that CapitolBank trailed all
proxy group averages in all three time periods, except in 1993 when, because of
the weakness of the economy and bank profitability in Southern California,
CapitolBank's profitability (ROA of 0.26% and ROE of 3.57%) modestly exceeded
both the statewide average ROA and ROE of the 360 independent California banks
(ROA of 0.15% and ROE of 1.69%) and the similar statewide averages of 197
California banks with total assets of between $50 and $200 million (ROA of 0.07%
and ROE of 0.75%). However, its performance continued to lag the national proxy
group (ROA of 1.13% and ROE of 14.61%), the group of 89 Northern California
banks (ROA of 0.77% and ROE of 7.37%) and the
-36-
<PAGE>
Sacramento-based commercial bank proxy group, in which it ranked seventh among
ten in both ROA and ROE. In terms of capital adequacy measures (Tier 1
Capital/Risk Assets, Total Capital/Risk Assets, Leverage Ratio, and Average
Equity/Average Capital), CapitolBank's capital ratios were satisfactory, but
slightly below the averages for most proxy groups in most of the periods
examined. Analysis of CapitolBank's key credit quality ratios (the ratio of net
loan loss charge-offs to average loans, allowance for loan losses as a
percentage of total loans, nonperforming assets as a percentage of total loans
plus other real estate owned, and allowance for loan losses as a percentage of
loans on which interest is not being accrued) showed CapitolBank to be
comparable with the national proxy group and generally better than the
California proxy groups in most categories. An exception was CapitolBank's below
average comparison with the Sacramento proxy group in 1992. CapitolBank's net
interest margin was ahead of proxy group averages in 1993 and 1994, but lagged
the other averages in 1992. Expense ratio comparisons for all periods and
against all proxy groups showed CapitolBank to have quite high comparative
noninterest expense ratios in the periods examined. No company used in the
analysis is identical to CapitolBank, and there are differences between
CapitolBank and the proxy groups. The analyses necessarily involved complex
considerations and judgments concerning differences in financial and operating
characteristics of the companies.
Analysis of Selected Bank Merger Transactions. Smith & Crowley reviewed
the consideration paid in recently announced transactions whereby certain banks
were acquired. While Smith & Crowley reviewed the median and average terms of
1,034 transactions involving acquisitions of banks in the United States
announced since year-end 1991 (the "National Bank Transactions") and of 86
transactions involving acquisitions of banks in the Western Region of the United
States ("Western Bank Acquisitions") announced since year-end 1991, Smith &
Crowley believes that factors unique to California, particularly the
comparatively weak economic, business and financial environment, have impacted
the value of bank merger transactions; therefore, Smith & Crowley placed
particular emphasis on 13 transactions involving acquisitions of California
banks, announced since year-end 1991 and subsequently completed or currently
pending, for which key financial terms are publicly disclosed (the "California
Bank Transactions"). For each bank acquired or to be acquired in such
transactions, Smith & Crowley compiled figures illustrating, among other things,
the ratio of the premium (i.e., purchase price in excess of book value) to core
deposits, purchase price to book value and purchase price to latest twelve-
months ("LTM") earnings.
The figures for the National Bank Transactions, the Western Bank
Transactions and the California Bank Transactions produced: (i) a median
percentage of premium (purchase price in excess of book value) to core deposits
of 6.34%, 5.57% and 4.77%, respectively; (ii) an average purchase price to book
value of 164%, 163% and 130%, respectively; (iii) a median purchase price to LTM
earnings of 14.7x, 19.1x and 30.3x, respectively. In comparison, assuming as of
November 17, 1994, that the consideration to be paid in the Merger for each
share of CapitolBank Common Stock equals $2.91, Smith & Crowley determined that
the consideration to be received by the holders of the CapitolBank Common Stock
in the Merger represented a percentage premium to core deposits of 2.21%, a
purchase price to book value of 128% and a purchase price to LTM earnings of
27.5x.
No other company or transaction used in the above analysis as a comparison
is identical to CapitolBank or the Merger. Accordingly, any analysis of the
results of the foregoing is not mathematical; rather, it involves complex
considerations and judgments concerning differences in financial and operating
characteristics of the companies and other factors that could affect the public
trading value of the companies to which CapitolBank and the Merger are being
compared.
The summary set forth above does not purport to be a complete description
of the analyses performed by Smith & Crowley. The preparation of a fairness
opinion necessarily is not susceptible to partial analysis or summary
description. Smith & Crowley believes that its analyses and the summary set
forth above must be considered as a whole and that selecting a portion of these
analyses and factors would create an incomplete view of the process underlying
the analyses. In addition, Smith & Crowley may have given certain analyses more
or less weight than other analyses and may have deemed various assumptions more
or less probable than other assumptions, so that the ranges of valuations
resulting from any particular analysis described above should not be taken to be
Smith & Crowley's view of the actual value of CapitolBank or the combined
companies. The fact that any specific analysis has been referred to in the
summary above is not meant to indicate that such analysis was given greater
weight than any other analysis.
-37-
<PAGE>
In performing its analyses, Smith & Crowley made numerous assumptions with
respect to industry performance, general business and economic conditions and
other matters, many of which are beyond the control of CapitolBank. The analyses
performed by Smith & Crowley are not necessarily indicative of actual values or
actual future results, which may be significantly more or less favorable than
suggested by such analyses. Such analyses were prepared solely as part of Smith
& Crowley's analysis of the consideration to be received by the CapitolBank
shareholders in the Merger. The analyses do not purport to be appraisals or to
reflect the prices at which shareholdings of the company might be sold or the
prices at which any securities may trade at the present time or any time in the
future.
As described above, Smith & Crowley's verbal fairness opinion received by
the CapitolBank Board of Directors was among the many factors taken into
consideration by the CapitolBank Board of Directors in making its determination
to approve the Merger.
CapitolBank has agreed to pay Smith & Crowley $17,500 for rendering its
opinion as to the fairness of the Merger from a financial point of view to the
shareholders of CapitolBank. CapitolBank has also agreed to reimburse Smith &
Crowley for its reasonable out-of-pocket expenses and has agreed to indemnify
Smith & Crowley, its directors, officers, agents, employees and owners against
certain liabilities.
Smith & Crowley has had no prior business relationships with either party
to this transaction; however, certain principals of Smith & Crowley, in former
positions as senior officers of investment banking and commercial banking
companies, did, in the course of their activities in past years, have direct
contact with Westamerica, its management, and banks that were owned or were
subsequently acquired by Westamerica.
Effective Date of the Merger
The Agreement provides that the Merger will be effective upon the date of
the filing with the California Secretary of State of a duly executed Merger
Agreement and officers' certificates prescribed by Section 1103 of the GCL or
upon any subsequent date set forth in the Merger Agreement (the "Effective
Time"). The date on which the Merger is effective as specified in the Merger
Agreement is referred to herein as the Effective Date. Although the parties have
not adopted any formal timetable, it is presently anticipated that the Merger
will be consummated on or prior to May 31, 1995, assuming all the conditions set
forth in the Agreement are theretofore satisfied or waived; however, it is
possible that the Effective Date may extend beyond such date.
Exchange Ratio; Conversion of Shares of CapitolBank Common Stock
At the Effective Time, by virtue of the Merger and without any action on
the part of the holders of CapitolBank Shares, each issued and outstanding
CapitolBank Share (other than fractional shares or any shares as to which
dissenters' rights have been perfected) will be converted into .0938 of a fully
paid, nonassessable and registered Westamerica Share, subject to certain
potential downward adjustments. See "--Possible Adjustments to Exchange Ratio or
Termination of the Agreement." All such CapitolBank Shares shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each certificate previously representing any such shares shall
thereafter represent the Westamerica Shares into which such CapitolBank Shares
have been converted. Certificates previously representing CapitolBank Shares
shall be exchanged for certificates representing whole shares of Westamerica
Common Stock issued in consideration therefor upon the surrender of such
certificates. Cash will be paid in lieu of any fractional share of Westamerica
Common Stock. See "--Exchange of CapitolBank Stock Certificates; Fractional
Interests." From and after the Effective Date, the holders of certificates
formerly representing CapitolBank Shares shall cease to have any rights with
respect thereto other than any dissenters' rights they may perfect pursuant to
Chapter 13 of the GCL. See "Dissenters' Rights of Appraisal."
Possible Adjustments to Exchange Ratio or Termination of the Agreement
The Agreement provides that the Exchange Ratio may be adjusted as more
fully described below. The effect of the adjustments would be to reduce the
Exchange Ratio below .0938.
-38-
<PAGE>
The Exchange Ratio shall also be adjusted downward for any Significant
Liabilities (as defined below) if in the aggregate these Significant Liabilities
total more than $150,000. As of the date hereof, Westamerica and CapitolBank
have identified Significant Liabilities, which total approximately $60,000.
"Significant Liabilities," as used in the Agreement, mean those liabilities or
expenses (whether operating or capital in nature) relating to those categories
and events described in the next sentence which have not been reflected as
reductions to CapitolBank's consolidated book value pursuant to generally
accepted accounting principles as of September 30, 1994; provided, however, that
any individual component of the $150,000 aggregate amount must reasonably be
estimated to exceed $25,000. Significant Liabilities consist of the following
categories or events, provided that Significant Liabilities will not include any
of the following to which Westamerica has consented in writing: (i) new or
extended contractual obligations; (ii) new or extended leases of real or
personal property; (iii) acquisition of capital assets (or commitments to do
so); (iv) new or expanded contingent liabilities based upon threatened or
pending litigation or other proceedings or hazardous or toxic substances and
legal fees and costs (whether actual or estimated) related thereto; (v) any
expenses, fines, fees, penalties or similar obligations, except those which
arose in the Ordinary Course of Business (as defined in Section 3.2(h)(i) of the
Agreement); (vi) any new, expanded or accelerated pension or other benefits,
including employment contracts and severance payments, whether or not vested;
and (vii) the aggregate amount of the difference between the per share exercise
price of any stock options or stock appreciation rights granted after June 30,
1994, by CapitolBank and $3.00.
There can be no assurance that Westamerica or CapitolBank will not identify
other liabilities or expenses prior to the Effective Date which would constitute
Significant Liabilities. The amount of the Significant Liabilities in the case
of the arrangements described in (i), (ii), and (vi) above shall (a) equal any
payment that could be made as of the Effective Date that would terminate the
arrangement without further liability or expense to CapitolBank or Westamerica
or (b) if the arrangement does not provide for such a payment, the present value
of the amount of the remaining payments payable pursuant to the arrangement
after the Effective Date using a discount rate equivalent to Westamerica's then
current cost of funds. The
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<PAGE>
amount of Significant Liabilities in the case of (iii) above will equal the
amount expended or required to be expended under binding commitments for a
capital asset, minus the amount for which the capital asset could actually be
sold on a liquidation basis. Significant Liabilities shall not include fees of
CapitolBank's financial advisors or CapitolBank's legal fees directly
attributable to this Merger. Significant Liabilities do not include
approximately $200,000 already accrued for CapitolBank's 1994 bonus pool,
approximately $116,000 for CapitolBank's employee retention contracts and
certain amounts payable to Thayer T. Prentice and William J. Martin totaling
$150,000 and $125,000, respectively, pursuant to their respective employment
agreements with CapitolBank dated as of March 30, 1994 and April 2, 1994,
respectively. See "Certain Considerations--Interests of CapitolBank Officers and
Directors in the Merger." As a result of any Significant Liabilities through the
close of business on the day preceding the Effective Date, the Exchange Ratio
shall be reduced to an amount calculated as follows, provided that not more than
$1,000,000 of such Significant Liabilities shall be taken into account (the
"Adjusted Exchange Ratio"):
(Significant Liabilities)
Exchange Ratio - ------------------------- = Adjusted Exchange Ratio
$130 Million
It is anticipated that CapitolBank, as of the Effective Date, will have
incurred an expense of $260,000 pursuant to its 1994 bonus pool ($60,000 more
than the $200,000 currently accrued and excluded from the definition of
Significant Liabilities). The following table illustrates a range of possible
Exchange Ratios assuming Significant Liabilities between $150,000 and $1,000,000
and certain possible Exchange Ratios from the above table.
<TABLE>
<CAPTION>
Level of Significant Liabilities
Certain Possible -----------------------------------------------------
Exchange Ratios $150,000 $362,500 $575,000 $787,500 $1,000,000
- ------------------------- ---------- -------- -------- -------- ----------
<S> <C> <C> <C> <C> <C>
.0938 .0938 .0910 .0894 .0877 .0861
.0934 .0934 .0906 .0890 .0873 .0857
.0931 .0931 .0903 .0887 .0870 .0854
.0928 .0928 .0900 .0884 .0867 .0851
.0924 .0924 .0896 .0880 .0863 .0847
.0921 .0921 .0893 .0877 .0860 .0844
.0918 .0918 .0890 .0874 .0857 .0841
.0914 .0914 .0886 .0870 .0853 .0837
.0911 .0911 .0883 .0867 .0850 .0834
.0908 .0908 .0880 .0864 .0847 .0831
.0905 .0905 .0877 .0861 .0844 .0828
.0902 .0902 .0874 .0858 .0841 .0825
.0899 .0899 .0871 .0855 .0838 .0822
</TABLE>
If the average of the closing price of Westamerica Common Stock quoted on
the Nasdaq National Market (the "NNM") (calculated by taking an average of the
closing prices quoted on the NNM as reported in The Wall Street Journal for each
of the twenty consecutive trading days prior to two business days prior to the
Effective Date, rounded to four decimal places, whether or not trades occurred
on those days (the "Average Price")) is above $33.00 (with no adjustment if the
Average Price is between $30.20 and $33.00), the Exchange Ratio or the Adjusted
Exchange Ratio will be adjusted downward by one-half of the amount by which the
Average Price is above $33.00, according to the following formula:
(Average Price + $33.00)/2
Exchange Ratio x --------------------------
(or Adjusted Exchange Ratio) Average Price
There is no ceiling in the Agreement which would limit the amount of the
Average Price in the above formula nor is there any limit to the downward
adjustment of the Exchange Ratio where the Average Price exceeds $33.00. The
following table illustrates a range of possible Exchange Ratios assuming Average
Prices of Westamerica Common Stock between $33.00 and $36.00 per share and no
adjustment for Significant Liabilities.
<TABLE>
<CAPTION>
Average Price of
Westamerica Common Stock Exchange Ratio
------------------------ --------------
<S> <C>
33.00 .0938
33.25 .0934
33.50 .0931
33.75 .0928
34.00 .0924
34.25 .0921
34.50 .0918
34.75 .0914
35.00 .0911
35.25 .0908
35.50 .0905
35.75 .0902
36.00 .0899
</TABLE>
If the Average Price is below $30.20 as of two business days preceding the
Effective Date, CapitolBank may accept the Exchange Ratio as adjusted for any
Significant Liabilities or Westamerica and CapitolBank will have the right, but
not the obligation, to renegotiate the Exchange Ratio. Should CapitolBank fail
to accept the Exchange Ratio as described in the preceding sentence or should
the parties fail to renegotiate the Exchange Ratio, CapitolBank may terminate
the Agreement. There will be no adjustment to the Exchange Ratio (except for
Significant Liabilities) if the Average Price is between $30.20 and $33.00. To
the extent required by applicable law, if the Average Price is below $30.20 and
CapitolBank accepts the Exchange Ratio (.0938) as it may be adjusted for any
Significant Liabilities or renegotiates the Exchange Ratio, CapitolBank will
seek approval from its shareholders at a new meeting of shareholders. See "--
Amendment; Termination."
Exchange of CapitolBank Stock Certificates; Fractional Interests
Prior to the Effective Date, Westamerica has agreed to appoint Chemical
Trust Company of California or its successor, or any other bank or trust company
(having capital of at least $50 million) mutually acceptable to CapitolBank and
Westamerica, as exchange agent (the "Exchange Agent") for the purpose of
exchanging certificates representing the CapitolBank Shares, and at and after
the Effective Date, Westamerica will issue and deliver to the Exchange Agent
certificates representing the Westamerica Shares to be delivered to holders of
CapitolBank Shares. As soon as practicable after the Effective Date, each holder
of CapitolBank Shares, upon surrender to the
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<PAGE>
Exchange Agent of one or more certificates for such CapitolBank Shares for
cancellation, will be entitled to receive a certificate representing the number
of Westamerica Shares into which such number of CapitolBank Shares will have
been converted and a payment in cash with respect to fractional shares, if any.
Each certificate representing Westamerica Shares will bear a notation
incorporating the terms of the Amended and Restated Rights Agreement by
reference and will evidence the Rights as set forth in and subject to the terms
of the Amended and Restated Rights Agreement. Certificates issued for the
Westamerica Shares shall be deemed to be certificates for Rights. For a
discussion of the Amended and Restated Rights Agreement, see "Description of
Westamerica Capital Stock and Indebtedness--Shareholder Rights Plan."
No dividends or other distributions of any kind which are declared payable
to shareholders of record of the Westamerica Shares on or after the Effective
Date will be paid to persons entitled to receive such certificates for
Westamerica Shares until such persons surrender their certificates representing
CapitolBank Shares. Upon surrender of certificates representing CapitolBank
Shares, the holder thereof shall be paid, without interest, any dividends or
other distributions with respect to the Westamerica Shares as to which the
record date and payment date occurred on or after the Effective Date and on or
before the date of surrender.
If any certificate for Westamerica Shares is to be issued in a name other
than that in which the certificate for CapitolBank Shares surrendered in
exchange therefor is registered, it shall be a condition of such exchange that
the person requesting such exchange shall pay to the Exchange Agent any transfer
costs, taxes or other expenses required by reason of the issuance of
certificates for such Westamerica Shares in a name other than the registered
holder of the certificate surrendered, or such persons shall establish to the
satisfaction of Westamerica and the Exchange Agent that such costs, taxes or
other expenses have been paid or are not applicable.
All dividends or distributions, and any cash to be paid in lieu of
fractional shares, if held by the Exchange Agent for payment or delivery to the
holders of unsurrendered certificates representing CapitolBank Shares and
unclaimed at the end of one year from the Effective Date, shall (together with
any interest earned thereon) at such time be paid or redelivered by the Exchange
Agent to Westamerica, and after such time any holder of a certificate
representing CapitolBank Shares who has not surrendered such certificate to the
Exchange Agent shall, subject to applicable law, look as a general creditor only
to Westamerica for payment or delivery of such Westamerica Shares and dividends
or distributions or cash, as the case may be.
No fractional shares of Westamerica Common Stock shall be issued to
holders of CapitolBank Shares. In lieu thereof, each such holder entitled to a
fraction of a share of Westamerica Common Stock shall receive, at the time of
surrender of the certificate or certificates representing such holder's
CapitolBank Shares, an amount in cash equal to the Average Price multiplied by
the fraction of a share of Westamerica Common Stock to which such holder
otherwise would be entitled. No such holder shall be entitled to dividends,
voting rights, interest on the value of, or any other rights in respect of a
fractional share.
Treatment of Stock Options
Each person holding one or more options to purchase CapitolBank Shares
pursuant to the CapitolBank Sacramento 1992 Stock Option Plan (the "CapitolBank
Stock Option Plan") will have the right, in his or her discretion, to:
(i) exercise any vested options granted under the CapitolBank Stock
Option Plan to acquire CapitolBank Shares prior to the Effective Date and
CapitolBank will facilitate the exercise of those options by allowing the
options to be exercised and taxes paid by CapitolBank withholding the
appropriate number of shares from the shares subject to the options or by
any other method permitted by applicable law; and/or
(ii) have any options, whether or not vested, that are not
exercised converted into options to purchase shares of Westamerica Common
Stock.
Following the Effective Date, shares of Westamerica Common Stock will be
substituted under the options for CapitolBank Shares based on the Exchange Ratio
(as may be further adjusted for any Significant Liabilities),
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as applicable, in a form acceptable to Westamerica. Specifically, each option
will be deemed to continue as an option to purchase the number of shares of
Westamerica Common Stock equal to the Exchange Ratio, as adjusted, multiplied by
the number of CapitolBank Shares previously covered by such option at an option
exercise price for each such share of Westamerica Common Stock equal to the
previous option exercise price for each CapitolBank Share divided by the
Exchange Ratio. Each CapitolBank stock option will otherwise continue on terms
and conditions that are consistent with those that were applicable immediately
before the Effective Date.
Notwithstanding the foregoing, the Stock Option Committee of the
CapitolBank Board of Directors exercised its discretion under the CapitolBank
Stock Option Plan to fully vest the options of Thayer T. Prentice and William J.
Martin so that such options may be exercised in full, subject to the occurrence
of the Merger on the Effective Date, using the share withholding method.
Following the exercise of the options and the payment of taxes using the share
withholding method, CapitolBank will hold the net remaining shares until the
Effective Date, at which time the CapitolBank Shares will be exchanged for the
appropriate number of shares of Westamerica Common Stock, based on the Exchange
Ratio. The Westamerica shares will be delivered to Messrs. Prentice and Martin
with legends affixed with the resale restrictions of Rule 145 of the Securities
Act.
Subsequent to the Effective Date, Westamerica intends to register the
CapitolBank Stock Option Plan under the Securities Act by filing a Form S-8
Registration Statement with the Commission. The CapitolBank Stock Option Plan
may be terminated as of the Effective Date, but options granted pursuant to the
CapitolBank Stock Option Plan and outstanding on or prior to the Effective Date
which are converted into options to purchase Westamerica Shares will continue to
be governed by terms and conditions consistent with said CapitolBank Stock
Option Plan.
As of the Record Date, options to acquire 319,167 shares of CapitolBank
Common Stock were outstanding under the CapitolBank Stock Option Plan. See
"Certain Considerations--Interests of CapitolBank Officers and Directors in the
Merger."
Covenants of Westamerica and CapitolBank; Conduct of Business Prior to the
Merger
The Agreement contains covenants of Westamerica and CapitolBank
concerning, among other things, (i) the cooperation of each party to obtain all
necessary or appropriate government approvals in order to cause the Merger to be
consummated; (ii) the prompt notification by either party of any event which
would cause or constitute a breach of any of the representations, warranties or
covenants of that party; (iii) the right of each party to review the other
party's books and records and the delivery of financial statements; (iv) the
cooperation by both parties in the issuance of any press releases; (v)
restrictions on either party to enter into a merger, consolidation, or other
takeover proposal involving any third party; (vi) restrictions on the payment of
dividends; (vii) the termination, modification or merger of CapitolBank's
employee welfare benefits plan into Westamerica's employee welfare benefits
plan; and (viii) the outsourcing of various CapitolBank banking functions (which
will include, but are not limited to, item processing, data processing, loan
documentation, facilities management, investment portfolio management, loan
review, internal audit and account servicing) to Westamerica.
The Agreement provides that CapitolBank shall conduct its business in the
ordinary course as such business was conducted prior to entering into the
Agreement. The Agreement further provides that CapitolBank will not, without the
prior written consent of Westamerica, among other things, (i) commit to any loan
with a principal amount in excess of $50,000; (ii) purchase any investment
security with a maturity in excess of two years, or sell any investment security
in which a gain is recognized; (iii) issue any certificate of deposit with a
rate of interest in excess of 6%; (iv) commit to new capital commitments or
expenditures in excess of $25,000; (v) commit to any new contract or extend any
existing contract that would obligate CapitolBank for an aggregate amount over
time in excess of $25,000; (vi) accelerate the vesting of pension or other
benefits; (vii) grant any new stock options or accelerate the vesting of any
existing stock options; and (viii) make or approve any increase in the
compensation payable to any director, officer, employee or agent with an annual
salary in excess of $40,000.
Except with the prior written consent of Westamerica, CapitolBank has
agreed to not amend its Articles of Incorporation or Bylaws; make any change in
its respective authorized, issued or outstanding capital stock or any other
equity security; issue, sell, pledge, assign or otherwise encumber or dispose
of, or purchase, redeem or
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otherwise acquire, any of its shares of capital stock or other equity securities
or enter into any agreement, call or commitment of any character to do so; grant
or issue any stock option relating to, or right to acquire, or security
convertible into, shares of its capital stock or other equity security;
purchase, redeem, retire or otherwise acquire (other than in a fiduciary
capacity) any shares of, or any security convertible into, capital stock or
other equity securities, or agree to do any of the foregoing.
CapitolBank has agreed to promptly notify Westamerica in writing upon
becoming aware of the occurrence of any of the following: (i) the classification
of any loan as substandard, doubtful or loss; (ii) the filing or commencement of
any legal action or other proceeding or investigation against CapitolBank (or
any director or executive officer); or (iii) the monthly pre-tax earnings of
CapitolBank are less than $50,000.
Business Combination. Subject to the fiduciary obligations of
CapitolBank's Board of Directors, CapitolBank has agreed that it will not prior
to the Effective Time, make any offer to any third party or accept any offer
from any third party regarding a business combination ("Business Combination"),
acquire or agree to acquire any of their own capital stock or the capital stock
or assets of any other entity, or commence any proceedings for winding up and
dissolution affecting either of them other than the transactions explicitly
contemplated by the Agreements. In addition, neither CapitolBank nor any
officer, director or affiliate thereof, nor any investment banker, attorney,
accountant or other agent, advisor or representative retained by CapitolBank,
will (i) solicit or encourage or take any other actions to facilitate or enter
into any Business Combination; (ii) disclose any nonpublic information to any
corporation or entity concerning the business and properties of CapitolBank or
afford any such party access to the properties, books or records of CapitolBank;
or (iii) furnish or cause to be furnished any information concerning the
business, financial condition, operations, property or prospects of CapitolBank
to another person having any actual or prospective role with respect to any such
transaction. The Agreement also requires CapitolBank to notify Westamerica
within two business days of the receipt by it of any indication of interest in
any Business Combination, as such term is defined in the Agreement.
In the event the Board of Directors of CapitolBank receives a bona fide
offer for a Business Combination and reasonably determines that its duty to act
or refrain from acting pursuant to the Agreement is inconsistent with its
continuing fiduciary duties to the shareholders of CapitolBank, its duty to act
or refrain from acting pursuant to the Agreement is excused and will not
constitute a breach of the Agreement, or create any claim or cause of action
asserting any liability against any member of the Board of Directors of
CapitolBank. In the event CapitolBank fails to act or refrains from doing any
act as contemplated by the Agreement, Westamerica is entitled to terminate the
Agreement without any liability to CapitolBank and CapitolBank shall pay to
Westamerica, on demand, the sum of $600,000.
CapitolBank has also agreed to make available to Westamerica, upon
request, a list of its shareholders and their addresses, a list showing all
transfers of CapitolBank Common Stock and such other information as Westamerica
reasonably requests regarding both ownership and prior transfers of such stock.
Management and Operations Following the Merger
On the Effective Date, CapitolBank will be merged with and into Merger
Sub, at which time CapitolBank will become a wholly-owned subsidiary bank of
Westamerica. All rights, franchises and interests of Merger Sub will be assumed
by and vested in CapitolBank. The Articles of Incorporation and Bylaws of
CapitolBank in effect immediately prior to the Effective Date shall be and
continue to be the Articles of Incorporation and Bylaws of CapitolBank following
the Merger, and the directors and officers of Westamerica Bank prior to the
Effective Date will be the directors and officers of CapitolBank following the
Merger.
As soon as practical following the Effective Date, Westamerica intends to
merge CapitolBank into Westamerica Bank. Subject to regulatory approval, the
office of CapitolBank will become a branch of Westamerica Bank and serve as the
Sacramento regional headquarters of Westamerica Bank. In furtherance of this
objective, Westamerica Bank intends to file applications with the Superintendent
and the FRBSF seeking permission to merge CapitolBank into Westamerica Bank.
Westamerica
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Bank is a California state-chartered member of the Federal Reserve System. It is
expected that the Sacramento region will be managed by Westamerica's current
Regional Market Manager, Randall E. Reynoso.
CapitolBank has agreed that CapitolBank's employee benefit plans, as
defined in section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended, may be terminated, modified or merged into Westamerica's employee
benefit plans before, on or after the Effective Date, as determined by
Westamerica in its sole discretion, subject to compliance with applicable law.
CapitolBank has also agreed that the CapitolBank 401(k) Plan may be terminated,
frozen, modified or merged into the Westamerica 401(k) Plan immediately before,
on or after the Effective Date, as determined by Westamerica in its sole
discretion, subject to compliance with applicable law.
It is expected that all data processing, check processing, bookkeeping,
consumer lending, residential real estate lending, accounting, internal auditing
and all other administrative functions of CapitolBank, except for branch
functions and regional management functions described above, will be centralized
with Westamerica Bank's other similar functions.
Representations and Warranties; Conditions to the Merger
The Agreement contains representations and warranties by Westamerica and
CapitolBank regarding, among other things, their respective organization,
authorization to enter into the Agreements, corporate power to carry out the
terms of the Agreements, capitalization and the accuracy of their respective
financial statements. CapitolBank has made further representations and
warranties to Westamerica regarding regulatory proceedings, the timely filing of
tax returns, title to its real property, certain environmental liabilities,
employment contracts and benefits and various aspects of its loans and other
assets.
The Merger will occur only if all required government approvals are in
effect or have been obtained (without the imposition of any materially
burdensome conditions as determined by Westamerica in its reasonable judgment)
(see "--Required Regulatory Approvals"), the Agreements are approved by the
majority of the outstanding shares of CapitolBank Common Stock and the
representations and warranties of the parties are true and correct in all
material respects on and as of the Effective Date.
Consummation of the Merger is subject to satisfaction of certain other
conditions or the waiver of such conditions by the party entitled to do so. Such
conditions include, among other things, the following: (i) except as disclosed
to Westamerica in writing prior to November 17, 1994, the absence of a material
adverse change since December 31, 1993, in the business, financial condition or
results of operations of either party; (ii) the receipt of a letter from legal
counsel to CapitolBank to the effect that CapitolBank will be reimbursed for
expenses and other costs arising out of the Tyler v. Wickland litigation (see
"Certain Considerations--Tyler v. Wickland"); (iii) the absence of significant
legal impediments to the Merger; (iv) the effectiveness of a registration
statement with respect to the Westamerica Shares to be issued to CapitolBank
shareholders as a result of the Merger; (v) the receipt of a tax ruling or
opinion of legal counsel to Westamerica to the effect that, among other things,
under federal and state tax laws, the Merger will not result in any recognized
gain or loss to Westamerica or CapitolBank and, except for any cash received in
lieu of any fractional shares, no gain or loss will be recognized by holders of
CapitolBank Common Stock who receive Westamerica Common Stock in exchange for
the CapitolBank Common Stock which they hold (see "--Certain Tax Consequences");
(vi) receipt of letters and reports from CapitolBank's independent public
accountants relating to the Registration Statement and CapitolBank's unaudited
financial statements; (vii) receipt by CapitolBank of a fairness opinion from
each of its financial advisors; and (viii) receipt of a letter from
Westamerica's independent public accountants to the effect that the Merger will
qualify for the pooling of interests method of accounting in accordance with
generally accepted accounting principles (see "--Accounting Treatment").
In addition, certain other conditions must be satisfied, or be waived by
Westamerica, in order for Westamerica to be obligated to consummate the Merger,
including but not limited to the conditions that (i) the aggregate number of
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shares of CapitolBank Common Stock held by persons who have taken all of the
steps required to perfect their right (if any) to be paid the fair market value
of such shares as dissenting shares under the GCL shall not exceed 9% of the
outstanding shares of CapitolBank Common Stock; (ii) CapitolBank has delivered
to Westamerica an opinion of its loan review examiner, acceptable to
Westamerica, to the effect that all loan losses in excess of $25,000 have been
identified; (iii) CapitolBank has received all consents of third parties which
are required to be received by it, if any; and (iv) the percentage determined by
dividing Classified Loans (as defined in the Agreement) by the sum of equity
capital (excluding adjustments required by FASB No. 115) plus reserves for loan
losses as of December 31, 1994, at the month end immediately preceding the
Effective Date and two business days prior to the Effective Date, shall be no
greater than 42%.
Required Regulatory Approvals
The Merger must be approved by the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") pursuant to the provisions of the
BHC Act. This federal statute provides that no transaction may be approved which
would result in a monopoly or (i) which would 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, or (ii) whose effect in
any section of the country may be substantially to lessen competition, or to
tend to create a monopoly, or which in any manner would be in restraint of
trade, unless the Federal Reserve Board finds that the anticompetitive effects
of the proposed transaction are clearly outweighed in the public interest by the
probable effect of the transaction in meeting the convenience and needs of the
community to be served. In conducting a review of any application for a merger,
the Federal Reserve Board is required to consider the financial and managerial
resources and future prospects of the companies and the banks concerned and the
convenience and needs of the community to be served. The Federal Reserve Board
has the authority to deny an application if it concludes that the requirements
of the Community Reinvestment Act of 1977, as amended, are not satisfied.
Westamerica filed a final application to merge CapitolBank into Westamerica
on January 12, 1995. Receipt of final regulatory approval by the Federal Reserve
Board is a pre-condition to the consummation of the Merger under the terms of
the Agreement. See "--Representations and Warranties; Conditions to the Merger."
Westamerica expects that the Federal Reserve Board will act on and approve its
application in the first or second quarter of 1995.
A transaction approved by the Federal Reserve Board may not be consummated
for at least 30 days (in some circumstances a 15 day waiting period is allowed)
after such approval. During such period, the Department of Justice may commence
a legal action challenging the transaction under federal antitrust laws. If the
Department of Justice does not commence a legal action during such 30-day (in
some circumstances a 15 day waiting period is allowed) period, it may not
thereafter challenge the transaction except in an action commenced under the
antimonopoly provisions of Section 2 of the Sherman Antitrust Act.
The BHC Act provides for the publication of notice and the opportunity for
administrative hearings relating to an application for approval under the BHC
Act and authorizes the Federal Reserve Board to permit interested parties to
intervene in the proceedings. If an interested party is permitted to intervene,
such intervention could substantially delay the regulatory approval required for
consummation of the Merger.
Based on current precedents, the respective managements of Westamerica and
CapitolBank believe that the Merger will be approved by the Federal Reserve
Board and the Merger will not be subject to challenge by the Department of
Justice under federal antitrust laws. However, no assurance can be provided that
the Federal Reserve Board or the Department of Justice will concur in this
assessment or that, in connection with the grant of any approval by the Federal
Reserve Board, any action taken, or statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the Merger, will not contain
conditions which are materially burdensome to Westamerica within the meaning of
the Agreement. If a materially burdensome condition is imposed in connection
with a government approval, a condition to Westamerica's obligation to
consummate the Merger will be deemed not to have occurred and Westamerica would
have the right to terminate the Agreement. If the Agreement is
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terminated by Westamerica due to a materially burdensome condition imposed in
connection with a government approval or because of a failure to obtain all
government approvals for whatever reason, upon demand and subject to
CapitolBank's cooperation in all reasonable respects to obtain the government
approvals, Westamerica will pay CapitolBank $1,200,000.
The Merger must also be approved by the Superintendent of Banks of the
State of California (the "Superintendent") pursuant to the California Financial
Code (the "Financial Code"). Under the Financial Code, the Agreement and an
application for approval of the same must be filed with the Superintendent. The
Merger shall not become effective until the Agreement has been approved in
writing by the Superintendent. The Agreement and the application will be filed
with the Superintendent during early 1995. The parties anticipate that the
Superintendent will act on and approve the application in the second quarter of
1995.
The Federal Deposit Insurance Corporation (the "FDIC") must approve the
merger of Merger Sub with and into CapitolBank. A notice of the proposed
acquisition is expected to be filed with the FDIC in February 1995. Based on the
foregoing filing date, the FDIC will have at least 60 days to approve or
disapprove the acquisition.
Trading Markets for Stock
The Westamerica Common Stock is listed on the NNM. Westamerica intends to
cause the shares of Westamerica Common Stock to be issued in the Merger and the
shares of Westamerica Common Stock to be reserved for issuance upon the exercise
of existing CapitolBank stock options to be approved for listing on the NNM,
subject to official notice of issuance, prior to the Effective Date.
There is a limited trading market for CapitolBank Common Stock which is
currently traded on the over-the-counter market and quoted on the "pink sheets"
published by the National Quotation Bureau, Inc. (the "Pink Sheets"). If the
Merger is consummated, Westamerica will take appropriate action to cause the
CapitolBank Common Stock to cease to be quoted on the Pink Sheets and public
trading of such shares will cease.
Stock Option Agreement
The following is a summary of the material provisions of the Stock Option
Agreement entered into between Westamerica and CapitolBank immediately following
the execution of the Agreement (the "Stock Option Agreement"), a copy of which
is attached hereto as Annex D to this Proxy Statement/Prospectus and is
incorporated herein by reference. This summary is qualified in its entirety by
reference to the text of the Stock Option Agreement set forth in Annex D.
Certain capitalized terms which are used but not defined in this subsection are
defined in the Stock Option Agreement.
Shares Subject to the Option. The Stock Option Agreement provides for the
purchase by Westamerica of up to 403,949 shares, subject to certain adjustments,
of CapitolBank Common Stock (the "Option Shares") at an exercise price, subject
to certain adjustments, of $2.27 per share, payable in cash (the "Stock
Option"). The Option Shares, if issued pursuant to the Stock Option Agreement,
would represent approximately 9.9% of the issued and outstanding shares of
CapitolBank's Common Stock without giving effect to the issuance of any shares
pursuant to an exercise of the Stock Option, and in no event will the number of
Option Shares exceed 9.9% of the issued and outstanding shares of CapitolBank
Common Stock.
Adjustment of Number of Shares Subject to the Option. The number of
shares of CapitolBank Common Stock subject to the Stock Option will be increased
to the extent that CapitolBank issues additional shares of CapitolBank Common
Stock (other than pursuant to an exercise of the Stock Option) such that the
number of Option Shares will continue to equal 9.9% of the then issued and
outstanding shares of CapitolBank Common Stock without giving effect to the
issuance of shares pursuant to an exercise of the Stock Option.
Exercise of Option. The Option is exercisable only if both an Initial
Triggering Event and a Subsequent Triggering Event occur prior to the
termination of the Option.
"Initial Triggering Event" is defined as the occurrence of any of the
following events:
(i) CapitolBank or any of its subsidiaries, without Westamerica's prior
written consent, enters into an agreement with any person or group (other than
Westamerica or any subsidiary thereof) to engage in, or the CapitolBank Board of
Directors recommends that the shareholders of CapitolBank Common Stock approve
or accept (other than as contemplated by the Agreement) (x) a merger or
consolidation, or similar transaction, involving CapitolBank or any significant
subsidiary of CapitolBank, (y) the purchase, lease, or other acquisition
representing 15% or more of the consolidated assets of CapitolBank and its
subsidiaries, or (z) the purchase, lease or other acquisition (including by way
of merger, consolidation, share exchange or otherwise) of securities
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representing 10% or more of the voting power of any class of securities of
CapitolBank (each of the transactions described in the preceding clauses (x),
(y) and (z) being referred to herein as an "Acquisition Transaction");
(ii) CapitolBank or any of its subsidiaries, without having received
Westamerica's prior written consent, shall have authorized, recommended,
proposed or publicly announced its intention to authorize, recommend or propose,
an agreement to engage in an Acquisition Transaction with any person other than
Westamerica or a subsidiary thereof, or the CapitolBank Board of Directors shall
have publicly withdrawn or modified, or publicly announced its intent to
withdraw or modify, its recommendation that the shareholders of CapitolBank
approve the transactions contemplated by the Agreement;
(iii) any person or group (other than Westamerica, any subsidiary thereof
or any CapitolBank subsidiary acting in a fiduciary capacity) shall acquire
beneficial ownership or the right to acquire beneficial ownership of 10% or more
of the outstanding shares of CapitolBank Common Stock;
(iv) any person or group (other than Westamerica or any subsidiary
thereof) shall make a bona fide proposal to CapitolBank or its shareholders by
public announcement or written communication, that is or becomes the subject of
public disclosure, to engage in an Acquisition Transaction;
(v) a third party shall make a proposal to CapitolBank or its shareholders
to engage in an Acquisition Transaction, followed by CapitolBank breaching any
covenant or obligation contained in the Agreement, such breach entitling
Westamerica to terminate the Agreement, and such breach shall not be cured prior
to the date that Westamerica sends notice of its exercise of the Stock Option to
CapitolBank; or
(vi) any person or group (other than Westamerica or any subsidiary
thereof), other than in connection with a transaction to which Westamerica has
given its prior written consent, shall file an application or notice with the
Superintendent or the FDIC or other federal or state bank regulatory authority,
which application or notice has been accepted for processing for approval to
engage in an Acquisition Transaction.
"Subsequent Triggering Event" is defined as either (A) the acquisition by
any person or group of beneficial ownership of 20% or more of the then
outstanding shares of CapitolBank Common Stock, or (B) the occurrence of the
Initial Triggering Event described in clause (i) above, except that the
percentage referenced in subclause (z) thereof shall be 20%.
Termination of the Option. The Stock Option Agreement terminates (i) at
the Effective Time of the Merger, (ii) upon termination of the Agreement in
accordance with the terms thereof if such termination occurs prior to the
occurrence of an Initial Triggering Event, or (iii) 12 months after termination
of the Agreement following the occurrence of an Initial Triggering Event
(provided that if an Initial Triggering Event occurs after or continues beyond
such termination, the Stock Option will terminate 12 months from the expiration
of the last Initial Triggering Event, but in no event more than 18 months after
such termination).
Notwithstanding any other provision of the Stock Option Agreement, if a
Holder, the owner of the Option Shares from time to time (the "Owner"), or
certain related parties offer or propose to engage in an Acquisition Transaction
(other than as contemplated by the Merger Agreement) without the prior written
consent of CapitolBank, then (i) in the case of a Holder or related party
thereof, the Stock Option held by it will immediately terminate and be of no
further force or effect and (ii) in the case of an Owner or any related party
thereof, the Option Shares held by it will be repurchasable by CapitolBank
immediately at the then applicable Stock Option exercise price.
If the Stock Option terminates under certain circumstances as described
in the Stock Option Agreement, Westamerica (or any subsequent Holder) may have
as many as 30 days subsequent to such termination to exercise the Stock Option
(or Substitute Option (as hereinafter defined)) in connection with the resale of
CapitolBank Common Stock or other securities pursuant to a registration
statement as provided in the Stock Option Agreement.
Registration Rights. Within 30 days (subject to extension as provided in
the Stock Option Agreement) after a Subsequent Triggering Event and prior to the
termination of the Stock Option, Westamerica (on behalf of
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itself or any subsequent Holder) may demand that the Stock Option and the
related Option Shares be registered under the Securities Act. Upon such
demand, CapitolBank must promptly prepare, file and keep current with the
Superintendent the equivalent of a shelf registration subject to certain
exceptions. Westamerica is entitled to two such registrations so long as
the second request is within 18 months of the first request.
Repurchase at Option of Westamerica. Within 30 days (subject to
extension as provided in the Stock Option Agreement) after a Subsequent
Triggering Event and prior to an Exercise Termination Event, subject to
regulatory approval and applicable law, CapitolBank is required (i) at the
request of the Holder, to repurchase the Stock Option from the Holder at a
price (the "Option Repurchase Price") equal to (A) the amount by which (x)
the "market/offer price" (as hereinafter defined) exceeds (y) the then
applicable Stock Option exercise price, multiplied by the number of shares
for which the Stock Option may then be exercised plus (B) Westamerica's
Out-of-Pocket Expenses (as hereinafter defined) to the extent not
previously reimbursed; and (ii) at the request of the Owner, to repurchase
such number of Option Shares from the Owner as the Owner designates at a
price per share (the "Option Share Repurchase Price") equal to (A) the
"market/offer price" multiplied by the number of Option Shares so
designated plus (B) Westamerica's Out-of-Pocket Expenses to the extent
said expenses exceed $600,000 and were not previously reimbursed. "Out-of-
Pocket Expenses" means Westamerica's reasonable out-of-pocket expenses
incurred in connection with the transactions contemplated by the Merger
Agreement, including legal, accounting, and investment banking fees.
"Market/offer price" means the highest of (C) the highest price per share
of CapitolBank Common Stock at which a tender offer or exchange offer
therefor has been made, (D) the price per share of CapitolBank Common
Stock to be paid by any third party pursuant to an agreement with
CapitolBank, (E) the highest closing price for shares of CapitolBank
Common Stock quoted on the Pink Sheets or other principal trading market,
if applicable, within the six-month period immediately preceding the date
the Holder gives notice of the required repurchase of the Stock Option or
the Owner gives notice of the required repurchase of Option Shares, as the
case may be, or (F) in the event of a sale representing 15% or more of
CapitolBank's net assets, the sum of the price paid in such sale for such
assets and the current market value of the remaining assets of CapitolBank
as determined by a nationally recognized investment banking firm, selected
by the Holder or the Owner, as the case may be, divided by the number of
shares of CapitolBank Common Stock outstanding at the time of such sale.
Substitute Option. In the event that, prior to an Exercise
Termination Event, CapitolBank enters into an agreement (i) to consolidate
with or merge into any entity other than Westamerica or any subsidiary
thereof and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any entity other than Westamerica
or any subsidiary thereof to merge into CapitolBank with CapitolBank as
the continuing or surviving corporation, but in connection therewith the
then outstanding shares of CapitolBank are changed into or exchanged for
stock or other securities of any other person or cash or any other
property or the then outstanding shares of CapitolBank Common Stock after
such merger represent less than 50% of the outstanding shares or share
equivalents of the merged company, or (iii) to sell or transfer all or
substantially all of its assets to any entity other than Westamerica or
any subsidiary thereof, then the Stock Option will be converted into, or
exchanged for, an option (a "Substitute Option") to purchase shares of
common stock of, at the Holder's option, either the continuing or
surviving corporation of a merger or a consolidation, the transferee of
all or substantially all of CapitolBank's assets, or the person
controlling such continuing or surviving corporation or transferee. The
number of shares subject to the Substitute Option and the exercise price
per share will be determined in accordance with a formula in the Stock
Option Agreement. To the extent possible, the Substitute Option will
contain other terms and conditions that are the same as those in the Stock
Option Agreement (after giving effect to the provisions described in the
following paragraph).
Repurchase of Substitute Option or Shares. Subject to regulatory
approval and applicable law, the issuer of a Substitute Option will be
required to repurchase such option at the request of the holder thereof
and to repurchase any shares ("Substitute Shares") of such issuer's common
stock ("Substitute Common Stock") issued upon exercise of a Substitute
Option at the request of the owner thereof. The repurchase price for a
Substitute Option will equal the amount by which (A) the "Highest Closing
Price" (as hereinafter defined) exceeds (B) the exercise price of the
Substitute Option, multiplied by the number of shares of Substitute Common
Stock for which the Substitute Option may be exercised, plus Westamerica's
Out-of-Pocket Expenses to the extent said expenses exceed $600,000 and
were not previously reimbursed. The repurchase price for Substitute
Shares shall equal the "Highest Closing Price" multiplied by the number of
Substitute Shares to be repurchased, plus Westamerica's Out-
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of-Pocket Expenses to the extent said expenses exceed $600,000 and were
not previously reimbursed. As used herein, "Highest Closing Price" means
the highest closing price for shares of Substitute Common Stock within the
six-month period immediately preceding the date the Holder gives notice of
the required repurchase of the Substitute Option or the Owner gives notice
of the required repurchase of Substitute Shares, as the case may be.
Assignability. Neither Westamerica nor CapitolBank may assign any of
its respective rights and obligations under the Stock Option Agreement or
the Stock Option to any other person without the other party's written
consent, except that if a Subsequent Triggering Event occurs prior to
termination of the Stock Option, within 30 days thereafter (subject to
extension as provided in the Stock Option Agreement), Westamerica, subject
to the Stock Option Agreement, may assign in whole or in part its rights
and obligations thereunder. In addition, until 30 days after the
Superintendent or the FDIC approves an application by Westamerica to
acquire the Option Shares, Westamerica may not assign its rights under the
Stock Option except in (i) a widely dispersed public distribution, (ii) a
private placement in which no one party acquires the right to purchase in
excess of 2% of the voting shares of CapitolBank, (iii) an assignment to a
single party for the purpose of conducting a widely dispersed public
distribution on Westamerica's behalf, or (iv) any other manner approved by
the Superintendent or the FDIC.
Notice of Exercise. In the event Westamerica (or any subsequent
Holder) wishes to exercise the Stock Option, it must send to CapitolBank a
written notice (the date of which is referred to as the "Notice Date")
specifying (i) the total number of shares it will purchase pursuant to
such exercise and (ii) a "Closing Date" not less than three nor more than
60 days from the Notice Date. If the purchase and sale of the Stock
Option cannot be consummated because of an applicable judgment, decree,
order, law or regulation, the period of time referred to in this paragraph
shall run from the date that the restriction on consummation lapses. If
prior notification to or approval by the Superintendent or the FDIC is
required, Westamerica (or any subsequent Holder) will promptly file the
required notice or application. In such a case, the period of time
referred to in this paragraph will run from the date the notification
period expires or any necessary approval is granted.
The rights and obligations of Westamerica under the Stock Option
Agreement are subject to receipt of any required regulatory approval.
Generally, without the prior approval of the Federal Reserve Board,
Westamerica may not acquire more than 5% of the outstanding Common Stock
of CapitolBank. Westamerica intends to file an application for such
approval as soon as practicable. See "--Required Regulatory Approvals."
The Stock Option could have the effect of discouraging persons who
now or prior to the Effective Time might be interested in acquiring all of
or a significant interest in CapitolBank from considering or proposing
such an acquisition, even if such persons were prepared to pay more
consideration per share for CapitolBank Common Stock than the
consideration per share payable under the Agreement.
Noncompetition Agreements
Each nonemployee director of CapitolBank has entered into a
noncompetition agreement (collectively, the "Noncompetition Agreements")
with Westamerica. Under the Noncompetition Agreements signed by J. Al
Wickland, Jr. and John A. Wickland III, as of the Effective Time, except
as a director, officer or employee of Westamerica or any subsidiary
thereof, J. Al Wickland, Jr. and John A. Wickland III have each agreed
that, without the prior written consent of Westamerica, they will not at
any time within the two-year period immediately following the consummation
of the Merger (i) directly or indirectly, within Sacramento County in the
State of California, whether or not for compensation, engage in, or have
any material interest in, any person, firm, corporation, or business
(whether as an employee, officer, director, agent, shareholder holding,
directly or indirectly, 5% or more of the voting securities thereof,
partner, consultant, adviser, holder of any substantial beneficial
ownership interest or otherwise) that engages in any activity within
Sacramento County which is the same as, similar to, or competitive with
any activity now engaged in by CapitolBank as long as CapitolBank,
Westamerica, or any transferee of all or substantially all of the assets
of Westamerica, CapitolBank or their subsidiaries or any other successor
thereof shall engage in such activity, except that nothing shall prohibit
any of such CapitolBank directors from providing professional services,
such as legal or accounting advice, to clients; or (ii) induce any
employee of CapitolBank to leave the employ of Westamerica or any
subsidiary thereof. In addition, the Noncompetition Agreements signed by
each of the other nonemployee directors provide that, without the prior
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written consent of Westamerica, each such director will not at any time
within the two-year period immediately following the consummation of the
Merger, directly or indirectly, within Sacramento County in the State of
California, whether or not for compensation, engage in, or have any
material interest in any person, firm, corporation or business which
engages in soliciting or making loans to or attracting or soliciting
insured financial institution deposits from customers of, or otherwise
contacting individuals or entities doing business with, CapitolBank
regarding CapitolBank's banking or trust business as of November 17, 1994
as long as CapitolBank, Westamerica, or any transferee of all or
substantially all of the assets of Westamerica, CapitolBank or their
subsidiaries or any successor thereof shall engage in such activity.
Each nonemployee director has also agreed to treat as confidential
all information concerning the records, properties, books, contracts,
commitments and affairs of Westamerica, CapitolBank or their respective
subsidiaries, including but not limited to, information regarding
accounts, shareholders, finances, strategies, marketing, customers,
customer lists and potential customers (their identities, preferences,
likes and dislikes) and other information of a similar nature not
available to the public. If a Noncompetition Agreement is terminated or
expires, each nonemployee director shall continue to treat all such
information as confidential and shall return such documents and any
electronic storage media containing such information as shall reasonably
be requested by Westamerica.
Certain Tax Consequences
In order to satisfy one of the conditions to consummation of the
Merger (see "--Representations and Warranties; Conditions to the Merger"),
Westamerica and CapitolBank each expects to receive, with respect to
United States federal income tax law and California state tax law, an
opinion from Westamerica's counsel, based upon the assumptions and
understandings contained in the opinion, to the effect that the Merger
will be part of a reorganization within the meaning of section 368(a) of
the Internal Revenue Code of 1986, as amended (the "IRC"), and that,
accordingly, for United States federal income tax, California personal
income and California franchise tax purposes:
(i) the Merger will not result in any recognized gain or loss
to Westamerica or CapitolBank;
(ii) no gain or loss will be recognized by holders of
CapitolBank Common Stock who receive solely Westamerica Common Stock
in exchange for the CapitolBank Common Stock which they hold;
(iii) the holding period of Westamerica Common Stock exchanged
for CapitolBank Common Stock will include the holding period of the
CapitolBank Common Stock for which it is exchanged, assuming the
shares of CapitolBank Common Stock are capital assets in the hands of
the holder thereof at the Effective Date;
(iv) a holder of CapitolBank Common Stock receiving cash in the
exchange in lieu of a fractional interest in Westamerica Common Stock
will be treated as if such holder actually received such fractional
share interest which was subsequently redeemed by Westamerica,
resulting in the cash such holder receives in lieu of such fractional
share interest being treated as having been received as full payment
in exchange for stock redeemed as provided in section 302(a) of the
IRC; and
(v) the basis of the Westamerica Common Stock received in the
exchange will be the same as the basis of the CapitolBank Common
Stock for which it was exchanged, less any basis attributable to
fractional shares for which cash is received.
Westamerica and CapitolBank believe that each person who on the
Effective Date holds an unexercised option to acquire CapitolBank Common
Stock pursuant to the CapitolBank Stock Option Plan and who receives an
option to acquire Westamerica Common Stock in exchange therefor will not
recognize any gain or loss
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at the time of the exchange. In addition, Westamerica and CapitolBank
believe that any such unexercised option to acquire CapitolBank Common
Stock which was an "incentive stock option" prior to the Merger should
remain an "incentive stock option" after its conversion into an option to
acquire Westamerica Common Stock.
In general, if the CapitolBank Common Stock is held as a capital
asset on the Effective Date, a dissenting shareholder will recognize a
capital gain or loss measured by the difference between the amount of cash
received and the basis of the CapitolBank Common Stock. However, if such
dissenting shareholder owns, directly or constructively through
application of section 318 of the IRC, any shares of CapitolBank Common
Stock as to which dissenters' rights are not exercised and perfected, or
otherwise directly or constructively holds Westamerica Common Stock, such
shareholder may be treated as having received a dividend in the amount of
cash paid to the shareholder in exchange for the shares as to which
dissenters' rights are perfected. The constructive ownership rules of
section 318 of the IRC apply in certain specified circumstances to
attribute ownership of stock of a corporation from the shareholder
actually owning the stock, whether an individual, a trust, a partnership
or a corporation, to certain members of the individual's family or to
certain individuals, trusts, partnerships or corporations in which that
shareholder has an ownership or beneficial interest, or which have an
ownership or beneficial interest in that shareholder; a shareholder is
also considered under these rules to own any stock with respect to which
that shareholder holds exercisable options. Each shareholder who intends
to dissent from the Merger should consult such shareholder's own tax
advisor with respect to the application of the constructive ownership
rules to the shareholder's particular circumstances.
THE UNITED STATES FEDERAL INCOME TAX, CALIFORNIA PERSONAL INCOME TAX
AND CALIFORNIA FRANCHISE TAX DISCUSSION SET FORTH ABOVE IS BASED UPON
CURRENT LAW AND IS INTENDED FOR GENERAL INFORMATION ONLY. EACH
CAPITOLBANK SHAREHOLDER IS URGED TO CONSULT HIS OR HER OWN TAX ADVISOR
CONCERNING THE SPECIFIC TAX CONSEQUENCES OF THE MERGER TO SUCH
SHAREHOLDER, INCLUDING THE APPLICABILITY AND EFFECT OF STATE, LOCAL AND
OTHER TAX LAWS.
Amendment; Termination
The Agreement may be amended by Westamerica and CapitolBank at any
time prior to the Effective Date without the approval of the shareholders
of Westamerica or the shareholders of CapitolBank with respect to any of
its terms except the terms relating to the form or amount of
consideration to be delivered to the CapitolBank shareholders in the
Merger. The Agreements may be terminated by the mutual consent of the
Boards of Directors of both Westamerica and CapitolBank at any time prior
to the consummation of the Merger.
The Agreement may be terminated by Westamerica as follows: (i) on or
after July 31, 1995, if (A) any of the conditions to which the obligations
of Westamerica are subject has not been fulfilled, or (B) such conditions
have been fulfilled or waived by Westamerica and CapitolBank shall have
failed to complete the Merger; (ii) if (A) Westamerica has become aware of
any facts or circumstances of which it was not aware on the date of the
Agreement and which materially adversely affect CapitolBank or its
properties, operations, financial condition or prospects, taken as a
whole, (B) a materially adverse change shall have occurred since December
31, 1993, in the business, financial condition, results of operations or
properties of CapitolBank, (C) there has been failure (including any
anticipatory breach) on the part of CapitolBank to comply with its
obligations under the Agreement, or any failure (including any
anticipatory breach) to comply with any of the conditions to closing set
forth in Section 7 of the Agreement, or (D) based on the continuing
fiduciary duties of the CapitolBank Board of Directors to the shareholders
of CapitolBank, CapitolBank fails to act or refrains from doing any act
required of CapitolBank pursuant to the Agreement as a result of a bona
fide offer for a Business Combination (as such term is defined in the
Agreement); (iii) if Westamerica determines that it would be inadvisable
or inexpedient to continue to carry out the terms of, or to attempt to
consummate, the transactions contemplated in the Agreement, by reason of
any significant legal impediment to the Merger having arisen, or any
material pending or threatened litigation, investigation or proceeding; or
(iv) if any person (other than Westamerica or any subsidiary thereof)
shall become the beneficial owner of 20% or more of the then outstanding
shares of CapitolBank or any person (other than Westamerica or a
subsidiary thereof) shall have commenced a bona fide tender offer or
exchange offer to acquire at least 20% of the then outstanding shares of
CapitolBank. See "Certain Considerations -- Tyler v Wickland;" and "--
Real Estate Lending Activities; Nonperforming Assets," for a discussion of
certain circumstances that currently exist which could cause the
conditions to Westamerica's obligations to consummate the Merger not to be
fulfilled and therefore give Westamerica the right to terminate the
Aggreement.
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The Agreement may be terminated by CapitolBank as follows: (i) on
or after July 31, 1995, if (A) any of the conditions to which the
obligations of CapitolBank are subject has not been fulfilled, or (B) such
conditions have been fulfilled or waived but Westamerica shall have failed
to complete the Merger; provided, however, that if Westamerica is engaged
at the time in litigation relating to an attempt to obtain one or more of
the government approvals which are required to consummate the Merger or if
Westamerica shall be contesting in good faith any litigation which seeks
to prevent consummation of the Merger, such nonfulfillment shall not give
CapitolBank the right to terminate the Agreements until the earlier of (X)
12 months after the date of the Agreement or (Y) 60 days after the
completion of such litigation and of any further regulatory or judicial
action pursuant thereto; or (ii) if on or before the Effective Date (A)
CapitolBank has become aware of any facts or circumstances of which it was
not aware on November 17, 1994 and which can or do materially adversely
affect Westamerica and its subsidiaries (taken as a whole) or its
properties, operations, financial condition or prospects (taken as a
whole), (B) a materially adverse change shall have occurred since December
31, 1993, in the business, financial condition, results of operations or
assets of Westamerica and its subsidiaries (taken as a whole), (C) there
has been failure (including any anticipatory breach) on the part of
Westamerica to comply with its obligations under the Agreement or any
failure (including any anticipatory breach) to comply with any condition
set forth in Section 8 of the Agreement, or (D) Westamerica shall make any
offer to any third party or accept any offer from any third party
regarding a Business Combination of Westamerica with any other entity that
is not conditioned upon performance by Westamerica or its successor of the
obligations of Westamerica under the Agreement; or (iii) the Average Price
of Westamerica Common Stock is less than $30.20 and CapitolBank has not
accepted the Exchange Ratio, as adjusted for Significant Liabilities, if
any, or the parties have failed to renegotiate the Exchange Ratio, all as
provided for in Section 2.1(c) of the Agreement.
The right to terminate the Agreement may be exercised by Westamerica
or CapitolBank, as the case may be, only by giving written notice, signed
on behalf of such party by its Chairman of the Board or President, to the
other party.
If there has been a material breach by either party in the
performance of any obligations under the Agreement, which shall not have
been cured within ten business days after written notice thereof has been
given to the defaulting party, the nondefaulting party will have the right
to terminate the Agreement upon written notice to the other party. In any
event, the nondefaulting party will have no obligation to consummate any
transaction or take any further steps toward such consummation
contemplated under the Agreement until such breach is cured.
Termination of the Agreement does not terminate or affect the
obligations of Westamerica or CapitolBank to pay expenses (see
"--Expenses"), to maintain the confidentiality of the other party pursuant
to the Agreement, to make certain termination payments as described below,
or to comply with the notice, attorneys' fees, governing law and third
party beneficiary provisions of the Agreement and shall not affect any
agreement after such termination.
CapitolBank shall pay to Westamerica, on demand, the sum of $600,000
if the Agreement is terminated by Westamerica for reasons relating to a
Business Combination by CapitolBank or the acquisition by a third party of
20% or more of CapitolBank Common Stock, or if any of the events specified
in Section 12(b)(iv) of the Agreement occurs within 12 months following
termination of the Agreement (relating to the acquisition by a third party
of 20% or more of CapitolBank Common Stock) for any of the reasons stated
in Section 12(b) of the Agreement (provided that such termination for a
reason stated in Section 12(b) of the Agreement results from the
interference of a third party or group who thereafter attempts to acquire
CapitolBank).
If the Agreement is terminated by CapitolBank for reasons relating to
a Business Combination by Westamerica, Westamerica will pay to
CapitolBank, on demand, the sum of $600,000. In addition, Westamerica
shall pay to CapitolBank the sum of $1,200,000 if the Agreement is
terminated by Westamerica pursuant to Section 12(b)(ii) of the Agreement
or by CapitolBank pursuant to Section 12(b)(vi) of the Agreement because
of a failure to satisfy the conditions set forth in Sections 7(i) or 8(h)
of the Agreement relating to Westamerica's obtaining necessary government
approvals, subject to CapitolBank's compliance with Section 3.2(c) of the
Agreement relating to CapitolBank's cooperation with Westamerica to obtain
such approvals.
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Expenses
Westamerica and CapitolBank have each agreed to pay, without right of
reimbursement from the other party and whether or not the transactions
contemplated by the Agreements shall be consummated, their own costs
incurred incident to the performance of their obligations under the
Agreements, including without limitation, costs incident to the
preparation of the Agreements and this Proxy Statement/Prospectus
(including the audited financial statements of CapitolBank contained
herein) and incident to the consummation of the Merger and of the other
transactions contemplated in the Agreements, including the fees and
disbursements of counsel, accountants, consultants and financial advisers
employed by such party in connection therewith. Notwithstanding the
foregoing, Westamerica shall be solely responsible for all fees payable
pursuant to state securities laws, fees related to obtaining a revenue
ruling or tax opinion and the fee required to be paid to the Commission to
register the Westamerica Shares.
CapitolBank shall bear its own costs of printing and distributing
(including postage) this Proxy Statement/Prospectus and other information
relating to these transactions to its shareholders.
Accounting Treatment
CapitolBank and Westamerica expect that the Merger will qualify for
pooling of interests accounting treatment. Under this method of
accounting, Westamerica's prior period financial statements will be
restated on a combined basis with those of CapitolBank, with all
intercompany accounts being eliminated and all expenses relating to the
Merger being deducted from combined income.
It is a condition to Westamerica's obligation to consummate the
Merger that, among other things, Westamerica receive a letter from KPMG
Peat Marwick LLP ("KPMG"), its independent public accountants, to the
effect that KPMG believes that the Merger will qualify for the pooling of
interests method of accounting in accordance with generally accepted
accounting principles and all applicable rules, regulations and policies
of the Commission. In addition, it also is a condition to such obligation
of Westamerica that no determination will have been made by any court,
tribunal, regulatory agency or other governmental entity that the Merger
fails or will fail to qualify for pooling of interests accounting
treatment and holders of no more than 9% of the shares of CapitolBank
Common Stock immediately prior to the Effective Date have sought to
perfect dissenters' rights under the GCL with respect to their shares.
CapitolBank's independent public accountants for the most recently
completed fiscal year are KPMG. Representatives of KPMG, as accountants
of CapitolBank, are expected to be present at the Meeting and available
to respond to questions.
Resales of Westamerica Common Stock
The Westamerica Common Stock issued pursuant to the Merger will be
freely transferable under the Securities Act, except for shares issued to
any CapitolBank shareholder who may be deemed to be an "affiliate" of
Westamerica or CapitolBank for purposes of Rule 145 under the Securities
Act. Each director of CapitolBank is deemed to be such an affiliate. It
is expected that each such director and each other person deemed to be an
affiliate will enter into an agreement with Westamerica providing that
such person will not transfer any Westamerica Common Stock received in the
Merger, except in compliance with the Securities Act and applicable rules
thereunder. See "--Representations and Warranties; Conditions to the
Merger."
DISSENTERS' RIGHTS OF APPRAISAL
If the Agreement is approved by the required vote of CapitolBank
shareholders and is not abandoned or terminated, shareholders of
CapitolBank who did not vote "FOR" the Merger may be entitled to certain
dissenters' appraisal rights under Chapter 13 of the GCL.
The following discussion is not a complete statement of the GCL
relating to dissenters' rights, and is qualified in its entirety by
reference to sections 1300 through 1312 of the GCL attached to this Proxy
Statement/Prospectus as Annex E and incorporated herein by reference.
This discussion and sections 1300 through
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1312 of the GCL should be reviewed carefully by any CapitolBank
shareholder who wishes to exercise statutory dissenters' rights or wishes
to preserve the right to do so, since failure to comply with the required
procedures will result in the loss of such rights.
If the Merger is consummated, those shareholders of CapitolBank who
elect to exercise their dissenters' rights and who in a timely and proper
fashion perfect such rights will be entitled to receive the "fair market
value" of their shares in cash. Pursuant to section 1300(a) of the GCL,
such "fair market value" would be determined as of the day before the
first announcement of the terms of the Merger, excluding any appreciation
or depreciation in consequence of the proposed Merger, but adjusted for
any stock split, reverse stock split, or share dividend which becomes
effective thereafter. CapitolBank believes that such "fair market value"
is equal to the average of the bid and asked prices of CapitolBank Common
Stock as reported on the Pink Sheets for November 17, 1994, or $1.88.
Shares of CapitolBank Common Stock must satisfy each of the following
requirements to qualify as dissenting shares ("Dissenting Shares") under
the GCL: (i) the shares of CapitolBank Common Stock must have been
outstanding on the Record Date (and, therefore, shares acquired after such
Record Date upon exercise of options to purchase CapitolBank Common Stock
may not constitute Dissenting Shares); (ii) the shares of CapitolBank
Common Stock must not have been voted "FOR" approval and adoption of the
Agreements and the transactions contemplated thereby, including the
Merger; and (iii) the holder of such shares of CapitolBank Common Stock
must submit certificates for endorsement as described below. If a holder
of CapitolBank Common Stock votes "FOR" the approval and adoption of the
Agreements, including the Merger, and the transactions contemplated
thereby (including by executing and returning a proxy to CapitolBank with
no voting instructions indicated thereon) such holder will lose any
dissenters' rights that may exist with respect to the subject shares.
If the Merger is approved at the Meeting, CapitolBank will, within
ten days after such approval, mail to any shareholder who may have a right
to require CapitolBank to purchase his or her shares for cash as a result
of making such a demand (as described below), a notice that the required
shareholder approval and adoption of the Agreements and the transactions
contemplated thereby, including the Merger, was obtained (the "Notice of
Approval") accompanied by a copy of sections 1300 through 1304 of the GCL.
The Notice of Approval will set forth the price determined by CapitolBank
to represent the "fair market value" of any Dissenting Shares (which shall
constitute an offer by CapitolBank to purchase such Dissenting Shares at
such stated price) and will set forth a brief description of the
procedures to be followed by such shareholders who wish to exercise their
dissenters' rights.
Within 30 days after the date on which the Notice of Approval was
mailed: (i) CapitolBank or its transfer agent must receive the demand of
the dissenting shareholder which is required by law to contain a statement
concerning the number and class of shares of CapitolBank Common Stock held
of record by such dissenting shareholder which the dissenting shareholder
demands that CapitolBank purchase and a statement of what such dissenting
shareholder claims to be the fair market value of the Dissenting Shares as
of November 17, 1994, the day before the announcement of the proposed
Merger (the statement of fair market value in such demand by the
dissenting shareholder constitutes an offer by the dissenting shareholder
to sell the Dissenting Shares at such price); and (ii) the dissenting
shareholder must submit share certificate(s) representing the Dissenting
Shares to CapitolBank at CapitolBank's principal office or at the office
of its transfer agent. The certificate(s) will be stamped or endorsed
with a statement that the shares are Dissenting Shares or will be
exchanged for certificates of appropriate denomination so stamped or
endorsed. If the price contained in the Notice of Approval is acceptable
to the dissenting shareholder, the dissenting shareholder may demand the
same price. This would constitute an acceptance of the offer by
CapitolBank to purchase the dissenting shareholder's stock at the price
stated in the Notice of Approval.
If CapitolBank and a dissenting shareholder agree upon the price to
be paid for the Dissenting Shares, upon the dissenting shareholder's
surrender of the certificates representing the Dissenting Shares, such
price (together with interest thereon at the legal rate on judgments from
the date of the agreement between CapitolBank and the dissenting
shareholder) is required by law to be paid to the dissenting shareholder
within 30 days after such agreement or within 30 days after any statutory
or contractual conditions to the Merger are satisfied, whichever is later,
subject to the surrender of the certificates therefor.
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If CapitolBank and a dissenting shareholder disagree as to the price
for such Dissenting Shares or disagree as to whether such Dissenting
Shares are entitled to be classified as Dissenting Shares, such holder
may, within six months after the Notice of Approval is mailed, file a
complaint in the Superior Court of the proper county requesting the court
to make such determinations or, alternatively, may intervene in any
pending action brought by any other dissenting shareholder. Costs of such
an action (including compensation of appraisers) are required to be
assessed as the court considers equitable, but must be assessed against
CapitolBank if the appraised value as determined by the court exceeds the
price offered by CapitolBank.
The court action to determine the fair market value of the shares
will be suspended if litigation is instituted to test the sufficiency or
regularity of the votes of the shareholders in authorizing the Merger.
Furthermore, no shareholder who has appraisal rights under Chapter 13 of
the GCL has any right to attack the validity of the Merger or to have the
Merger set aside or rescinded except in an action to test whether the
number of shares required to authorize or approve the Merger has been
legally voted in favor of the Merger.
Dissenting Shares may lose their status as such and the right to
demand payment will terminate if (i) the Merger is abandoned (in which
case CapitolBank shall pay on demand to any dissenting shareholder who has
initiated proceedings in good faith as provided under Chapter 13 of the
GCL all necessary expenses and reasonable attorneys' fees incurred in such
proceedings); (ii) the Dissenting Shares are transferred before being
submitted for endorsement or are surrendered for conversion into shares of
another class; (iii) the dissenting shareholder and CapitolBank do not
agree upon the status of the shares as Dissenting Shares or upon the price
of such shares and the dissenting shareholder fails to file suit against
CapitolBank or intervene in a pending action within six months following
the date on which the Notice of Approval was mailed to the shareholder; or
(iv) the dissenting shareholder withdraws his or her demand for the
purchase of the Dissenting Shares with the consent of CapitolBank.
PRO FORMA COMBINED FINANCIAL INFORMATION
The following Unaudited Pro Forma Combined Financial Statements give
effect to the Merger on a pooling of interests basis. Additionally, the
Unaudited Pro Forma Combined Financial Statements give effect to
Westamerica's recent acquisition of PV Finanial and pending acquisition of
North Bay on a pooling of interests basis. See "Information About
Westamerica--Recent and Pending Acquisitions." The Unaudited Pro Forma
Combined Statements of Income assume the Merger and Westamerica's recent
and pending acquisitions were effective as of the beginning of each of the
nine months ended September 30, 1994 and 1993 and each of the years ended
December 31, 1993, 1992 and 1991. The Unaudited Pro Forma Combined Balance
Sheet assumes the Merger and Westamerica's recent and pending acquisitions
were effective September 30, 1994. For a description of the pooling of
interests accounting with respect to the Merger, see "The Merger--
Accounting Treatment." This pro forma financial data and the accompanying
notes should be read in conjunction with and are qualified in their
entirety by the historical consolidated financial statements of
Westamerica, PV Financial, CapitolBank and North Bay, including the
respective notes thereto, and the unaudited condensed consolidated
historical and other pro forma financial information, including the notes
thereto, appearing elsewhere in this Proxy Statement/Prospectus or
incorporated herein by reference.
As described in the Notes to Unaudited Pro Forma Combined Financial
Statements, the effect of expenses incurred or expected to be incurred by
Westamerica, PV Financial, CapitolBank and North Bay in connection with
the Merger and recent and pending acquisitions has been reflected in the
Unaudited Pro Forma Combined Balance Sheet; however, since such expenses
are nonrecurring, they have not been reflected in the Unaudited Pro Forma
Consolidated Statements of Income. The pro forma financial data do not
give effect to any cost savings which might result from the Merger and
recent and pending acquisitions.
The pro forma financial data are presented for illustrative purposes
only and are not necessarily indicative of the future operating results or
future financial position that would have occurred had the Merger and
recent and pending acquisitions been consummated as of the date or the
beginning of the periods indicated or that may be obtained in the future.
-55-
<PAGE>
Summary Unaudited Pro Forma Combined Statements of Income
(In thousands, except per share data)
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
--------------------------------- ------------------------------------------------------
1994(1)(3)(4)(5) 1993(1)(3)(4)(5) 1993(1)(3)(4)(5) 1992(1)(3)(4)(5) 1991(1)(3)(4)(5)
---------------- ---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C> <C>
Interest Income
Interest and fees on loans....... $ 88,619 $ 93,171 $ 123,028 $ 139,453 $ 167,071
Interest and dividends on
investment securities........... 33,384 30,126 40,623 41,676 41,214
Trading account interest......... 1 6 6 4 54
Other interest income............ 778 957 1,286 2,967 3,832
---------- ---------- --------- ---------- ----------
Total interest income........... 122,782 124,260 164,943 184,100 212,171
Interest Expense
Interest on deposits............. 30,933 36,584 47,115 66,749 98,625
Interest on funds purchased and
other short-term borrowings..... 3,670 1,248 2,026 840 1,997
Interest on long-term debt....... 2,061 1,496 2,016 2,362 2,611
---------- ---------- --------- ---------- ----------
Total interest expense.......... 36,664 39,328 51,157 69,951 103,233
---------- ---------- --------- ---------- ----------
Net Interest Income................ 86,118 84,932 113,786 114,149 108,938
Loan loss provision................ 5,229 8,717 10,581 8,410 12,201
---------- ---------- --------- ---------- ----------
Net Interest Income After Loan
Loss Provision................... 80,889 76,215 103,205 105,739 96,737
Noninterest Income
Service charges on deposit....... 9,775 10,458 13,939 13,562 13,094
Net investment securities gains.. 500 351 351 1,385 2,083
Other............................ 10,055 15,424 20,572 16,763 14,106
---------- ---------- --------- ---------- ----------
Total noninterest income........ 20,330 26,233 34,862 31,710 29,283
Noninterest Expense
Salaries and related benefits.... 34,353 37,689 49,322 50,358 48,913
Premises and equipment........... 12,015 14,863 19,377 17,731 17,388
FDIC insurance and other
assessments..................... 3,639 3,780 5,001 4,796 4,259
Other............................ 20,850 38,802 47,766 38,880 32,956
---------- ---------- --------- ---------- ----------
Total noninterest expense....... 70,857 95,134 121,466 111,765 103,516
---------- ---------- --------- ---------- ----------
Income Before
Income Taxes..................... 30,362 7,314 16,601 25,684 22,504
Provision for income taxes....... 9,795 1,702 4,578 9,661 7,872
---------- ---------- --------- ---------- ----------
Net Income Before
Extraordinary Item............... 20,567 5,612 12,023 16,023 14,632
Extraordinary item tax
benefit on net operating loss
carryforward.................... 0 0 0 17 130
---------- ---------- --------- ---------- ----------
Net Income......................... $ 20,567 $ 5,612 $ 12,023 $ 16,040 $ 14,762
========== ========== ========= ========== ==========
Average shares outstanding(2)...... 10,034 9,997 10,048 9,877 9,776
Net income from continuing
operations per share(2).......... $ 2.05 $ 0.56 $ 1.20 $ 1.62 $ 1.51
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statements
-56-
<PAGE>
Unaudited Pro Forma Combined Statements of Income
(In thousands, except per share data)
<TABLE>
<CAPTION>
Nine Months Ended September 30, 1994(3)(4)(5)
-------------------------------------------------------------------------------------------------
Westamerica,
Westamerica Westamerica, PV Financial,
and PV PV Financial CapitolBank
Financial and CapitolBank and North Bay
PV Pro Forma Pro Forma Pro Forma
Westamerica Financial(1) Combined(1) CapitolBank Combined(1) North Bay(1) Combined(1)
----------- ------------ ------------ ----------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Income
Interest and fees on loans.. $ 69,189 $ 9,500 $ 78,689 $ 6,032 $ 84,721 $ 3,898 $ 88,619
Interest and dividends on
investment securities...... 30,676 478 31,154 1,275 32,429 955 33,384
Trading account interest.... 1 0 1 0 1 0 1
Other interest income....... 0 291 291 193 484 294 778
----------- ----------- ----------- --------- --------- --------- --------
Total interest income...... 99,866 10,269 110,135 7,500 117,635 5,147 122,782
Interest Expense
Interest on deposits........ 24,659 2,744 27,403 1,827 29,230 1,703 30,933
Interest on funds purchased
and other short-term
borrowings................. 3,568 0 3,568 41 3,609 61 3,670
Interest on long-term debt.. 2,061 0 2,061 0 2,061 0 2,061
----------- ----------- ----------- --------- --------- --------- --------
Total interest expense..... 30,288 2,744 33,032 1,868 34,900 1,764 36,664
----------- ----------- ----------- --------- --------- --------- --------
Net Interest Income.......... 69,578 7,525 77,103 5,632 82,735 3,383 86,118
Loan loss provision......... 4,680 184 4,864 285 5,149 80 5,229
----------- ----------- ----------- --------- --------- --------- --------
Net Interest Income After
Loan
Loss Provision.............. 64,898 7,341 72,239 5,347 77,586 3,303 80,889
Noninterest Income
Service charges on deposit.. 8,909 498 9,407 74 9,481 294 9,775
Net investment securities
gains (losses)............. 539 (99) 440 82 522 (22) 500
Other....................... 5,304 642 5,946 622 6,568 3,487 10,055
----------- ----------- ----------- --------- --------- --------- --------
Total noninterest income... 14,752 1,041 15,793 778 16,571 3,759 20,330
Noninterest Expense
Salaries and related
benefits................... 26,077 2,598 28,675 2,998 31,673 2,680 34,353
Premises and equipment...... 8,940 894 9,834 1,135 10,969 1,046 12,015
FDIC insurance and other
assessments................ 2,963 252 3,215 197 3,412 227 3,639
Other....................... 15,130 1,603 16,733 1,454 18,192 2,658 20,850
----------- ----------- ----------- --------- --------- --------- --------
Total noninterest expense.. 53,110 5,347 58,457 5,789 64,246 6,611 70,857
----------- ----------- ----------- --------- --------- --------- --------
Income Before Income Taxes... 26,540 3,035 29,575 336 29,911 451 30,362
Provision for income taxes. 8,237 1,334 9,571 55 9,626 169 9,795
----------- ----------- ----------- --------- --------- --------- --------
Net Income Before
Extraordinary Item.......... 18,303 1,701 20,004 281 20,285 282 20,567
Extraordinary item tax
benefit on net operating
loss carryforward......... 0 0 0 0 0 0 0
----------- ----------- ----------- --------- --------- --------- --------
Net Income................... $ 18,303 $ 1,701 $ 20,004 $ 281 $ 20,285 $ 282 $ 20,567
=========== =========== =========== ========= ========= ========= ========
Average shares outstanding(2). 8,075 2,175 9,260 4,080 9,643 1,087 10,034
Net income from continuing
operations per share(2)..... $ 2.27 $ 0.78 $ 2.16 $ 0.07 $ 2.10 $ 0.26 $ 2.05
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statements
-57-
<PAGE>
Unaudited Pro Forma Combined Consolidated Statements of Income
(In thousands, except per share data)
<TABLE>
<CAPTION>
Nine Months Ended September 30, 1993 (3)(4)(5)
------------------------------------------------------------------------------------------
Westamerica,
Westamerica Westamerica, PV Financial,
and PV PV Financial CapitolBank
Financial and CapitolBank and North Bay
PV Pro Forma Pro Forma Pro Forma
Westamerica Financial(1) Combined(1) CapitolBank Combined(1) North Bay(1) Combined(1)
------------- ------------- ------------ ----------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Income
Interest and fees on loans........... $ 75,902 $8,321 $ 84,223 $4,866 $ 89,089 $ 4,082 $ 93,171
Interest and dividends on
investment securities............... 27,246 444 27,690 1,632 29,322 804 30,126
Trading account interest............. 6 0 6 0 6 0 6
Other interest income................ 299 311 610 124 734 223 957
-------- ------ -------- ------ -------- ------- --------
Total interest income............... 103,453 9,076 112,529 6,622 119,151 5,109 124,260
Interest Expense
Interest on deposits................. 29,911 2,828 32,739 2,005 34,744 1,840 36,584
Interest on funds purchased and
other short-term borrowings......... 1,179 0 1,179 32 1,211 37 1,248
Interest on long-term debt........... 1,496 0 1,496 0 1,496 0 1,496
-------- ------ -------- ------ -------- ------- --------
Total interest expense.............. 32,586 2,828 35,414 2,037 37,451 1,877 39,328
-------- ------ -------- ------ -------- ------- --------
Net Interest Income................... 70,867 6,248 77,115 4,585 81,700 3,232 84,932
Loan loss provision.................. 7,847 384 8,231 336 8,567 150 8,717
-------- ------ -------- ------ -------- ------- --------
Net Interest Income After Loan
Loss Provision....................... 63,020 5,864 68,884 4,249 73,133 3,082 76,215
Noninterest Income
Service charges on deposit accounts.. 9,627 417 10,044 97 10,141 317 10,458
Net investment securities gains...... 68 0 68 283 351 0 351
Other................................ 9,242 600 9,842 595 10,437 4,987 15,424
-------- ------ -------- ------ -------- ------- --------
Total noninterest income............ 18,937 1,017 19,954 975 20,929 5,304 26,233
Noninterest Expense
Salaries and related benefits........ 30,118 2,298 32,416 2,560 34,976 2,713 37,689
Premises and equipment............... 11,673 817 12,490 1,053 13,543 1,320 14,863
FDIC insurance and other
assessments......................... 3,089 252 3,341 209 3,550 230 3,780
Other................................ 32,273 1,337 33,610 1,212 34,822 3,980 38,802
-------- ------ -------- ------ -------- ------- --------
Total noninterest expense........... 77,153 4,704 81,857 5,034 86,891 8,243 95,134
-------- ------ -------- ------ -------- ------- --------
Income Before Income Taxes............ 4,804 2,177 6,981 190 7,171 143 7,314
Income tax provision.................. 730 903 1,633 26 1,659 43 1,702
-------- ------ -------- ------ -------- ------- --------
Net Income Before
Extraordinary Item................... 4,074 1,274 5,348 164 5,512 100 5,612
Extraordinary item tax benefit on net
operating loss carryforward........ 0 0 0 0 0 0 0
-------- ------ -------- ------ -------- ------- --------
Net Income............................ $ 4,074 $1,274 $ 5,348 $ 164 $ 5,512 $ 100 $ 5,612
======== ====== ======== ====== ======== ======= ========
Average shares outstanding(2)......... 8,051 2,150 9,222 4,080 9,605 1,089 9,997
Net income from continuing
operations per share(2).............. $ 0.51 $ 0.59 $ 0.58 $ 0.04 $ 0.57 $ 0.09 $ 0.56
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statements
-58-
<PAGE>
Unaudited Pro Forma Combined Consolidated Statements of Income
(In thousands, except per share data)
<TABLE>
<CAPTION>
Year Ended December 31, 1993(3)(4)(5)
------------------------------------------------------------------------------------------------
Westamerica,
PV Financial,
Westamerica Westamerica, CapitolBank
and PV PV Financial and
Financial and CapitolBank North Bay
PV Pro Forma Pro Forma Pro Forma
Westamerica Financial(1) Combined(1) CapitolBank Combined(1) North Bay(1) Combined(1)
------------- ------------- ------------ ----------- ----------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Income
Interest and fees on loans..... $ 99,607 $11,285 $110,892 $6,680 $117,572 $ 5,456 $123,028
Interest and dividends on
investment securities......... 37,005 584 37,589 1,988 39,577 1,046 40,623
Trading account interest....... 6 0 6 0 6 0 6
Other interest income.......... 298 419 717 283 1,000 286 1,286
-------- ------- -------- ------ -------- ------- --------
Total interest income......... 136,916 12,288 149,204 8,951 158,155 6,788 169,943
Interest Expense
Interest on deposits........... 38,318 3,729 42,047 2,631 44,678 2,437 47,115
Interest on funds purchased and
other short-term borrowings... 1,937 0 1,937 40 1,977 49 2,026
Interest on long-term debt..... 2,016 0 2,016 0 2,016 0 2,016
-------- ------- -------- ------ -------- ------- --------
Total interest expense........ 42,271 3,729 46,000 2,671 48,671 2,486 51,157
-------- ------- -------- ------ -------- ------- --------
Net Interest Income............. 94,645 8,559 103,204 6,280 109,484 4,302 113,786
Loan loss provision............ 9,452 543 9,995 436 10,431 150 10,581
-------- ------- -------- ------ -------- ------- --------
Net Interest Income After Loan
Loss Provision................. 85,193 8,016 93,209 5,844 99,053 4,152 103,205
Noninterest Income
Service charges on deposit
accounts...................... 12,809 574 13,383 129 13,512 427 19,939
Net investment securities gains 68 0 68 283 351 0 351
Other.......................... 11,069 1,095 12,164 801 12,965 7,607 20,572
-------- ------- -------- ------ -------- ------- --------
Total noninterest income...... 23,946 1,669 25,615 1,213 26,828 8,034 34,862
Noninterest Expense
Salaries and related benefits.. 39,007 3,175 42,182 3,379 45,561 3,761 49,322
Premises and equipment......... 14,820 1,090 15,910 1,799 17,709 1,668 19,377
FDIC insurance and other
assessments................... 4,079 336 4,415 280 4,695 306 5,001
Other.......................... 38,739 1,846 40,585 1,205 41,790 5,976 47,766
-------- ------- -------- ------ -------- ------- --------
Total noninterest expense..... 96,645 6,447 103,092 6,663 109,755 11,711 121,466
-------- ------- -------- ------ -------- ------- --------
Income Before Income Taxes...... 12,494 3,238 15,732 394 16,126 475 16,602
Provision for income taxes..... 3,039 1,280 4,319 79 4,398 180 4,578
-------- ------- -------- ------ -------- ------- --------
Net Income Before Extraordinary
Item........................... 9,455 18,190 11,413 315 11,728 295 12,024
Extraordinary item............. 0 0 0 0 0 0 0
-------- ------- -------- ------ -------- ------- --------
Net Income...................... $ 9,455 $ 1,958 $ 11,413 $ 315 $ 11,728 $ 295 $ 12,023
======== ======= ======== ====== ======== ======= ========
Average shares outstanding(2)... 8,054 2,237 9,273 4,080 9,656 1,089 10,048
Net income from continuing
operations per share(2)........ $ 1.17 $ 0.88 $ 1.23 $ 0.08 $ 1.21 $ 0.27 $ 1.20
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statements
-59-
<PAGE>
Unaudited Pro Forma Combined Consolidated Statements of Income
(In thousands, except per share data)
<TABLE>
<CAPTION>
Year Ended December 31, 1992(3)(4)(5)
------------------------------------------------------------------------------------------------
Westamerica,
Westamerica Westamerica, PV Financial,
and PV PV Financial CapitolBank
Financial and CapitolBank and North Bay
PV Pro Forma Pro Forma Pro Forma
Westamerica Financial(1) Combined(1) CapitolBank Combined(1) North Bay(1) Combined(1)
------------- ------------- ------------ ----------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Income
Interest and fees on loans..... $115,357 $10,565 $125,922 $ 6,334 $132,256 $ 7,197 $139,453
Interest and dividends on
investment securities......... 37,647 877 38,524 2,268 40,792 884 41,676
Trading account interest....... 4 0 4 0 4 0 4
Other interest income.......... 1,745 366 2,111 523 2,634 333 2,967
-------- ------- -------- ------- -------- -------- --------
Total interest income......... 154,753 11,808 166,561 9,125 175,686 8,414 184,100
Interest Expense
Interest on deposits........... 55,832 4,560 60,392 3,240 63,632 3,117 66,749
Interest on funds purchased and
other short-term borrowings... 698 31 729 41 770 70 840
Interest on long-term debt..... 2,362 0 2,362 0 2,362 0 2,362
-------- ------- -------- ------- -------- -------- --------
Total interest expense........ 58,892 4,591 63,483 3,281 66,764 3,187 69,951
-------- ------- -------- ------- -------- -------- --------
Net Interest Income............. 95,861 7,217 103,078 5,844 108,922 5,227 114,149
Loan loss provision............ 7,005 490 7,495 520 8,015 395 8,410
-------- ------- -------- ------- -------- -------- --------
Net Interest Income After Loan
Loss Provision................. 88,856 6,727 95,583 5,324 100,907 4,832 105,739
Noninterest Income
Service charges on deposit
accounts...................... 12,437 517 12,954 223 13,177 385 13,562
Net investment securities gains 1,066 50 1,116 269 1,385 0 1,385
Other.......................... 10,324 1,029 11,353 798 12,151 4,612 16,763
-------- ------- -------- ------- -------- -------- --------
Total noninterest income...... 23,827 1,596 25,423 1,290 26,713 4,997 31,710
Noninterest Expense
Salaries and related benefits.. 40,826 2,853 43,679 3,360 47,039 3,319 50,358
Premises and equipment......... 13,826 1,033 14,859 1,856 16,715 1,016 17,731
FDIC insurance and other
assessments................... 4,021 264 4,285 258 4,543 253 4,796
Other.......................... 30,931 1,428 32,359 3,004 35,363 3,517 38,880
-------- ------- -------- ------- -------- -------- --------
Total noninterest expense..... 89,604 5,578 95,182 8,478 103,660 8,105 111,765
-------- ------- -------- ------- -------- -------- --------
Income (Loss) Before Income
Taxes.......................... 23,079 2,745 25,824 (1,864) 23,960 1,724 25,684
Provision for income taxes..... 7,874 1,110 8,984 0 8,984 677 9,661
-------- ------- -------- ------- -------- -------- --------
Net Income (Loss) Before
Extraordinary Item............. 15,205 1,635 16,840 (1,864) 14,976 1,047 16,023
Extraordinary item............. 17 0 17 0 17 0 17
-------- ------- -------- ------- -------- -------- --------
Net Income (Loss)............... $ 15,222 $ 1,635 $ 16,857 $(1,864) $ 14,993 $ 1,047 $ 16,040
======== ======= ======== ======= ======== ======== ========
Average shares outstanding(2)... 7,933 2,147 9,103 4,080 9,486 1,086 9,877
Net income (loss) from
continuing operations per
share(2)....................... $1.92 $0.76 $1.85 $(0.46) $1.58 $ 0.96 $ 1.62
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statements
-60-
<PAGE>
Unaudited Pro Forma Combined Consolidated Statements of Income
(In thousands, except per share data)
<TABLE>
<CAPTION>
Year Ended December 31, 1991(3)(4)(5)
-------------------------------------------------------------------------------------------------
Westamerica,
Westamerica Westamerica, PV Financial,
and PV PV Financial CapitolBank
Financial and CapitolBank and North Bay
PV Pro Forma Pro Forma Pro Forma
Westamerica Financial(1) Combined(1) CapitolBank Combined(1) North Bay(1) Combined(1)
------------- ------------ ----------- ----------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Income
Interest and fees on loans...... $137,656 $11,966 $149,622 $ 8,881 $158,503 $ 8,568 $167,071
Interest and dividends on
investment securities.......... 36,651 1,384 38,035 2,739 40,774 440 41,214
Trading account interest........ 54 0 54 0 54 0 54
Other interest income........... 2,191 199 2,390 868 3,258 574 3,832
-------- ------- -------- ------- -------- -------- --------
Total interest income.......... 176,552 13,549 190,101 12,488 202,589 9,582 212,171
Interest Expense
Interest on deposits............ 83,069 5,744 88,813 5,250 94,063 4,562 98,625
Interest on funds purchased and
other short-term borrowings.... 1,677 149 1,826 87 1,913 84 1,997
Interest on long-term debt...... 2,611 0 2,611 0 2,611 0 2,611
-------- ------- -------- ------- -------- -------- --------
Total interest expense......... 87,357 5,893 93,250 5,337 98,587 4,646 103,233
-------- ------- -------- ------- -------- -------- --------
Net Interest Income............... 89,195 7,656 96,851 7,151 104,002 4,936 108,938
Loan loss provision............. 10,418 93 10,511 1,067 11,578 623 12,201
-------- ------- -------- ------- -------- -------- --------
Net Interest Income After
Loan Loss Provision............. 606,595 46,447 86,340 6,084 92,424 4,313 96,737
Noninterest Income
Service charges on deposit
accounts....................... 12,056 467 12,523 227 12,750 344 13,094
Net investment securities
gains (losses)................. 1,742 (108) 1,634 449 2,083 0 2,083
Other........................... 10,178 448 10,626 995 11,621 2,485 14,106
-------- ------- -------- ------- -------- -------- --------
Total noninterest income....... 23,976 807 24,783 1,671 26,454 2,829 29,283
Noninterest Expense
Salaries and related benefits... 40,252 3,007 43,259 3,186 46,445 2,468 48,913
Premises and equipment.......... 13,923 893 14,816 1,764 16,580 808 17,388
FDIC insurance and other
assessments.................... 3,545 246 3,791 258 4,049 210 4,259
Other........................... 27,223 1,479 28,702 2,265 30,967 1,989 32,956
-------- ------- -------- ------- -------- -------- --------
Total noninterest expense...... 84,943 5,625 90,568 7,473 98,041 5,475 103,516
-------- ------- -------- ------- -------- -------- --------
Income Before Income Taxes........ 17,810 2,745 20,555 282 20,837 1,667 22,504
Provision for income taxes...... 5,919 1,127 7,046 115 7,161 711 7,872
-------- ------- -------- ------- -------- -------- --------
Net Income Before Extraordinary
Item............................ 11,891 12,868 13,509 167 13,676 956 14,632
Extraordinary item.............. 86 0 86 44 130 0 130
-------- ------- -------- ------- -------- -------- --------
Net Income........................ $ 11,977 $ 1,618 $ 13,595 $ 211 $ 13,806 $ 956 $ 14,762
======== ======= ======== ======= ======== ======== ========
Average shares outstanding(2)..... 7,855 2,103 9,001 4,080 9,384 1,089 9,776
Net income from continuing
operations per share(2)......... $1.52 $0.77 $1.51 $0.05 $ 1.47 $ 0.88 $ 1.51
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statements
-61-
<PAGE>
Unaudited Pro Forma Combined Balance Sheet
(In thousands)
<TABLE>
<CAPTION>
At September 30, 1994
------------------------------------------------------------------------------------------
Westamerica
and PV
Financial
PV Pro Forma Pro Forma Pro Forma
Westamerica Financial(1) Adjustments(3) Combined(1) CapitolBank Adjustments(4)
------------- ------------- -------------- ------------ ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Assets
Cash and cash equivalents........ $ 115,532 $ 14,629 $ 130,161 $ 29,995
Interest bearing deposits in
other banks..................... 250 0 250 0
Trading account securities....... 0 0 0 0
Investment securities available-
for-sale........................ 169,807 14,182 183,989 17,606
Investment securities held-to-
maturity........................ 618,523 6,996 625,519 0
Loans, net of reserve for
loan losses..................... 1,063,123 132,904 1,196,027 87,511
Other real estate owned and
loan collateral substantively
foreclosed..................... 12,830 154 12,984 0
Premises and equipment, net...... 23,834 1,000 24,834 1,294
Interest receivable and
other assets.................... 48,185 3,124 51,309 1,563
---------- -------- ---------- ---------- -------- ----------
Total Assets................... $2,052,084 $172,989 $ 0 $2,225,073 $137,969 $ 0
========== ======== ========== ========== ======== ==========
Liabilities
Deposits:
Noninterest bearing............. $ 374,705 $ 32,087 $ 406,792 $ 32,868
Interest bearing................ 1,340,272 120,342 1,460,614 93,158
---------- -------- ---------- ---------- -------- ----------
Total deposits................. 1,714,977 152,429 $ 0 1,867,406 126,026 $ 0
Funds purchased and other
short-term borrowings........... 133,654 0 133,654 1,719
Other liabilities................ 40,430 1,724 730 42,884 952 535
---------- -------- ---------- ---------- -------- ----------
Total Liabilities............... 1,889,061 154,153 730 2,043,944 128,697 535
Shareholders' Equity.............. 163,023 18,836 (730) 181,129 9,272 (535)
---------- -------- ---------- ---------- -------- ----------
Total Liabilities and
Shareholders' Equity........... $2,052,084 $172,989 $ 0 $2,225,073 $137,969 $ 0
========== ======== ========== ========== ======== ==========
</TABLE>
<TABLE>
<CAPTION>
Westamerica,
PV Financial,
Westamerica, CapitolBank
PV Financial and
and CapitolBank North Bay
Pro Forma Pro Forma Pro Forma
Combined(1) North Bay(1) Adjustments(5) Combined(1)
----------- ------------ -------------- -----------
<S> <C> <C> <C> <C>
Assets
Cash and cash equivalents........ $ 160,156 $ 13,669 $ 173,825
Interest bearing deposits in
other banks..................... 250 3,563 3,813
Trading account securities....... 0 0 0
Investment securities available-
for-sale........................ 201,595 501 202,096
Investment securities held-to-
maturity........................ 625,519 28,292 653,811
Loans, net of reserve for
loan losses..................... 1,283,538 55,437 1,338,975
Other real estate owned and
loan collateral substantively
foreclosed..................... 12,984 0 12,984
Premises and equipment, net...... 26,128 3,479 29,607
Interest receivable and
other assets.................... 52,872 2,619 55,491
---------- -------- ---------- ----------
Total Assets................... $2,363,042 $107,560 $ 0 $2,470,602
========== ======== ========== ==========
Liabilities
Deposits:
Noninterest bearing............. $ 439,660 $ 14,733 $ 454,393
Interest bearing................ 1,553,772 77,663 1,631,435
---------- -------- ---------- ----------
Total deposits................. 1,993,432 92,396 $ 0 2,085,828
Funds purchased and other
short-term borrowings........... 135,373 4,770 140,143
Other liabilities................ 44,371 583 460 45,414
--------- -------- ---------- ----------
Total Liabilities............... 2,173,176 97,749 460 2,271,385
Shareholders' Equity.............. 191,131 9,811 (460) 199,217
--------- -------- ---------- ----------
Total Liabilities and
Shareholders' Equity........... $2,363,042 $107,560 $ 0 $2,470,602
========== ======== ========== ==========
</TABLE>
See Notes to Unaudited Pro Forma Combined Financial Statement
-62-
<PAGE>
Notes to Unaudited Pro Forma Combined Financial Statements
(1) Westamerica, PV Financial and Pacific Valley National Bank entered
into an Agreement and Plan of Reorganization (as amended) dated as of
July 25, 1994, whereby the parties thereto agreed to merge PV
Financial into Westamerica (the "PV Financial Merger"). The PV
Financial Merger was effective January 31, 1995. Westamerica, North
Bay and Novato National Bank have entered into an Agreement and Plan
of Reorganization dated as of December 8, 1994, whereby the parties
thereto agreed to merge North Bay into Westamerica (the "North Bay
Merger"). Subsequent thereto, Novato National Bank, North Bay's
banking subsidiary, will be merged with and into Westamerica Bank.
See "Information About Westamerica--Pending Acquisitions." It is
anticipated that the North Bay Merger will be consummated in the
second half of 1995. The transactions will be accounted for as
poolings of interests and, accordingly, the Unaudited Pro Forma
Combined Consolidated Statements of Income include the results of PV
Financial and North Bay for the periods presented and the Unaudited
Pro Forma Combined Balance Sheet includes the financial condition of
PV Financial and North Bay on September 30, 1994.
The Unaudited Pro Forma Combined Statements of Income do not include
any pro forma adjustments as none are necessary to account for the
Merger and Westamerica's pending acquisitions on a pooling of
interests basis.
(2) The pro forma combined per share data for net income has been
calculated using pro forma combined average shares outstanding.
Westamerica, PV Financial, North Bay and CapitolBank pro forma
combined average shares outstanding has been calculated using the
average number of shares of Westamerica Common Stock outstanding
during the periods presented increased by the maximum number of
shares of Westamerica Common Stock issuable to PV Financial, North
Bay and CapitolBank shareholders using exchange ratios of .5450,
.3600 and .0938 of a share of Westamerica Common Stock, respectively,
for each of the average shares of PV Financial, North Bay and
CapitolBank common stock outstanding during each of the periods
presented as if these shares were outstanding during each of the
periods presented. Such Westamerica, PV Financial and North Bay pro
forma per share data assumes no dissenting PV Financial, North Bay or
CapitolBank shareholders and no exercise of outstanding Westamerica,
PV Financial, North Bay or CapitolBank stock options or stock
appreciation rights. The exchange ratio used in connection with the
North Bay Merger is subject to potential downward adjustments in
certain circumstances as provided in the North Bay agreement. The
final exchange ratio for the PV Financial Merger was .5348. The
Exchange Ratio is subject to potential downward adjustments as
provided in the Agreement.
See "The Merger--Exchange Ratio; Conversion of Shares of CapitolBank
Common Stock" and "--Possible Adjustments to Exchange Ratio or
Termination of the Agreement."
-63-
<PAGE>
(3) The following table reflects all remaining nonrecurring Westamerica
and PV Financial estimated merger related expenses not accrued as of
September 30, 1994. These expenses are not included in the Unaudited
Pro Forma Combined Statements of Income but are included on the
Unaudited Pro Forma Combined Balance Sheet as a reduction to
shareholders' equity. Such estimated merger related expenses are
summarized below on an after tax basis (in thousands):
<TABLE>
<CAPTION>
Westamerica PV Financial Total
----------- ------------ -----
<S> <C> <C> <C>
Financial advisory.. $ 0 $500 $500
Professional fees... 110 90 200
Printing and other.. 20 10 30
---- ---- ----
Total............. $130 $600 $730
---- ---- ----
</TABLE>
(4) The following table reflects all remaining nonrecurring Westamerica
and CapitolBank estimated Merger related expenses not accrued as of
September 30, 1994. These expenses are not included in the Unaudited
Pro Forma Combined Statements of Income but are included on the
Unaudited Pro Forma Combined Balance Sheet as a reduction to
shareholders' equity. Such estimated Merger related expenses are
summarized below on an after tax basis (in thousands):
<TABLE>
<CAPTION>
Westamerica CapitolBank Total
----------- ----------- -----
<S> <C> <C> <C>
Financial advisory.. $ 0 $225 $225
Professional fees... 110 170 280
Printing and other.. 20 10 30
---- ---- ----
Total............. $130 $405 $535
---- ---- ----
</TABLE>
(5) The following table reflects all remaining nonrecurring Westamerica
and North Bay estimated merger related expenses not accrued as of
September 30, 1994. These expenses are not included in the Unaudited
Pro Forma Combined Statements of Income but are included on the
Unaudited Pro Forma Combined Balance Sheet as a reduction to
shareholders' equity. Such estimated merger related expenses are
summarized below on an after tax basis (in thousands):
<TABLE>
<CAPTION>
Westamerica North Bay Total
----------- --------- -----
<S> <C> <C> <C>
Financial advisory.. $ 0 $200 $200
Professional fees... 110 120 230
Printing and other.. 20 10 30
---- ---- ----
Total............. $130 $330 $460
---- ---- ----
</TABLE>
SUPPLEMENTAL HISTORICAL INFORMATION
The following unaudited tables provide certain additional historical
and pro forma combined financial information for Westamerica (including
its recent acquisition of PV Financial and pending acquisition of North
Bay) and CapitolBank. The unaudited pro forma combined financial
information assumes that the Merger is accounted for as a pooling of
interests and gives effect to the Merger as if the Merger had occurred on
September 30, 1994. The information presented below should be read in
conjunction with the financial information set forth in "Summary--Selected
Historical and Pro Forma Financial Data," "Pro Forma Combined Financial
Information," and the historical financial statements of Westamerica and
CapitolBank and the notes thereto incorporated herein by reference or
included elsewhere herein. This Supplemental Historical Information is
presented for informational purposes only and should not be considered to
be indicative of actual results or financial position after the Merger.
-64-
<PAGE>
At September 30, 1994, the loan portfolio of the combined entity is
shown in the following table on a pro forma basis:
Unaudited Pro Forma Types of Loans,
Net of Unearned Fee Income
September 30, 1994
<TABLE>
<CAPTION>
Westamerica, Westamerica,
Westamerica PV Financial PV Financial,
and and CapitolBank and
PV Financial CapitolBank North Bay
Pro Forma Pro Forma Pro Forma
Westamerica PV Financial Combined CapitolBank Combined North Bay Combined
------------ ------------ ---------- ----------- ---------- --------- ---------------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Commercial loans................ $ 563,973 $ 84,351 $ 648,324 $22,390 $ 670,714 $26,952 $697,666
Real estate--construction....... 38,906 7,221 46,127 27,763 73,890 3,071 76,961
Real estate--residential
mortgage....................... 186,822 9,635 196,457 35,891 232,348 18,855 251,203
Installment and personal........ 274,631 4,629 279,260 0 279,260 7,678 286,938
Agricultural.................... 26,344 28,916 55,260 3,279 58,539 0 58,539
Lease financing................. 0 0 0 0 0 0 0
---------- -------- ---------- ------- ---------- ------- ----------
Total loans.................... 1,090,676 134,752 1,225,428 89,323 1,314,751 56,556 1,371,307
Less: Reserve for loan losses.. 27,553 1,848 29,401 1,812 31,213 1,119 32,332
---------- -------- ---------- ------- ---------- ------- ----------
Total loans, net............... $1,063,123 $132,904 $1,196,027 $87,511 $1,283,538 $55,437 $1,338,975
========== ======== ========== ======= ========== ======= ==========
</TABLE>
At September 30, 1994, nonperforming assets of the combined entity
are shown in the following table on a pro forma basis:
Unaudited Pro Forma Nonperforming Assets
September 30, 1994
<TABLE>
<CAPTION>
Westamerica,
Westamerica, PV Financial,
Westamerica PV Financial CapitolBank
and and and
PV Financial CapitolBank North Bay
Pro Forma Pro Forma Pro Forma
Westamerica PV Financial Combined CapitolBank Combined North Bay Combined
----------- ------------- --------- ------------ --------- --------- ------------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Loans 90 or more days past
due and still accruing
interest..................... $ 146 $ 1,240 $ 1,386 $ 0 $ 1,386 $ 0 $ 1,386
Nonaccrual loans:
Performing................... 2,132 0 2,132 0 2,132 0 2,132
Nonperforming................ 5,040 570 5,610 2,164 7,774 1,095 8,869
------- ------- ------- ------ ------- ------- --------
Total nonaccrual loans...... 7,172 570 7,742 2,164 9,906 1,095 11,001
------- ------- ------- ------ ------- ------- --------
Total nonperforming loans.... 7,318 1,810 9,128 2,164 11,292 1,095 12,387
Loan collateral substantively
repossessed.................. 2,006 0 2,006 0 2,006 0 2,006
Other real estate owned....... 10,824 154 10,978 103 11,081 0 11,081
------- ------- ------- ------ ------- ------- --------
Total nonperforming assets... $20,148 $ 1,964 $22,112 $2,267 $24,379 $ 1,095 $ 25,474
======= ======= ======= ====== ======= ======= ========
Reserve for loan losses as
a percentage of nonperforming
loans........................ 377.00% 102.00% 322.00% 84.00% 276.00% 102.00% 261.00%
Nonperforming loans as a
percentage of total loans.... 0.67 1.34 0.74 2.42 0.86 1.94 0.90
Nonperforming assets as a
percentage of total assets... 0.98 1.14 0.99 1.64 1.03 1.02 1.03
</TABLE>
The following tables present the regulatory capital positions of each of
Westamerica and CapitolBank as of September 30, 1994, and a pro forma combined
regulatory capital position giving effect to the Merger and recent and pending
acquisitions:
-65-
<PAGE>
Unaudited Pro Forma Regulatory Capital Position
As of September 30, 1994
<TABLE>
<CAPTION>
Westamerica Westamerica,
and PV Financial
PV Financial and CapitolBank
Pro Forma Pro Forma
Westamerica PV Financial Combined CapitolBank Combined
-------------------------- ---------------------- ------------------ ---------------- ------------------
Amount Ratio Amount Ratio Amount Ratio Amount Ratio Amount Ratio
----------- ------------- -------- ------------ ---------- ------ -------- ------ ---------- ------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Tier 1 Capital(1).... $ 163,856 12.39% $ 18,922 12.81% $ 182,778 12.44% $ 9,497 9.78% $ 192,275 12.27%
Minimum requirement.. 52,880 4.00 5,906 4.00 58,786 4.00 3,886 4.00 62,672 4.00
---------- ----- -------- ----- ---------- ----- -------- ----- ---------- -----
Excess............... $ 110,967 8.39% $ 13,016 8.81% $ 123,992 8.44% $ 5,611 5.78% $ 129,603 8.27%
========== ===== ======== ===== ========== ===== ======== ===== ========== =====
Total Capital........ $ 200,517 15.17% $ 20,768 14.07% $ 221,285 15.06% $ 10,719 11.04% $ 232,004 14.81%
Minimum requirement.. 105,759 8.00 11,813 8.00 117,572 8.00 7,771 8.00 125,343 8.00
---------- ----- -------- ----- ---------- ----- -------- ----- ---------- -----
Excess............... $ 94,758 7.17% $ 8,955 6.07% $ 103,713 7.06% $ 2,948 3.04% $ 106,661 6.81%
========== ===== ======== ===== ========== ===== ======== ===== ========== =====
Risk-adjusted assets. $1,321,989 $147,657 $1,469,646 $ 97,143 $1,566,789
========== ======== ========== ======== ==========
Tier 1 Capital(2).... $ 163,856 7.98% $ 18,922 11.15% $ 182,778 8.23% $ 9,497 6.93% $ 192,275 8.15%
Minimum leverage
requirement......... 82,092 4.00 6,786 4.00 88,878 4.00 5,485 4.00 94,363 4.00
---------- ----- -------- ----- ---------- ----- -------- ----- ---------- -----
Excess............... $ 81,764 3.98% $ 12,136 7.15% $ 93,900 4.23% $ 4,012 2.93% $ 97,912 4.15%
========== ===== ======== ===== ========== ===== ======== ===== ========== =====
Average total assets. $2,052,306 $169,643 $2,221,949 $137,128 $2,359,077
========== ======== ========== ======== ==========
<CAPTION>
Westamerica,
PV Financial,
CapitolBank
and North Bay
North Bay Pro Forma Combined
----------------- ------------------
Amount Ratio Amount Ratio
------ ----- ------ -----
(In thousands)
<S> <C> <C> <C> <C>
Tier 1 Capital(1).... $9,811 15.28% $202,086 12.39%
Minimum requirement.. 2,568 4.00 65,240 4.00
------ ----- --------- ----
Excess............... $7,243 11.28% $136,846 8.39%
====== ===== ========= ====
Total Capital........ $10,617 16.54% $242,621 14.88%
Minimum requirement.. 5,136 8.00 130,479 8.00
------ ----- --------- ----
Excess............... $ 5,481 8.54% $112,142 6.88%
====== ===== ========= ====
Risk-adjusted assets. $64,206 $1,630,995
====== ==========
Tier 1 Capital(2).... $ 9,811 8.72% $202,086 8.18%
Minimum leverage
requirement......... 4,502 4.00 98,865 4.00
------ ----- --------- ----
Excess............... $ 5,309 4.72% $ 103,221 4.18%
====== ===== ========= ====
Average total assets. $112,555 $2,471,632
======= =========
</TABLE>
(1) The ratio shown is Tier 1 Capital to Risk-adjusted assets.
(2) The ratio shown is Tier 1 Capital to Average total assets.
MARKET PRICE AND DIVIDEND INFORMATION
Market Quotations
Westamerica Common Stock is listed and traded on the NNM and CapitolBank
Common Stock is traded on the over-the-counter market and quoted on the Pink
Sheets. As of the Record Date, there were approximately 5,127 holders of
record of Westamerica Common Stock and approximately 1,048 holders of record of
CapitolBank Common Stock.
-66-
<PAGE>
The following table sets forth for Westamerica Common Stock the high and
low closing prices for the quarters indicated. The table sets forth for
CapitolBank Common Stock the approximate high and low bid prices of which
CapitolBank is aware, which prices reflect interdealer prices without retail
mark-up, mark-down or commissions and may not necessarily represent actual
transactions.
<TABLE>
<CAPTION>
Westamerica CapitolBank
Common Stock Common Stock
-------------------- -------------------
High Low High Low
------ ------------ ------------ -----
<S> <C> <C> <C> <C>
1993
First Quarter........... $30.25 $22.13 $1.50 $1.25
Second Quarter.......... 28.75 23.88 1.50 1.25
Third Quarter........... 28.50 25.13 1.75 1.25
Fourth Quarter.......... 28.50 25.75 1.75 1.50
1994
First Quarter........... $29.00 $25.88 $1.75 $1.50
Second Quarter.......... 32.50 27.25 2.00 1.75
Third Quarter........... 33.25 29.25 2.25 2.00
Fourth Quarter.......... 33.25 29.38 2.50 2.00
1995
First Quarter through
January _, 1995..... _____ _____ ____ ____
</TABLE>
On November 17, 1994, the trading day prior to the first public
announcement of the Merger, the high, low and closing prices for Westamerica
Common Stock on the NNM were $30.50, $29.75 and $30.50, respectively.
On November 17, 1994, the last day on which trades in CapitolBank Common
Stock were quoted on the Pink Sheets prior to the first public announcement of
the Merger, the bid and asked prices for CapitolBank Common Stock, as quoted on
the Pink Sheets, were $1.75 and $2.00, respectively.
There have been no trades of CapitolBank Common Stock to date in 1995. The
last trade occurred on December 21, 1994 at $2.00 per share. Preceding this
sale, CapitolBank Common Stock was traded on December 15, 1994 at $2.50 per
share.
-67-
<PAGE>
Dividends and Dividend Policy
The following table sets forth the per share cash dividends declared
by Westamerica and CapitolBank during each quarter since January 1, 1993.
<TABLE>
<CAPTION>
Westamerica CapitolBank
Common Stock Common Stock
------------ ------------
<S> <C> <C>
1993
First Quarter... $0.14 $0.00
Second Quarter.. 0.14 0.00
Third Quarter... 0.14 0.00
Fourth Quarter.. 0.15 0.00
1994
First Quarter... $0.15 $0.00
Second Quarter.. 0.15 0.00
Third Quarter... 0.17 0.00
Fourth Quarter.. 0.17 0.00
1995
First Quarter... $0.17 $0.00
</TABLE>
Westamerica has paid quarterly cash dividends since it commenced
operations on January 1, 1973. Westamerica and CapitolBank are subject to
certain regulatory and contractual restrictions on their respective
ability to pay dividends. Holders of Westamerica Common Stock and
CapitolBank Common Stock are entitled to receive dividends as and when
declared by the Board of Directors of Westamerica and CapitolBank,
respectively, out of funds legally available therefor under the laws of
the State of California. The GCL provides that a corporation may make a
distribution to its shareholders if the corporation's retained earnings
equal at least the amount of the proposed distribution. The GCL further
provides that in the event sufficient retained earnings are not available
for the proposed distribution a corporation may nevertheless make a
distribution to its shareholders if, after giving effect to the
distribution, it meets two conditions, which generally stated are as
follows: (i) the corporation's assets must equal at least 125% of its
liabilities; and (ii) the corporation's current assets must equal at least
its current liabilities or, if the average of the corporation's earnings
before taxes on income and before interest expense for the two preceding
fiscal years was less than the average of the corporation's interest
expense for such fiscal years, then the corporation's current assets must
equal at least 125% of its current liabilities.
Westamerica is also subject to certain restrictions on its ability to
pay dividends under the terms of a certain debt agreement. See
"Description of Westamerica Capital Stock and Indebtedness--Debt
Agreements."
CapitolBank was incorporated in 1975 and has not paid dividends
since 1981. Under the California Financial Code, CapitolBank may not pay
cash dividends without the prior approval of the Superintendent until such
time as the deficit in CapitolBank's undivided profits is restored and
there are sufficient earnings to cover any proposed dividend.
The Agreement prohibits Westamerica from paying any dividends other
than its regular quarterly dividend in amounts substantially equivalent to
dividends paid in the pattern of declarations and payments established in
the 18 months prior to November 17, 1994. A declaration by Westamerica of
a quarterly dividend up to two cents per share per quarter higher (on a
cumulative basis) than the most recent previous quarterly dividend will be
deemed to meet this 18-month standard. The Agreement also prohibits
CapitolBank from paying any dividends.
-68-
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF CAPITOLBANK
The following analysis of CapitolBank's financial condition and
results of operations for the years ended December 31, 1993, 1992 and 1991
and the nine months ended September 30, 1994 and 1993 should be read in
conjunction with CapitolBank's audited financial statements and related
notes thereto and the unaudited interim historical financial statements of
CapitolBank appearing elsewhere in this Proxy Statement/Prospectus and
incorporated herein by reference. Average balances, including balances
used in calculating certain financial ratios, are generally comprised of
average daily balances. Amounts shown are consolidated unless stated
otherwise.
Results of Operations
Net Income
CapitolBank's net income was $315,121 for the year ended December 31,
1993, representing earnings per share of $0.08. This represents
improvement over the 1992 loss of $1,863,569 ($0.46 loss per share) and a
49.1% increase from 1991 earnings of $211,360 ($0.05 per share). The
increase in net income during 1993 when compared to 1992 was principally
due to increases in the size of CapitolBank's loan portfolio, an
improvement in the net interest margin due primarily to reduced interest
expense while maintaining loan interest rates constant, and reductions in
other real estate owned, legal fees and other expenses. Results in 1992
were also negatively impacted by a one-time charge to income of $1,060,000
resulting from the divestiture of a real estate joint venture undertaken
in 1990 by Capitol Commerce Development Company VI, a wholly-owned
subsidiary of CapitolBank.
Consolidated net income for the nine months ended September 30, 1994
and 1993 was $281,000 and $164,000, respectively. Net earnings per share
for the nine months ended September 30, 1994 and 1993 was $0.07 and
$0.04, respectively. The increase in net income is primarily due to an
increase in loan volume and a higher prime lending rate.
Return on average equity for the years ended December 31, 1993, 1992
and 1991 was 3.57%, (21.66)% and 1.95%, respectively. CapitolBank's risk-
based capital ratio at December 31, 1993 was 12.90% compared to 14.58% at
December 31, 1992. These ratios are in excess of the Federal Reserve
Board's requirement of 8.00%.
Net Interest Income
Net interest income, the primary component of bank revenue, is the
difference between interest and loan fees earned by CapitolBank on its
earning assets and the interest expense paid on its interest-bearing
deposit liabilities and other borrowed funds. Net interest income,
expressed as a percentage of average total earning assets, is referred to
as net interest margin.
CapitolBank's net interest income of $6,279,701 in 1993 represented a
$435,607 (7.5%) increase when compared to 1992. This increase resulted
from the combination of a $3,936,000 (6.0%) increase in average loans, a
$5,257,000 (24.0%) reduction in average time deposits and a 15.3%
decrease in the average cost of funds. The decrease in time deposits
results from of CapitolBank's management's efforts to shift its deposit
mix from time deposits to interest-bearing transaction accounts. The
decrease in the average cost of funds resulted from the shift in the
deposit mix combined with a general decline in deposit interest rates.
During 1992, net interest income declined 18.28% to $5,844,094 from
$7,151,037 in 1991. This was due to a combination of decreasing interest
rates and a decreasing loan portfolio. The average prime rate for the
year ended December 31, 1992 was 6.29% compared to 8.46% for the year
ended December 31, 1991. These two factors contributed to the decrease in
the yield on interest-earning assets from 10.08% in 1991 to 8.17% in 1992.
The rate paid on interest-bearing liabilities decreased from 5.54% in
1991 to 3.67% in 1992. This decrease was due primarily to repricing of
deposits periodically throughout the year in response to decreases in
CapitolBank's prime lending rate and market conditions affecting the
financial industry.
-69-
<PAGE>
Net interest income increased to $5,632,000 for the nine months ended
September 30, 1994, from $4,585,000 for the same period for 1993. The net
increase was composed of increased total interest income of $878,000 and a
decrease in total interest expense of $169,000. The increase in interest
income is primarily due to the increase in loan volume and a higher prime
rate.
The tables below set forth consolidated average daily balances of
each principal category of assets, liabilities and shareholders' equity,
interest on interest-earning assets, and interest on interest-bearing
liabilities, and the average yields earned or rates paid thereon for the
periods indicated. The tables also show the net interest earnings and the
net yield on average earning assets.
<TABLE>
<CAPTION>
Consolidated Average Daily Balances
Year Ended December 31,
-------------------------------------------------------------------------------------------
1993 1992 1991
----------------------------- ----------------------------- -----------------------------
Interest Rates Interest Rates Interest Rates
Average Income/ Earned/ Average Income/ Earned/ Average Income/ Earned/
Balance Expense Paid Balance Expense Paid Balance Expense Paid
--------- -------- -------- --------- -------- -------- --------- -------- --------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Federal funds sold.................... $ 5,910 $ 162 2.7% $ 4,683 $ 147 3.14% $ 4,121 $ 248 6.02%
Interest-bearing deposits with
other financial institutions......... 3,023 121 4.00 5,706 377 6.61 8,490 620 7.30
Investment securities.................
U.S. Treasury securities............. 24,375 1,548 6.35 23,241 1,575 6.78 21,729 1,660 7.64
U.S. Government Agencies............. 6,045 390 6.45 5,728 445 7.77 10,507 904 8.60
Other securities..................... 1,323 50 3.78 6,385 247 3.87 3,378 174 5.15
Loans(1)(2)........................... 69,954 6,680 9.55 66,018 6,334 9.59 75,638 8,882 11.74
-------- ------ -------- ------ -------- -------
Total Interest-Earning Assets........ 110,630 8,951 8.09% 111,761 9,125 8.17% 123,863 12,488 10.08%
------ ------ -------
Cash and due from banks............... 8,587 8,664 7,302
Furniture, fixtures and equipment..... 1,636 1,982 2,157
Interest receivable and other assets.. 2,508 3,536 3,700
Allowance for loan losses............. (1,268) (1,400) (1,306)
-------- -------- --------
Total Assets......................... $122,093 $124,543 $135,716
======== ======== ========
Interest-bearing transaction
accounts............................. $ 63,781 1,869 2.93% $ 62,670 2,090 3.33% $ 60,234 2,971 4.93%
Savings accounts...................... 4,133 128 3.10 4,216 154 3.65 2,196 115 5.24
Time accounts......................... 16,324 634 3.88 21,498 996 4.63 31,897 2,164 6.78
Other borrowed funds.................. 1,614 40 2.48 1,092 41 3.75 2,084 87 4.17
-------- ------ -------- ------ -------- -------
Total Interest-Bearing
Liabilities.......................... 85,852 2,671 3.11% 89,476 3,281 3.67% 96,411 5,337 5.54%
Demand accounts....................... 26,889 25,444 27,685
Accrued expenses and other
liabilities.......................... 527 1,017 781
Shareholders' equity.................. 8,825 8,606 10,839
-------- -------- --------
Total Liabilities and
Shareholders' Equity................. $122,093 $124,543 $135,716
======== ======== ========
Net Interest Income................... $6,280 $5,844 $ 7,151
====== ====== =======
Net Interest Margin................... 4.98% 4.50% 4.54%
</TABLE>
(1) Nonaccruing loans not yet charged off have been included in average
loan balances.
-70-
<PAGE>
(2) Loan fees of $798,000 in 1993, $723,000 in 1992, and $1,048,000 in
1991 were included in interest income for loans.
Consolidated Average Daily Balances
<TABLE>
<CAPTION>
Nine Months Ended September 30,
-----------------------------------------------------------
1994 1993
----------------------------- ----------------------------
Interest Rates Interest Rates
Average Income/ Earned/ Average Income/ Earned/
Balance Expense Paid Balance Expense Paid
--------- ------- --------- --------- ------- --------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Federal funds sold................... $ 6,123 $ 193 4.16% $ 6,028 $ 124 2.72%
Interest-bearing deposits in
other banks........................ 120 5 5.49 2,895 110 5.10
Securities (taxable)................. 30,613 1,270 5.47 32,374 1,522 6.20
Loans(1)(2).......................... 79,964 6,032 9.95 66,103 4,866 9.84
-------- ------ ----- -------- ------ ----
Total Interest-Earning Assets...... 116,820 7,500 8.47% 107,400 6,622 8.13%
Cash and due from banks.............. 9,080 9,873
Allowance for loan losses............ (1,573) (1,243)
Premises & equipment................. 1,387 1,672
Other assets......................... 958 3,684 0
-------- ----- --------
Total Assets....................... $126,672 $121,386
======== ========
Interest bearing demand deposits..... $ 65,092 1,314 2.66% $ 64,020 1,421 2.97%
Savings deposits..................... 4,228 95 2.96 4,201 98 3.12
Other time deposits.................. 14,864 417 3.71 16,262 486 4.00
Federal funds purchased.............. 11 1 4.44 0 0 0
Short term debt...................... 1,899 41 2.85 1,708 32 2.50
-------- ------ ----- -------- ------ ----
Total interest bearing
liabilities....................... 86,094 1,868 2.86% 86,191 2,037 3.16%
Non interest bearing deposits........ 30,183 26,533
Other Liabilities.................... 1,117 904
Shareholders' Equity................. 9,278 7,758
-------- --------
Total Liabilities and Shareholders'
Equity............................. $126,672 $121,386
======== ========
Net Interest Income.................. $ 5,632 $4,585
======== ======
Net Interest Margin.................. 5.61% 4.97%
</TABLE>
--------------------------------------
(1) Nonaccruing loans not yet charged off have been included in average
loan balances.
(2) Loan fees of $854 for the nine months ended September 30, 1994 and
$548 for the nine months ended September 30, 1993 were included in
interest income for loans.
-71-
<PAGE>
Rate and Volume Variances. The following table sets forth a summary
of the changes in average assets and liability balances (volume) and
changes in average interest rates (rate) for the periods indicated.
Changes not solely attributable to volume or rate have been allocated to
volume.
<TABLE>
<CAPTION>
Year Ended December 31,
Nine Months -----------------------------------------------------------------------------
Ended September 30,
1994 over 1993 1993 over 1992 1992 over 1991
------------------------ --------------------------------------- ------------------------------------
Volume Rate Total Volume Rate Total Volume Rate Total
------- ------ ------- ---------- --------- ---------------- --------------- -------- ---------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Increase (decrease) in
interest and
fee income:
Federal funds sold......... $ 29 $ 40 $ 69 $ 39 $ (24) $ 15 $ 34 $ (135) $ (101)
Interest-bearing deposits
with other financial
institutions............. (104) (1) (105) (177) (79) (256) (203) (40) (243)
Investment securities:
U.S. Treasury securities.. (150) (87) (237) 77 (104) (27) 116 (201) (85)
U.S. Government Agencies.. 43 (45) (2) 26 (80) (54) (411) (49) (460)
Other securities.......... (26) 13 (13) (197) (1) (198) 155 (81) 74
Loans...................... 909 257 1,166 378 (32) 346 (1,130) (1,418) (2,548)
----- ----- ------ ---- -------- --------------- -------------- ------- --------
Total..................... 701 177 878 146 (320) (174) (1,439) (1,924) (3,363)
Increase (decrease) in
interest expense:
Deposits:
Interest-bearing
transaction
accounts................. 22 (129) (107) 37 (257) (220) 120 (1,001) (881)
Savings accounts........... 0 (3) (3) (3) (23) (26) 106 (68) 38
Time accounts.............. (40) (28) (68) (240) (123) (363) (705) (462) (1,167)
Other borrowed funds....... 4 5 9 20 (21) (1) (42) (4) (46)
----- ----- ------ ---- -------- --------------- ---- ------- -------
Total..................... (14) (155) (169) (186) (424) (610) (521) (1,535) (2,056)
----- ----- ------ --------- -------- --------------- -------------- ------- --------
Changes in Net Interest
Income.................... $ 715 $ 332 $1,047 $332 $ 104 $ 436 $ (918) $ (389) $(1,307)
===== ===== ====== ==== ======== =============== ============== ======= =======
</TABLE>
Allowance for Loan Losses
The purpose of the allowance for loan losses is to provide a reserve
sufficient in the view of management to cover loan losses which can
reasonably be anticipated. To determine the level of reserves needed,
CapitolBank reviews, on a monthly basis, the quality of its loans, the
general economic conditions, historical loan loss experience and other
pertinent data.
At September 30, 1994, the allowance for loan losses totaled
$1,812,136, or 2.01% of gross loans. This compares to $1,405,784, or 1.83%
of total loans at December 31, 1993 and $1,170,174, or 1.80% of total
loans at December 31, 1992. The activity in the allowance for loan losses
is summarized as follows:
<TABLE>
<CAPTION>
Nine Months Ended Year Ended December 31,
September 30, --------------------------------------
1994 1993 1992 1991
---------------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Balance at beginning
of period........... $1,405,784 $1,170,174 $1,122,597 $ 1,161,245
Provision for loan
losses.............. 285,000 436,000 519,778 1,066,823
Recoveries........... 135,866 160,959 207,617 44,209
Loans charged off.... (14,514) (361,349) (679,818) (1,149,680)
---------- ---------- ---------- -----------
Balance, end of year. $1,812,136 $1,405,784 $1,170,174 $ 1,122,597
========== ========== ========== ===========
</TABLE>
As of September 30, 1994, nonaccrual loans were $2,164,000. As of
December 31, 1993 and 1992, loans totaling approximately $138,000 and
$2,151,000, respectively, were on nonaccrual status.
The aggregate effect of nonaccrual loans was to reduce interest
income by approximately $87,000, $159,000, and $248,000 for the years
ended December 31, 1993, 1992 and 1991, respectively. Interest income was
reduced by $77,000 for nonaccrual loans for the nine months ended
September 30, 1994. The increase of interest
-72-
<PAGE>
forgone on nonaccrual loans from December 31, 1993 to September 30, 1994
is primarily due to one real estate loan of approximately $1,000,000. Such
real estate loan has a low loan to value ratio and full repayment is
expected.
Management continues to review the adequacy of the allowance for
possible loan losses, keeping in mind economic factors, loan portfolio
composition, industry strength, the general level of real estate values,
the California recession, toxic waste and environmental clean up costs and
other factors considered to be relevant by management. At September 30,
1994, management considered CapitolBank's allowance to be adequate as an
allowance against foreseeable losses in its portfolio.
Noninterest Income
Noninterest income is composed of service charges on deposit
accounts, securities gains, real estate joint venture revenue, trust fees
and commissions, gains resulting from the disposition of other real estate
owned and other income. Noninterest income was $1,213,053 in 1993
compared to $1,290,233 in 1992 and $1,670,837 in 1991. For the nine
months ended September 30, 1994 and September 30, 1993, noninterest income
was $778,000 and $975,000, respectively.
Trust services revenue decreased 2.3% during 1993 as compared to 1992
and increased 8.8% during 1992 as compared to 1991. During the first
quarter of 1992, a major trust account was terminated. The 2.3% decrease
in trust revenue during 1993 as compared to 1992 was principally due to
the loss of that account. For the nine months ended September 30, 1994
and September 30, 1993, trust services revenue was $547,000 and $501,000,
respectively.
Service charges on deposit accounts decreased $94,595 (42.4%) during
1993 as compared to 1992. The decrease is attributable to the loss of one
account relationship. CapitolBank's direct costs associated with the
administration of this account were reduced by approximately $80,000,
thereby resulting in an immaterial impact on the overall results of
operations. For the nine months ended September 30, 1994 and September
30, 1993, service charges on deposit accounts were equal to $74,000 and
$97,000, respectively.
During 1993, CapitolBank reported gains of $49,197 on the sale of
other real estate owned. This was the result of CapitolBank selling other
real estate owned with a carrying value of $893,000.
Consistent with management's commitment to emphasize core banking
revenue sources, during 1993, CapitolBank completely divested itself of
all real estate joint venture activity. Gross income from real estate
development projects totaled $0, $28,000 and $130,797 during the years
ended December 31, 1993, 1992 and 1991, respectively.
The following reflects the components of noninterest income for the
periods indicated:
<TABLE>
<CAPTION>
Nine Months Ended September 30, Year Ended December 31,
-------------------------------------- -------------------------------------------------------------
1994 1993 1993 1992 1991
-------------------------------------- -------------------------------------------------------------
Amount % Amount % Amount % Amount % Amount %
-------- ------- ---------- ------ ---------- ----- ------------- ----- ---------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Noninterest income:
Trust fees and
commissions............. $547,000 70.3% $495,969 51.0% $ 689,221 56.8% $ 705,291 54.7% $ 648,418 38.8%
Gains on securities
transactions, net....... 82,000 10.5 282,729 29.0 282,729 23.3 268,619 20.8 448,694 26.9
Service charges on
deposit accounts........ 74,000 9.5 96,942 10.0 128,711 10.6 223.306 17.3 227,427 13.6
Gains on sale of other
real estate............. -- -- 52,817 5.4 49,197 4.1 16,960 1.3 149,195 8.9
Real estate development
revenue................. -- -- 0 0.0 -- -- 28,000 2.2 130,797 7.8
Other income............. 75,000 9.7 45,636 4.6 63,195 5.2 48,057 3.7 66,306 4.0
-------- ----- -------- ----- ---------- ---- ---------- ---- ---------- ----
Total................... $778,000 100.0% $974,083 100.0% $1,213,053 100.0% $1,290,233 100.0% $1,670,837 100.0%
======== ===== ======== ===== ========== ===== ========== ===== ========== =====
</TABLE>
-73-
<PAGE>
Noninterest Expense
Noninterest expense includes salaries and benefits, occupancy costs,
equipment and other expenses. These costs represent not only the cost of
on-going operations but, to some extent, an investment toward future
growth and profitability. The following table summarizes the significant
components of noninterest expense for the periods indicated:
<TABLE>
<CAPTION>
Nine Months Ended September 30, Year Ended December 31,
-------------------------------- -----------------------------------------------
1994 1993 1993 1992 1991
-------------------------------- ---------- --------------- ----------------
<S> <C> <C> <C> <C> <C>
Salaries and benefits $2,998,000 $2,560,133 $3,379,284 $3,359,829 $3,186,070
Occupancy............ 1,135,000 1,052,935 1,402,170 1,439,257 1,371,807
Equipment............ 288,000 300,587 396,701 417,270 391,793
Divestiture of joint
venture
investment......... -- -- -- 1,060,000 --
Provision for loss
on other real
estate............. -- -- 61,721 466,000 --
Special shareholder
meeting............. -- -- -- -- 712,822
Professional services 188,000 117,262 148,768 233,619 276,990
All other
noninterest expenses 1,180,000 1,003,075 1,274,489 1,502,143 1,533,756
---------- ---------- ---------- ---------- ----------
Total.............. $5,789,000 $5,033,992 $6,663,133 $8,478,118 $7,473,238
========== ========== ========== ========== ==========
</TABLE>
Noninterest expense decreased $1,814,985 (21.4%) to $6,663,133 in
1993 from $8,478,118 in 1992. Noninterest expense increased $1,004,880
(13.5%) in 1992 as compared to 1991.
Salaries and benefits increased $19,455 (0.58%) to $3,379,284 during
1993 as compared to $3,359,829 in 1992. Salaries and benefits totaled
$3,186,070 during 1991. The nominal increase during 1993 reflects the
effects of the 1993 salary and hiring freeze. The increase in 1992 is
due, in part, to the hiring of additional senior level personnel.
Occupancy costs decreased $37,087 (2.6%) to $1,402,170 during 1993 as
compared to $1,439,257 in 1992 and $1,371,807 in 1991. The decrease in
1993 is due to a reduction in general operating costs on the CapitolBank
building. For the years ended December 31, 1993, 1992 and 1991,
CapitolBank collected $190,054, $188,943 and $183,331, respectively, in
rental payments pursuant to sublease agreements with unrelated third
parties. In accordance with the terms of the lease on the CapitolBank
building, the rent increased on April 1, 1994 based upon the three-year
increase in the February 1991 Consumer Price Index.
Occupancy costs on CapitolBank's main banking facility continue to
have a negative effect on earnings. The current monthly lease rate of
$3.89 per square foot significantly exceeds current market rates. The
lease was initiated in 1985 and provides for an additional rent
escalation in 1997. To date, CapitolBank's landlord has been unwilling to
renegotiate this lease.
Equipment expense decreased by $20,569 (4.9%) in 1993 as compared to
an increase of $25,477 in 1992 from 1991. The increase in 1992 is
attributable to an expansion of CapitolBank's computer system, including
the addition of "CapitolAccess," a product which enables customers to
access their accounts via their own personal computers.
During 1992, CapitolBank divested itself of a real estate joint
venture, resulting in a charge of $1,060,000 against income.
The provision for loss on other real estate of $61,721 in 1993 and
$466,000 in 1992 reflects the decline in the fair market value of real
estate acquired through foreclosure. Fair value is generally determined
based upon periodic independent third party appraisals.
-74-
<PAGE>
During 1993, CapitolBank reduced the level of service provided by
outside consultants, resulting in an $84,851 (36.3%) reduction in
professional services.
All other noninterest expenses decreased $227,654 (15.2%) to
$1,274,489 during 1993 as compared to $1,502,143 in 1992 and $1,533,756 in
1991. A portion of the decrease in 1993 as compared to 1992 is
attributable to an $80,000 reduction in expenses associated with the
administration of one customer account that was terminated during 1992.
The balance of the reductions are the result of cost control efforts
initiated during mid-1992. For the nine months ended September 30, 1994
and 1993, total noninterest expense was $5,789,000 and $5,034,000,
respectively. The net increase in 1994 was due to three factors: one-time
payments made to the former president of CapitolBank in April 1994; the
rent increase on the CapitolBank building in March 1994; and legal fees
associated with the Tyler v. Wickland litigation.
For the nine months ended September 30, 1994, legal fees
associated with the Tyler v. Wickland litigation were $161,000.
Subsequent to September 30, 1994, an additional $166,000 of legal fees
associated with the lawsuit have been incurred for a total of $327,000 for
the year.
Loans
CapitolBank is not involved in foreign lending. CapitolBank
generates loans primarily within the four-county Sacramento Metropolitan
Statistical Area. The principal types of loans are commercial loans and
lines of credit, real estate construction and commercial real estate
mortgage.
The following table sets forth certain information regarding
CapitolBank's loan portfolio.
<TABLE>
<CAPTION>
September 30, December 31,
------------------------------------
1994 1993 1992 1991
------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
Real estate construction.... $27,872,888 $21,188,594 $12,439,932 $21,404,741
Real estate mortgage........ 36,039,508 30,684,510 27,410,064 20,005,968
Commercial and agricultural. 23,008,074 21,637,422 21,437,041 23,069,280
Consumer installment........ 2,155,588 2,196,718 2,863,165 4,359,783
Other....................... 1,123,942 1,041,009 688,221 920,915
----------- ----------- ----------- -----------
Total loans................. $90,200,000 $76,748,253 $64,838,423 $69,760,687
=========== =========== =========== ===========
</TABLE>
The following table sets forth cumulative maturity distributions as
of the dates indicated for loans with fixed and floating interest rates.
CapitolBank is unable to present the information by category of loan
without undue burden and expense.
<TABLE>
<CAPTION>
December 31, 1993
Maturing
----------------------------------------------------------
After one
One Year or year through Greater than
Less five years five years Total
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Fixed..... $ 1,556,000 $ 2,060,000 $ 3,041,000 $ 6,657,000
Floating.. 33,669,263 28,137,813 8,284,177 70,091,253
----------- ----------- ----------- -----------
Total..... $35,225,263 $30,197,813 $11,325,177 $76,748,253
=========== =========== =========== ===========
<CAPTION>
September 30, 1994
Maturing
----------------------------------------------------------
After one
One Year or year through Greater than
Less five years five years Total
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Fixed..... $ 1,369,000 $ 2,863,000 $ 2,432,000 $ 6,664,000
Floating.. 40,127,625 34,373,345 9,035,030 83,536,000
----------- ----------- ----------- -----------
Total..... $41,496,625 $37,236,345 $11,467,030 $90,200,000
=========== =========== =========== ===========
</TABLE>
-75-
<PAGE>
The performance of loans, other than installment loans, is evaluated
primarily on the basis of a review of each customer relationship over a
period of time and the judgment of senior lending officers as to the
ability of the borrowers to continue in business and to meet the repayment
terms of the loans. Installment loans are evaluated on the basis of
underlying collateral and the ability of the borrowers to make scheduled
payments. The ongoing credit control process includes a risk rating
system, combined with the development and monitoring of credit policies
and procedures, as well as a loan review process. The loan approval
process is tied to the risk rating system and is subject to management's
and the Board of Directors' established guidelines on diversification. On
a quarterly basis, management employs an independent credit consultant
whose sole purpose is to evaluate the loan portfolio with special emphasis
on new credits and potentially troubled loans.
Loans on which the borrowers fail to perform under the original terms
of the obligation are considered nonperforming loans. Nonperforming loans
fall into two categories: loans past due 90 days or more and still
accruing interest and loans on nonaccrual status. Loans on which
principal or interest has been in default for a period of 90 days or
longer must be well secured and in the process of collection, or they will
be placed on nonaccrual status. Loans are placed on nonaccrual status
when it has been determined by management that there is reasonable doubt
as to the collectibility of interest or principal. When loans are placed
on nonaccrual status, accrued and unpaid interest is reversed from
earnings.
The following table presents data regarding CapitolBank's loans more
than 90 days past due and still accruing interest, nonaccrual loans, total
nonperforming loans and total nonperforming assets, which includes
nonperforming loans and other real estate owned ("OREO").
<TABLE>
<CAPTION>
December 31,
September 30, --------------------------
1994 1993 1992
-------------- ----------- -------------
<S> <C> <C> <C>
Loans Past Due 90 Days or
More and Still Accruing
Interest.................... $ 0 $1,151,570 $ 160,000
Nonaccrual Loans............. 2,164,542 138,129 2,151,000
---------- ---------- ----------
Total Nonperforming Loans.... 2,164,542 1,289,699 2,311,000
OREO......................... 102,638 70,000 962,862
---------- ---------- ----------
Total Nonperforming Assets... $2,267,180 $1,359,699 $3,273,862
========== ========== ==========
Nonperforming Assets as a
Percentage of Loans and OREO 2.51% 1.77% 5.10%
Nonperforming Assets as a
Percentage of Total Assets.. 1.64 1.10 2.73
</TABLE>
The increase in nonaccrual loans from December 31, 1993 to September
30, 1994 is due largely to one real estate loan of approximately
$1,000,000. Such loan has a low loan to value ratio and full repayment is
expected.
Loan reviews are performed using grading criteria similar to those
used by bank regulatory agencies. Loans receiving lesser grades are
called "classified assets," which include all potential problem loans
where known information about possible credit problems of borrowers causes
management to have serious doubts as to the ability of such borrowers to
comply with the present loan repayment terms and which may become
nonperforming assets.
Other than as disclosed in the table below, at September 30, 1994,
management was not aware of any other material credits about which there
was serious doubt regarding the ability of the borrower to repay according
to the terms of the loan. The following table sets forth data regarding
classified loans.
Total loans classified as loss, doubtful or substandard on the dates
indicated were as follows:
-76-
<PAGE>
<TABLE>
<CAPTION>
September 30, December 31,
------------------------ ------------------------
1994 1993 1993 1992
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Substandard.......... $3,250,976 $3,554,775 $4,115,060 $4,004,599
Doubtful............. 34,494 -- -- --
Loss................. -- -- -- --
---------- ---------- ---------- ----------
Total Loans
Classified.......... $3,285,470 $3,554,775 $4,115,060 $4,004,599
========== ========== ========== ==========
Classified Loans as
a Percentage
of Total Loans..... 3.64% 4.63% 6.36% 5.74%
</TABLE>
In May 1993, the Financial Accounting Standards Board ("FASB") issued
Statement No. 114, Accounting by Creditors for Impairment of a Loan ("SFAS
114"), which addresses the accounting treatment of certain impaired loans
and amends FASB Statements No. 5 and No. 15. SFAS 114 does not address the
overall adequacy of the allowance for loan losses. SFAS 114 is effective
January 1, 1995, but earlier implementation is encouraged. A loan is
considered impaired when, based on current information and events, it is
probable that a creditor will be unable to collect all amounts due
according to the contractual terms of the loan agreement. Under SFAS 114,
impairment is measured based on the present value of the expected future
cash flows discounted at the loan's effective interest rate.
Alternatively, impairment may be measured by using the loan's observable
market price or the fair value of the collateral if repayment is expected
to be provided solely by the underlying collateral.
CapitolBank implemented SFAS 114 on January 1, 1995.
Management of CapitolBank believes that the impact of implementation of
SFAS 114 on CapitolBank's financial statements will be insignificant.
An analysis of the changes in the allowance for loan losses,
including chargeoffs and recoveries stated by loan categories, is
presented below.
<TABLE>
<CAPTION>
Nine Months
Ended December 31,
September 30, ---------------------------------
1994 1993 1992 1991 1990 1989
------- ------- ------- ------- ------ ------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of period....... $1,406 $1,170 $1,123 $1,161 $ 801 $ 982
Chargeoffs:
Real estate construction........... 0 0 0 0 0 0
Real estate mortgage............... 3 136 0 388 280 211
Commercial and agricultural........ 12 225 675 761 0 361
Consumer installment............... 0 0 5 0 0 0
Other.............................. 0 0 0 0 0 0
------ ------ ------ ------ ------ -----
Total loans charged off.............. $ 15 $ 361 $ 680 $1,149 $ 280 $ 572
------ ------ ------ ------ ------ -----
Recoveries:
Real estate construction........... $ 0 $ 0 $ 0 $ 0 $ 0 $ 0
Real estate mortgage............... 3 5 1 4 26 137
Commercial and agricultural........ 133 156 206 40 89 4
Consumer installment............... 0 0 0 0 0 0
Other.............................. 0 0 0 0 0 0
------ ------ ------ ------ ------ -----
Total loan recoveries................ $ 136 $ 161 $ 207 $ 44 $ 115 $ 141
------ ------ ------ ------ ------ -----
Net (recoveries) charge-offs......... $ (121) $ 200 $ 473 $1,105 $ 165 $ 431
Allowance before provision
for loan losses.................... $1,527 $ 970 $ 650 $ 56 $ 636 $ 551
Provision charged to operations...... 285 436 520 1,067 525 250
------ ------ ------ ------ ------ -----
Balance end of period................ $1,812 $1,406 $1,170 $1,123 $1,161 $ 801
====== ====== ====== ====== ====== =====
Ratio of allowance before provision
to average loans outstanding....... 1.91% 1.39% 0.98% 0.07% 0.87% 0.85%
Ratio of net (recoveries) charge-offs
to average loans outstanding....... (0.15) 0.29 0.72 1.46 0.23 0.66
Allowance for possible loan
losses to total loans............. 2.01 1.83 1.80 1.61 1.42 1.29
</TABLE>
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<PAGE>
The following table sets forth certain information regarding
CapitolBank's allocation of the allowance for loan losses.
<TABLE>
<CAPTION>
Nine Months
Ended December 31,
September 30, ----------------------------------------------------------------------
1994 1993 1992 1991
---------------------- ---------------------- ---------------------- ----------------------
(In thousands)
Percentage Percentage Percentage Percentage
of Loan of Loan of Loan of Loan
Category Category Category Category
Outstanding Outstanding Outstanding Outstanding
to Total to Total to Total to Total
Allowance Loans Allowance Loans Allowance Loans Allowance Loans
--------- ----------- --------- ----------- --------- ----------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Real estate construction..... $ 562 31% $ 394 28% $ 222 19% $ 348 31%
Real estate mortgage......... 725 40 562 40 491 42 326 29
Commercial and
agricultural................ 471 26 394 28 386 33 371 33
Consumer installment......... 36 2 42 3 59 5 67 6
Other........................ 18 1 14 1 12 1 11 1
------- ---- ------- ---- ------- ---- ------- ----
Total Reserves............... $ 1,812 100% $ 1,406 100% $ 1,170 100% $ 1,123 100%
======= ==== ======= ==== ======= ==== ======= ====
</TABLE>
Investment in Real Estate Joint Venture
During 1992, CapitolBank elected to divest itself of a real estate
joint venture project initiated in 1990 through its wholly-owned
subsidiary, Capitol Commerce Development Company VI. Funding of this
development project had been capitalized and included in other assets in
prior periods on CapitolBank's Consolidated Balance Sheet. The expense
associated with the elimination of this investment was charged to
noninterest expense during the year ended December 31, 1992. There is no
financial statement impact of this investment in 1993 or 1994.
Other Real Estate Owned
Other real estate includes real estate acquired in full or partial
settlement of loan obligations. When property is acquired, any excess of
CapitolBank's recorded investment in the loan balance and accrued interest
income over the estimated fair market value of the property is charged
against the allowance for loan losses. Thereafter, it is carried at the
lower of cost or fair value minus estimated selling costs. Fair value is
generally determined based upon periodic independent third party
appraisals. Subsequent gains or losses on sales or writedowns are
recorded in other income or expense as incurred.
Other real estate owned at September 30, 1994 consisted of three
properties foreclosed upon during 1994.
Commitments and Letters of Credit
CapitolBank 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 in the form of loans or through standby letters of credit, and
involve, to varying degrees, elements of credit and interest rate risk in
excess of the amount recognized in the balance sheet.
CapitolBank's exposure to credit loss in the event of nonperformance
by the other party to the financial instrument for commitments to extend
credit and standby letters of credit is represented by the contractual
amounts of those instruments. CapitolBank uses the same credit policies
in making commitments and conditional obligations as it does for on-
balance-sheet instruments.
Financial instruments whose contract amounts represent credit risk at
September 30, 1994 were as follows:
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<PAGE>
<TABLE>
<CAPTION>
Amount
-----------
<S> <C>
Undisbursed loan commitments........................ $28,558,000
Reserve lines....................................... 1,060,000
Letters of credit................................... 767,000
-----------
Total.............................................. $30,385,000
===========
</TABLE>
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. Commitments generally have fixed expiration dates or other
termination clauses and may require payment of a fee. Since many of the
commitments are expected to expire without being drawn upon, the total
commitment amounts do not necessarily represent future cash requirements.
CapitolBank evaluates each customer's creditworthiness on a case-by-case
basis. The amount of collateral obtained, if deemed necessary by
CapitolBank upon extension of credit, is based on management's credit
evaluation.
Standby letters of credit are conditional commitments issued by
CapitolBank to guarantee the performance of a customer to a third party.
The credit risk involved in issuing letters of credit is essentially the
same as that involved in extending loan facilities to customers.
Liquidity
The objective of liquidity management is to maintain sufficient cash
flow to satisfy both changes in loan demand and deposit fluctuations while
maximizing the yield available from the instruments being used. Liquidity
is managed from both the asset and liability sides of the balance sheet.
Liquid assets consist of cash and due from banks, interest-bearing
deposits in other financial institutions, federal funds sold, securities
and maturing loans. On the liability side of the balance sheet, liquidity
is provided by core deposits, lines of credit, borrowings in the capital
markets and other liabilities.
CapitolBank's management monitors the liquidity position continuously
and projects it based on the trends of loans and deposits. Management
attempts to adjust maturity distribution and interest rate sensitivity in
response to these changes.
CapitolBank has available a $3 million short-term Federal funds
borrowing line with a major bank to meet short-term liquidity requirements
should the need arise.
Cash and cash equivalents equaled $29,995,000 at September 30, 1994
and $11,276,000 at December 31, 1993. Investment securities equaled
$17,605,000 at September 30, 1994 and $34,342,000 at December 31, 1993.
The net increase at September 30, 1994 of cash, cash equivalents and
investment securities was equal to $1,982,000. Deposits increased from
$111,063,000 at December 31, 1993 to $126,025,000 at September 30, 1994.
This funding source has been offset by the increase in outstanding loans
from $76,748,000 at December 31, 1993 to $90,200,000 at
September 30, 1994. Loan fundings increased by $13,452,000 for the nine
months ended September 30, 1994.
Interest Rate Sensitivity
The operating income and net income of CapitolBank depend to a
substantial extent on "rate differentials," i.e., the difference between
the income CapitolBank receives from loans, securities and other earning
assets, and the interest expense it has on deposits and other liabilities.
The interest rate sensitivity is measured over time and is based on
CapitolBank's ability to reprice its assets and liabilities. The
opportunity to reprice assets in the same dollar amounts and at the same
time as liabilities tends to minimize interest rate risk in any interest
rate environment. The difference between the amount of assets and
liabilities repriced at the same time is referred to as the "gap." This
represents the risk, or opportunity, in repricing. Fluctuation in
interest rates in the market place exposes banks to potential gains and
losses. These market fluctuations have a two-fold effect upon banks:
they influence the direction of future net
-79-
<PAGE>
interest income either upward or downward and they determine the market
value of CapitolBank's portfolio of rate sensitive assets and liabilities
in a reciprocal direction. Because of the possible influence of
unpredictable and uncontrollable external forces, management and the Board
of Directors of CapitolBank have established limits of interest rate risk
deemed acceptable and measure the current exposure against those limits.
At September 30, 1994, management believed that CapitolBank's exposure to
interest rate risk was within established limits.
The asset/liability management process relies upon a periodic, in-
depth analysis of balance sheet dynamics. The interest sensitivity
analysis shown below provides a simplified representation of the exposure
at September 30, 1994.
<TABLE>
<CAPTION>
Amounts Repriceable
----------------------------------------------------
1 Day to 3 3 to 12 1 to 5 After 5
1 Day Months Months Years Years
-------- --------- --------- -------- ---------
(In thousands)
<S> <C> <C> <C> <C> <C>
Interest earning assets
Loans.................................. $ 81,372 $ 510 $ 859 $ 2,863 $ 2,432
Securities............................. 21,500 0 3,510 13,337 985
-------- -------- -------- -------- --------
Total interest earning assets........... $102,872 $ 510 $ 4,369 $ 16,200 $ 3,417
======== ======== ======== ======== ========
Interest bearing liabilities
Interest bearing checking accounts..... $ 74,336 $ 0 $ 0 $ 0 $ 0
Savings accounts....................... 4,539 0 0 0 0
Time deposits.......................... 0 8,076 6,366 1,558 3
-------- -------- -------- -------- --------
Total interest bearing liabilities...... $ 78,875 $ 8,076 $ 6,366 $ 1,558 $ 3
======== ======== ======== ======== ========
Interest sensitivity gap per period..... $ 23,997 $ (7,566) $ (1,997) $ 14,642 $ 3,414
Cumulative interest sensitivity gap..... 23,997 16,431 14,434 29,076 32,490
Cumulative interest sensitivity
gap as a percentage of total
interest earning assets................ 18.84% 12.90% 11.33% 22.83% 25.51%
Cumulative ratio of interest sensitive
assets to interest sensitive
liabilities............................ 1.30 1.19 1.15 1.31 1.34
</TABLE>
Floating rate loans are shown as maturing at the earliest repricing
date. Interest bearing checking accounts and savings accounts are shown
as maturing immediately. Noninterest bearing checking accounts, which are
considered core deposits, tend not to be sensitive to changes in interest
rates and are not included. All other categories are repriced by maturity
date. Since the majority of CapitolBank's loans are priced on a floating
rate basis, the current rising interest rate environment is expected to
continue to have a positive effect on interest income.
Capital
The Federal Reserve Board, the Office of the Comptroller of the
Currency and the FDIC have adopted guidelines designed to make capital
requirements more sensitive to differences in risk among banking
organizations, including off-balance-sheet exposures, and to make the
definition of bank capital more uniform internationally. Under these risk-
based capital guidelines, a financial institution is required to maintain
Tier I capital equal to at least 8% of its assets, weighted by risk.
Additionally, to be considered well capitalized, a financial institution
must maintain total capital equal to at least 10% of risk adjusted assets.
As of December 31, 1993 and 1992, CapitolBank's Tier 1 total risk-
based capital ratio was 11.65% and 13.33%, respectively, and its total
risk-based capital ratio was 12.9% and 14.58%, respectively. As of
September 30, 1994, CapitolBank's Tier 1 total risk-based capital ratio
was 9.78% and its total risk-based capital ratio was 11.04%.
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<PAGE>
Investment Securities
Investment securities available for sale are carried at estimated
fair value with unrealized gains and losses reported as a separate
component of shareholders' equity. Investment securities held to maturity
are carried at cost, adjusted for amortization of premium and accretion of
discount. Premiums and discounts are amortized and accreted using the
interest method. Gains or losses on the sale of securities are determined
on the specific identification method and are shown separately in the
consolidated statements of operations. No allowance for market decline,
if any, is provided as interest is current on the investment portfolio and
management intends and has the ability to hold these investments until
maturity. Summary yield and maturity information regarding CapitolBank's
investment securities available-for-sale and investment securities held-
to-maturity portfolios at September 30, 1994 are set forth in the
following table:
<TABLE>
<CAPTION>
Maturing
-----------------------------------------------------------------------------------------------
After 1 Year but After 5 Years but
Within 1 Year Within 5 Years Within 10 Years After 10 Years
----------------------- ---------------------- ---------------------- ----------------------
Amount Yield Amount Yield Amount Yield Amount Yield
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Securities Available-for-Sale:
U.S. Government Agencies..... $2,991,560 5.32% $8,853,720 5.21% $ 0 0% $ 0 0%
Repurchase Agreements........ 0 0 0 0 0 0 0 0
Mutual Funds................. 0 0 0 0 0 0 0 0
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Estimated Fair Value........ $2,991,560 5.32% $8,853,720 5.21% $ 0 0% 0 0%
========== ========== ========== ========== ========== ========== ========== ==========
Securities Held-to-Maturity:
U.S. Treasury................ $ 0 0 $ 997,638 5.19% $ 0 0 $ 0 0%
U.S. Government Agencies..... 505,513 5.39% 3,022,426 5.78 984,778 5.68% 0 0
Other........................ 250,000 5.50 0 0 0 0 0 0
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Carrying Value.............. 755,513 5.44% 4,020,064 5.63% 984,778 5.68% 0 0%
========== ========== ========== ========== ========== ========== ========== ==========
Estimated Fair Value........ $ 745,787 $3,687,510 $ 895,800 $ 0
========== ========== ========== ==========
</TABLE>
Prior to January 1, 1994, CapitolBank classified securities as securities
held for sale or held for investment securities. Investment securities were
recorded at amortized cost.
The following table sets forth the carrying values and fair values of
securities at December 31, 1993:
<TABLE>
<CAPTION>
December 31, 1993
-----------------
<S> <C>
Securities:
U.S. Treasury Securities........ $ 25,162,828
U.S. Government Agencies........ 3,033,800
Other Securities................ 6,145,668
----------------
Carrying Value.............. $ 34,342,296
================
Fair Value.................. $ 35,217,000
================
</TABLE>
The following table sets forth the carrying values and fair values of
securities at December 31, 1992:
<TABLE>
<CAPTION>
December 31, 1992
-----------------
<S> <C>
Securities
U.S. Treasury Securities........ $ 27,325,384
U.S. Government Agencies........ 4,031,063
Other Securities................ 2,832,351
-----------------
Carrying Value............... $ 34,188,798
=================
Fair Value................... $ 35,146,000
=================
</TABLE>
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<PAGE>
Gross gains realized on sales of investment securities totaled $283,998,
$305,560 and $449,543 in 1993, 1992 and 1991, respectively. Gross losses of
$1,269, $36,941 and $849 were realized on sales of investment securities in
1993, 1992 and 1991, respectively.
The book value of securities pledged to secure public deposits totaled
$12,416,000 and $11,438,000 at December 31, 1993 and 1992, respectively.
Deposits
The following table sets forth, by time remaining to maturity,
CapitolBank's domestic time deposits in amounts of $100,000 or more.
<TABLE>
<CAPTION>
September 30,
1994
--------------
(In thousands)
<S> <C>
Time remaining to maturity
3 months or less............................... $ 5,044
Over 3 through 12 months....................... 3,247
Over 12 months................................. 405
------------
Total........................................ $ 8,696
============
</TABLE>
Selected Ratios
The following table sets forth CapitolBank's return on average assets
and average equity, as well as CapitolBank's dividend payout ratio.
<TABLE>
<CAPTION>
Nine Months
Ended September 30, Year Ended December 31,
-------------------- ---------------------------------------
1994 1993 1993 1992 1991
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Return on average assets.............. 0.20% 0.13% 0.26% (1.50)% 0.16%
Return on average equity.............. 3.03 2.11 3.57 (21.65) 1.95
Dividend payout ratio................. -- -- -- -- --
</TABLE>
CERTAIN DIFFERENCES IN RIGHTS OF SHAREHOLDERS
General
Westamerica is incorporated under and subject to all of the provisions of
the GCL. CapitolBank is incorporated under and subject to all of the
provisions of the California Financial Code (the "Financial Code") and the GCL.
Upon consummation of the Merger, except for those persons, if any, who
perfect dissenters' rights under the GCL (see "Dissenters' Rights of
Appraisal"), the shareholders of CapitolBank will become shareholders of
Westamerica.
Westamerica and Westamerica Bank are California corporations and,
accordingly, are governed by the GCL and by their respective Articles of
Incorporation (the "Westamerica Articles" and "Westamerica Bank Articles,"
respectively) and Bylaws (the "Westamerica Bylaws" and "Westamerica Bank
Bylaws," respectively). Westamerica has filed a copy of its Articles of
Incorporation, as amended, Bylaws, as amended, and Amended and Restated Rights
Agreement with the Commission. CapitolBank's Articles of Incorporation (the
"CapitolBank Articles") and Bylaws (the "CapitolBank Bylaws") differ in certain
material respects from the Westamerica Articles, Westamerica Bylaws, Westamerica
Bank Articles and
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Westamerica Bank Bylaws. In addition, unlike CapitolBank Common Stock, each
outstanding share of Westamerica Common Stock is accompanied by Rights. See
"Description of Westamerica Capital Stock and Indebtedness--Shareholder Rights
Plan."
The following is a general comparison of certain similarities and material
differences between the rights of Westamerica shareholders and the rights of
CapitolBank shareholders under their respective Articles of Incorporation and
Bylaws. This discussion is only a summary of certain provisions and does not
purport to be a complete description of such similarities and differences, and
is qualified in its entirety by reference to the GCL, the Financial Code, the
common law thereunder and the full text of the Westamerica Articles, Westamerica
Bylaws, Westamerica Bank Articles, Westamerica Bank Bylaws, CapitolBank Articles
and CapitolBank Bylaws.
Certain Anti-Takeover Measures
Some of the provisions in the Westamerica Articles and the Westamerica
Bylaws discussed below may deter efforts to obtain control of Westamerica on a
basis which some shareholders might deem favorable. Such provisions are designed
to encourage any person attempting a change in control of Westamerica to enter
into negotiations with the Westamerica Board of Directors. For example, the
Westamerica Articles contain an "interested person" provision, requiring an
affirmative vote of more than a majority of shares of Westamerica Common Stock
than usual for certain transactions with an "interested person," including a
sale of assets, merger or consolidation transaction. See "Westamerica
'Interested Persons' Provisions." In addition, the Westamerica Board of
Directors is authorized to issue Preferred Stock or Class B Common Stock which
may have the effect of delaying or preventing a change in control of
Westamerica. See "Description of Westamerica Capital Stock and Indebtedness -
Preferred Stock and Class B Common Stock". In addition, the foregoing anti-
takeover measures may decrease the likelihood that a person or group would
obtain control of Westamerica or may perpetuate incumbent management.
Quorum Requirements
The Westamerica Bylaws provide that the presence in person or by proxy of
the holders of one-third of the shares entitled to vote at any meeting of the
shareholders shall constitute a quorum for the transaction of business. The
CapitolBank Bylaws require the presence in person or by proxy of the holders of
a majority of the shares entitled to vote for a quorum to exist.
Indemnification of Directors and Executive Officers
Section 317 of the GCL ("Section 317") expressly grants to each
California corporation the power to indemnify its directors, officers and agents
against certain liabilities and expenses incurred in the performance of their
duties. Rights to indemnification beyond those provided by Section 317 may be
valid to the extent that such rights are authorized in the corporation's
articles of incorporation. Indemnification may not be made, however, with
respect to liability incurred in connection with any of the following acts for
which the liability of directors may not be limited under case law interpreting
the GCL: (i) acts or omissions that involve intentional misconduct or a knowing
and culpable violation of law; (ii) acts or omissions that a director believes
to be contrary to the best interests of the corporation or its shareholders or
that involve the absence of good faith on the part of the director; (iii) any
transaction from which a director derived a personal benefit; (iv) acts or
omissions that show a reckless disregard for the director's duty to the
corporation or its shareholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the corporation or its
shareholders; (v) acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the
corporation or its shareholders; (vi) acts or omissions arising out of certain
interested party transactions; or (vii) acts in connection with illegal
distributions, loans or guarantees.
With respect to all proceedings other than shareholder derivative actions,
Section 317 permits a California corporation to indemnify any of its directors,
officers or other agents only if such person acted in good faith and in a manner
such person reasonably believed to be in the best interests of the corporation
and, in the case of a criminal proceeding, had no reasonable cause to believe
the conduct of such person was unlawful. In the case of derivative actions, a
California corporation may indemnify any of its directors, officers or agents
only if such person acted in good faith and in a manner such person believed to
be in the best interests of the corporation and its shareholders. Furthermore,
in derivative actions, no indemnification is permitted (i) with respect to any
matter with respect to which the person to be indemnified has been held liable
to the corporation, unless such indemnification is approved by the court; (ii)
of amounts paid in settling or otherwise disposing of a pending action without
court approval; or (iii) of expenses incurred in defending a pending action
which is settled or otherwise disposed of without court approval. To the extent
that a director, officer or agent of a corporation has been successful on the
merits in defense of any proceeding for which indemnification is permitted by
Section 317, a
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<PAGE>
corporation is obligated by Section 317 to indemnify such person against
expenses actually and reasonably incurred by him in connection with the
proceeding.
The Westamerica Articles, Westamerica Bank Articles and
CapitolBank Articles each eliminate the liability of their directors for
monetary damages to the fullest extent permissible under California law
and grant to Westamerica, Westamerica Bank and CapitolBank, respectively,
the power to indemnify their directors, officers and agents through
agreements with such persons or through bylaw provisions, or both, in
excess of the indemnification otherwise permitted by Section 317, subject
to applicable statutory prohibitions upon indemnification.
The Westamerica Bylaws obligate Westamerica to indemnify its
directors and provide that Westamerica has the right but not the
obligation to indemnify its officers and other agents against liabilities
and expenses incurred in the performance of their duties, subject to the
prohibitions of the GCL. The Westamerica Bank (the principal subsidiary
bank of Westamerica) Bylaws and CapitolBank Bylaws obligate Westamerica
Bank and CapitolBank, respectively, to indemnify their respective
directors, officers and other agents against liabilities and expenses
incurred in the performance of their duties, subject to the prohibitions
of the GCL.
Westamerica, Westamerica Bank and CapitolBank each maintain
directors' and officers' liability insurance policies that indemnify their
respective directors and officers against certain losses in connection
with claims made against them for certain wrongful acts. In addition,
Westamerica, Westamerica Bank and CapitolBank each have entered into
separate indemnification agreements with their respective directors and
officers that require Westamerica, Westamerica Bank and CapitolBank,
respectively, among other things, (i) to maintain directors' and officers'
insurance in reasonable amounts in favor of such individuals, and (ii) to
indemnify them against certain liabilities that may arise by reason of
their status or service as agents of Westamerica, Westamerica Bank or
CapitolBank, as the case may be, to the fullest extent permitted by
California law. See "Certain Considerations--Tyler v. Wickland."
The Westamerica Bylaws, Westamerica Bank Bylaws and Westamerica
and Westamerica Bank's respective indemnification agreements with their
respective directors entitle the directors of Westamerica and Westamerica
Bank to be indemnified against liabilities and reasonable expenses
incurred in connection with any claims brought against them by reason of
the fact that they are or were directors and are expressly stated to be
contract rights. Westamerica and Westamerica Bank directors have been
granted the right to be paid by Westamerica and Westamerica Bank,
respectively, the expenses incurred in defending the proceedings specified
above in advance of their final disposition, but the indemnification
agreements require the directors to undertake to return any amounts
advanced to the extent that it is ultimately determined that they were not
legally entitled to be indemnified by Westamerica and Westamerica Bank in
the proceeding. The Westamerica Bylaws, Westamerica Bank Bylaws and
Westamerica and Westamerica Bank's respective indemnification agreements
grant to the directors the right to bring suit against Westamerica and
Westamerica Bank, respectively, to recover unpaid amounts claimed with
respect to indemnification and any expenses incurred in bringing such an
action. The Westamerica Bylaws, Westamerica Bank Bylaws and Westamerica
and Westamerica Bank's respective indemnification agreements provide that,
while it is a defense to such a suit that indemnification is prohibited by
the GCL, the burden of proving such a defense is on Westamerica and
Westamerica Bank, respectively.
The Westamerica Bylaws, Westamerica Bank Bylaws and Westamerica
and Westamerica's respective indemnification agreements obligate
Westamerica and Westamerica Bank, respectively, to indemnify their
respective directors except (i) where such indemnification is prohibited
by law; (ii) with respect to settlements made by the directors without the
prior approval of Westamerica and Westamerica Bank; and (iii) for any
expenses or liabilities incurred in connection with proceedings brought by
the directors against Westamerica and Westamerica Bank, respectively,
other than actions brought to enforce their respective indemnification
obligations.
The CapitolBank Bylaws and indemnification agreements with the
directors and officers entitle the directors and officers of CapitolBank
to be indemnified against liabilities and expenses actually and reasonably
incurred in connection with the defense or settlement of a claim brought
against the directors or officers by reason of the fact that such person
is or was a director or officer or is or was serving at the request of
CapitolBank as an agent of another enterprise. CapitolBank directors and
officers have the right to be paid the expenses incurred in advance of the
final disposition of such claim. The indemnification agreements require,
however, that the directors
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<PAGE>
and officers repay any advances if CapitolBank ultimately determines
under the terms of the indemnification agreements that the director or
officer is not entitled to indemnification. Both the CapitolBank Bylaws
and the indemnification agreements permit the directors and officers to
bring suit against CapitolBank to recover the unpaid amount of the claim
and, if successful, the expenses (including attorneys' fees) of bringing
such action against CapitolBank. The CapitolBank Bylaws and the
indemnification agreements provide that it shall be a defense to any such
action that the director or officer has not met the standards of conduct
which make it permissible under applicable law for CapitolBank to
indemnify the director or officer for the amount claimed.
The CapitolBank Bylaws and the indemnification agreements provide,
among other things, that no indemnification shall be made to directors or
officers (i) if such indemnification is unlawful; (ii) without
CapitolBank's approval; (iii) if, in the instance of an action by or in
the right of CapitolBank, the action was settled or otherwise disposed of
without court approval; and (iv) if expenses and liabilities were incurred
in connection with proceedings initiated or brought voluntarily by the
directors or officers against CapitolBank, other than actions brought to
enforce indemnification obligations.
Federal law authorizes the FDIC to limit, by regulation or order, the
payment of indemnification by insured banks or bank holding companies to
their directors and officers. Pursuant to this authority, the FDIC has
proposed a regulation that permits the payment of indemnification by banks
and bank holding companies to institution-affiliated directors, officers
and other parties only if certain requirements are satisfied. If adopted
as presently written, this regulation would permit an institution to make
an indemnification payment to, or for the benefit of, a director, officer
or other party only if the institution's board of directors, in good
faith, certifies in writing that the individual has a substantial
likelihood of prevailing on the merits and that the payment of
indemnification will not adversely affect the institution's safety and
soundness. The board of directors is obligated to cease making or
authorizing indemnification payments in the event that it believes, or
reasonably should believe, that the conditions discussed in the preceding
sentence are no longer being met. Further, the board of directors must
provide the FDIC and any other appropriate bank regulatory agency with
prior written notice of any authorization of indemnification. In addition,
indemnification payments related to an administrative proceeding or civil
action instituted by appropriate federal bank regulatory agency are
limited to the payment or reimbursement of reasonable legal or other
professional expenses. Finally, the director, officer or other party must
agree in writing to reimburse the institution for any indemnification
payments received should the proceeding result in a final order being
instituted against the individual assessing a civil money penalty,
removing the individual from office, or requiring the individual to cease
and desist from certain institutional activity.
The drafters of the proposed regulation expressly state that the
regulation is intended to apply to existing agreements between
institutions and institution-affiliated parties to make indemnification
payments in the future. If the proposed regulation is placed into effect,
therefore, it may be applied retroactively to indemnification agreements
presently existing between Westamerica, Westamerica Bank and CapitolBank
and their respective directors and officers.
Shareholder Meetings and Action by Written Consent
The Westamerica Bylaws and the CapitolBank Bylaws are similar in
their requirements for shareholder action by written consent, including
the requirement for unanimous written consent for election of directors.
The Westamerica Bylaws permit a director to be elected at any time to fill
a vacancy on the board of directors that has not been filled by the
directors by the written consent of the holders of a majority of the
outstanding shares entitled to vote for the election of directors. The
CapitolBank Bylaws have a similar provision except that an election by
written consent to fill a vacancy created by removal of a director
requires the unanimous written consent of the outstanding shares entitled
to vote.
Amendment of Bylaws
Both the Westamerica Bylaws and the CapitolBank Bylaws may be amended
or repealed by the affirmative vote or written consent of a majority of
the outstanding shares entitled to vote. The Westamerica Bylaws require
that if the Westamerica Articles set forth the number of authorized
directors of Westamerica, the authorized number
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<PAGE>
of directors may be changed only by an amendment of the articles of
incorporation. The CapitolBank Bylaws allow for the change in the number
of directors by the affirmative vote or written consent of a majority of
the outstanding shares entitled to vote.
Subject to the rights of shareholders to amend the bylaws, both the
Westamerica Bylaws and the CapitolBank Bylaws provide that the bylaws may
be adopted, amended or repealed by their respective Boards of Directors.
Meetings Called by the Superintendent
The Superintendent may call a meeting of the CapitolBank Board of
Directors pursuant to section 684 of the Financial Code. A meeting of the
CapitolBank Board of Directors called by the Superintendent shall be held
upon four days notice by mail or 24 hours notice delivered personally or
by telephone or telegraph. Such notice shall be given by the
Superintendent or, if the Superintendent so orders, by an officer of the
corporation. A meeting of the CapitolBank Board of Directors called by the
Superintendent shall be held at such place within California as may be
designated by the Superintendent and specified in the notice of such
meeting.
The expenses of a meeting of the Board of Directors called by the
Superintendent shall be paid by CapitolBank.
Filling Vacancies on the Board of Directors
The Westamerica Bylaws provide that vacancies occurring on the
Westamerica Board of Directors may be filled by a vote of a majority of
the remaining directors, though less than a quorum, or by a sole remaining
director, except that a vacancy created by the removal of a director by
the shareholders or by court order may only be filled by the vote of a
majority of the shares entitled to vote represented at a duly held meeting
or by written consent of a majority of the outstanding shares entitled to
vote. The Westamerica Bylaws also provide that the shareholders may elect
a director at any time to fill any vacancy not filled by the directors,
except that any election by written consent, other than to fill a vacancy
created by removal of a director, requires the consent of a majority of
the outstanding shares entitled to vote. In addition, the GCL provides
that if, after the filling of any vacancy by the directors, the directors
then in office who have been elected by the shareholders constitute less
than a majority of the directors then in office, (i) any holder or holders
of an aggregate of 5% or more of the total number of shares at the time
outstanding having the right to vote for such directors may call a special
meeting of shareholders; or (ii) the California Superior Court of the
proper county shall, upon application of such shareholder or shareholders,
summarily order a special meeting of shareholders, to be held to elect the
entire Board of Directors.
Except for a vacancy created by the removal of a director which may
only be filled by approval of the shareholders, the CapitolBank Bylaws
provide that vacancies on the board of directors may be filled by approval
of the board of directors or, if the number of directors then in office is
less than a quorum, by the unanimous written consent of the directors then
in office, the affirmative vote of a majority of the remaining directors
then in office, or by a sole remaining director. Each director so elected
shall hold office until his successor is elected at an annual or special
shareholders' meeting. The CapitolBank shareholders may elect a director
at any time to fill any vacancy not filled by the directors. Any such
election by written consent, other than to fill a vacancy created by
removal, requires the consent of a majority of the outstanding shares
entitled to vote. An election by written consent to fill a vacancy created
by removal requires the unanimous consent of all shareholders entitled to
vote.
Notice of Shareholder Business
Under the Westamerica Bylaws, a shareholder must give 14 to 50 days
prior notice to Westamerica's Corporate Secretary of any business the
shareholder wishes to bring before an annual meeting of shareholders,
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<PAGE>
except that if less than 21 days notice of the date of the meeting is
given to shareholders, a shareholder must provide notice to Westamerica
within seven days of the date Westamerica mailed notice of the annual
meeting. The notice must contain a brief description of the business that
the shareholder wishes to bring before the meeting, the reasons for
conducting such business at the meeting, the name and residential address
of the proposing shareholder, the number of shares the shareholder owns
and any material interest of the shareholder in the business that the
shareholder wishes to bring before the meeting.
No comparable restrictions upon the right of CapitolBank shareholders
to bring matters before the annual meeting of shareholders are contained
in the CapitolBank Bylaws.
Notice of Director Nominations
Under the Westamerica Bylaws, a shareholder must give 14 to 50 days
prior notice to Westamerica's Corporate Secretary if the shareholder
wishes to nominate any person for election as a Westamerica director at
any meeting called for the election of directors, except that if less than
21 days notice of the meeting is given to shareholders, a shareholder must
provide notice to Westamerica within seven days of the date Westamerica
mailed notice of the meeting. The notice of the shareholder to nominate
must contain the following information: the name and address of each
proposed nominee; the principal occupation of each proposed nominee; the
total number of shares of stock of Westamerica that the shareholder
expects will be voted for each proposed nominee; the name and residence
address of the shareholder; and the number of shares of stock of
Westamerica owned by the shareholder.
Under the CapitolBank Bylaws, a shareholder must give 21 to 60 days
prior written notice delivered or mailed to the President of CapitolBank
if the shareholder wishes to nominate any person for election as a
CapitolBank director at any shareholders' meeting called for the election
of directors, except that if less than 21 days notice of the meeting is
given to shareholders, a shareholder must provide notice to CapitolBank's
President within ten days of the date CapitolBank mailed the notice of the
meeting, and if notice of the meeting is sent to shareholders via third-
class mail, no notice of intention to make nominations is required of the
shareholders. The notice of the shareholder to nominate must contain the
following information: the name and address of each proposed nominee; the
principal occupation of each proposed nominee; the number of shares of
capital stock of CapitolBank owned by each proposed nominee; the name and
residence address of the notifying shareholder; and the number of shares
of capital stock of CapitolBank owned by the notifying shareholder.
Westamerica "Interested Person" Provision
The Westamerica Articles contain an "interested person" provision
which applies to transactions with persons or entities holding 10% or more
of the outstanding shares of Westamerica Common Stock (an "Interested
Person"). Subject to certain exceptions, the Interested Person provision
requires that the affirmative vote of 80% of the outstanding shares of
Westamerica Common Stock is required to authorize any of the following
transactions with an Interested Person: (i) a merger or consolidation;
(ii) the sale or disposition of all or a substantial part of Westamerica's
assets to an Interested Person; (iii) the purchase or other acquisition by
Westamerica of all or a substantial part of the assets of an Interested
Person; or (iv) any other transaction with an Interested Person which
requires the approval of the Westamerica shareholders pursuant to the GCL.
The special approval requirements of the Interested Person provision
do not apply if the transaction in question was (i) approved by the
Westamerica Board of Directors before the other person or entity involved
became an Interested Person; or (ii) approved by a majority of the
Westamerica Board of Directors while the other person or entity was an
Interested Person and the consideration to be received by Westamerica
shareholders is not less per share than the highest price per share
(including brokerage commissions and/or dealer fees) paid by the
Interested Person for any shares of Westamerica stock from the time the
Interested Person obtained beneficial ownership in excess of 5% of the
outstanding shares of Westamerica Common Stock. This Interested Person
provision may have the effect of deterring efforts to change control of
Westamerica on a basis which some shareholders may deem favorable.
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<PAGE>
The CapitolBank Articles do not contain an "interested person"
provision or similar provision restricting the ability of any person to
acquire control of CapitolBank.
DESCRIPTION OF WESTAMERICA CAPITAL STOCK AND INDEBTEDNESS
The authorized capital stock of Westamerica consists of 20,000,000
shares of Common Stock, without par value, and 1,000,000 shares each of
Class B Common Stock and Preferred Stock. As of the Record Date,
8,051,943 shares of Westamerica Common Stock and no shares of either the
Class B Common Stock or the Preferred Stock were outstanding and an
additional 662,250 shares of the authorized Westamerica Common Stock were
available for future grant and reserved for issuance to holders of
outstanding stock options, stock appreciation rights and restricted
performance shares under Westamerica's stock option plans.
Common Stock
Holders of Westamerica Common Stock are entitled to one vote for each
share held of record on all matters submitted to a vote of shareholders,
except that, upon giving the notice required by the Westamerica Bylaws,
shareholders may cumulate their votes for the election of directors.
Shareholders are entitled to receive ratably such dividends as may be
legally declared by Westamerica's Board of Directors. There are legal and
regulatory restrictions on the ability of Westamerica to declare and pay
dividends. See "Market Price and Dividend Information--Dividends and
Dividend Policy." Westamerica is also subject to certain restrictions on
its ability to pay dividends and the amount thereof under the terms of
certain of its debt agreements. See "--Debt Agreements." In the event of
a liquidation, common shareholders are entitled to share ratably in all
assets remaining after payment of liabilities and liquidation preferences
for securities with a priority over the Westamerica Common Stock.
Attached to each outstanding share of Westamerica Common Stock is a Right
which entitles the holder to certain rights as set forth in the Amended
and Restated Rights Agreement. See "--Shareholder Rights Plan."
Shareholders of Westamerica Common Stock have no preemptive or conversion
rights. Westamerica Common Stock is not subject to calls or assessments.
The transfer agent and registrar for Westamerica Common Stock is Chemical
Trust Company of California.
Preferred Stock and Class B Common Stock
The Westamerica Board of Directors is authorized to fix the rights,
preferences, privileges and restrictions of the Preferred Stock and the
Class B Common Stock and may establish series of such stock and determine
the variations between series. If and when any Preferred Stock is issued,
the holders of Preferred Stock may have a preference over holders of
Westamerica Common Stock upon the payment of dividends, upon liquidation
of Westamerica, in respect of voting rights and in the redemption of the
capital stock of Westamerica. The Westamerica Articles provide that,
except as otherwise provided by law or by the Westamerica Board of
Directors, shares of Class B Common Stock shall have no voting rights.
The issuance of any Preferred Stock or Class B Common Stock may have the
effect of delaying, deferring or preventing a change in control of
Westamerica without further action of its shareholders. The issuance of
such stock with voting and conversion rights may adversely affect the
voting power of the holders of Westamerica Common Stock. Westamerica has
no present plans to issue any shares of Preferred Stock or Class B Common
Stock.
Debt Agreements
Westamerica is a party to certain debt agreements containing
restrictions on the payment of dividends and the amount thereof, as well
as financial and other covenants, as described below.
Westamerica entered into a Consolidated Note Agreement dated May 15,
1984 (the "Consolidated Note Agreement") with certain institutional
investors, pursuant to which one promissory note (the "Note") was
outstanding with an aggregate principal amount of $1,100,000 as of
September 30, 1994, which, among other
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<PAGE>
things, restricted Westamerica's ability to pay cash dividends. In
October 1994, the Note was fully paid by Westamerica.
Westamerica, as successor in interest to Napa Valley Bancorp, is
party to that certain Note Purchase Agreement, dated as of May 25, 1988
(the "NVBC Note Purchase Agreement"), with an institutional investor,
pursuant to which Napa Valley Bancorp issued $5,000,000 aggregate
principal amount of its 10.87% Senior Notes due June 30, 1995 (the "NVBC
Notes"). As of September 30, 1994, the entire $5,000,000 aggregate
principal amount of the NVBC Notes was outstanding. The NVBC Note
Purchase Agreement contains certain restrictions on, among other things,
Westamerica's rights to (i) subject its property to liens; (ii) incur
indebtedness; (iii) permit certain of its subsidiaries to incur
indebtedness; (iv) enter into certain leases for real and personal
property; (v) pay cash dividends on Westamerica Common Stock; and (vi)
sell, lease, transfer or otherwise dispose of all or any part of its
property if such transaction involves a substantial part of its property.
In addition, the NVBC Note Purchase Agreement prohibits Westamerica from
merging with any person unless the entity into which Westamerica is merged
expressly assumes the due and punctual payment of the principal and
interest on the NVBC Notes and certain additional conditions are
satisfied.
The Consolidated Note Agreement and the NVBC Note Purchase Agreement
do not prohibit Westamerica from executing and delivering the Agreements
or consummating the Merger.
Shareholder Rights Plan
On December 18, 1986, the Board of Directors of Westamerica adopted a
"Shareholder Rights Plan" by declaring a dividend distribution of one
Right for each outstanding share of Westamerica Common Stock, payable to
shareholders of record on January 20, 1987 and future Westamerica Shares.
The terms of the Rights were amended by the Westamerica Board of Directors
on September 28, 1989. When exercisable, each Right entitles the holder to
purchase from Westamerica one share of Westamerica Common Stock at a price
of $65 per share (the "Exercise Price"), subject to adjustment in certain
circumstances. The description and terms of the Rights are set forth in
the Amended and Restated Rights Agreement. Pursuant to an Appointment and
Acceptance Agreement effective May 25, 1992, Chemical Trust Company of
California was substituted as the Rights Agent under the Amended and
Restated Rights Agreement.
Until a Distribution Date occurs, as described below, the Rights are
not exercisable and remain attached to the shares of Westamerica Common
Stock associated therewith. The Rights will become exercisable and trade
separately from the Westamerica Common Stock and a Distribution Date will
occur on the tenth day (or such later date as a majority of the
Westamerica Board of Directors may determine) following the earlier to
occur of (i) a public announcement that an Acquiring Person has become the
beneficial owner of securities having 15% or more of Westamerica's voting
power; or (ii) 10 days (unless such date is extended by the Westamerica
Board of Directors) following the commencement of, or a public
announcement of an intention to make, a tender or exchange offer which
would result in any Acquiring Person having beneficial ownership of
securities having 15% or more of such voting power.
Unless the Rights are earlier redeemed, in the event that a person or
group of affiliated or associated persons becomes the beneficial owner of
securities having 15% or more of the voting power of all then outstanding
voting securities of Westamerica (unless pursuant to a tender or exchange
offer for all outstanding shares of Westamerica Common Stock at a price
and on terms determined by at least a majority of the members of the Board
of Directors who are not officers of Westamerica to be in the best
interests of Westamerica and its shareholders), then each holder of a
Right (other than an Acquiring Person, whose rights will thereupon become
null and void) will for at least a 60-day period thereafter have the right
to receive upon exercise that number of shares of Westamerica Common Stock
having a market value of twice the exercise price of the Right, to the
extent available. If a sufficient number of shares are not available, the
holder will also receive a common stock equivalent (such as preferred
stock or another equity security with at least the same economic value as
the Westamerica Common Stock) which, together with the Westamerica Common
Stock received, has an aggregate market value of twice the exercise price
of the Right (the "Subscription Right").
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<PAGE>
Unless the Rights are earlier redeemed, in the event that, after the
first date of public announcement by Westamerica or an Acquiring Person
that an Acquiring Person exists, (i) Westamerica is acquired in a merger
or consolidation; (ii) any bank subsidiary of Westamerica is acquired in a
merger or consolidation; or (iii) 50% or more of Westamerica's assets or
earnings power are sold, then each holder of a Right (other than such
Acquiring Person) will thereafter have the right to receive, upon exercise
and payment of the exercise price of the Right, that number of shares of
common stock of the surviving entity in the business combination, which at
the time of such transaction would have a market value of at least two
times the exercise price of the Right.
At any time prior to a person becoming an Acquiring Person without
Westamerica's consent, Westamerica may redeem the Rights in whole, but not
in part, at a price of $0.05 per Right (the "Redemption Price"). The
Rights may also be redeemed under certain circumstances: (i) following an
event giving rise to, and the expiration of the exercise period for, the
Subscription Right if and for as long as an Acquiring Person beneficially
owns securities having less than 15% of Westamerica's voting power and at
the time of redemption there are no other persons who are Acquiring
Persons; or (ii) in connection with a business combination involving
Westamerica but not involving an Acquiring Person.
Immediately upon the action of the Westamerica Board of Directors
authorizing redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to
receive the Redemption Price. Unless earlier redeemed by Westamerica, the
Rights will expire at the close of business on December 31, 1999. The
foregoing description of the Amended and Restated Rights Agreement and the
Rights is qualified in its entirety by reference to the Amended and
Restated Rights Agreement and the Appointment and Acceptance
Agreement.
The Westamerica Shareholder Rights Plan may discourage or make more
difficult or expensive certain mergers, tender offers or other purchases
of Westamerica Common Stock. The Westamerica Shareholder Rights Plan
therefore may deprive shareholders in certain circumstances of an
opportunity to sell some or all of their shares at a premium over then
prevailing market prices. Moreover, the Westamerica Shareholder Rights
Plan may decrease the likelihood that a person or group would take control
of Westamerica through such a tender offer, merger or other purchase of
stock and remove incumbent management even if the holders of a majority of
Westamerica's voting stock would favor such a change of control. Dilution
of stock interests under the Westamerica Shareholder Rights Plan generally
would not result from a proxy contest to take control of Westamerica, even
if the proxy contest were to be successful. However, the Westamerica
Shareholder Rights Plan will effectively limit to less than 15% the
percentage of the Westamerica Common Stock outstanding which may be
beneficially owned by the person or group soliciting proxies in opposition
to the Westamerica Board of Directors. This may discourage a person or
group from waging, or decrease its prospects for winning, a proxy contest.
CapitolBank does not have a plan comparable to the Westamerica
Shareholder Rights Plan.
DESCRIPTION OF CAPITOLBANK CAPITAL STOCK
The authorized capital stock of CapitolBank consists of 10,000,000
shares of Common Stock, $1.5625 par value. As of the Record Date,
4,080,302 shares of CapitolBank Common Stock were issued and outstanding,
an additional 180,833 shares of the authorized CapitolBank Common Stock
were available for future grant, and 319,167 CapitolBank Shares were
reserved for issuance to holders of outstanding and unexercised stock
options under the CapitolBank Stock Option Plan.
Common Stock
Holders of CapitolBank Common Stock are entitled to one vote for each
share held of record on all matters submitted to a vote of shareholders,
except that, upon giving the notice required by the CapitolBank Bylaws,
shareholders may cumulate their votes for the election of directors.
Shareholders are entitled to receive ratably such dividends as may be
legally declared by CapitolBank's Board of Directors. There are
regulatory
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<PAGE>
restrictions on the ability of CapitolBank to declare and pay dividends,
and CapitolBank is currently prohibited from paying dividends. See
"Market Price and Dividend Information--Dividends and Dividend Policy."
In the event of a liquidation, common shareholders are entitled
to share ratably in all assets remaining after payment of liabilities and
securities. CapitolBank Common Stock is subject to assessments in
accordance with the Financial Code. The transfer agent and registrar for
CapitolBank Common Stock is U.S. Stock Transfer Corporation.
EXPERTS
The Consolidated Financial Statements of Westamerica as of
December 31, 1993 and 1992, and for each of the years in the three-year
period ended December 31, 1993, have been incorporated by reference herein
and in the Registration Statement in reliance upon the reports of KPMG and
other auditors, independent certified public accountants, incorported
by reference herein, and upon the authority of said firms as experts in
accounting and auditing.
The Consolidated Financial Statements of CapitolBank as of and for
the year ended December 31, 1993, included herein and elsewhere in this
Proxy Statement/Prospectus have been included herein and in the
Registration Statement in reliance upon the report of KPMG, independent
certified public accountants, appearing elsewhere herein, and upon the
authority of said firm as experts in accounting and auditing.
The Consolidated Financial Statements of CapitolBank as of December
31, 1992, and for each of the years in the two-year period ended December
31, 1992, included herein and elsewhere in this Proxy Statement/Prospectus
have been included herein and in the Registration Statement in reliance
upon the report of Arthur Andersen LLP, independent certified public
accountants, appearing elsewhere herein, and upon the authority of said
firm as experts in accounting and auditing.
The Consolidated Financial Statements of PV Financial as of December
31, 1993 and 1992, and for each of the years in the three-year period
ended December 31, 1993, have been incorporated by reference herein and in
the Registration Statement in reliance upon the report of Grant Thornton,
independent certified public accountants, incorporated herein by
reference, and upon the authority of said firm as experts in accounting
and auditing.
The Consolidated Financial Statements of North Bay as of December 31,
1993 and 1992, and for each of the years in the three-year period ended
December 31, 1993, have been incorporated by reference herein and in the
Registration Statement in reliance upon the report of Arthur Andersen LLP,
independent certified public accountants, appearing elsewhere herein and
upon the authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of Westamerica Common Stock offered hereby
and certain legal matters in connection with the Merger will be passed
upon for Westamerica by Pillsbury Madison & Sutro, San Francisco,
California.
SOLICITATION OF PROXIES
CapitolBank will bear the cost of the solicitation of proxies from
its shareholders. In addition to solicitation by mail, the directors,
officers and employees of CapitolBank may solicit proxies from the
shareholders by telephone or telegram or in person. Such persons will not
be additionally compensated, but will be reimbursed for reasonable out-of-
pocket expenses incurred in connection with such solicitation.
Arrangements will also be made with brokerage firms, nominees, fiduciaries
and other custodians, for the forwarding of solicitation materials to the
beneficial owners of shares held of record by such persons, and
CapitolBank will reimburse such persons for their reasonable out-of-pocket
expenses in connection therewith. CapitolBank has engaged the services of
Corporate Investor Communications, Inc., a proxy solicitation firm, to
assist it in the solicitation of proxies from its shareholders.
PROPOSALS OF SECURITY HOLDERS
As specified in CapitolBank's Proxy Statement dated May 25, 1994, the
deadline for shareholders to submit proposals for inclusion in the proxy
statement and form of proxy for the 1995 Annual Meeting of Shareholders of
CapitolBank was January 3, 1995. If the Merger is consummated as
contemplated by the Agreement,
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<PAGE>
CapitolBank will become a subsidiary of Westamerica and there will be no
CapitolBank 1995 Annual Meeting of Shareholders.
Proposals of shareholders of Westamerica to be considered for
inclusion in Westamerica's proxy statement for the 1996 annual meeting
must be received at Westamerica's executive offices, 1108 Fifth Avenue,
San Rafael, California 94901, no later than November 21, 1995.
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<PAGE>
INDEX TO CAPITOLBANK SACRAMENTO FINANCIAL STATEMENTS
Independent Auditors' Report (1993)........................................ F-2
Report of Independent Public Accountants (1992)............................ F-3
Consolidated Balance Sheets as of December 31, 1993 and 1992............... F-4
Consolidated Statements of Operations for the Years Ended December 31,
1993, 1992 and 1991................................................. F-5
Consolidated Statements of Shareholders' Equity for the Years Ended
December 31, 1993, 1992 and 1991.................................... F-6
Consolidated Statements of Cash Flows for the Years Ended December 31,
1993, 1992 and 1991................................................. F-7
Notes to Consolidated Financial Statements................................. F-8
Consolidated Balance Sheets as of September 30, 1994 (Unaudited) and
December 31, 1993................................................... F-18
Consolidated Statements of Operations for the Nine Months Ended
September 30, 1994 and 1993 (Unaudited)............................. F-19
Consolidated Statement of Changes in Shareholders' Equity for the Nine
Months Ended September 30, 1994 and 1993 (Unaudited) and the
Years Ended December 31, 1993 and 1992.............................. F-20
Consolidated Statements of Cash Flows for the Nine Months Ended
September 30, 1994 and 1993 (Unaudited)............................. F-21
Notes to Unaudited Consolidated Financial Statements....................... F-22
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Shareholders and Board of Directors
of CapitolBank Sacramento:
We have audited the accompanying consolidated balance sheet of CapitolBank
Sacramento and Subsidiaries as of December 31, 1993, and the related
consolidated statements of operations, stockholders' equity and cash flows
for the year then ended. These consolidated financial statements are the
responsibility of the Bank's management. Our responsibility is to express
an opinion on these consolidated financial statements based on our audit.
The consolidated financial statements of CapitolBank Sacramento and
Subsidiaries as of and for the years ended December 31, 1992 and 1991,
were audited by other auditors whose report thereon dated February 19,
1993, expressed an unqualified opinion on those consolidated statements.
We conducted our audit in accordance with generally accepted auditing
standards. 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 audit
provides a reasonable basis for our opinion.
In our opinion, the 1993 consolidated financial statements referred to
above present fairly, in all material respects, the financial position of
CapitolBank Sacramento and Subsidiaries as of December 31, 1993 and the
results of their operations and their cash flows for the year then ended
in conformity with generally accepted accounting principles.
As discussed in Notes 1 and 7 to the consolidated financial statements,
the Bank changed its method of accounting for income taxes in 1993 to
adopt the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 109, Accounting for Income
Taxes.
KPMG PEAT MARWICK LLP
Sacramento, California
February 25, 1994
F-2
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors
of CapitolBank Sacramento:
We have audited the accompanying consolidated balance sheet of CAPITOLBANK
SACRAMENTO (a California state-chartered bank) AND SUBSIDIARIES as of
December 31, 1992, and the related consolidated statements of operations,
changes in shareholders' equity and cash flows for each of the two years
in the period ended December 31, 1992. These financial statements are the
responsibility of the Bank's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. 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 financial statements referred to above present fairly,
in all material respects, the financial position of CapitolBank Sacramento
and Subsidiaries as of December 31, 1992, and the results of their
operations and their cash flows for each of the two years in the period
ended December 31, 1992, in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Sacramento, California
February 19, 1993
F-3
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Balance Sheets
<TABLE>
<CAPTION>
December 31,
---------------------------
1993 1992
------------- ------------
<S> <C> <C>
Assets
Cash and due from banks.................... $ 6,456,108 $ 5,942,738
Federal funds sold......................... 4,820,000 7,600,000
------------ ------------
Cash and cash equivalents.................. 11,276,108 13,542,738
Interest-bearing deposits with other banks. 398,000 4,470,000
Investment securities at cost:
Market values - $35,217,000 for 1993 and
$35,146,000 for 1992..................... 34,342,296 34,188,798
Loans, net of deferred fees and allowance
for loan losses of $1,405,784 for 1993
and $1,170,174 for 1992................... 74,502,992 63,227,571
Bank premises, leasehold improvements and
equipment, net............................ 1,484,333 1,784,846
Other real estate owned.................... 70,000 962,862
Interest receivable and other assets....... 1,319,380 1,768,818
------------ ------------
Total assets............................. $123,393,109 $119,945,633
============ ============
Liabilities and Shareholders' Equity
Deposits:
Noninterest bearing....................... $ 28,439,209 $ 25,198,108
Interest bearing.......................... 82,624,062 82,990,062
------------ ------------
Total deposits........................... 111,063,271 108,188,170
------------ ------------
Short-term borrowings...................... 2,734,047 2,520,728
Interest payable and other liabilities..... 378,305 334,370
------------ ------------
Total liabilities........................ $114,175,623 $111,043,268
Commitments and contingent liabilities
(Note 8)
Shareholders' Equity
Common stock-Par value $1.5625 per share;
authorized 10,000,000 shares, issued
and outstanding 4,080,302 shares in
1993 and 1992............................. $ 6,375,472 $ 6,375,472
Paid in surplus............................ 5,744,748 5,744,748
Deficit.................................... (2,902,734) (3,217,855)
------------ ------------
Total shareholders' equity............... 9,217,486 8,902,365
------------ ------------
Total Liabilities and Shareholders' Equity. $123,393,109 $119,945,633
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated
statements.
F-4
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Statements of Operations
<TABLE>
<CAPTION>
Years ended December 31,
--------------------------------------
1993 1992 1991
---------- ------------- -----------
<S> <C> <C> <C>
Interest income:
Interest and fees on loans and
leases........................... $6,679,645 $6,333,944 $ 8,881,555
Interest on federal funds sold.... 162,284 146,688 247,673
Interest on investment securities. 1,987,764 2,267,673 2,738,701
Interest on deposits with other
banks............................ 121,149 376,801 620,120
---------- ---------- -----------
Total interest income............ 8,950,842 9,125,106 12,488,049
---------- ---------- -----------
Interest expense:
Interest on deposits.............. 2,631,160 3,239,865 5,249,696
Interest on short-term borrowings. 39,981 41,147 87,316
---------- ---------- -----------
Total interest expense........... 2,671,141 3,281,012 5,337,012
---------- ---------- -----------
Net interest income.............. 6,279,701 5,844,094 7,151,037
Provision for loan losses.......... 436,000 519,778 1,066,823
---------- ---------- -----------
Net interest income after
provision for loan losses....... 5,843,701 5,324,316 6,084,214
---------- ---------- -----------
Noninterest income:
Service charges on deposit
accounts......................... 128,711 223,306 227,427
Trust fees and commissions........ 689,221 705,291 648,418
Gains on sale of other real
estate owned..................... 49,197 16,960 149,195
Gains on securities transactions,
net.............................. 282,729 268,619 448,694
Real estate development revenue... -- 28,000 130,797
Other income...................... 63,195 48,057 66,306
---------- ---------- -----------
Total noninterest income......... 1,213,053 1,290,233 1,670,837
---------- ---------- -----------
Noninterest expense:
Salaries and employee benefits.... 3,379,284 3,359,829 3,186,070
Net occupancy expense............. 1,402,170 1,439,257 1,371,807
Equipment expense................. 396,701 417,270 391,793
Divestiture of joint venture
investment....................... -- 1,060,000 --
Other operating expenses.......... 1,484,978 2,201,762 2,523,568
---------- ---------- -----------
Total noninterest expense........ 6,663,133 8,478,118 7,473,238
---------- ---------- -----------
Income (loss) before provision
for income taxes
and extraordinary item.......... 393,621 (1,863,569) 281,813
Provision for income taxes......... 78,500 -- 114,453
---------- ---------- -----------
Income (loss) before
extraordinary item.............. 315,121 (1,863,569) 167,360
Extraordinary item, tax benefit of
net operating loss carryforward... -- -- 44,000
---------- ---------- -----------
Net income (loss)................. $ 315,121 $(1,863,569) $ 211,360
========== ========== ===========
Per share amounts:
Income (loss) before
extraordinary item............... $ 0.08 $ (0.46) $ 0.04
Extraordinary item................ -- -- 0.01
---------- ---------- -----------
Net income (loss)................ $ 0.08 $ (0.46) $ 0.05
========== ========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated
statements.
F-5
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Statements of Shareholders' Equity
<TABLE>
<CAPTION>
Common Stock
---------------------
Number of Paid in
Shares Amount Surplus Deficit Total
--------- ---------- ---------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1990.. 4,080,302 $6,375,472 $5,744,748 $(1,565,646) $10,554,574
Net income.................. -- -- -- 211,360 211,360
--------- ---------- ---------- ----------- -----------
Balance, December 31, 1991.. 4,080,302 6,375,472 5,744,748 (1,354,286) 10,765,934
Net loss.................... -- -- -- (1,863,569) (1,863,569)
--------- ---------- ---------- ----------- -----------
Balance, December 31, 1992.. 4,080,302 6,375,472 5,744,748 (3,217,855) 8,902,365
Net income.................. -- -- -- 315,121 315,121
--------- ---------- ---------- ----------- -----------
Balance, December 31, 1993.. 4,080,302 $6,375,472 $5,744,748 $(2,902,734) $ 9,217,486
========= ========== ========== ============ ===========
</TABLE>
The accompanying notes are an integral part of these consolidated
statements.
F-6
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Years ended December 31,
-----------------------------------------------
1993 1992 1991
----------- ------------ ------------
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net income (loss)...................................... $ 315,121 $ (1,863,569) $ 211,360
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Gain on sale on investment securities............... (282,729) (268,619) (448,694)
Amortization of discounts and premiums, net......... 148,845 128,049 (14,048)
Provision for loan losses........................... 436,000 519,778 1,066,823
Increase (decrease) in deferred loan fees, net...... 401,536 116,662 (135,234)
Depreciation and amortization....................... 375,045 408,732 420,949
Provision for other real estate owned............... 61,721 466,000 --
Gain on sale of other real estate owned............. (49,197) (16,960) (149,195)
Deferred taxes...................................... 78,500 -- --
Net change in operating assets & liabilities:
Interest receivable & other assets.................. 370,938 954,321 545,687
Interest payable & other liabilities................ 43,935 188,613 (429,070)
----------- ------------ ------------
Net cash provided by operating activities.............. 1,899,715 633,007 1,068,578
----------- ------------ ------------
Cash Flows from Investing Activities:
Purchase of certificates of deposit.................... (2,876,000) (5,265,000) (9,043,000)
Purchase of investment securities...................... (16,315,143) (15,345,755) (40,532,870)
Proceeds from maturity of certificates of deposit...... 6,948,000 9,640,000 8,078,000
Proceeds from maturity of investment securities........ 3,706,092 14,725,020 10,723,711
Proceeds from sale of investment securities............ 12,589,437 13,569,444 17,890,737
Loans originated and principal collected, net.......... (13,386,732) 2,501,799 9,253,921
Additions to bank premises and equipment............... (74,532) (91,963) (300,831)
Proceeds from sale of other real estate owned.......... 2,154,113 1,305,958 1,138,068
----------- ------------ ------------
Net cash (used for) provided by investing activities... (7,254,765) 21,039,503 (2,792,264)
----------- ------------ ------------
Cash Flows from Financing Activities:
Net increase (decrease) in deposits.................... 2,875,101 (25,432,336) (1,783,935)
Net increase (decrease) in short term borrowings....... 213,319 (1,284,746) 315,667
----------- ------------ ------------
Net cash provided by (used for) financing activities... 3,088,420 (26,717,082) (1,468,268)
----------- ------------ ------------
Decrease in cash and cash equivalents.................. (2,266,630) (5,044,572) (3,191,954)
Cash and cash equivalents, at beginning of year........ 13,542,738 18,587,310 21,779,264
----------- ------------ ------------
Cash and cash equivalents, at end of year.............. $11,276,108 $ 13,542,738 $ 18,587,310
=========== ============ ============
Supplemental Disclosures:
Cash paid for interest................................ $ 2,642,819 $ 3,385,533 $ 5,493,347
Cash paid for taxes................................... 21,500 8,000 271,651
Total gross additions to other real estate............ 1,273,775 1,827,860 1,878,873
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-7
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
The accounting and reporting policies of CapitolBank Sacramento and
Subsidiaries conform with generally accepted accounting principles and
prevailing practices within the banking industry. The following is a
summary of the significant accounting and reporting policies used in
preparing the consolidated financial statements.
Principles of Consolidation
---------------------------
The consolidated financial statements include the accounts of CapitolBank
Sacramento (the Bank) and its wholly-owned subsidiaries, Capitol Commerce
Development Corporations VI and VII and Commerce Corporation. All
material intercompany accounts and transactions have been eliminated in
consolidation.
Cash and Cash Equivalents
-------------------------
For the purpose of the statement of cash flows, the Bank considers cash
and amounts due from banks and Federal funds sold to be cash and cash
equivalents.
Investment Securities
---------------------
Investment securities are carried at cost, adjusted for amortization of
premium and accretion of discount. Premiums and discounts are amortized
and accreted using the interest method. Gains or losses on the sale of
securities are determined on the specific identification method and are
shown separately in the consolidated statements of operations. No
allowance for market decline, if any, is provided as interest is current
on the investment portfolio and management intends and has the ability to
hold these investments until maturity.
Allowance for Loan Losses
-------------------------
The allowance for loan losses is maintained at a level considered adequate
to provide for losses that can reasonably be expected to occur. Bank
management makes continuous credit reviews of the loan portfolio and
considers current economic conditions, historical loan loss experience and
other factors in determining the adequacy of this allowance. The
evaluation process requires the use of current estimates which may vary
from the ultimate losses. As adjustments to these estimates become
necessary, they are charged to operations in the periods when they become
known.
Material estimates relating to the determination of the allowance for loan
losses are particularly susceptible to significant change in the near
term. Management believes that the allowance for loan losses is adequate.
While management uses available information to recognize losses on loans,
future additions to the allowance may be necessary based on changes in
economic conditions. In addition, the Federal Deposit Insurance
Corporation (the FDIC), as an integral part of its examination process,
periodically reviews the Bank's allowance for loan losses. The FDIC may
require the Bank to recognize additions to the allowance based on their
judgment about information available to them at the time of their
examination.
Bank Premises, Leasehold Improvements and Equipment
---------------------------------------------------
Bank premises, leasehold improvements and equipment are carried at cost.
Depreciation is computed using the straight-line method over the estimated
useful lives of the related assets. Estimated useful lives of the
premises and equipment are from three to ten years. Leasehold
improvements at the Bank's main office are amortized over twenty years,
representing the term of the lease of fifteen years and one of three five-
year renewal options. Leasehold improvements at the Bank's auxiliary
office are amortized over five years in accordance with the term of the
lease.
When assets are retired or otherwise disposed of, the cost and related
accumulated depreciation are removed from the accounts and any resulting
gain or loss is recognized in income for the period. The cost of
maintenance and repairs is charged to expense as incurred; significant
renewals or betterments are capitalized.
F-8
<PAGE>
Real Estate Joint Venture Divestiture
-------------------------------------
During 1992, the Bank elected to divest itself of a real estate joint
venture project initiated in 1990 through its wholly-owned subsidiary,
Capitol Commerce Development Company VI. Funding of this development
project had been capitalized and included in Other Assets in prior periods
on the Bank's Consolidated Balance Sheet. The expense associated with the
elimination of this investment was charged to Non-Interest Expense during
the year ended December 31, 1992.
Other Real Estate
-----------------
Other real estate includes real estate acquired in full or partial
settlement of loan obligations. When property is acquired, any excess of
the Bank's recorded investment in the loan balance and accrued interest
income over the estimated fair market value of the property is charged
against the allowance for loan losses. Thereafter, it is carried at the
lower of cost or fair value minus estimated selling costs. Fair value is
generally determined based upon periodic independent third party
appraisals. Subsequent gains or losses on sales or writedowns are
recorded in other income or expense as incurred.
Interest and Fees on Loans
--------------------------
Interest on loans is calculated by using the simple interest method on the
daily balance of the principal amount outstanding. However, when, in the
opinion of management, the future collectibility of interest and principal
is in serious doubt, a loan is placed on nonaccrual status and the accrual
of interest income is suspended. Any interest accrued but unpaid is
charged against income. Interest accruals are resumed on such loans only
when they are brought fully current with respect to interest and principal
and when, in the judgment of management, the loans are estimated to be
fully collectible as to both principal and interest.
Substantially all loan origination fees, commitment fees, direct loan
origination costs and discounts on loans are deferred and recognized as an
adjustment of yield, to be amortized to interest income over the
contractual term of the loan. The unamortized balance of deferred fees
and costs is reported as a component of net loans.
Income Taxes
------------
Effective January 1, 1993 the Bank adopted the provisions of Statement of
Financial Accounting Standards No. 109, Accounting for Income Taxes (SFAS
-----
109). The cumulative effect of that change in the method of accounting
---
for income taxes was not material. Under the asset and liability method
of SFAS 109, 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 and operating loss and tax credit carryforwards.
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. Under SFAS 109, the
--------
effect on deferred tax assets and liabilities of a change in tax rates is
recognized in income in the period that includes the enactment date.
Pursuant to the deferred method under APB Opinion 11, which was applied in
1992 and prior years, deferred income taxes are recognized for income and
expense items that are reported in different years for financial reporting
purposes and income tax purposes using the tax rate applicable for the
year of the calculation. Under the deferred method, deferred taxes are
not adjusted for subsequent changes in tax rates.
In the financial statements, deferred tax assets, net of deferred tax
liabilities are included in interest receivable and other assets.
F-9
<PAGE>
Reclassifications
-----------------
Certain reclassifications have been made to prior years' balances to
conform with classifications used in 1993.
2. Investment Securities
The amortized cost and estimated market values of investment securities
are as follows at December 31, 1993:
<TABLE>
<CAPTION>
Gross Gross Estimated
Amortized Unrealized Unrealized Market
Cost Gains Losses Value
----------- ---------- ------------ ------------
<S> <C> <C> <C> <C>
U.S. Treasury.............. $25,162,828 $845,298 $14,126 $25,994,000
U.S. Agency................ 3,033,800 100,200 -- 3,134,000
Mortgage-backed............ 5,643,687 19,229 76,916 5,586,000
Obligations of State and
Political Subdivisions.... 251,981 1,019 -- 253,000
Other...................... 250,000 -- -- 250,000
----------- -------- ------- -----------
$34,342,296 $965,746 $91,042 $35,217,000
=========== ======== ======= ===========
</TABLE>
The amortized cost and estimated market values of investment securities
are as follows at December 31, 1992:
<TABLE>
<CAPTION>
Gross Gross Estimated
Amortized Unrealized Unrealized Market
Cost Gains Losses Value
----------- ---------- ----------- ------------
<S> <C> <C> <C> <C>
U.S. Treasury.............. $27,325,384 $ 827,914 $54,298 $28,099,000
U.S. Agency................ 4,031,063 108,778 2,421 4,137,000
Mortgage-backed............ 2,327,394 79,606 -- 2,407,000
Obligations of State and
Political Subdivisions.... 254,957 -- 2,377 253,000
Other...................... 250,000 -- -- 250,000
----------- ---------- ------- -----------
$34,188,798 $1,016,298 $59,096 $35,146,000
=========== ========== ======= ===========
</TABLE>
The amortized cost and estimated market value of investment securities at
December 31, 1993 by contractual maturity are shown below. Expected
maturities will differ from contractual maturities because borrowers may
have the right to call or prepay obligations with or without call or
prepayment penalties.
<TABLE>
<CAPTION>
Estimated
Amortized Market
Cost Value
----------- -----------
<S> <C> <C>
Due in one year or less................. $ 3,256,415 $ 3,342,000
Due after one year through five years... 23,431,980 24,195,000
Due after five years through ten years.. 2,010,214 2,094,000
----------- -----------
28,698,609 29,631,000
Mortgage-backed......................... 5,643,687 5,586,000
----------- -----------
$34,342,296 $35,217,000
=========== ===========
</TABLE>
Gross gains realized on sales of investment securities totaled $283,998,
$305,560 and $449,543 in 1993, 1992 and 1991, respectively. Gross losses
of $1,269, $36,941 and $849 were realized on sales of investment
securities in 1993, 1992 and 1991, respectively.
The book value of securities pledged to secure public deposits totaled
$12,416,000 and $11,438,000 at December 31, 1993 and 1992, respectively.
F-10
<PAGE>
3. Loans and Allowance for Loan Losses
Outstanding loans are summarized as follows:
<TABLE>
<CAPTION>
December 31,
--------------------------
1993 1992
------------ ------------
<S> <C> <C>
Real estate construction..... $21,188,594 $12,439,932
Real estate mortgage......... 30,684,510 27,410,064
Commercial and agricultural.. 21,637,422 21,437,041
Consumer installment......... 2,196,718 2,863,165
Other........................ 1,041,009 688,221
----------- -----------
76,748,253 64,838,423
Unearned discount............ (13,274) (16,011)
Allowance for loan losses.... (1,405,784) (1,170,174)
Deferred loan fees........... (826,203) (424,667)
----------- -----------
$74,502,992 $63,227,571
=========== ===========
</TABLE>
Real estate loans totaling $0 and $490,000 were pledged to secure public
deposits at December 31, 1993 and 1992, respectively. Activity in the
allowance for loan losses is summarized as follows:
<TABLE>
<CAPTION>
1993 1992 1991
----------- ----------- ------------
<S> <C> <C> <C>
Balance, beginning of year.. $1,170,174 $1,122,597 $ 1,161,245
Provision for loan losses... 436,000 519,778 1,066,823
Recoveries.................. 160,959 207,617 44,209
Loans charged off........... (361,349) (679,818) (1,149,680)
---------- ---------- -----------
Balance, end of year........ $1,405,784 $1,170,174 $ 1,122,597
========== ========== ===========
</TABLE>
At December 31, 1993 and 1992, loans totaling approximately $138,000 and
$2,151,000 respectively were on non-accrual status.
The aggregate effect of non-accrual loans was to reduce interest income by
approximately $87,000, $159,000 and $248,000 for the years ended December
31, 1993, 1992 and 1991, respectively.
4. Bank Premises, Leasehold Improvements and Equipment
A summary of Bank premises, leasehold improvements and equipment is as
follows:
<TABLE>
<CAPTION>
December 31,
-----------------------------------
1993 1992
----------- -----------
<S> <C> <C>
Bank premises and equipment..... $ 2,054,105 $ 1,991,426
Leasehold Improvements.......... 1,955,240 1,955,967
----------- -----------
4,009,345 3,947,393
Less accumulated depreciation... (2,525,012) (2,162,547)
----------- -----------
$ 1,484,333 $ 1,784,846
=========== ===========
</TABLE>
Depreciation charged to expense amounted to $375,045, $408,732 and
$420,949 in 1993, 1992 and 1991, respectively.
F-11
<PAGE>
5. Interest-Bearing Deposits
Interest-bearing deposits consisted of the following:
<TABLE>
<CAPTION>
December 31,
-----------------------------------
1993 1992
----------- -----------
<S> <C> <C>
Savings..................... $ 4,017,207 $ 6,127,289
Money Market................ 46,618,981 42,168,853
NOW Accounts................ 16,600,870 17,095,435
Time, $100,000 or More...... 8,323,775 9,632,686
Other Time.................. 7,063,229 7,965,799
----------- -----------
$82,624,062 $82,990,062
=========== -----------
</TABLE>
Interest expense recognized on time deposits of $100,000 or more during
the years ended December 31, 1993, 1992 and 1991 totaled $349,000,
$540,000 and $1,259,000, respectively.
6. Short-Term Borrowings
Short-term borrowings consist of treasury tax and loan deposits and
generally mature within one to 120 days from the transaction date.
The Bank has a $3 million unsecured Federal funds purchase agreement with
one of its correspondent banks. There were no borrowings outstanding
under this agreement at December 31, 1993 and 1992.
7. Income Taxes
As discussed in Note 1, the Bank adopted SFAS 109 as of January 1, 1993.
--------
The cumulative effect of that change in the method of accounting for
income taxes was not material. Prior years' consolidated financial
statements have not been restated to apply the provisions of SFAS 109.
--------
The provision for income taxes for the years ended December 31, 1993, 1992
and 1991 consists of the following:
<TABLE>
<CAPTION>
1993 1992 1991
-------- -------- --------
<S> <C> <C> <C>
Current
Federal............ $ -- $ -- $ 84,453
State.............. -- -- 30,000
-------- -------- --------
$ -- $ -- $114,453
Deferred
Federal............ $ 50,500 $ -- $ --
State.............. 28,000 -- --
-------- -------- --------
$ 78,500 $ -- $114,453
======== ======== ========
</TABLE>
Significant temporary differences and carryforwards that give rise to the
deferred tax assets and liabilities as of December 31, 1993 are as
follows:
<TABLE>
<S> <C>
Deferred tax assets:
Allowance for loan losses............... $ 291,700
Net operating loss carryforwards........ 1,600,200
General tax credit carryforwards........ 226,800
Other 16,500
-----------
Total gross deferred tax assets....... 2,135,200
Less valuation reserve................ (1,827,000)
-----------
Net deferred tax assets............... 308,200
-----------
Deferred tax liabilities:
Bank premises, leasehold improvements
and equipment.......................... (104,100)
-----------
Total gross deferred tax liabilities.. (104,100)
-----------
Net deferred taxes.................... $ 204,100
===========
</TABLE>
F-12
<PAGE>
A valuation allowance has been provided for net operating loss
carryforwards and the general tax credit carryforwards because of the
uncertainty surrounding their realization.
The provision for income taxes differs from the amounts computed by
applying the statutory federal tax rates to income before taxes. The
reasons for the differences are as follows:
<TABLE>
<CAPTION>
1993 1992 1991
----------------- ---------------- ----------------
Amount Rate Amount Rate Amount Rate
-------- ----- -------- ----- -------- -----
<S> <C> <C> <C> <C> <C> <C>
Federal income tax expense at
statutory rates.................... $133,800 34.0% (30,213) (34.0%) $ 95,816 34.0%
State franchise taxes, net of
Federal income tax benefit......... 28,000 7.1 (131,400) (7.1) 19,605 7.0
Tax benefit of loss carry-forwards.. (63,900) (16.2) 761,613 41.1
Other, net.......................... (19,400) (5.0) (968) (0.3)
-------- ----- -------- ----- -------- -----
$ 78,500 19.9% $ -- --% $114,453 40.7%
======== ===== ======== ===== ======== =====
</TABLE>
At December 31, 1993, the Bank has the following net operating loss (NOL)
and tax credit carryforwards for tax return purposes:
<TABLE>
<CAPTION>
Federal
Expires Operating Loss Tax Credit
December 31, Carryforward Carryforward
- --------------- -------------- ------------
<S> <C> <C>
2001 $ 227,000
2002 $ 744,000
2003 390,000
2005 40,000
2007 4,465,000
2008 26,000
---------- ----------
$5,665,000 $ 227,000
========== ==========
</TABLE>
The Bank also has alternative minimum tax net operating loss carryforwards
for tax purposes of approximately $6 million, which are available to
reduce future alternative minimum taxable income. These carryforwards
expire in various years through December 31, 2007.
The Internal Revenue Code imposes restrictions on a bank's ability to
utilize net operating loss ("NOL") and tax credit carryforwards if a 50
percent change in ownership occurs within a three-year period. Changes in
ownership are defined to include, among other things, ownership changes
involving owners of 5 percent or more of a bank's common stock and public
stock offerings.
Certain events in the future, including the issuance of additional shares
of the Bank's common stock or activities involving persons owning 5
percent or more of the Bank's common stock, could occur that would trigger
such a change in control. This may result in the loss of some or all of
the Bank's NOL or tax credit carryforwards.
8. Commitments and Contingent Liabilities
Financial Instruments with Off-Balance Sheet Risk
-------------------------------------------------
The Bank makes commitments to extend credit in the normal course of
business to meet the financing needs of its customers. 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. Commitments
generally have fixed expiration dates or other termination clauses and may
require payment of a fee. Since many of the commitments are expected to
expire without being drawn upon, the total commitment amount does not
necessarily represent future cash requirements.
The Bank is exposed to credit loss, in the event of nonperformance by the
borrower, in the contract amount of the commitment. The Bank uses the
same credit policies in making commitments as it does for on-balance sheet
instruments and evaluates each customer's creditworthiness on a case-by-
case basis. The amount of collateral
F-13
<PAGE>
obtained, if deemed necessary by the Bank, is based on management's credit
evaluation of the borrower. Collateral held varies but may include cash,
accounts receivable, inventory, equipment and real estate property.
The Bank also issues standby letters of credit which are unconditional
commitments to guarantee the performance of a customer to a third party.
These guarantees are primarily issued to support construction bonds,
private borrowing arrangements and similar transactions. Most of these
guarantees are short-term commitments expiring in decreasing amounts
through 1994 and are not expected to be drawn upon. The credit risk
involved in issuing letters of credit is essentially the same as that
involved in extending loan facilities to customers. The Bank holds
collateral as deemed necessary, as described above.
The contract amount of commitments not reflected on the balance sheet at
December 31, 1993 and 1992 is as follows:
<TABLE>
<CAPTION>
1993 1992
----------- -----------
<S> <C> <C>
Loan Commitments................ $25,488,000 $13,459,000
Standby Letters of Credit....... 974,000 2,609,000
</TABLE>
Significant Concentration of Credit Risk
----------------------------------------
The Bank accepts deposits and grants credit primarily within its local
service area which the Bank has identified as the Greater Sacramento Area.
That comprises the four counties of Sacramento, El Dorado, Placer and
Yolo. At year-end, the Bank had construction loans comprising 27.61% of
the loan portfolio. This comprises 17.2% of total assets at December 31,
1993.
Although the Bank has a diversified loan portfolio, a substantial portion
of its portfolio is secured by commercial and residential real estate.
Federal Reserve Requirements
----------------------------
Banks are required to maintain reserves with the Federal Reserve Bank
equal to a percentage of their reservable deposits. The reserve balances
held with the Federal Reserve Bank totaled $1,013,000 and $901,000 as of
December 31, 1993 and 1992, respectively.
Operating Leases
----------------
The Bank has executed a non-cancelable operating lease for its main office
space. The lease provides for an initial term of 15 years, three
five-year renewal options, and a market value adjustment at the end of 10
years. In addition, the Bank has executed a non-cancelable operating
lease for its auxiliary office space. The lease provides for a term of
five years. Both operating leases are included in the following schedule
of future minimum lease payments as of December 31, 1993:
<TABLE>
<CAPTION>
Year Ending
December 31,
------------
<S> <C>
1994 $1,377,000
1995 1,408,000
1996 1,386,000
1997 1,339,000
1998 1,339,000
1999-2000 1,674,000
----------
$8,523,000
==========
</TABLE>
Rental expense under operating leases totaled $1,239,000, $1,230,000 and
$1,165,000 in 1993, 1992 and 1991, respectively.
Legal Actions
-------------
The Bank is involved in litigation of a routine nature which is being
defended in the ordinary course of the Bank's business. In the opinion of
management, the resolution of this litigation will have no material impact
on the Bank's financial position.
F-14
<PAGE>
9. Shareholders' Equity
Capital Adequacy
----------------
The Federal Deposit Insurance Corporation has specified guidelines for
purposes of evaluating a Bank's capital adequacy. Banks are required to
satisfy two separate capital requirements.
First, banks must meet a minimum leverage capital ratio ranging from three
to five percent based upon the bank's CAMEL (capital adequacy, asset
quality, management, earnings and liquidity) rating. At December 31,
1993, the Bank's leverage capital ratio was 7.54%.
Second, banks must meet a minimum risk-based capital ratio of 8.0%. Risk-
based capital guidelines vary from leverage capital guidelines by
redefining the components of capital, categorizing assets into different
risk classes, and including certain off-balance sheet items in the
calculation of the capital ratio. The effect of the risk-based capital
guidelines is that banks with high risk exposure will be required to raise
additional capital while institutions with low risk exposure could, with
the concurrence of regulatory authorities, be permitted to operate with
lower capital ratios. The Bank's risk-based capital ratio at December 31,
1993 was 12.90%.
Earnings Per Share
------------------
Earnings per share amounts were computed on the basis of the weighted
average number of shares of common stock outstanding during the year.
There were no dilutive common stock equivalents outstanding during 1993,
1992 or 1991. The number of shares used for the computations was
4,080,302 in all three years.
Dividend Restrictions
---------------------
Under California banking laws, the Bank may not pay cash dividends without
prior approval until such time as the deficit in undivided profits is
restored and there are sufficient earnings to cover the dividends.
Stock Options
-------------
During June 1992, the Board of Directors adopted an incentive stock option
plan (the Plan). Final approval of the Plan was subject to the Bank
obtaining the approval of the State Banking Department and the
stockholders. The State Banking Department approved the Plan in July 1992
and the stockholders approved the Plan at the 1993 annual stockholders'
meeting.
Under the terms of the Plan, 306,023 shares of common stock have been
reserved for issuance to employees of the Bank. The Plan requires that the
option price of all options granted may not be less than the fair market
value of the stock at the date the option is granted, and that the stock
must be paid for in full at the time the option is exercised. All options
expire on a date determined by the Board of Directors, but not later than
10 years from the date of the grant.
The following summarizes the activity under the Plan:
<TABLE>
<S> <C>
Balance January 1, 1992............. --
Options Granted................... 141,608
-------
Balance December 31, 1992........... 141,608
Options Canceled.................. (26,400)
-------
Balance December 31, 1993........... 115,208
=======
</TABLE>
Stock options granted during 1992 were not exercisable until the Plan was
approved by the stockholders. At December 31, 1993, stock options for
24,801 shares were exercisable at a price of $2.00 per share.
10. Other Expenses
Other expenses consisted of the following:
F-15
<PAGE>
<TABLE>
<CAPTION>
1993 1992 1991
---------- ---------- ----------
<S> <C> <C> <C>
FDIC Assessment....................... $ 279,721 $ 258,058 $ 257,779
Legal fees............................ 211,117 226,312 192,184
Professional services................. 148,768 233,619 276,990
Stationery, printing and supplies..... 101,210 100,895 114,744
Data processing....................... 76,300 78,699 156,891
Provision for loss on other real
estate............................... 61,721 466,000 --
Client data processing................ 18,477 97,909 145,236
Special stockholder meeting........... -- -- 712,822
Other................................. 587,664 740,270 666,922
---------- ---------- ----------
$1,484,978 $2,201,762 $2,523,568
========== ========== ==========
</TABLE>
11. Related Party Transactions
In the normal course of business, the Bank enters into transactions with
related parties, including directors, principal shareholders and their
affiliates. The transactions are on substantially the same terms and
conditions as those prevailing for comparable transactions with unrelated
parties. It is the Bank's policy not to make loans to Directors; and
accordingly, no loans were outstanding to Directors at December 31, 1993
and 1992, respectively.
12. Tax Deferred Investment Plan
The Bank established a trusteed tax deferred investment plan (the "Plan")
for all eligible employees during 1988. The Plan permits each employee to
contribute up to 15% of compensation on a pre-tax basis up to a specified
maximum, which for calendar year 1993, was $8,994. The Bank provides a
matching contribution of $1.00 for every $1.00 of compensation deferred by
the employee with a maximum matching contribution of 3% of the employee's
annual compensation. The Bank's Plan expense totaled $54,000, $54,400 and
$56,900 for the years ending December 31, 1993, 1992 and 1991,
respectively.
13. Regulatory Agreements
On February 24, 1993, the Bank entered into a Memorandum of Understanding
(the "Memorandum") with the Federal Deposit Insurance Corporation (the
"FDIC") and the California State Banking Department (the "State") as a
result of a joint examination of the Bank by the FDIC and the State.
The FDIC performed a subsequent examination of the Bank as of November 15,
1993. Based upon the results of the examination, on February 7, 1994, the
FDIC, along with the State, terminated the existing Memorandum.
14. Prospective Accounting Pronouncements
Impairment of Loans
-------------------
In May of 1993, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 114, Accounting by Creditors for
Impairment of a Loan. This statement applies to financial statements for
fiscal years beginning after December 15, 1994. It requires that impaired
loans be measured based on the present value of expected future cash
flows discounted at the loan's effective interest rate or, as a practical
expedient, at the loan's observable market price or the fair value of the
collateral if the loan is collateral dependent. Initial adoption of this
statement is required to be reflected prospectively. The Bank has not
completed the analysis necessary to determine the impact, if any, of this
statement on its financial position or results of operations.
Investments
-----------
In May of 1993, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 115, Accounting for Certain
Investments in Debt and Equity Securities. This statement applies to
financial statements for fiscal years beginning after December 15, 1993
and is to be applied as of the beginning of an enterprise's fiscal year.
Initial adoption of this statement is required to be reflected
prospectively. The statement requires that investments of equity
securities that have readily determinable fair values and all investments
in debt securities be classified in these categories and accounted for as
follows:
. Debt securities that the enterprise has the positive intent and
ability to hold to maturity are classified as held-to-maturity
securities and reported at amortized cost.
F-16
<PAGE>
. Debt and equity securities that are bought and held principally
for the purpose of selling them in the near term are classified
as trading securities and reported at fair value, with
unrealized gains and losses included in earnings.
. Debt and equity securities not classified as either held-to-
maturity securities or trading securities are classified as
available-for-sale securities and reported at fair value, with
unrealized gains and losses excluded from earnings and reported
in a separate component of stockholders' equity net of tax.
The Bank adopted this statement as of January 1, 1994. If the provisions
of the statement would have been applied as of December 31, 1993,
stockholders' equity would have been increased by approximately $220,000.
Fair Value Disclosures
----------------------
In December 1991, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 107 "Disclosures about
Fair Value of Financial Instruments." The provisions of Statement 107 are
effective for financial statements issued for years ending after December
15, 1992 for entities whose total assets exceed $150 million. For those
entities whose total assets are less than $150 million at December 15,
1992, the provisions of Statement 107 are effective for years ended after
December 15, 1995. Statement 107 requires the disclosure of the fair
value of financial instruments for which it is practicable to estimate
that value. Most loan and deposit instruments issued by financial
institutions will be subject to Statement 107. These disclosures apply to
off-balance sheet financial instruments as well as those recorded on the
balance sheet.
F-17
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Balance Sheets
<TABLE>
<CAPTION>
September 30,
1994 December 31,
(unaudited) 1993
----------- --------------
(In thousands)
<S> <C> <C>
Assets:
Cash and due from banks..................... $ 8,495 $ 6,456
Interest-bearing deposits in banks.......... 0 398
Investment securities....................... 17,606 34,342
Federal funds sold.......................... 21,500 4,820
Loans, net of reserve for loan losses....... 87,511 74,503
Premises and equipment, net................. 1,294 1,484
Interest receivable and other assets........ 1,563 1,390
-------- --------
Total assets.............................. $137,969 $123,393
======== ========
Liabilities:
Deposits:
Demand accounts............................ $ 32,868 $ 28,439
Money market accounts...................... 72,616 63,219
Time and savings accounts.................. 20,542 19,405
-------- --------
Total deposits............................ 126,026 111,063
Short-term borrowings....................... 1,719 2,734
Other liabilities........................... 952 378
-------- --------
Total liabilities......................... 128,697 114,175
Shareholders' Equity:
Common stock, par value $1.5625
Authorized - 10,000,000 shares
Issued and outstanding - 4,080,302 shares
in 1994 and 4,080,302 in 1993............. 6,375 6,375
Paid in surplus............................. 5,745 5,745
Securities valuation adjustment............. (227) 0
Undivided profits........................... (2,621) (2,902)
-------- --------
Total shareholder's equity................ 9,272 9,218
-------- --------
Total Liabilities and Shareholders' Equity.. $137,969 $123,393
======== ========
</TABLE>
F-18
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Nine months ended September 30,
-------------------------------
1994 1993
------ ------
(In thousands except per share amounts)
<S> <C> <C>
Interest income:
Interest and fees on loans............. $6,032 $4,866
Interest on federal funds sold......... 193 124
Interest on investment securities...... 1,275 1,632
------ ------
Total interest income................ 7,500 6,622
------ ------
Interest expense:
Interest on deposits................... 1,827 2,005
Interest on short-term borrowings...... 41 32
------ ------
Total interest expense............... 1,868 2,037
------ ------
Net interest income.................... 5,632 4,585
Provision for loan losses.............. 285 336
------ ------
Net interest income after provision
for loan losses...................... 5,347 4,249
------ ------
Noninterest income:
Income from fiduciary activity......... 547 496
Service charges on deposit accounts.... 74 97
Other revenue.......................... 75 99
------ ------
Total noninterest income............. 696 692
------ ------
Gains on securities transactions....... 82 283
Noninterest expense:
Salaries and related expenses.......... 2,998 2,560
Net occupancy.......................... 1,135 1,053
Other expense.......................... 1,656 1,421
------ ------
Total noninterest expense............ 5,789 5,034
------ ------
Income before income taxes............. 336 190
Income tax expense..................... 55 26
------ ------
Net income............................. $ 281 $ 164
====== ======
Net income per share................... $ 0.07 $ 0.04
====== ======
</TABLE>
F-19
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Statement of Changes in Shareholders' Equity
(Unaudited)
<TABLE>
<CAPTION>
Common Stock
-------------------- Securities
Number of Paid-in Valuation Undivided
Shares Amount Surplus Adjustment Profits Total
--------- --------- -------------- ------------- --------- -----------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance,
December 31, 1992.... 4,080 $ 6,375 $ 5,745 $ 0 $ (3,218) $ 8,902
Net Income............ -- -- -- -- 164 164
Securities Valuation
Adjustment........... -- -- -- -- -- 0
--------- --------- -------------- ------------- --------- -----------
Balance,
September 30, 1993... 4,080 $ 6,375 $ 5,745 $ 0 $ (3,054) $ 9,066
========= ========= ============== ============= ========= ===========
<CAPTION>
Common Stock
-------------------- Securities
Number of Paid-in Valuation Undivided
Shares Amount Surplus Adjustment Profits Total
--------- --------- -------------- ------------- --------- -----------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance,
December 31, 1993.... 4,080 $ 6,375 $ 5,745 $ 0 $ (2,902) $ 9,218
Net Income............ -- -- -- -- 281 281
Securities Valuation
Adjustment........... -- -- -- (227) -- (227)
--------- --------- -------------- ------------- --------- -----------
Balance,
September 30, 1994... 4,080 $ 6,375 $ 5,745 $ (227) $ (2,621) $ 9,272
========= ========= ============== ============= ========= ===========
</TABLE>
F-20
<PAGE>
CAPITOLBANK SACRAMENTO
Consolidated Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine months ended September 30,
-------------------------------
1994 1993
-------- --------
<S> <C> <C>
Cash Flows from Operating Activities:
Reconciliation of net income to net cash
provided by operating activities:
Net income.................................................. $ 281 $ 164
Adjustments to reconcile net income to net cash provided
by operating activities:
Provision for possible loan losses........................ 285 336
Depreciation and amortization............................. 302 284
Net change in operating assets and liabilities:
Interest receivable and other assets..................... (141) 301
Interest payable and other liabilities................... 574 106
-------- --------
Total adjustments........................................... 1,020 1,027
Net cash provided by operating activities................... 1,301 1,191
Cash Flows from Investing Activities:
Maturity (purchase) of investment securities................ 16,509 (12,226)
Proceeds from sale or maturity of investment securities..... 398 20,103
Loans originated and principal collected, net............... (13,293) (12,473)
Additions to premises and equipment......................... (111) (58)
Net change in other real estate owned....................... (33) 324
-------- --------
Net cash provided by investing activities................... 3,470 (4,330)
Cash Flows from Financing Activities:
Net increase in deposits.................................... 14,963 2,564
Net (decrease) in short-term borrowings..................... (1,015) (182)
-------- --------
Net cash provided by financing activities................... 13,948 2,382
-------- --------
Increase (decrease) in cash and cash equivalents............ 18,719 (757)
Cash and cash equivalents, at beginning of period........... 11,276 13,542
-------- --------
Cash and cash equivalents, at end of period................. $ 29,995 $ 12,785
======== ========
Supplemental Disclosures:
Cash paid for interest..................................... $ 1,868 $ 2,012
Cash paid for taxes........................................ 55 8
Total gross additions to other real estate................. 63 1,359
Securities valuation adjustment............................ (227) 0
</TABLE>
F-21
<PAGE>
NOTES TO UNAUDITED CONSOLIDATED
FINANCIAL STATEMENTS
1. Prospective Accounting Pronouncements
Impairment of Loans
- -------------------
In May of 1993, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 114, Accounting by Creditors for Impairment
of a Loan. This statement applies to financial statements for fiscal years
beginning after December 15, 1994. It requires that impaired loans be measured
based on the present value of expected future cash flows discounted at the
loan's effective interest rate or, as a practical expedient, at the loan's
observable market price or the fair value of the collateral if the loan is
collateral dependent. Initial adoption of this statement is required to be
reflected prospectively. Novato National Bank has not completed the analysis
necessary to determine the impact, if any, of this statement on its financial
position or results of operations.
Investments
- -----------
In May of 1993, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 115. Accounting for Certain Investments in
Debt and Equity Securities. This statement applies to financial statements for
fiscal years beginning after December 15, 1993 and is to be applied as of the
beginning of an enterprise's fiscal year. Initial adoption of this statement is
required to be reflected prospectively. The statement requires that investments
of equity securities that have readily determinable fair values and all
investments in debt securities be classified in these categories and accounted
for as follows:
. Debt securities that the enterprise has the positive intent and ability to
hold to maturity are classified as held-to-maturity securities and reported
at amortized cost.
. Debt and equity securities that are bought and held principally for the
purpose of selling them in the near term are classified as trading
securities and reported at fair value, with unrealized gains and losses
included in earnings.
. Debt and equity securities not classified as either held-to-maturity
securities or trading securities are classified as available-for-sale
securities and reported at fair value, with unrealized gains and losses
excluded from earnings and reported in a separate component of
shareholders' equity net of tax for the 1994 interim period.
Novato National Bank adopted this statement as of January 1, 1994. If the
provisions of the statement would have been applied as of December 31, 1993,
shareholders' equity would have been increased by approximately $220,000. As of
September 30, 1994, the application of the provisions of this statement resulted
in a decrease to shareholders' equity of approximately $227,000.
Fair Value Disclosures
- ----------------------
In December 1991, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 107, "Disclosures about Fair Value Of
Financial Instruments" ("Statement 107"). The provisions of Statement 107 are
effective for financial statements issued for years ending after December 15,
1992 for entities whose total assets exceed $150 million. For those entities
whose total assets are less than $150 million at December 15, 1992, the
provisions of Statement 107 are effective for years ended after December 15,
1995. Statement 107 requires the disclosure of the fair value of financial
instruments for which it is practicable to estimate that value. Most loan and
deposit instruments issued by financial institutions will be subject to
Statement 107.
2. Accounting Policies
The unaudited consolidated financial statements reflect all adjustments which in
management's opinion provide a fair presentation of results of operation for the
interim periods presented. Results of operation for the 1994 interim period are
not necessarily indicative of results of operation for the entire fiscal year.
F-22
<PAGE>
ANNEX A
================================================================================
AGREEMENT AND PLAN OF REORGANIZATION
between
WESTAMERICA BANCORPORATION
and
CAPITOLBANK SACRAMENTO
DATED AS OF NOVEMBER 17, 1994
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
Page
<S> <C>
1. THE MERGER............................................................................................ 1
1.1 Effective Time................................................................................. 1
1.2 Effect of the Merger........................................................................... 1
2. CONVERSION AND CANCELLATION OF SHARES................................................................. 2
2.1 Conversion of Common Stock of Capitol.......................................................... 2
2.2 Fractional Shares.............................................................................. 4
2.3 Surrender of Capitol Shares.................................................................... 4
2.4 No Further Transfers of Capitol Shares......................................................... 5
2.5 Adjustments.................................................................................... 5
2.6 Treatment of Stock Options..................................................................... 5
3. COVENANTS OF THE PARTIES.............................................................................. 5
3.1 Covenants of Westamerica....................................................................... 5
(a) Reservation, Issuance and Registration of Westamerica Common Stock...................... 5
(b) Government Approvals.................................................................... 6
(c) Notification of Breach of Representations, Warranties and Covenants..................... 6
(d) Financial Statements.................................................................... 6
(e) Press Releases.......................................................................... 7
(f) Business Combinations................................................................... 7
(g) Director & Officer Liability............................................................ 7
(h) Extraordinary Dividends................................................................. 7
3.2 Covenants of Capitol........................................................................... 8
(a) Approval by Capitol Shareholders........................................................ 8
(b) Shareholder Lists and Other Information................................................. 8
(c) Government Approvals.................................................................... 8
(d) Capital Commitments and Expenditures.................................................... 8
(e) Notification of Breach of Representations, Warranties and Covenants..................... 8
(f) Financial Statements.................................................................... 8
(g) Compensation............................................................................ 9
(h) Conduct of Business in the Ordinary Course.............................................. 9
(i) Press Releases.......................................................................... 12
(j) No Merger or Solicitation............................................................... 12
(k) Capitol 401(k) Plan..................................................................... 13
(l) Outsourcing to Westamerica.............................................................. 13
(m) Changes in Capital Stock................................................................ 13
(n) Dividends............................................................................... 13
(o) Accounting Methods...................................................................... 13
(p) Affiliates.............................................................................. 13
(q) Additional Agreements................................................................... 13
(r) Access to Properties, Books and Records; Confidentiality................................ 13
(s) Employee Welfare Benefit Plans.......................................................... 14
(t) Execution and Delivery of Stock Option Agreement........................................ 14
(u) Noncompetition Agreements............................................................... 14
(v) Litigation Developments................................................................. 14
(w) Net Operating Loss Carryforward......................................................... 14
3.3 Covenants of the Parties....................................................................... 14
4. REPRESENTATIONS AND WARRANTIES OF CAPITOL............................................................. 14
(a) Corporate Status and Power to Enter Into Agreements..................................... 15
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
(b) Articles, Bylaws, Books and Records...................................................... 15
(c) Compliance With Laws, Regulations and Decrees............................................ 15
(d) Capitalization........................................................................... 15
(e) Equity Interests......................................................................... 16
(f) Financial Statements, Regulatory Reports................................................. 16
(g) Tax Returns.............................................................................. 16
(h) Material Adverse Change.................................................................. 17
(i) No Undisclosed Liabilities............................................................... 17
(j) Properties and Leases.................................................................... 17
(k) Material Contracts....................................................................... 18
(l) Classified Loans......................................................................... 18
(m) Restrictions on Investments.............................................................. 19
(n) Employment Contracts and Benefits........................................................ 19
(o) Compliance With ERISA.................................................................... 20
(p) Collective Bargaining and Employment Agreements.......................................... 21
(q) Compensation of Officers and Employees................................................... 21
(r) Legal Actions and Proceedings............................................................ 21
(s) Execution and Delivery of the Agreement.................................................. 21
(t) Retention of Broker or Consultant........................................................ 22
(u) Insurance................................................................................ 22
(v) Loan Loss Reserves....................................................................... 22
(w) Transactions With Affiliates............................................................. 22
(x) Information in Westamerica Registration Statement........................................ 23
(y) Accuracy of Representations and Warranties............................................... 23
(z) No Brokered Deposits..................................................................... 23
5. REPRESENTATIONS AND WARRANTIES OF WESTAMERICA........................................................ 23
(a) Corporate Status and Power to Enter Into Agreement....................................... 23
(b) Corporate Status and Power of Westamerica................................................ 23
(c) Certificate, Bylaws, Books and Records................................................... 23
(d) Compliance With Laws, Regulations and Decrees............................................ 24
(e) Financial Statements..................................................................... 24
(f) Material Adverse Change.................................................................. 25
(g) Execution and Delivery of the Agreement.................................................. 25
(h) Information in Westamerica Registration Statement........................................ 25
(i) Accuracy of Representations and Warranties............................................... 25
(j) Capitalization........................................................................... 26
(k) Tax Returns.............................................................................. 26
6. SECURITIES ACT OF 1933; SECURITIES EXCHANGE ACT OF 1934.............................................. 26
(a) Preparation and Filing of Registration Statement......................................... 26
(b) Effectiveness of Registration Statement.................................................. 26
(c) Sales and Resales of Common Stock........................................................ 27
(d) Rule 145................................................................................. 27
7. CONDITIONS TO THE OBLIGATIONS OF WESTAMERICA......................................................... 27
(a) Representations and Warranties........................................................... 27
(b) Compliance and Performance Under Agreement............................................... 27
(c) Material Adverse Change.................................................................. 27
(d) Approval of Agreement.................................................................... 28
(e) Officer's Certificate.................................................................... 28
(f) Opinion of Counsel....................................................................... 28
(g) Absence of Legal Impediment.............................................................. 28
(h) Effectiveness of Registration Statement.................................................. 28
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
(i) Government Approvals...................................................................... 28
(j) Tax Opinion or Ruling..................................................................... 28
(k) Accountant's Letter....................................................................... 29
(l) Dissenting Shares......................................................................... 29
(m) Unaudited Financials...................................................................... 29
(n) Letter Regarding Insurance Coverage....................................................... 29
(o) Closing Documents......................................................................... 29
(p) Consents.................................................................................. 29
(q) Fairness Opinions......................................................................... 30
(r) Losses in Investment and Loan Portfolios.................................................. 30
(s) Satisfaction of Spending or Other Commitments............................................. 30
(t) Pooling-of-Interests Accounting Treatment; Dissenters' Rights............................. 30
(u) Compliance Examinations................................................................... 30
(v) Opinion of Loan Review Examiner........................................................... 30
(w) Regulatory Examination.................................................................... 30
(x) Stock Option Agreement.................................................................... 30
(y) Classified Loans.......................................................................... 30
(z) Noncompetition Agreements and Certificate................................................. 31
(aa) Resignation of Directors and Certain Executive Officers................................... 31
8. CONDITIONS TO THE OBLIGATIONS OF CAPITOL............................................................. 31
(a) Representations and Warranties............................................................ 31
(b) Compliance and Performance Under Agreement................................................ 31
(c) Material Adverse Change................................................................... 31
(d) Officer's Certificate..................................................................... 31
(e) Approval of Agreement..................................................................... 31
(f) Opinion of Counsel........................................................................ 31
(g) Effectiveness of Registration Statement................................................... 32
(h) Government Approvals...................................................................... 32
(i) Tax Opinion or Ruling..................................................................... 32
(j) Closing Documents......................................................................... 32
(k) Absence of Legal Impediment............................................................... 32
(l) Fairness Opinions......................................................................... 32
(m) Pooling-of-Interests Accounting Treatment................................................. 32
9. CLOSING.............................................................................................. 32
(a) Closing Date.............................................................................. 32
(b) Delivery of Documents..................................................................... 32
(c) Filings................................................................................... 32
10. POST-CLOSING MATTERS................................................................................. 32
11. EXPENSES............................................................................................. 33
12. AMENDMENT; TERMINATION............................................................................... 33
(a) Amendment................................................................................. 33
(b) Termination............................................................................... 33
(c) Notice.................................................................................... 34
(d) Breach of Obligations..................................................................... 34
(e) Termination and Expenses.................................................................. 34
(f) Special Westamerica Rights of Termination................................................. 35
13. MISCELLANEOUS........................................................................................ 35
(a) Notices................................................................................... 35
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
(b) Binding Agreement........................................................................ 36
(c) No Survival of Representations and Warranties............................................ 36
(d) Governing Law............................................................................ 36
(e) Attorneys' Fees.......................................................................... 36
(f) Entire Agreement; Severability........................................................... 36
(g) Counterparts............................................................................. 36
(h) Waivers.................................................................................. 37
SCHEDULE OF EXHIBITS
- --------------------
Exhibit A-1 - Merger Sub Merger Agreement
Exhibit A-2 - Westamerica Bank Merger Agreement
Exhibit B - Noncompetition Agreement for Capitol Nonemployee
Directors (Wickland)
Exhibit B-1 - Noncompetition Agreement for Capitol Nonemployee
Directors
Exhibit C - Certificate and Agreement of Capitol Directors
Exhibit D - Opinion of Capitol Counsel
Exhibit E - Certificate of Affiliates
Exhibit F - Schedule of Noncompetition Agreement Signatories
Exhibit G - Letter Regarding Insurance Coverage
Exhibit H - Opinion of Westamerica Counsel
</TABLE>
-iv-
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
THIS AGREEMENT AND PLAN OF REORGANIZATION, dated as of November 17, 1994
("Agreement"), is between WESTAMERICA BANCORPORATION, a California corporation
--------------------------
("Westamerica"), and CAPITOLBANK SACRAMENTO, a California banking corporation
----------------------
("Capitol").
W I T N E S S E T H:
A. The Boards of Directors of Westamerica and Capitol deem it advisable
and in the best interests of Westamerica, Capitol and their respective
shareholders to consummate the business combination provided for herein whereby
Westamerica would acquire Capitol and the goodwill associated therewith through
the merger of Capitol with a Westamerica subsidiary (the "Merger") such that on
the effective date of the Merger, Capitol will either be a wholly-owned
subsidiary of Westamerica or merged into Westamerica's Westamerica Bank
subsidiary (it being the intent of the parties that in any event Capitol will
ultimately be merged into Westamerica Bank).
B. This Agreement and the Merger Agreement, as defined herein, have been
approved by the Boards of Directors of Westamerica and Capitol, and will be
submitted for approval of the shareholders of Capitol at a special meeting of
its shareholders.
C. The Merger is intended to qualify as a tax-free reorganization within
the meaning of the provisions of Section 368 of the Internal Revenue Code of
1986, as amended (the "IRC").
D. Pursuant to the Merger and subject to the terms and conditions herein,
each holder of common stock of Capitol will receive, in exchange for common
stock of Capitol, Westamerica common stock in the ratio of .0938 of a share of
Westamerica common stock for each share of Capitol common stock, subject to
adjustment as more fully set forth in this Agreement.
E. As a condition and inducement to Westamerica's willingness to enter
into this Agreement, Westamerica and Capitol are entering into immediately after
the execution and delivery hereof a Stock Option Agreement dated as of the date
hereof (the "Stock Option Agreement") pursuant to which Capitol shall grant
Westamerica an option to purchase shares of the common stock of Capitol.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements provided for or contained
herein, the parties hereto agree as follows:
1. THE MERGER.
----------
1.1 Effective Time. Subject to the terms and conditions of this
--------------
Agreement, upon the filing with the California Secretary of State of a duly
executed Merger Agreement substantially in the form attached hereto as Exhibit
A-1 (the "Merger Agreement") and officers' certificates prescribed by Section
1103 of the California General Corporation Law ("GCL") or at such time
thereafter as is provided in the Merger Agreement (the "Effective Time") the
Merger shall become effective. The date on which the merger is effective as
specified in the Merger Agreement shall be referred to herein as the "Effective
Date."
1.2 Effect of the Merger.
--------------------
(a) Subject to the terms and conditions of this Agreement and the Merger
Agreement, at the Effective Time on the Effective Date, Capitol shall be merged
with a wholly-owned subsidiary of Westamerica (the "Merger Sub") and Capitol
shall be the surviving corporation (the "Surviving Corporation") in the Merger.
All assets, rights, goodwill, privileges, immunities, powers, franchises and
interests of Capitol and the Merger Sub in and to every type of property (real,
personal and mixed) and chooses in action, as they
-1-
<PAGE>
exist as of the Effective Date, including appointments, designations and
nominations and all other rights and interests as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estate, assignee,
receiver and in every other fiduciary capacity, shall pass and be transferred to
and vest in the Surviving Corporation by virtue of the Merger at the Effective
Time without any deed, conveyance or other transfer; the separate existence of
the Merger Sub shall cease and the corporate existence of Capitol as the
Surviving Corporation shall continue unaffected and unimpaired by the Merger;
and the Surviving Corporation shall be deemed to be the same entity as each of
Capitol and the Merger Sub and shall be subject to all of their duties and
liabilities of every kind and description. The Surviving Corporation shall be
responsible and liable for all the liabilities and obligations of each of
Capitol and the Merger Sub; and any claim existing or action or proceeding
pending by or against Capitol may be prosecuted as if the Merger had not taken
place, or the Surviving Corporation may be substituted in its place. Neither the
rights of creditors nor any liens upon the property of either Capitol or the
Merger Sub shall be impaired by reason of the Merger.
(b) Westamerica agrees to cause Westamerica Bank to merge with the
Surviving Corporation as soon as practicable following the Effective Date
pursuant to a duly executed agreement of merger substantially in the form
attached hereto as Exhibit A-2 whereby Westamerica Bank will be the surviving
corporation succeeding to all the rights and liabilities set forth in Section
1.2(a) above pursuant to applicable law, and the Surviving Corporation will be
the disappearing corporation (the "WAB Merger Agreement").
(c) Notwithstanding anything in this Agreement to the contrary, the
parties understand and agree that the final form of the transaction contemplated
herein will depend upon Westamerica's further investigation of the tax and other
circumstances pertaining to Capitol. Accordingly, Capitol agrees that should
Westamerica determine in its sole discretion that Capitol should be merged with
and into Westamerica Bank on and as of the Effective Date nothing in this
Agreement shall preclude Westamerica from accomplishing such a result provided
that the condition in section 7(j) herein is satisfied. In the event Westamerica
exercises its right to merge Capitol into Westamerica Bank on and as of the
Effective Date pursuant to this section 1.2(c), all references in this Agreement
to the Merger Agreement shall be deemed to refer to the WAB Merger Agreement and
Westamerica Bank shall succeed to all of the rights and liabilities of the
Surviving Corporation set forth in Section 1.2(a) above pursuant to applicable
law. The parties acknowledge that appropriate modifications to Exhibit A-2 would
be required.
2. CONVERSION AND CANCELLATION OF SHARES.
-------------------------------------
2.1 Conversion of Common Stock of Capitol. At the Effective Time, by
-------------------------------------
virtue of the Merger and without any action on the part of the holder of any
common stock of Capitol (a "Capitol Share" or "Capitol Shares"):
(a) Each issued and outstanding Capitol Share (other than fractional
shares or any shares as to which dissenters' rights have been perfected) shall
be converted into .0938 of a fully paid and nonassessable share of the
registered common stock, without par value, of Westamerica (the "Westamerica
Common Stock" or "Westamerica Shares"), subject to adjustment as specified in
subsections (b) and (c) herein (the "Exchange Ratio"). All such Capitol Shares
shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each certificate previously representing any such
shares shall thereafter represent the Westamerica Shares into which such Capitol
Shares have been converted. Certificates previously representing Capitol Shares
shall be exchanged for certificates representing whole shares of Westamerica
Common Stock issued in consideration therefor upon the surrender of such
certificates in accordance with Section 2.3.
(b) The Exchange Ratio shall be adjusted downward for any Significant
Liabilities (as defined below) if in the aggregate these Significant Liabilities
total more than $150,000. "Significant Liabilities", as used in this Agreement,
shall mean those liabilities or expenses (whether operating or capital in
nature) relating to those categories and events described in the next sentence
which have not been reflected as reductions to Capitol's consolidated book value
pursuant to generally accepted accounting principles as of
-2-
<PAGE>
September 30, 1994, provided, however, that any individual component of said
-----------------
aggregate amount must reasonably be estimated to exceed $25,000. Significant
Liabilities shall consist of the following categories or events, provided that
Significant Liabilities shall not include any of the following to which
Westamerica has consented in writing: (i) new or extended contractual
obligations; (ii) new or extended leases of real or personal property; (iii)
acquisition of capital assets (or commitments to do so); (iv) new or expanded
contingent liabilities based upon threatened or pending litigation or other
proceedings or hazardous or toxic substances and legal fees and costs (whether
actual or estimated) related thereto; (v) any expenses, fines, fees, penalties
or similar obligations, except those which arose in the Ordinary Course of
Business as defined in Section 3.2(h)(i); (vi) any new, expanded or accelerated
pension or other benefits including employment contracts and severance payments,
whether or not vested; and (vii) the aggregate amount of the difference between
the exercise price of any stock options or stock appreciation rights granted
after June 30, 1994, by Capitol and $3.00 per share.
The amount of the Significant Liabilities in the case of the arrangements
described in (i), (ii), and (vi) above, shall equal (a) any payment that could
be made as of the Effective Date that would terminate the arrangement without
further liability or expense to Capitol or Westamerica or (b) if the arrangement
does not provide for such a payment, the present value of the amount of the
remaining payments payable pursuant to the arrangement after the Effective Date
using a discount rate equivalent to Westamerica's then current cost of funds.
The amount of Significant Liabilities in the case of (iii) above shall equal the
amount expended or required to be expended under binding commitments for a
capital asset, minus the amount for which the capital asset could actually be
sold on a liquidation basis. Significant Liabilities shall not include fees of
Capitol's financial advisors or Capitol's legal fees directly attributable to
this Merger. Significant Liabilities shall not include approximately $200,000
already accrued for Capitol's 1994 bonus pool, approximately $140,000 for
Capitol's employee retention contracts and all amounts payable to Thayer T.
Prentice and William J. Martin pursuant to Sections 3.4 and 3.5 of each of the
aforementioned's employment agreement with Capitol dated as of March 30, 1994
and April 2, 1994, respectively. As a result of any Significant Liabilities
totaling more than $150,000 in the aggregate through the close of business on
the day preceding the Effective Date, the Exchange Ratio shall be reduced by an
amount calculated as follows, provided that not more than $1,000,000 of such
Significant Liabilities shall be taken into account:
.0938 - (Significant Liabilities)
-------------------------
$130 Million
(c) If, as of two business days preceding the Effective Date, the average
of the closing price of Westamerica Common Stock quoted on the Nasdaq National
Market ("Nasdaq") (calculated by taking an average of the closing prices quoted
on Nasdaq as reported in The Wall Street Journal on each of the twenty
-----------------------
consecutive trading days prior to two business days prior to the Effective Date,
rounded to 4 decimal places, whether or not trades occurred on those days (the
"Average Price")) is above $33.00 or below $30.20 (with no adjustment if the
Average Price is between $30.20 and $33.00), the Exchange Ratio will be adjusted
as follows, rounded to 4 decimal places:
(1) If the Average Price is below $30.20, Capitol may accept the
Exchange Ratio calculated solely in accordance with Sections 2.1(a) and (b)
hereof or Westamerica and Capitol shall have the right, but not the
obligation, to renegotiate the Exchange Ratio. Should Capitol fail to
accept the Exchange Ratio as described in the preceding sentence or should
the parties fail to renegotiate the Exchange Ratio, Capitol may terminate
this Agreement pursuant to the provisions of Section 12(b).
(2) If the Average Price is above $33.00, the Exchange Ratio as
adjusted pursuant to Section 2.1(b), will be adjusted downward by one half
of the amount by which the Average Price is above $33.00, according to the
following formula:
(Average Price + $33.00)/2
.0938 x --------------------------
Average Price
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<PAGE>
(d) From and after the Effective Time, the holders of certificates
formerly representing Capitol Shares shall cease to have any rights with respect
thereto other than any dissenters' rights they have perfected pursuant to
Chapter 13 of the GCL.
2.2 Fractional Shares. Notwithstanding any other provision hereof, no
-----------------
fractional shares of Westamerica Common Stock shall be issued to holders of
Capitol Shares. In lieu thereof, each such holder entitled to a fraction of a
share of Westamerica Common Stock shall receive, at the time of surrender of the
certificate or certificates representing such holder's Capitol Shares, an amount
in cash equal to the Average Price (defined in Section 2.1(c)) multiplied by the
fraction of a share of Westamerica Common Stock to which such holder otherwise
would be entitled. No such holder shall be entitled to dividends, voting
rights, interest on the value of, or any other rights in respect of a fractional
share.
2.3 Surrender of Capitol Shares.
---------------------------
(a) Prior to the Effective Date, Westamerica shall appoint Chemical Trust
Company of California or its successor, or any other bank or trust company
(having capital of at least $50 million) mutually acceptable to Capitol and
Westamerica, as exchange agent (the "Exchange Agent") for the purpose of
exchanging certificates representing the Westamerica Shares and at and after the
Effective Date, Westamerica shall issue and deliver to the Exchange Agent
certificates representing the Westamerica Shares, as shall be required to be
delivered to holders of Capitol Shares pursuant to Section 2.1 of this
Agreement. As soon as practicable after the Effective Date, each holder of
Capitol Shares converted pursuant to Section 2.1, upon surrender to the Exchange
Agent of one or more certificates for such Capitol Shares for cancellation, will
be entitled to receive a certificate representing the number of Westamerica
Shares determined in accordance with Section 2.1 and a payment in cash with
respect to fractional shares, if any, determined in accordance with Section 2.2.
Each certificate representing Westamerica Shares will bear a notation
incorporating the Amended Rights Agreement (as that term is defined in Section
5(j) herein), by reference and certificates representing the Westamerica Shares
will evidence and entitle the holders thereof to certain rights as set forth in
and subject to the terms of the Amended Rights Agreement ("Rights").
Certificates issued for the Westamerica Shares shall be deemed to be
certificates for said Rights.
(b) No dividends or other distributions of any kind which are declared
payable to shareholders of record of the Westamerica Shares after the Effective
Date will be paid to persons entitled to receive such certificates for
Westamerica Shares until such persons surrender their certificates representing
Capitol Shares. Upon surrender of such certificate representing Capitol Shares,
the holder thereof shall be paid, without interest, any dividends or other
distributions with respect to the Westamerica Shares as to which the record date
and payment date occurred on or after the Effective Date and on or before the
date of surrender.
(c) If any certificate for Westamerica Shares is to be issued in a name
other than that in which the certificate for Capitol Shares surrendered in
exchange therefor is registered, it shall be a condition of such exchange that
the person requesting such exchange shall pay to the Exchange Agent any transfer
costs, taxes or other expenses required by reason of the issuance of
certificates for such Westamerica Shares in a name other than the registered
holder of the certificate surrendered, or such persons shall establish to the
satisfaction of Westamerica and the Exchange Agent that such costs, taxes or
other expenses have been paid or are not applicable.
(d) All dividends or distributions, and any cash to be paid pursuant to
Section 2.2 in lieu of fractional shares, if held by the Exchange Agent for
payment or delivery to the holders of unsurrendered certificates representing
Capitol Shares and unclaimed at the end of one year from the Effective Date,
shall (together with any interest earned thereon) at such time be paid or
redelivered by the Exchange Agent to Westamerica, and after such time any holder
of a certificate representing Capitol Shares who has not surrendered such
certificate to the Exchange Agent shall, subject to applicable law, look as a
general creditor only to Westamerica for payment or delivery of such dividends
or distributions or cash, as the case may be.
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<PAGE>
2.4 No Further Transfers of Capitol Shares. At the Effective Date, the
--------------------------------------
stock transfer books of Capitol shall be closed and no transfer of Capitol
Shares theretofore outstanding shall thereafter be made.
2.5 Adjustments. If, between the date of this Agreement and the
-----------
Effective Date, the outstanding shares of Westamerica common stock shall have
been changed into a different number of shares or a different class by reason of
any reclassification, recapitalization, split up, combination, exchange of
shares or readjustment, or a stock dividend thereon shall be declared with a
record date within such period, the number of Westamerica Shares to be issued
and delivered in the Merger in exchange for each outstanding Capitol Share shall
be correspondingly adjusted with the result that the holders of Capitol Shares
shall receive the same economic benefit set forth in Section 2.1 above.
2.6 Treatment of Stock Options. Each person holding one or more options
--------------------------
to purchase Capitol Shares pursuant to the 1992 Stock Option Plan (the "Option
Plan"), shall have the right, in his or her discretion, to:
(a) Exercise any vested options granted under the Option Plan to acquire
Capitol Shares prior to the Effective Date and Capitol will facilitate the
exercise of those options by allowing the options to be exercised and taxes paid
by Capitol withholding the appropriate number of shares from the shares subject
to the options or by any other method permitted by applicable law; and/or
(b) Have any options whether or not vested that are not exercised
converted into options to purchase shares of Westamerica common stock.
Following the Effective Date, shares of Westamerica common stock shall be
substituted under the options for Capitol Shares based on the Exchange Ratio in
a form acceptable to Westamerica. Specifically, each option shall be deemed to
continue as an option to purchase the number of shares of Westamerica common
stock equal to the Exchange Ratio multiplied by the number of Capitol Shares
previously covered by such option at an option exercise price for each such
share of Westamerica common stock equal to the previous option exercise price
for each Capitol Share divided by the Exchange Ratio. Each Capitol stock option
shall otherwise continue on terms and conditions that are consistent with those
that were applicable immediately before the Effective Date.
3. COVENANTS OF THE PARTIES.
------------------------
3.1 Covenants of Westamerica.
------------------------
(a) Reservation, Issuance and Registration of Westamerica Common Stock.
------------------------------------------------------------------
Westamerica shall reserve and make available for issuance in connection with the
Merger and in accordance with the terms of this Agreement (i) the Westamerica
Shares; and (ii) the maximum number of shares of common stock of Westamerica to
which the option holders of Capitol may be entitled pursuant to Section 2.6
above at or after the Effective Date. All Westamerica Shares will, when issued
and delivered pursuant to and in accordance with the terms of this Agreement be
duly authorized, validly issued, fully paid and nonassessable. Westamerica shall
file and cause to be declared effective pursuant to the Securities Act of 1933,
as amended (the "1933 Act") one or more registration statements covering all
such shares and shall cause all such shares to be issued in compliance with the
1933 Act and in compliance with all applicable state securities laws and
regulations.
(b) Government Approvals. Prior to the Effective Date, Westamerica, with
--------------------
the cooperation of Capitol, shall use its best efforts in good faith to take or
cause to be taken as promptly as practicable all such steps as shall be
necessary to obtain (i) the prior approval of the Merger by the Board of
Governors of the Federal Reserve System (the "FRB") under the Bank Holding
Company Act of 1956, as amended ("BHC Act"), and (ii) all other consents and
approvals of government agencies as are required by law or otherwise, and shall
do any and all acts deemed by Westamerica to be necessary or appropriate in
order to cause the
-5-
<PAGE>
Merger to be consummated on the terms provided in this Agreement as promptly as
practicable. All approvals referred to in clauses (i) and (ii) of this Section
3.1(b) are hereinafter referred to as the "Government Approvals." Subject to
Capitol's compliance with its obligations under Section 3.2(c) herein, in the
event this Agreement is terminated by either party pursuant to Section 12(b)
because the FRB or other government agency whose consent or approval is required
by law in order to consummate the Merger disapproves or otherwise informs
Westamerica that it will not approve the Merger or imposes conditions that cause
Westamerica not to proceed with the Merger, upon demand, Westamerica shall pay
Capitol $1,200,000. In the event this Agreement is terminated by either party
pursuant to the preceding sentence and Section 12(b) herein, upon payment of
$1,200,000 to Capitol neither Westamerica nor any agent thereof shall have any
further liability to Capitol.
(c) Notification of Breach of Representations, Warranties and Covenants.
-------------------------------------------------------------------
Westamerica shall promptly give written notice to Capitol upon becoming aware of
the occurrence or impending or threatened occurrence of any event which would
cause or constitute a breach of any of the representations, warranties or
covenants of Westamerica contained or referred to in the Merger Agreement or
this Agreement and shall use its best efforts to prevent the same or remedy the
same promptly.
(d) Financial Statements.
--------------------
(i) Westamerica has delivered or shall deliver to Capitol prior
to the Effective Date true and correct copies of consolidated
statements of income, changes in shareholders' equity and statements
of cash flows for the three (3) months ended March 31, 1994, June 30,
1994, September 30, 1994, any subsequent quarter ends, and for the
years ended December 31, 1993, 1992, 1991, 1990 and 1989, and
consolidated balance sheets at March 31, 1994, June 30, 1994,
September 30, 1994, any subsequent quarter ends, December 31, 1993,
1992, 1991 and 1990. Such consolidated financial statements at and for
the years ended December 31, 1993, 1992, 1991, 1990 and 1989 have been
audited by KPMG Peat Marwick ("KPMG") and include an opinion of such
accounting firm to the effect that such financial statements have been
prepared in accordance with Generally Accepted Accounting Principles
("GAAP") and present fairly, in all material respects, the
consolidated financial position, results of operations and cash flow
of Westamerica at the dates indicated and for the periods then ending.
The opinions of such accounting firm do not and shall not contain any
qualifications.
(ii) Westamerica has provided or shall provide to Capitol at or
prior to the Effective Date copies of all financial statements and
proxy statements, issued or to be issued to Westamerica's shareholders
and/or directors after December 31, 1993 and at or prior to the
Effective Date.
(iii) Westamerica has provided or shall provide to Capitol prior
to the Effective Date copies of (a) its Annual Report on Form 10-K for
the years ended December 31, 1993 and 1992 as filed with the
Securities and Exchange Commission (the "Commission"); (b) all
periodic reports required to be filed by it pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934
Act") since December 31, 1991; and (c) all proxy statements, annual
reports and other written materials furnished to Westamerica
shareholders since December 31, 1991, all other material reports
relating to Westamerica filed by Westamerica or any of its
subsidiaries with the California Superintendent of Banks
("Superintendent"), the FRB or the Commission during 1992, 1993, 1994
and in 1995 prior to the Effective Date. As of their respective dates,
each of the documents provided hereunder complied or will comply in
all material respects with all legal and regulatory requirements
applicable thereto.
(e) Press Releases. Westamerica shall not issue any press release or
--------------
written statement for general circulation to the public relating to the Merger,
this Agreement or the Merger Agreement unless
-6-
<PAGE>
previously provided to Capitol for review and approval (which approval will not
be unreasonably withheld or delayed) and shall cooperate with Capitol in the
development and distribution of all news releases and other public information
disclosures with respect to this Agreement or the Merger; provided that
Westamerica may, without the consent of Capitol, make any disclosure with regard
to this Agreement or the Merger that it determines is required under any
applicable law or regulation and shall provide a copy thereof to Capitol.
(f) Business Combinations. Westamerica shall not make any offer to any
---------------------
third party or accept any offer from any third party regarding a Business
Combination of Westamerica with any other entity unless such offer is expressly
conditioned upon the performance by Westamerica or its successor in interest of
all Westamerica's obligations under this Agreement. In the event Westamerica
fails to comply with the provisions of this Section 3.1(f), Capitol shall be
entitled to terminate this Agreement without any liability to Westamerica or any
agent thereof pursuant to Section 12(b), provided, however, that the obligations
and liabilities of Westamerica set forth in Section 12(e) hereof shall continue
in full force and effect. As used in this Agreement, "Business Combination"
shall mean any tender or exchange offer, proposal for a merger, consolidation,
or other takeover proposal involving any party hereto (except as explicitly
contemplated in this Agreement) or any offer or proposal to acquire in any
manner a 10% or greater equity interest in, or a substantial portion of any
party hereto other than transactions contemplated hereunder.
(g) Director & Officer Liability. Upon the Effective Date, any Capitol
----------------------------
executive officer who becomes an officer of Westamerica (including any
subsidiaries thereof) shall be included in Westamerica's Director & Officer
insurance policy. Prior to the Effective Date, Capitol may purchase tail
insurance coverage under its current policies of directors' and officers'
liability insurance with respect to claims arising from facts or events which
occurred prior to the Effective Date, excluding Tyler v. Wickland and any
-----------------
related litigation; provided, however, that the total premium payment for such
insurance shall not exceed an amount which is reasonably acceptable to
Westamerica. Upon the merger of Capitol into Westamerica Bank, Westamerica Bank
shall be deemed to assume the liabilities of Capitol under its director and
officer indemnification agreements.
(h) Extraordinary Dividends. Prior to the Effective Date, Westamerica
-----------------------
shall not declare, set aside or pay any dividend or other distribution in
respect of its common stock (including, without limitation, any stock dividend
or distribution) other than regular quarterly dividends on its common stock in
amounts substantially equivalent to dividends paid in the pattern of
declarations and payments established in the 18 months prior to the date hereof
(it being understood that declaration of a quarterly dividend up to 2 cents per
share per quarter higher (on a cumulative basis) than the most recent previous
quarterly dividend will be deemed to meet this standard). Nothing herein shall
prohibit the issuance of shares pursuant to Westamerica's Dividend Reinvestment
Plan or Amended Rights Agreement (as defined in Section 5(j) herein).
3.2 Covenants of Capitol.
--------------------
(a) Approval by Capitol Shareholders. Capitol shall cause the Merger,
--------------------------------
this Agreement and the Merger Agreement to be submitted promptly for the
approval of its shareholders at a special meeting to be called and held in
accordance with applicable laws. Subject to its continuing fiduciary duties to
the shareholders of Capitol, the Board of Directors of Capitol, in authorizing
the execution and delivery of this Agreement by Capitol, shall recommend that
this Agreement and the Merger be approved. Capitol shall use its best efforts to
cause such meeting of its shareholders to take place not later than March 1,
1995, subject to effectiveness of the Westamerica Registration Statement (as
defined in Section 6(a)(i)). In connection with the call of such meeting,
Capitol shall cause such proxy materials, with any amendments thereto that may
in the judgment of its counsel be necessary or desirable, to be mailed to its
shareholders (the proxy materials, together with any amendments or supplements
thereto, being herein referred to as the "Proxy Statement"). Subject to its
continuing fiduciary duties to the shareholders of Capitol, the Board of
Directors of Capitol shall at all times prior to and during such meeting of
Capitol shareholders recommend that the transactions contemplated hereby be
adopted and approved, and, subject to such fiduciary duties, use its best
efforts to cause such adoption and approval. Within 15 business days after the
time of execution and delivery of this Agreement, members of the Board of
Directors of Capitol shall deliver to Westamerica undertakings in the
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<PAGE>
form attached hereto as Exhibit C confirming such directors' approval of the
transactions contemplated hereby, setting forth such directors' commitment to
vote his shares of Capitol stock in favor of the transactions contemplated
hereby, setting forth such director's agreement pursuant to Section 3.1(g)
herein and setting forth such directors' commitment to use his best efforts to
cause the shareholders of Capitol to adopt and approve the transactions
contemplated hereby, subject to their above-mentioned continuing fiduciary
duties to the shareholders of Capitol. Except with the prior approval of
Westamerica, neither Capitol nor any member of its Board of Directors shall, at
the Capitol shareholders' meeting, submit any other matters for approval of its
shareholders, other than matters incidental to the conduct of such meeting.
(b) Shareholder Lists and Other Information. After execution hereof,
---------------------------------------
Capitol shall from time to time make available to Westamerica, upon request, a
list of its shareholders and their addresses, a list showing all transfers of
the Capitol common stock and such other information as Westamerica shall
reasonably request regarding both the ownership and prior transfers of the
Capitol common stock.
(c) Government Approvals. Capitol shall cooperate in all reasonable
--------------------
respects with Westamerica in its undertaking pursuant to Section 3.1(b) to
obtain the Government Approvals and Capitol further agrees, subject to the
continuing fiduciary duties of the Board of Directors of Capitol to the
shareholders of Capitol, to take such actions as may be reasonably requested by
Westamerica to cause the Merger to be consummated on the terms provided in the
Merger Agreement and this Agreement as promptly as is practicable.
(d) Capital Commitments and Expenditures. After the execution of this
------------------------------------
Agreement, no new capital commitments in excess of $25,000 shall be entered
into, and no capital expenditures in excess of $25,000 shall be made by Capitol.
Capitol shall not create any new branches or, except as permitted pursuant to
Section 3.2(h), enter into any acquisitions or leases of real property,
including both new leases and lease extensions without the prior approval of
Westamerica.
(e) Notification of Breach of Representations, Warranties and Covenants.
-------------------------------------------------------------------
Capitol shall promptly give written notice to Westamerica upon becoming aware of
the occurrence or impending or threatened occurrence of any event which would
cause or constitute a breach of any of the representations, warranties or
covenants of Capitol contained or referred to in this Agreement and shall use
its best efforts to prevent the same or remedy the same promptly.
(f) Financial Statements.
--------------------
(i) Capitol has delivered or shall deliver to Westamerica prior
to the Effective Date true and correct copies of consolidated
statements of income, changes in shareholders' equity and statements
of cash flows for the three months ended March 31, 1994, June 30,
1994, September 30, 1994, any subsequent quarter ends, and for the
fiscal years ended December 31, 1993, 1992, 1991, 1990 and 1989 and
consolidated balance sheets at March 31, 1994, June 30, 1994,
September 30, 1994 and any subsequent quarter ends, December 31, 1993,
1992, 1991, 1990 and 1989. Such consolidated financial statements at
December 31, 1993, 1992, 1991, 1990 and 1989 and for the fiscal years
ended December 31, 1993, 1992, 1991, 1990, and 1989 (and for the
fiscal year ending December 31, 1994) have been or shall be audited by
KPMG or Arthur Andersen in each case as independent public accountants
for Capitol during the relevant periods, and include or shall include
an opinion of such accounting firm to the effect that such financial
statements have been prepared in accordance with GAAP and present
fairly, in all material respects, the consolidated financial position,
results of operations and cash flows of Capitol at the dates indicated
and for the periods then ending. The opinions of such accounting firm
do not and shall not contain any qualifications.
(ii) Capitol shall provide to Westamerica, at or prior to the
Effective Date, copies of all financial statements and proxy statements
issued or to be issued to Capitol's shareholders and/or directors after
December 31, 1993, and at or prior to the Effective Date.
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<PAGE>
(iii) Capitol has delivered or shall deliver, to Westamerica true and
complete copies of Capitol's Annual Report to Shareholders for the years
ended December 31, 1989, 1990, 1991, 1992, 1993 and 1994, all periodic
reports required to be filed by it pursuant to Section 13(a) or 15(d) of
the 1934 Act since December 31, 1988, all proxy statements and other
written material furnished to Capitol's shareholders since December 31,
1988, and all other material reports, including call reports, relating to
Capitol filed by Capitol with the Federal Deposit Insurance Corporation
("FDIC") or the Superintendent during 1990 through 1993 and in 1994 and
1995 prior to the Effective Date. As of their respective dates, each of the
documents described in the preceding sentence complied or shall comply in
all material respects with all legal and regulatory requirements applicable
thereto.
(iv) Capitol shall cause to be delivered to Westamerica letters of
KPMG, Capitol's independent auditors, dated a date no more than two
business days prior to the date on which the Westamerica Registration
Statement shall become effective and two business days before the Closing
and addressed to Westamerica, in form and substance reasonably satisfactory
to Westamerica, and in scope and substance consistent with applicable
professional standards for letters delivered by independent public
accountants in connection with registration statements similar to the
Westamerica Registration Statement.
(g) Compensation. Capitol shall not make or approve any increase in the
------------
compensation payable or to become payable by Capitol to any of their directors,
officers, employees or agents with annual salaries in excess of $40,000 at the
date hereof (including but not limited to compensation through any profit
sharing, pension, retirement, severance, incentive or other employee benefit
program or arrangement), nor shall any bonus payment or any agreement or
commitment to make a bonus payment be made (except with Westamerica's prior
approval which shall not be unreasonably withheld), nor shall any stock option,
warrant or other right to acquire capital stock be granted, or employment
agreement (other than any such employment agreement that may arise by operation
of law upon the hiring of any new employee) or consulting agreement be entered
into by Capitol with any such directors, officers, employees or agents unless
Westamerica has given its prior written consent. Nothing herein shall prevent
the payment to Capitol employees (with salaries of $40,000 or less at the date
hereof) of regular salary increases, consistent with past practices in
connection with regular salary reviews consistent with past practices, as
heretofore disclosed to Westamerica. Without the prior consent of Westamerica,
Capitol shall not hire any new employee at an annual rate in excess of current
customary practice or, in any event, in excess of $40,000 per year, except with
the prior written consent of Westamerica.
(h) Conduct of Business in the Ordinary Course. Prior to the Effective
------------------------------------------
Time:
(i) Capitol shall conduct its businesses in the ordinary course as
heretofore conducted. For purposes of this Agreement, the "Ordinary Course
of Business" shall consist of the banking and related businesses as
presently conducted by Capitol and permitted under the California Financial
Code, the Federal Deposit Insurance Act and other applicable laws. Unless
Westamerica has given its previous written consent to any act or omission
to the contrary, Capitol shall, through the Effective Date, cause their
respective officers to:
A. use their best efforts to preserve its business and business
organizations intact;
B. use their best efforts to preserve the goodwill of customers
and others having business relations with it and take no action that would
materially impair the benefit to Westamerica of the goodwill of Capitol, or
the other benefits of the Merger;
C. consult with Westamerica as to the making of any decisions or
the taking of any actions in matters other than in the Ordinary Course of
Business;
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<PAGE>
D. maintain its properties in customary repair, working order and
condition (reasonable wear and tear excepted);
E. comply in all material respects with all laws, regulations and
decrees applicable to the conduct of its business;
F. keep in force at not less than its present limits all policies
of insurance (including deposit insurance of the FDIC) to the extent
reasonably practicable in light of the prevailing market conditions in the
insurance industry;
G. use its best efforts, subject to Section 3.2(g), to keep
available to Westamerica the services of its present officers and employees
(it being understood that Capitol shall have the right to terminate the
employment of any officer or employee in accordance with its established
employment procedures);
H. comply with all orders, agreements and memoranda of
understanding made by or with the FDIC, the State Banking Department
("SBD"), or any other regulatory authority of competent jurisdiction, and
promptly forward to Westamerica all communications received from any such
authority that are not prohibited by such authority from being so disclosed
and inform Westamerica of any material restrictions imposed by any
governmental authority on the business of Capitol;
I. file in a timely manner (taking into account any extensions
duly obtained) all reports, tax returns and other documents required to be
filed with federal, state, local and other authorities;
J. conduct a phase I environmental audit prior to foreclosure on
any real property concerning which Capitol has knowledge that asbestos or
asbestos-containing materials, PCB's or PCB-contaminated materials, any
petroleum product, or hazardous substance or waste (as defined under any
applicable environmental laws) was or is present, manufactured, recycled,
reclaimed, released, stored, treated, or disposed of, and provide the
results of such audit to and consult with Westamerica regarding the
significance of the audit prior to the foreclosure on any such property;
K. not sell, lease, pledge, assign, encumber or otherwise dispose
of any of its assets except in the Ordinary Course of Business, for
adequate value, without recourse and consistent with its customary
practice;
L. with respect to any extension of credit in excess of $10,000,
not waive or release any right or collateral or cancel or compromise any
debt or claim, except in the Ordinary Course of Business;
M. not make, renegotiate, renew, increase, extend or purchase any
loans, advances or loan commitments, in each case to any of its officers,
directors or any affiliated or related persons of such directors or
officers except in the Ordinary Course of Business consistent with its
established loan procedures and in compliance with FRB Regulation O;
N. not take any action to create, relocate or terminate the
operations of any banking office or branch, or to form any new subsidiary
or affiliated entity;
O. not settle or otherwise take any action to release or reduce
any of its rights with respect to any litigation involving a claim of more
than $10,000 in which it is a party;
-10-
<PAGE>
P. consult with Westamerica on problem loan workout strategies,
and obtain Westamerica's concurrence on any loan loss in excess of $25,000
or any writedown of other real estate owned.
(ii) Capitol shall not, without first having obtained the written
consent of Westamerica, cause the officers of Capitol to:
A. commit to any loan with a principal amount in excess of $50,000
provided that Westamerica's consent shall be deemed given unless it objects
and states the basis of its objection in writing, or verbally with prompt
written confirmation, within two business days after receipt of written
notice directed to authorized Westamerica personnel, together with
sufficient supporting information to allow Westamerica to make an informed
judgment, and Westamerica shall not unreasonably withhold its consent;
provided, further, that any consent given by Westamerica shall be binding
only if given by Westamerica personnel identified on a list signed by
Westamerica's President;
B. purchase any investment security with a maturity in excess of
two years, or sell any investment security in which a gain is recognized;
C. issue any certificate of deposit with a rate of interest in
excess of 6%;
D. commit to new capital commitments or expenditures in excess of
$25,000;
E. commit to any new contract or extend any existing contract that
would obligate Capitol for an aggregate amount over time in excess of
$25,000 except pursuant to Section 3.2(l), (including data processing,
servicing or any other agreement or contract);
F. accelerate the vesting of pension or other benefits;
G. grant any new stock options or accelerate the vesting of any
existing stock options; or
H. Fail to promptly notify Westamerica in writing upon becoming
aware of the occurrence of any of the following:
(1) the classification of any loan as substandard, doubtful
or loss;
(2) the filing or commencement of any legal action or other
proceeding or investigation against Capitol (or any director or
executive officer); or
(3) the monthly pretax earnings of Capitol are less than
$50,000.
(i) Press Releases. Capitol shall not issue any press release or written
--------------
statement for general circulation relating to this Agreement or the Merger
unless previously provided to Westamerica for review and approval (which
approval will not be unreasonably withheld or delayed) and shall cooperate with
Westamerica in the development and distribution of all news releases and other
public information disclosures with respect to this Agreement or the Merger;
provided that Capitol may, without the consent of Westamerica, make any
disclosure with regard to this Agreement or the Merger that it determines is
required under any applicable law or regulation and shall provide a copy thereof
to Westamerica.
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<PAGE>
(j) No Merger or Solicitation.
-------------------------
(i) Subject to the continuing fiduciary duties of the Board of
Directors of Capitol to the shareholders of Capitol, prior to the Effective
Time, Capitol shall not effect or agree to effect any Business Combination
(as defined in Section 3.1(f)), acquire or agree to acquire any of its own
capital stock or the capital stock (except in a fiduciary capacity) or
assets (except in the Ordinary Course of Business) of any other entity, or
commence any proceedings for winding up and dissolution affecting either of
them.
(ii) Subject to the continuing fiduciary duties of the Board of
Directors of Capitol to the shareholders of Capitol, prior to the Effective
Date, neither Capitol, nor any officer, director or affiliate of Capitol,
nor any investment banker, attorney, accountant or other agent, advisor or
representative retained by Capitol shall (A) solicit or encourage, directly
or indirectly, any inquiries, discussions or proposals for, continue,
propose or enter into discussions or negotiations looking toward, or enter
into any agreement or understanding providing for, any Business
Combination; or (B) disclose, directly or indirectly, any nonpublic
information to any corporation, partnership, person or other entity or
group concerning the business and properties of Capitol or afford any such
party access to the properties, books or records of Capitol or otherwise
assist or encourage any such party in connection with the foregoing, or (C)
furnish or cause to be furnished any information concerning the business,
financial condition, operations, properties or prospects of Capitol to
another person, having any actual or prospective role with respect to any
such transaction; provided, however, that with respect to any investment
banker, Capitol shall use its best efforts to ensure that said investment
banker complies with the foregoing.
(iii) Capitol shall notify Westamerica of the details of any
indication of interest of any person, corporation, firm, association or
group to acquire by any means a controlling interest in Capitol or engage
in any Business Combination with Capitol within two business days of any
such indication of interest.
(iv) In the event the Board of Directors of Capitol receives a bona
fide offer for a Business Combination with another entity, and reasonably
determines, upon advice of counsel, that as a result of such offer, any
duty to act or to refrain from doing any act pursuant to this Agreement is
inconsistent with the continuing fiduciary duties of said Board of
Directors to the shareholders of Capitol, such failure to act or refrain
from doing any act shall not constitute the failure of any condition,
breach of any covenant or otherwise constitute any breach of this
Agreement, provided, however, that any such failure to act or refrain from
doing any act shall entitle Westamerica to terminate this Agreement
pursuant to Section 12(b) and provided further, that the obligations and
liabilities of Capitol set forth in Section 12(e) hereof shall continue in
full force and effect but neither Capitol nor its officers, directors or
agents shall have any further liability with regard thereto for any failure
to act or omission of any act pursuant to this subsection (iv).
(k) Capitol 401(k) Plan. Capitol agrees the Capitol 401(k) Plan (the
-------------------
"Plan") may be terminated, frozen, modified or merged into the Westamerica
401(k) Plan immediately before, on or after the Effective Date, as determined by
Westamerica in its sole discretion, subject to compliance with applicable law.
(l) Outsourcing to Westamerica. Capitol shall endeavor to, and cooperate
--------------------------
with Westamerica to, outsource various Capitol banking functions to Westamerica,
provided that such outsourcing does not impair the independence of Capitol.
These functions include, but are not limited to, item processing, data
processing, loan documentation, facilities management, investment portfolio
management, loan review, internal audit and account servicing. Arm's-length
contracts between Capitol and Westamerica to document these outsourcing
arrangements shall include appropriate compensation for services provided, as
well as provisions to terminate the contracts as appropriate, for example, if
this Agreement is terminated. In the event of termination,
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Westernamercia agrees to cooperate in an orderly transition back to a
satisfactory operating condition of these functions by Capitol.
(m) Changes in Capital Stock. At or after the date hereof and at or
------------------------
prior to the Effective Time, except with the prior written consent of
Westamerica, Capitol shall not amend its Articles of Incorporation or Bylaws;
make any change in its authorized, issued or outstanding capital stock or any
other equity security; issue, sell, pledge, assign or otherwise encumber or
dispose of, or purchase, redeem or otherwise acquire, any of its shares of
capital stock or other equity securities or enter into any agreement, call or
commitment of any character so to do; grant or issue any stock option relating
to, right to acquire, or security convertible into, shares of its capital stock
or other equity security; purchase, redeem, retire or otherwise acquire (other
than in a fiduciary capacity) any shares of, or any security convertible into,
its capital stock or other equity securities, or agree to do any of the
foregoing, except that nothing herein shall prohibit the execution of the Stock
Option Agreement or issuance of shares pursuant to the Option Plan with respect
to options outstanding at the date of this Agreement (except as limited in
Section 2.6).
(n) Dividends. Capitol shall not declare, set aside or pay any dividend
---------
or other distribution in respect of its common stock (including, without
limitation, any stock dividend or distribution).
(o) Accounting Methods. Capitol shall not change its methods of
------------------
accounting in effect at December 31, 1993, except as required by changes
in GAAP as concurred in by its independent auditors.
(p) Affiliates. On the date hereof and at least 40 days prior to the
----------
Closing, Capitol shall deliver to Westamerica a letter identifying all persons
who are "affiliates" of Capitol for purposes of Rule 145 under the 1933 Act.
Capitol shall use all reasonable efforts to cause each person named in the
letter delivered by it to deliver to Westamerica prior to the Closing a written
"affiliates" agreement, in substantially the form attached hereto as Exhibit E,
providing that such person shall dispose of the Westamerica Common Stock to be
received by such person in the Merger only in accordance with applicable law
and, in addition, in such agreement, such affiliate shall represent that they
have no present plan or intention to dispose of any such shares of Westamerica
Common Stock.
(q) Additional Agreements. In case at any time after the Effective Time
---------------------
any further action is necessary or desirable to carry out the purposes of this
Agreement or to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of Capitol, the
proper officers and directors of each party to this Agreement shall take all
such necessary or appropriate action.
(r) Access to Properties, Books and Records; Confidentiality. Prior
--------------------------------------------------------
to the Effective Time, Capitol shall give Westamerica and its counsel and
accounts full access, during normal business hours and upon reasonable request,
accounts its properties, books, contracts, commitments and records including,
but not limited to, the corporate, financial and operational records, papers,
reports, instructions, procedures, tax returns and filings tax settlement
letters, material contracts or commitments, regulatory examinations and
correspondence and shall allow Westamerica to make copies of such materials (to
the extent not legally prohibited) and shall furnish Westamerica with all such
information concerning its affairs as Westamerica may reasonably request.
Capitol shall also use its best efforts to cause KPMG to make available to
Westamerica, its accountants, counsel and other agents, to the extent reasonably
requested in connection with such review, KPMG's work papers and documentation
relating to its work papers and its audits of the books and records of Capitol.
(s) Employee Welfare Benefit Plans. Capitol agrees that Capitol's
------------------------------
employee welfare benefit plans, as defined in Section 3(1) of Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), may be terminated,
modified or merged into Westamerica's welfare benefit plans before, on or after
the Effective Date, as determined by Westamerica in its sole discretion, subject
to compliance with applicable law.
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(t) Execution and Delivery of Stock Option Agreement. The parties agree
------------------------------------------------
that the Stock Option Agreement shall be executed and delivered immediately
following the execution and delivery of this Agreement.
(u) Noncompetition Agreements. Capitol shall use its best efforts to have
-------------------------
each nonofficer director listed on Exhibit F hereto execute a noncompetition
agreement substantially in the form attached hereto as Exhibits B or B-1.
(v) Litigation Developments. Capitol agrees to promptly advise Westamerica
-----------------------
with respect to any and all material legal actions or other proceedings or
investigations and to promptly advise Westamerica with respect to any
significant developments arising in connection with said actions, proceedings or
investigations including but not limited to information concerning the matter
known as Tyler v. Wickland.
-----------------
(w) Net Operating Loss Carryforward. Capitol shall cooperate with
-------------------------------
Westamerica and use its reasonable efforts to cause Capitol's independent
auditor to cooperate with Westamerica in order to allow Westamerica to obtain,
to the extent possible, any of Capitol's net operating loss carryforwards and
tax credit carryforwards.
3.3 Covenants of the Parties. Each party shall use its best efforts to
------------------------
cause its officers, directors, employees, auditors, agents, and attorneys to
cooperate with the other in the reasonable requests for information by the other
parties hereto. Each party shall treat as confidential all such information in
the same manner as each party treats similar confidential information of its
own, and if this Agreement is terminated, each party shall continue to treat all
such information as confidential and to cause its employees to keep all such
information confidential and shall return such documents theretofore delivered
by the other party as the other party shall request, and shall use such
information, or cause it to be used, solely for the purposes of evaluating and
completing the transactions contemplated hereby; provided that each party may
disclose any such information to the extent required by federal or state
securities laws or otherwise required by any governmental agency or authority,
or by generally accepted accounting principles. The foregoing confidentiality
obligations shall not apply in respect of any information publicly available or
to any information previously known to the party in question, the use of which
is not otherwise restricted.
4. REPRESENTATIONS AND WARRANTIES OF CAPITOL.
-----------------------------------------
Capitol represents and warrants to Westamerica, except with respect to
subsections (c), (d), (f), (g), (i), (j), (k), (l), (m), (n), (o), (p), (q), (u)
and (w) of this Section 4 if disclosed to Westamerica in writing within 10 days
after the date hereof (the "Capitol Disclosure Statement"), that:
(a) Corporate Status and Power to Enter Into Agreements. Capitol (i) is a
---------------------------------------------------
state chartered bank duly incorporated, validly existing and in good standing
under the laws of California, (ii) subject to the approval of this Agreement and
the transactions contemplated hereby by the shareholders of Capitol, the SBD and
the FDIC, it has all necessary corporate power to enter into this Agreement and
to carry out all of the terms and provisions hereof and thereof to be carried
out by it, (iii) holds a currently valid license issued by the SBD to engage in
the commercial banking business in California at its banking offices, and (iv)
is not subject to any directive, order (formal or informal) or agreement, of the
FDIC, the SBD or any other regulatory authority having jurisdiction over its
business or any of its assets or properties, and (iv) is in full compliance with
any agreements, understandings or orders of the SBD, the FDIC, or any other
regulatory authority having jurisdiction over its business or any of its assets
or properties. Neither the scope of the business of Capitol nor the location of
its properties requires it to be licensed to do business in any jurisdiction
other than the State of California.
(b) Articles, Bylaws, Books and Records. The copies of the Articles of
-----------------------------------
Incorporation and Bylaws of Capitol to be delivered to Westamerica prior to the
date hereof are complete and accurate copies thereof as in effect on the date
hereof. The minute books of Capitol made available to Westamerica contain a
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<PAGE>
complete and accurate record of all meetings of the Board of Directors (and
committees thereof) and shareholders. The corporate books and records
(including financial statements) of Capitol fairly reflect the material
transactions to which Capitol is a party or by which its properties are subject
or bound, and such books and records have been properly kept and maintained.
The Articles of Incorporation and Bylaws of Capitol and all amendments thereto
have been duly approved by all requisite corporate action and by the appropriate
regulatory authority to the extent required by law.
(c) Compliance With Laws, Regulations and Decrees. Capitol (i) has the
---------------------------------------------
corporate power to own or lease its properties and to conduct its business as
currently conducted, (ii) has complied with, and is not in default of any laws,
regulations, ordinances, orders or decrees applicable to the conduct of its
business and the ownership of its properties, including but not limited to all
federal and state laws (including but not limited to the Bank Secrecy Act),
rules and regulations relating to the offer, sale or issuance of securities, and
the operation of a commercial bank, other than where such noncompliance or
default is not likely to result in a material limitation on the conduct of its
business or is not likely to otherwise have a material adverse effect on Capitol
taken as a whole (iii) has not failed to file with the proper federal, state,
local or other authorities any material report or other document required to be
so filed, (iv) has all material approvals, authorizations, consents, licenses,
clearances and orders of, and have currently effective all registrations with,
all governmental and regulatory authorities which are necessary to the business
and operations of Capitol as now being conducted, and (v) has received no
notification, formally or informally, from any agency or department of any
federal, state or local government or any regulatory agency or the staff thereof
(A) asserting that Capitol is not in material compliance with any of the
statutes, regulations or ordinances which such government or regulatory
authority enforces, or (B) threatening to revoke any licenses, franchise, permit
or governmental authorization of Capitol.
(d) Capitalization. The authorized capital stock of Capitol consists of
--------------
10,000,000 shares of Capitol common stock, no par value, of which 4,080,302 are
duly authorized, validly issued, fully paid and nonassessable and currently
outstanding. Said stock has been issued in compliance with all applicable
registration or qualification provisions of state and federal securities laws.
No other equity securities of Capitol have been issued or are outstanding.
There are currently outstanding options to purchase 319,467 shares of Capitol
common stock, at a weighted average exercise price of $1.58 per share, issued
pursuant to the Option Plan. Said options were issued and, upon issuance in
accordance with the terms of the outstanding options said shares shall be
issued, in compliance with all applicable securities laws. Other than the Stock
Option Agreement contemplated hereby there are no outstanding (i) options,
agreements, calls or commitments of any character which would obligate Capitol
to issue, sell, pledge, assign or otherwise encumber or dispose of, or to
purchase, redeem or otherwise acquire, any Capitol common stock or any other
equity security of Capitol, or (ii) warrants or options relating to, rights to
acquire, or debt or equity securities convertible into, shares of Capitol common
stock or any other equity security of Capitol. Attached to the Capitol
Disclosure Statement is a list of all option holders and the number of vested
and unvested options as of September 30, 1994. The outstanding common stock of
Capitol has been duly and validly registered with the Commission pursuant to the
1934 Act, to the extent required thereunder.
(e) Equity Interests. Except as listed below or as collateral for
----------------
outstanding loans held in its loan portfolio, Capitol does not own, directly or
indirectly, any equity interest in any bank, corporation, or other entity.
-None-
(f) Financial Statements, Regulatory Reports. No financial statement or
----------------------------------------
other document provided or to be provided to Westamerica as required by Section
3.2(f) hereof, as of the date of such document, contained, or as to documents to
be delivered after the date hereof, will contain, any untrue statement of a
material fact, or, at the date thereof, omitted or will omit to state a material
fact necessary in order to make the statements contained therein, in light of
the circumstances under which such statements were or will be made, not
misleading; provided, however, that information as of a later date shall be
deemed to modify information as of any earlier date. Capitol has filed all
material documents and reports relating to
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<PAGE>
Capitol required to be filed by it with the SBD, the Commission, the FDIC, or
any other governmental authority having jurisdiction over its business or any of
its assets or properties. All such reports conform in all material respects with
the requirements promulgated by such regulatory agencies. All compliance or
corrective action relating to Capitol required by governmental authorities and
regulatory agencies having jurisdiction over Capitol have been taken. Capitol
has not received notification, formally or informally, from any agency or
department of any federal, state or local government or any regulatory agency or
the staff thereof (A) asserting that Capitol is not in compliance with any of
the statutes, regulations or ordinances which such government or regulatory
authority enforces, or (B) threatening to revoke any license, franchise, permit
or governmental authorization of Capitol. Capitol is not subject to any order,
agreement or written directive with any regulatory authority with respect to its
assets or business except for matters of general application. Capitol has paid
all assessments made or imposed by any governmental agency. Capitol shall
deliver to Westamerica copies of all annual management letters and opinions, and
shall make available to Westamerica for inspection all reviews, correspondence
and other documents in the files of Capitol prepared by KPMG or any other
certified public accountant engaged by Capitol and delivered to Capitol since
January 1, 1988. The consolidated financial records of Capitol have been, and
are being and shall be, maintained in all material respects in accordance with
all applicable legal and accounting requirements sufficient to insure that all
transactions reflected therein are, in all material respects, executed in
accordance with management's general or specific authorization and recorded in
conformity with GAAP at the time in effect. The data processing equipment,
data transmission equipment, related peripheral equipment and software used by
Capitol in the operation of its business to generate and retrieve its financial
records are adequate for the current needs of Capitol.
(g) Tax Returns.
-----------
(i) Capitol has timely filed all federal, state, county, local and
foreign tax returns required to be filed by it, including, without
limitation, estimated tax, use tax, excise tax, real property and personal
property tax reports and returns, employer's withholding tax returns, other
withholding tax returns and Federal Unemployment Tax Returns, and all other
reports or other information required or requested to be filed by each of
them, and each such return, report or other information was, when filed,
complete and accurate in all material respects. Capitol has paid all
taxes, fees and other governmental charges, including any interest and
penalties thereon, when they have become due and payable, except those that
are being contested in good faith, which contested matters have been
disclosed in writing to Westamerica. Capitol has not requested to give or
has given any currently effective waivers extending the statutory period of
limitation applicable to any tax return required to be filed by either of
them for any period. There are no claims pending against Capitol for any
alleged deficiency in the payment of any taxes, and no pending or
threatened audits, investigations or claims for unpaid taxes or relating to
any liability in respect of any taxes. There have been no events,
including a change in ownership, that would result in a reappraisal and
establishment of a new base-year full value for purposes of Articles XIII.A
of the California Constitution, of any real property owned in whole or in
part by Capitol or to the best of Capitol's knowledge, of any real property
leased by Capitol.
(ii) Capitol shall deliver to Westamerica when available, copies of
all its and its subsidiaries' tax returns with respect to taxes payable to
the United States of America and the State of California for the fiscal
years ended December 31, 1994, 1993, 1992, 1991 and 1990.
(iii) No consent has been filed relating to Capitol pursuant to
Section 341(f) of the IRC.
(h) Material Adverse Change. Except as reflected on Capitol's financial
-----------------------
statements issued prior to the date hereof and delivered to Westamerica or as
otherwise disclosed in writing by Capitol to Westamerica prior to the date
hereof, since December 31, 1993, there has been (i) no material adverse change
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in the business, assets, licenses, permits, franchises, results of operations or
financial condition of Capitol taken as a whole (whether or not in the ordinary
course of business), (ii) no change in any of the assets, licenses, permits or
franchises of Capitol or that has had or, to Capitol's knowledge, can reasonably
be expected to have a material adverse effect on any of the items listed in
clause (h)(i) above, (iii) no damage, destruction, or other casualty loss
(whether or not covered by insurance) that has had or can reasonably be expected
to have a material adverse effect on any of the items listed in clause (h)(i)
above, (iv) no amendment, modification, or termination of any existing, or
entering into of any new, contract, agreement, plan, lease, license, permit or
franchise that is material to the business, financial condition, assets,
liabilities or operations of Capitol taken as a whole, except in the Ordinary
Course of Business; (v) no disposition by Capitol of one or more assets that,
individually or in the aggregate, are material to Capitol taken as a whole,
except sales of assets in the Ordinary Course of Business.
(i) No Undisclosed Liabilities. Except for items for which reserves have
--------------------------
been established in the unaudited consolidated balance sheets of Capitol as of
September 30, 1994, since such date Capitol has not incurred or discharged, and
is not legally obligated with respect to, any indebtedness, liability
(including, without limitation, a liability arising out of an indemnification,
guarantee, hold harmless or similar arrangement) or obligation (accrued or
contingent, whether due or to become due, and whether or not subordinated to the
claims of its general creditors), other than as a result of operations in the
Ordinary Course of Business. No agreement pursuant to which any loans or other
assets have been or will be sold by Capitol entitle the buyer of such loans or
other assets, unless there is material breach of a representation or covenant by
Capitol, to cause Capitol to repurchase such loan or other asset or to pursue
any other form of recourse against Capitol. Capitol has not knowingly made nor
shall make any representations or covenants in any such agreement that contained
or shall contain any untrue statement of a material fact or omitted or shall
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which such
representations and/or covenants were made or shall be made, not misleading. No
cash, stock or other dividend or any other distribution with respect to the
stock of Capitol has been declared, set aside or paid, nor have any shares of
the stock of Capitol been purchased, redeemed or otherwise acquired, directly or
indirectly, by Capitol since September 30, 1994.
(j) Properties and Leases.
---------------------
(i) Capitol has good and marketable title, free and clear of all
liens and encumbrances and the right of possession, subject to existing
leaseholds, to all real properties and good title to all other property and
assets, tangible and intangible, reflected in the Capitol consolidated
balance sheet as of September 30, 1994 (except property held as lessee
under leases entered into since September 30, 1994 and disclosed in writing
prior to the date hereof and except personal property sold or otherwise
disposed of since September 30, 1994 in the Ordinary Course of Business),
except (a) liens for taxes or assessments not delinquent, (b) such other
liens and encumbrances and imperfections of title as do not materially
affect the value of such property as reflected in the Capitol consolidated
balance sheet as of September 30, 1994, or as currently shown on the books
and records of Capitol and which do not interfere with or impair the
present and continued use, or (c) immaterial exceptions disclosed in title
reports and preliminary title reports, copies of which shall be provided to
Westamerica. All tangible properties of Capitol conform in all material
respects with all applicable ordinances, regulations and zoning laws. All
material tangible properties of Capitol are in a good state of maintenance
and repair and are adequate for the current business of Capitol. No
properties of Capitol and, to the best of Capitol's knowledge, no
properties in which it holds a collateral or contingent interest or
purchase option, are the subject of any pending or to the best of Capitol's
knowledge, threatened investigation, claim or proceeding relating to the
use, storage or disposal on such property of or contamination of such
property by any toxic or hazardous waste material or substance. To
Capitol's knowledge, Capitol does not own, possess or have a collateral or
contingent interest or purchase option in any properties or other assets
which contain or have located within or thereon any hazardous or toxic
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waste material or substance unless the location of such hazardous or toxic
waste material or other substance or its use thereon conforms in all
material respects with all federal, state and local laws, rules,
regulations or other provisions regulating the discharge of materials into
the environment. As to any asset not owned or leased by Capitol, to the
best of Capitol's knowledge, Capitol has not controlled, directed or
participated in the operation or management of any such asset or any
facilities or enterprise conducted thereon, such that it has become an
owner or operator of such asset under applicable environmental laws.
(ii) All properties held by Capitol under leases are held under
valid, binding and enforceable leases, with such exceptions as are not
material and do not interfere with the conduct of the business of Capitol,
and Capitol enjoys quiet and peaceful possession of such leased property.
Capitol is not in default in any material respect under any material lease,
agreement or obligation regarding its properties to which it is a party or
by which it is bound.
(iii) Except as disclosed to Westamerica in the Capitol Disclosure
Statement, all of Capitol's rights and obligations under the leases
referred to in Section 4(j)(ii) above do not require the consent of any
other party to the transaction contemplated by this Agreement. Where
required, Capitol shall use its best efforts to obtain, prior to the
Effective Date, the consent of all parties to any such transactions.
(k) Material Contracts. Except as disclosed to Westamerica in the Capitol
------------------
Disclosure Statement and excluding loans, lines of credit, loan commitments or
letters of credit to which Capitol is a party, Capitol is not a party to or
bound by any contract or other agreement made in the Ordinary Course of Business
which involves aggregate future payments by or to it of more than $50,000 and
which is made for a fixed period expiring more than one year from the date
hereof, and Capitol is not a party to or bound by any agreement not made in the
Ordinary Course of Business which is to be performed at or after the date
hereof. Each of the contracts and agreements disclosed to Westamerica pursuant
to this Section 4(k) is a legal and binding obligation (subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and subject, as to enforceability, to equitable principles of general
applicability), and no material breach or default (and no condition which, with
notice or passage of time, or both, could become a breach or default) exists
with respect thereto. No power of attorney or similar authorization given
directly or indirectly by Capitol is currently outstanding.
(l) Classified Loans. Except as disclosed to Westamerica in the Capitol
----------------
Disclosure Statement, there are no loans presently owned by Capitol that have
been classified by any bank examiner, outside loan reviewer, accountant or the
management of Capitol as "Other Loans Especially Mentioned," "Substandard,"
"Doubtful," or "Loss" or classified using categories with similar import and all
loans or portions thereof classified "Loss" have been charged off.
Notwithstanding the above, Capitol shall be under no obligation to disclose to
Westamerica any such classification by any bank examiner where such disclosure
would violate any obligation of confidentiality of Capitol imposed by the SBD,
the FDIC, or any other bank regulator. Capitol regularly reviews and
appropriately classifies loans in accordance with all applicable legal and
regulatory requirements and generally accepted banking practices. All loans and
investments of Capitol are legal, valid and binding obligations enforceable in
accordance with their respective terms and are not subject to any setoffs,
counterclaims or disputes (subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general applicability), except as
disclosed to Westamerica in the Capitol Disclosure Statement or reserved for in
the unaudited consolidated balance sheet of Capitol as of September 30, 1994,
and were duly authorized under and made in material compliance with applicable
federal and state laws and regulations. Capitol does not have any extensions of
credit, investments, guarantees, indemnification agreements or commitments for
the same (including without limitation commitments to issue letters of credit,
to create acceptances, or to repurchase securities, federal funds or other
assets) other than those documented on the books and records of Capitol.
(m) Restrictions on Investments. Except for pledges to secure public and
---------------------------
trust deposits and repurchase agreements in the Ordinary Course of Business,
none of the investments reflected in the Capitol
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consolidated balance sheet as of September 30, 1994, and none of the investments
made by Capitol since September 30, 1994, is subject to any restriction, whether
contractual or statutory, which materially impairs the ability of Capitol freely
to dispose of such investment at any time.
(n) Employment Contracts and Benefits.
---------------------------------
(i) Capitol has delivered to Westamerica an accurate list setting
forth all bonus, incentive compensation, profit-sharing, pension,
retirement, stock purchase, stock option, deferred compensation, severance,
hospitalization, medical, dental, vision, group insurance, death benefits,
disability and other fringe benefit plans, trust agreements, arrangements
and commitments of Capitol (including but not limited to such plans,
agreements, arrangements and commitments applicable to former employees or
retired employees, or for which such persons are eligible), if any,
together with copies of all such plans, agreements, arrangements and
commitments that are documented, any and all contracts of employment and
has made available to Westamerica any Board of Directors' minutes (or
committee minutes) from meetings held within the five-year period ending as
of the Closing authorizing, approving or guaranteeing such plans and
contracts.
(ii) With respect to each employee benefit plan (as defined in
Section 3(3) of ERISA) which is listed in Subsection (n) and which is
subject to the reporting, disclosure and record retention requirements set
forth in the IRC and Part 1 of Subtitle B of Title I of ERISA and the
regulations thereunder, each of such requirements has been fully met on a
timely basis.
(iii) With respect to each employee benefit plan (as defined in
Section 3(3) of ERISA) which is listed in Subsection (n) and which is
subject to Part 4 of Subtitle B of Title I of ERISA, none of the following
now exists or has existed within the six-year period ending on the date
hereof:
(1) Any act or omission constituting a material violation of
Section 402 of ERISA;
(2) Any act or omission constituting a violation of Section 403 of
ERISA;
(3) Any act or omission by Capitol or any of its subsidiaries, or
by any director, officer or employee thereof, constituting a violation of
Sections 404 and 405 of ERISA;
(4) To the best of Capitol's knowledge, any act or omission by any
other person constituting a violation of Sections 404 or 405 of ERISA;
(5) Any act or omission which constitutes a material violation of
Sections 406 or 407 of ERISA and is not exempted by Section 408 of ERISA or
which constitutes a violation of Section 4975(c) of the IRC and is not
exempted by Section 4975(d) of the IRC; or
(6) Any act or omission constituting a violation of Sections 503,
510 or 511 of ERISA.
(iv) All contributions, premiums or other payments due from Capitol
and its subsidiaries to (or under) any plan listed in subsection (n) have
been fully paid or adequately provided for on the Audited Financials for
the year ended December 31, 1993 and period ended June 30, 1994. All
accruals thereon (including, where appropriate, proportional
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<PAGE>
accruals for partial periods) have been made in accordance with GAAP
consistently applied on a reasonable basis.
(v) Each plan listed in subsection (n) complies in all material
respects with all applicable requirements of (A) the Age Discrimination in
Employment Act of 1967, as amended, and the regulations thereunder and (B)
Title VII of the Civil Rights Act of 1964, as amended, and the regulations
thereunder.
(vi) Each plan listed in subsection (n) complies in all material
respects with all applicable requirements of (A) the health care
continuation coverage provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985, and the regulations thereunder.
(vii) Capitol shall disclose in writing to Westamerica the names of
each director, officer and employee of Capitol and the Bank.
(o) Compliance With ERISA. Capitol has not, since its inception,
---------------------
either maintained or contributed to an employee pension benefit plan, as defined
in Section 3(2) of ERISA, including multiemployer plans, other than the Plan and
a true and accurate copy of which has been provided to Westamerica. With respect
to the Plan and its related trust (the "Trust"), as of the Effective Time, (i)
the Plan will in all material respects be (and currently is) in compliance with
all the applicable requirements of Section 401(a) of the IRC, and the Trust will
be exempt from income tax under Section 501(a) of the IRC; (ii) the Plan
represents the adoption of a standardized prototype plan that received a
favorable opinion letter ("Opinion Letter") from the Internal Revenue Service
("IRS") as to its form dated April 1, 1992; (iii) Capitol relies on such Opinion
Letter as authorized under IRS Revenue Procedure 89-9 as support for the fact
that the Plan is qualified under section 401(a) of the IRC; (iv) no
contributions have exceeded the limitations set forth in Section 415 of the IRC;
(v) all required and necessary filings with the IRS, Department of Labor and any
other governmental agencies with respect to the Plan and the Trust for all
periods ending at or prior to the Effective Time will have been made on a timely
basis by Capitol and the plan administrator; (vi) there shall have been no
material violation of Parts 1 and 4 of Subtitle B of Title I of ERISA or of
Section 4975 of the IRC; and (vii) there shall have been no action, claim or
demand of any kind known to Capitol brought or threatened by any potential
claimant or representative of such claimant under the Plan or Trust where
Capitol may be either (A) liable directly on such action, claim or demand, or
(B) obligated to indemnify any person, group of persons or entity with respect
to such action, claim or demand, unless such action, claim or demand is covered
by adequate reserves reflected in Capitol's June 30, 1994 financial statements
or an insurer of Capitol has agreed to defend against and pay the amount of any
resulting liability without reservation.
(p) Collective Bargaining and Employment Agreements. Except as
-----------------------------------------------
provided in this Agreement or as disclosed to Westamerica in the Capitol
Disclosure Statement, Capitol does not have any union or collective bargaining
or written employment agreements, contracts or other agreements with any labor
organization or with any member of management, or any management or consultation
agreement not terminable at will by Capitol without liability and no such
contract or agreement has been requested by, or is under discussion by
management with, any group of employees, any member of management or any other
person. There are no material controversies pending between Capitol and any
current or former employees, and to the best of their knowledge, there are no
efforts presently being made by any labor union seeking to organize any of such
employees.
(q) Compensation of Officers and Employees. Except as disclosed to
--------------------------------------
Westamerica in the Capitol Disclosure Statement and except as otherwise provided
in this Agreement, (i) no officer or employee of Capitol is receiving aggregate
direct remuneration at a rate exceeding $40,000 per annum, and (ii) the
consummation of the transactions contemplated by this Agreement will not (either
alone or upon the occurrence of any additional or further acts or events) result
in any payment (whether of severance pay or otherwise) becoming due from
Capitol, or Westamerica to any employee of Capitol.
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(r) Legal Actions and Proceedings. Except as disclosed to Westamerica
-----------------------------
in writing prior to the date hereof, Capitol is not a party to, nor threatened
with, any legal action or other proceeding or investigation before any court,
any arbitrator of any kind or any government agency, and to the best of
Capitol's knowledge, Capitol is not subject to any potential adverse claim, the
outcome of which could involve the payment or receipt by Capitol of any amount
in excess of $50,000, unless an insurer of Capitol has agreed to defend against
and pay the amount of any resulting liability without reservation, or, if any
such legal action, proceeding, investigation or claim will not involve the
payment by Capitol of a monetary amount, which could materially adversely affect
Capitol or its business or property or the transactions contemplated hereby.
Capitol has no knowledge of any pending or threatened claims or charges under
the Community Reinvestment Act, before the Equal Employment Opportunity
Commission, the California Department of Fair Housing & Economic Development,
the California Unemployment Appeals Board, or any human relations commission.
There is no labor dispute, strike, slow-down or stoppage pending or, to the best
of the knowledge of Capitol, threatened against Capitol.
(s) Execution and Delivery of the Agreement.
---------------------------------------
(i) The execution and delivery of this Agreement has been duly
authorized by the Board of Directors of Capitol and, when this Agreement
and the Merger have been duly approved by the affirmative vote of the
holders of a majority of the outstanding shares of Capitol common stock at
a meeting of shareholders duly called and held, this Agreement and the
Merger will be duly and validly authorized by all necessary corporate
action on the part of Capitol.
(ii) This Agreement has been duly executed and delivered by
Capitol and (assuming due execution and delivery by and enforceability
against Westamerica) constitutes the legal and binding obligations of
Capitol.
(iii) The execution and delivery by Capitol of this Agreement and
the consummation of the transactions herein (A) do not violate any
provision of the Articles of Incorporation or Bylaws of Capitol, any
provision of federal or state law or any governmental rule or regulation
(assuming (1) receipt of the Government Approvals, (2) receipt of the
requisite Capitol shareholder approval referred to in Section 4(s)(i)
hereof, (3) due registration of the Westamerica Shares under the 1933 Act,
(4) receipt of appropriate permits or approvals under applicable state
securities laws, and (5) accuracy of the representations of Westamerica set
forth herein), and (B) do not require any consent of any person under,
conflict with or result in a breach of, or accelerate the performance
required by any of the terms of, any material debt instrument, lease,
license, covenant, agreement or understanding to which Capitol is a party
or by which it is bound or any order, ruling, decree, judgment, arbitration
award or stipulation to which Capitol is subject, or constitute a material
default thereunder or result in the creation of any lien, claim, security
interest, encumbrance, charge, restriction or similar right of any third
party upon any of the properties or assets of Capitol.
(t) Retention of Broker or Consultant. No broker, agent, finder,
---------------------------------
consultant or other party (other than legal, compliance, loan auditors and
accounting advisors) has been retained by Capitol or is entitled to be paid
based upon any agreements, arrangements or understandings made by Capitol in
connection with any of the transactions contemplated by this Agreement, except
that Capitol has engaged the firms of Hoefer & Arnett, Incorporated and Smith &
Crowley to act as its financial advisors and to render opinions regarding the
fairness of the Merger and Financial Institutions Analysts & Consultants, Inc.
("FIAC") to perform limited due diligence services. Capitol shall provide
Westamerica with true and accurate copies of its agreements with Hoefer &
Arnett, Incorporated, Smith & Crowley and FIAC.
(u) Insurance. Capitol is and continuously since its inception has
---------
been, insured with reputable insurers against all risks normally insured against
by banks, and all of the insurance policies and bonds
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maintained by Capitol are in full force and effect, Capitol is not in default
thereunder and all material claims thereunder have been filed in due and timely
fashion. In the best judgment of the management of Capitol, such insurance
coverage is adequate for Capitol. Since December 31, 1990, there has not been
any damage to, destruction of, or loss of any assets of Capitol not covered by
insurance that could materially and adversely affect the business, financial
condition, properties, assets or results of operations of Capitol.
(v) Loan Loss Reserves. The reserve for loan losses in the Capitol
------------------
consolidated balance sheets dated December 31, 1993, March 31, 1994, June 30,
1994 and September 30, 1994, each subsequent period end prior to the Effective
Date and as of the Effective Date are or will be adequate in all material
respects under the requirements of all applicable state and federal laws and
regulations to provide for possible loan losses on outstanding loans, net of
recoveries, but in no event will be less than sufficient to reserve for
Nonperforming Loans outstanding. For purposes of this Agreement, Nonperforming
Loans means the sum of all accruing loans over 90 days past due in the payment
of principal or interest plus any loans no longer accruing interest.
Nonperforming Loans does not include Other Real Estate Owned or Loan Collateral
Substantively Repossessed. Capitol has disclosed to Westamerica in writing prior
to the date hereof, and will promptly inform Westamerica of the amounts of all
loans, leases, other extensions of credit or commitments, or other interest-
bearing assets of Capitol, that have been classified as of the date hereof or
hereafter by any internal bank examiner or any bank regulatory agency as "Other
Loans Especially Mentioned", "Substandard", "Doubtful", "Loss", or words of
similar import in the case of loans (or that would have been so classified, in
the case of other assets, had they been loans). Notwithstanding the above,
Capitol shall be under no obligation to disclose to Westamerica any such
classification by any bank regulatory agency where such disclosure would violate
any obligation of confidentiality of Capitol imposed by such bank regulatory
agency. Capitol has furnished and will continue to furnish to Westamerica true
and accurate information concerning the loan portfolio of Capitol, and no
material information with respect to the loan portfolio has been or will be
withheld from Westamerica.
(w) Transactions With Affiliates. Except as may arise in the Ordinary
----------------------------
Course of Business, Capitol has not extended credit, committed to extend credit,
or transferred any asset to or assumed or guaranteed any liability of the
employees or directors of Capitol, or any spouse or child of any of them, or to
any of their "affiliates" or "associates" as such terms are defined in Rule 405
under Regulation C of the 1933 Act. Capitol has not entered into any other
transactions with the employees or directors of Capitol or any spouse or child
of any of them, or any of their affiliates or associates, except as disclosed in
writing to Westamerica in the Capitol Disclosure Statement. Any such
transactions have been on terms no less favorable than those which would prevail
in an arm's-length transaction with an independent third party.
(x) Information in Westamerica Registration Statement. The information
-------------------------------------------------
pertaining to Capitol which will be furnished to Westamerica for or on behalf of
Capitol for inclusion in the Westamerica Registration Statement, the Prospectus
or the Proxy Statement (each as hereinafter defined), or in the applications to
be filed to obtain the Government Approvals (the "Applications"), will not
contain any untrue statement of any material fact or omits or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading; provided, however, that information of a later date shall be deemed
to modify information as of an earlier date. All financial statements of Capitol
included in the Prospectus and Proxy Statement will present fairly the financial
condition and results of operations of Capitol at the dates and for the periods
covered by such statements in accordance with GAAP consistently applied
throughout the periods covered by such statements. Capitol shall promptly advise
Westamerica in writing if prior to the Effective Time Capitol shall obtain
knowledge of any facts that would make it necessary to amend the Westamerica
Registration Statement, the Proxy Statement or any Application, or to supplement
the Prospectus, in order to make the statements therein not misleading or to
comply with applicable law.
(y) Accuracy of Representations and Warranties. No representation or
------------------------------------------
warranty by Capitol, and no statement by Capitol in any certificate, agreement,
schedule or other document furnished in connection with the transactions
contemplated by this Agreement, contains or will contain any untrue statement of
a material fact or omits or will omit to state any material fact necessary to
make such representation, warranty or
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statement not misleading to Westamerica; provided, however, that information as
of a later date shall automatically modify information as of an earlier date.
(z) No Brokered Deposits. Capitol does not now have and shall not
--------------------
accept prior to or have on the Effective Date any "brokered deposits" as such
deposits are defined by the FDIC.
5. REPRESENTATIONS AND WARRANTIES OF WESTAMERICA.
---------------------------------------------
Westamerica represents and warrants to Capitol that:
(a) Corporate Status and Power to Enter Into Agreement. Westamerica
--------------------------------------------------
(i) is a corporation duly incorporated, validly existing and in good standing
under California law and is a registered bank holding company under the BHC Act
(ii) subject to the approval of this Agreement and the transactions contemplated
hereby by the FRB, has all necessary corporate power to enter into this
Agreement and to carry out all of the terms and provisions hereof and thereof to
be carried out by it, (iii) Westamerica Bank holds a currently valid license
issued by the Superintendent to engage in the commercial banking business in
California at the offices in which such business is conducted (iv) neither
Westamerica nor any of its subsidiaries is subject to any directive or order
(formal or informal) of the FRB or FRBSF, the Superintendent or any other
regulatory authority having jurisdiction over its or their business or any of
its or their assets or properties.
(b) Corporate Status and Power of Westamerica. Prior to and as of the
-----------------------------------------
Effective Time, Westamerica will be a corporation duly incorporated, validly
existing and in good standing under California law and will have the corporate
power to enter into the Merger Agreement and to carry out all of the terms and
provisions thereof to be carried out by it.
(c) Certificate, Bylaws, Books and Records. The copies of the Articles
--------------------------------------
of Incorporation and Bylaws of Westamerica to be delivered to Capitol promptly
after the date hereof are complete and accurate copies thereof as in effect on
the date hereof. The minute books of Westamerica made available to Capitol
contain a complete and accurate record of all meetings of Westamerica's Board of
Directors (and committees thereof) and shareholders. The corporate books and
records (including financial statements) of Westamerica fairly reflect the
material transactions to which Westamerica or any of its subsidiaries is a party
or by which any of their properties are subject or bound, and such books and
records have been properly kept and maintained. The Articles of Incorporation
and Bylaws of Westamerica and all amendments thereto have been duly approved by
all requisite corporate action and said Certificate of Incorporation and all
amendments thereto have been duly filed with the California Secretary of State.
(d) Compliance With Laws, Regulations and Decrees. Westamerica and
---------------------------------------------
each of its subsidiaries each (i) has the corporate power to own or lease its
properties and to conduct its business as currently conducted, (ii) has complied
with, and is not in default of any laws, regulations, ordinances, orders or
decrees applicable to the conduct of its business and the ownership of its
properties, including but not limited to all federal and state laws (including
but not limited to the Bank Secrecy Act), rules and regulations relating to the
offer, sale or issuance of securities, and the operation of its subsidiary
commercial banks, other than where such noncompliance or default is not likely
to result in a material limitation on the conduct of the business of Westamerica
or its subsidiaries taken as a whole or is not likely to otherwise have a
material adverse effect on Westamerica and its subsidiaries taken as a whole,
(iii) has not failed to file with the proper federal, state, local or other
authorities any material report or other document required to be so filed, (iv)
has all material approvals, authorizations, consents, licenses, clearances and
orders of, and has currently effective all registrations with, all governmental
and regulatory authorities which are necessary in all material respects to the
respective businesses and operations of Westamerica and its subsidiaries (taken
as a whole) as they are now being conducted, and (v) has received no
notification, formally or informally, from any agency or department of any
federal, state or local government or any regulatory agency or the staff thereof
(A) asserting that Westamerica and its subsidiaries (taken as a whole) are not
in material compliance with any of the statutes, regulations or ordinances which
such government or regulatory authority enforces, or
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<PAGE>
(B) threatening to revoke any material licenses, franchise, permit or
governmental authorization of Westamerica and its subsidiaries (taken as a
whole).
(e) Financial Statements. No financial statement or other document
--------------------
provided or to be provided to Capitol as required by Section 3.1(d) hereof, as
of the date of such document, contained, or as to documents delivered after the
date hereof, will contain, any untrue statement of a material fact, or, at the
date thereof, omitted or will omit to state a material fact necessary in order
to make the statements contained therein, in light of the circumstances under
which such statements were or will be made, not misleading; provided, however,
that information as of a later date shall be deemed to modify information as of
any earlier date. Westamerica has filed all material documents and reports
relating to Westamerica or its subsidiaries required to be filed by it with the
FDIC, the FRB, the SBD or any other governmental authority having jurisdiction
over its business or any of its assets or properties. All such reports conform
in all material respects with the requirements promulgated by such regulatory
agencies. All compliance or corrective action relating to Westamerica or its
subsidiaries required by governmental authorities and regulatory agencies having
jurisdiction over Westamerica or its subsidiaries has been taken. Except as
disclosed in writing to Capitol, Westamerica and its subsidiaries have received
no notification, formally or informally, from any agency or department of any
federal, state or local government or any regulatory agency or the staff thereof
(A) asserting that Westamerica or its subsidiaries are not in compliance with
any of the statutes, regulations or ordinances which such government or
regulatory authority enforces, or (B) threatening to revoke any license,
franchise, permit or governmental authorization of Westamerica or its
subsidiaries. Except as disclosed in writing to Capitol, neither Westamerica nor
any of its subsidiaries is subject to any order, agreement, or written directive
with any regulatory authority with respect to its assets or business except for
matters of general application. Westamerica and its subsidiaries have paid all
assessments made or imposed by any governmental agency. Westamerica shall
deliver to Capitol copies of all annual management letters and opinions, and
shall make available to Capitol for inspection all reviews, correspondence and
other documents in the files of Westamerica prepared by KPMG, or any other
certified public accountant engaged by Westamerica, and delivered to Westamerica
since January 1, 1990. The financial records of Westamerica have been, and are
being and shall be, maintained in all material respects in accordance with all
applicable legal and accounting requirements sufficient to insure that all
transactions reflected therein are, in all material respects, executed in
accordance with management's general or specific authorization and recorded in
conformity with GAAP at the time in effect.
(f) Material Adverse Change. There has been no material adverse
-----------------------
change in the financial condition, results of operation or assets of Westamerica
from the financial condition, results of operation or assets indicated in the
financial statements of Westamerica at September 30, 1994, which financial
statements have been heretofore provided to Capitol.
(g) Execution and Delivery of the Agreement.
---------------------------------------
(i) The execution and delivery of this Agreement has been duly
and validly authorized by the Board of Directors of Westamerica and this
Agreement will be duly and validly authorized by all necessary corporate
action on the part of Westamerica.
(ii) This Agreement has been duly executed and delivered by
Westamerica and (assuming due execution and delivery by and enforceability
against Capitol) constitutes a legal and binding obligation of Westamerica.
(iii) The execution and delivery by Westamerica of this Agreement
and the consummation of the transactions herein contemplated (A) do not and
will not violate any provision of the Articles of Incorporation or Bylaws
of Westamerica, any provision of federal or state law or any governmental
rule or regulation (assuming (1) receipt of the Government Approvals, (2)
due registration of the Westamerica Shares under the 1933 Act, (3) receipt
of appropriate permits or approvals under applicable state securities laws,
and (4) accuracy of the representations of Capitol set forth herein, and
(B) do not require any
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consent of any person under, conflict with or result in a breach of, or
accelerate the performance required by any of the terms of, any material
debt instrument, lease, license, covenant, agreement or understanding to
which Westamerica is a party or by which it is bound or any order, ruling,
decree, judgment, arbitration award or stipulation to which Westamerica is
subject, or constitute a material default thereunder or result in the
creation of any lien, claim, security interest, encumbrance, charge,
restriction or right of any third party of any kind whatsoever upon any of
the properties or assets of Westamerica.
(h) Information in Westamerica Registration Statement. The information
-------------------------------------------------
pertaining to Westamerica and each of its subsidiaries which will appear in the
Westamerica Registration Statement, the Prospectus or the Proxy Statement, in
the form filed with the Commission, or in the Applications, will contain no
untrue statement of any material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading;
provided, however, that the information as of a later date shall be deemed to
modify information as of an earlier date. All financial statements of
Westamerica included in the Prospectus or the Proxy Statement will present
fairly the consolidated financial condition and results of operations of
Westamerica and its consolidated subsidiaries at the dates and for the periods
covered by such statements in accordance with GAAP consistently applied
throughout the periods covered by such statements. Westamerica shall promptly
advise Capitol in writing if prior to the Effective Time Westamerica shall
obtain knowledge of any facts that would make it necessary to amend the
Westamerica Registration Statement, the Proxy Statement or any Application, or
to supplement the Prospectus, in order to make the statements therein not
misleading or to comply with applicable law.
(i) Accuracy of Representations and Warranties. No representation or
------------------------------------------
warranty by Westamerica and no statement by Westamerica in any certificate,
agreement, schedule or other document furnished in connection with the
transactions contemplated by this Agreement or the Merger Agreement, contains or
will contain any untrue statement of material fact or omits or will omit to
state any material fact necessary to make such representation, warranty or
statement not misleading to Capitol; provided, however, that information as of a
later date shall be deemed to modify information as of an earlier date.
(j) Capitalization. As of September 30, 1994, the authorized capital
--------------
stock of Westamerica consisted of 1,000,000 shares of Class B Common Stock and
1,000,000 shares of preferred stock, without par value, of which no Class B or
preferred shares were issued or outstanding, and 20,000,000 shares of common
stock, without par value, of which 8,074,851 shares were duly authorized, fully
paid, validly issued, nonassessable and are currently outstanding. Attached to
each outstanding share of Common Stock is a Common Stock Purchase Right which
entitles the holder of each Westamerica Share to certain Rights as set forth in
the Amended Rights Agreement between Westamerica and Chemical Trust Company of
California, dated September 28, 1989 ("Amended Rights Agreement").
(k) Tax Returns. Westamerica has timely filed all federal and state
-----------
returns required to be filed by it or its subsidiaries, including, without
limitation, estimated tax, use tax, excise tax, real property and personal
property tax reports and returns, employer's withholding tax returns,
withholding tax returns and Federal Unemployment Tax Act returns, and all other
reports or other information required or requested to be filed by each of them,
and each such return, report or other information was, when filed, complete and
accurate in all material respects. Westamerica and each of its subsidiaries has
paid all taxes, fees and other governmental charges, including any interest and
penalties thereon, when they have become due and payable, except those that are
being contested in good faith, which contested matters shall be disclosed to
Capitol. Except as disclosed in writing to Capitol, neither Westamerica nor any
of its subsidiaries has been requested to give or has given any currently
effective waivers extending the statutory period of limitation applicable to any
tax return required to be filed by any of them for any period. Except as
disclosed in writing to Capitol, there are no material claims pending against
Westamerica or any of its subsidiaries for any alleged deficiency in the payment
of any taxes, and neither Westamerica nor any of its subsidiaries knows of any
pending or threatened audits, investigations or claims for unpaid taxes or
relating to any liability in respect of any taxes. Westamerica shall make
available to Capitol, when available, copies of all of its and its subsidiaries'
tax
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<PAGE>
returns with respect to taxes payable to the United States of America and the
State of California for the fiscal years ended December 31, 1992, 1993 and 1994.
6. SECURITIES ACT OF 1933; SECURITIES EXCHANGE ACT OF 1934.
-------------------------------------------------------
(a) Preparation and Filing of Registration Statement. Westamerica
------------------------------------------------
shall promptly prepare and file with the Commission (i) a registration statement
on the appropriate form (the "Westamerica Registration Statement") under and
pursuant to the provisions of the 1933 Act for the purpose of registering the
Westamerica Shares and, (ii) shall prepare and file, as soon as practicable, one
or more registration statements or amendments to existing registration
statements under the 1933 Act for the purpose of registering the maximum number
of shares of common stock of Westamerica to which the option holders of Capitol
may be entitled pursuant to Section 2.6 above at or after the Effective Date.
Westamerica and Capitol shall promptly prepare a proxy statement (the "Proxy
Statement") for the purpose of submitting this Agreement and the Merger to the
shareholders of Capitol for approval. Capitol shall cooperate in all reasonable
respects with regard to the preparation of the Proxy Statement. The Proxy
Statement in definitive form is expected to serve as the prospectus (the
"Prospectus") to be included in the Westamerica Registration Statement.
Westamerica and Capitol shall each provide promptly to the other such
information concerning its business and financial condition and affairs as may
be required or appropriate for inclusion in the Westamerica Registration
Statement, the Prospectus or the Proxy Statement, and shall cause its counsel
and auditors to cooperate with the other's counsel and auditors in the
preparation of the Westamerica Registration Statement, the Prospectus and the
Proxy Statement.
(b) Effectiveness of Registration Statement. Westamerica and Capitol
---------------------------------------
shall use their best efforts to have the Westamerica Registration Statement and
any amendments or supplements thereto declared effective under the 1933 Act as
soon as practicable, and thereafter Capitol shall distribute at its cost the
Proxy Statement to holders of its common stock in accordance with applicable
laws and its Articles of Incorporation and Bylaws. Capitol shall not mail or
otherwise furnish the Proxy Statement to its shareholders unless and until
Westamerica shall have received a letter from KPMG dated no more than two
business days prior to the effective date of the Westamerica Registration
Statement, as provided in Section 3.2(f)(iv) hereof.
(c) Sales and Resales of Common Stock. Westamerica shall not be
---------------------------------
required to maintain the effectiveness of the Westamerica Registration Statement
for the purpose of sale or resale of the Westamerica Shares by any person.
(d) Rule 145. Securities representing Westamerica Shares issued to
--------
affiliates of Capitol (as determined by counsel to Westamerica) under Rule 145
of the Rules and Regulations under the 1933 Act pursuant to the Merger Agreement
may be subject to stop transfer orders and may bear a restrictive legend in
substantially the following form:
The security represented by this instrument has been issued or transferred
to the registered holder as the result of a transaction to which Rule 145
under the 1933 Act applies. The security represented by this instrument
may not be sold, hypothecated, transferred or assigned, and the issuer
shall not be required to give effect to any attempted sale, hypothecation,
transfer or assignment, except (i) pursuant to a then current effective
registration under the 1933 Act, or (ii) in a transaction which, in the
opinion of counsel satisfactory to the issuer is not required to be
registered under the 1933 Act.
Should any opinion of counsel described in clause (ii) of the foregoing legend
indicate that the legend and any stop transfer order then in effect with respect
to the shares may be removed, Westamerica will upon request substitute
unlegended securities and remove any stop transfer orders. Westamerica shall
timely file annual and quarterly reports pursuant to all applicable securities
laws.
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7. CONDITIONS TO THE OBLIGATIONS OF WESTAMERICA.
--------------------------------------------
The obligations of Westamerica under this Agreement are, at its option,
subject to fulfillment at or prior to the Effective Date of each of the
following conditions; provided, however, that any one or more of such conditions
may be waived by the Board of Directors of Westamerica at any time at or prior
to the Effective Time:
(a) Representations and Warranties. The representations and
------------------------------
warranties in Section 4 hereof shall be true and correct in all material
respects on the date hereof and as of the Effective Date, with the same effect
as though such representations and warranties had been made on and as of such
date except as to any representation or warranty which specifically relates to a
specified date and not contain any material inaccuracies or omissions the
circumstances as to which either individually or in the aggregate have, or
reasonably could be expected to have, a material adverse effect on Capitol.
(b) Compliance and Performance Under Agreement. Capitol shall have
------------------------------------------
performed and complied in all material respects with all terms of this Agreement
required to be performed or complied with by it at or prior to the Effective
Date. Each of the directors of Capitol also shall have performed and complied in
all material respects with all of the terms and conditions of the undertaking
referred to in Section 3.2(a) above. Capitol acknowledges that its failure to
obtain Westamerica's prior written approval for any material transaction
pursuant to this Agreement and not in the Ordinary Course of Business shall be
within the scope of this paragraph.
(c) Material Adverse Change. Except as disclosed to Westamerica in
-----------------------
writing prior to the date hereof, no materially adverse change shall have
occurred since December 31, 1993, in the business, financial condition or
results of operations of Capitol and Capitol shall not be a party to or, so far
as Capitol is aware, threatened with, and to Capitol's knowledge there is no
reasonable basis for, any legal action or other proceeding before any court, any
arbitrator of any kind or any government agency if, in the reasonable judgment
of Westamerica, such legal action or proceeding could materially adversely
affect Capitol, or its business, financial condition, results of operations or
prospects taken as a whole.
(d) Approval of Agreement. This Agreement and the Merger shall have
---------------------
been duly approved by the affirmative vote of the holders of a majority of the
outstanding shares of Capitol common stock at the meeting of shareholders duly
called and held after distributing the Proxy Statement to all shareholders
entitled to vote at such meeting as required by Section 6 hereof.
(e) Officer's Certificate. Westamerica shall have received a
---------------------
certificate, dated the Effective Date, signed on behalf of Capitol by its Chief
Executive Officer and by its Chief Financial Officer, to the effect that the
conditions in Sections 7(a)-(d) have been satisfied.
(f) Opinion of Counsel. Capitol shall have delivered to Westamerica
------------------
such documents as may reasonably be requested by Westamerica to evidence
compliance by Capitol with the provisions of this Agreement including an opinion
or opinions of counsel which opinion or opinions shall in the aggregate cover
all of the opinions contained in and be substantially in the form attached
hereto as Exhibit D.
(g) Absence of Legal Impediment. No significant legal impediment to
---------------------------
the Merger shall have arisen and no litigation, proceeding or investigation
shall be pending or threatened before any court or government agency relating to
the transactions contemplated by this Agreement which affords a material basis
for a determination that it would be inadvisable or inexpedient to continue to
carry out the terms of, or to attempt to consummate the transactions
contemplated by this Agreement.
(h) Effectiveness of Registration Statement. The Westamerica
---------------------------------------
Registration Statement and any amendments or supplements thereto shall have
become effective under the 1933 Act, no stop order suspending the effectiveness
of such Registration Statement shall be in effect and no proceedings for such
purpose shall have been initiated or threatened by or before the Commission. All
state securities permits or approvals
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required by applicable state securities laws to consummate the transactions
contemplated by this Agreement shall have been received and remain in effect.
(i) Government Approvals. All Government Approvals shall be in effect,
--------------------
and all conditions or requirements prescribed by law or by any such Government
Approval shall have been satisfied; provided, however, that no Government
Approval shall be deemed to have been received if it shall require the
divestiture or cessation of any of the present businesses or operations
conducted by either of the parties hereto or shall impose any other condition or
requirement, which divestiture, cessation, condition or requirement Westamerica
in its reasonable judgment shall deem to be materially burdensome (in which case
Westamerica shall promptly notify Capitol); and provided further, however, that
the failure to obtain all Government Approvals for whatever reason shall entitle
Capitol to the termination payment specified in Section 12(e). For purposes of
this Agreement no condition shall be deemed to be "materially burdensome" if
such condition does not materially differ from conditions regularly imposed by
the FRB in orders approving transactions of the type contemplated by this
Agreement and compliance with such condition would not (A) require the taking of
any action materially inconsistent with the manner in which Westamerica or
Capitol has conducted its business previously, (B) have a material adverse
effect upon the business, financial condition or results of operations of
Westamerica or Capitol, or (C) preclude satisfaction of any of the material
conditions to consummation of the transactions contemplated by this Agreement.
(j) Tax Opinion or Ruling. Westamerica and Capitol shall have received
---------------------
either a ruling from the IRS under federal income tax law and an equivalent
ruling from the California Franchise Tax board, or, to the extent such rulings
have not been sought or received on or before the Effective Date, an opinion of
Westamerica's counsel, subject to assumptions and exceptions normally included,
in form and substance reasonably satisfactory to Westamerica and its counsel,
substantially to the effect that under federal income tax law and California
income and franchise tax law:
(i) The Merger will not result in any recognized gain or loss
to Westamerica or Capitol;
(ii) Except for any cash received in lieu of any fractional
share, no gain or loss will be recognized by holders of Capitol Shares who
receive Westamerica Shares in exchange for the Capitol Shares which they
hold;
(iii) The holding period of Westamerica Shares exchanged for
Capitol Shares will include the holding period of the Capitol Shares for
which it is exchanged, assuming the shares of Capitol Shares are capital
assets in the hands of the holder thereof at the Effective Date; and
(iv) The basis of the Westamerica Shares received in the
exchange will be the same as the basis of the Capitol Shares for which it
was exchanged, less any basis attributable to fractional shares for which
cash is received.
(k) Accountant's Letter. Westamerica shall have received letters
-------------------
addressed to Westamerica from KPMG prepared pursuant to the provisions of
Section 3.2(f)(iv).
(l) Dissenting Shares. The aggregate number of shares of Capitol
-----------------
common stock held by persons who have taken all of the steps required at or
prior to the shareholders' meeting referenced in Section 3.2(a) to perfect their
right (if any) to be paid the value of such shares under the GCL ("Dissenting
Shares") shall not exceed 9% of the outstanding shares of Capitol common stock.
(m) Unaudited Financials. Not later than three business days prior
--------------------
to the Effective Date, Capitol shall have furnished Westamerica a copy of its
most recently prepared unaudited year-to-date consolidated financial statements,
including a balance sheet and year-to-date statement of income and statement of
cash flows of Capitol, each prepared in accordance with GAAP. At least five
business days prior to the Effective
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Time, all attorneys, accountants, investment bankers and other advisors and
agents for Capitol shall have submitted to Capitol (with a copy to Westamerica)
estimates of their fees and expenses for all services rendered in any respect in
connection with the transactions contemplated hereby to the extent not already
paid, and based on such estimates, Capitol shall have prepared and submitted to
Westamerica a summary of such fees and expenses for the transaction which shall
be reflected in the foregoing financial statement. At the Effective Time, (i)
such advisors shall have submitted their final bills for such fees and expenses
to Capitol for services rendered, with a copy to be delivered to Westamerica,
and based on such summary, Capitol shall have prepared and submitted to
Westamerica a final calculation of such fees and expenses, (ii) Capitol shall
have accrued and paid the amount of such fees and expenses as calculated above
after Westamerica has been given an opportunity to review all such bills and
calculation of such fees and expenses, and (iii) such advisors shall have
released Westamerica from liability for any fees and expenses.
(n) Letter Regarding Insurance Coverage. Thirty (30) days prior to
-----------------------------------
Closing, a law firm reasonably acceptable to Westamerica shall have delivered a
letter dated as of a date no more than 30 days before the Closing addressed to
Westamerica, which letter shall be in substantially the form attached hereto as
Exhibit G. Such law firm shall also deliver to Westamerica two business days
prior to the Closing a letter dated as of a date no more than two business days
before the Closing, which is in substantially the form attached hereto as
Exhibit G, or otherwise confirms that the views expressed in its earlier letter
are unchanged.
(o) Closing Documents. Westamerica shall have received such
-----------------
certificates and other closing documents as counsel for Westamerica shall
reasonably request.
(p) Consents. Capitol shall have received, or Westamerica shall have
--------
satisfied itself that Capitol will receive, all consents of other parties to and
required by material mortgages, notes, leases, franchises, agreements, licenses
and permits applicable to Capitol, in each case in form and substance reasonably
satisfactory to Westamerica, and no such consent or license or permit shall have
been withdrawn or suspended.
(q) Fairness Opinions. The Board of Directors of Capitol shall have
-----------------
received an opinion of each of Hoefer & Arnett, Incorporated and Smith &
Crowley, each dated within three business days of the effective date of the
Westamerica Registration Statement to the effect that the terms of the Merger
are fair, from a financial point of view, to Capitol and its shareholders.
(r) Losses in Investment and Loan Portfolios. At and as of the
----------------------------------------
Effective Date, losses actually realized by Capitol from the sale of securities
held in Capitol's investment portfolios after September 30, 1994 and prior to
the Effective Date shall be reflected in the financial statements of Capitol as
of the last day of the calendar month preceding the calendar month in which the
Effective Date occurs. Additionally, the aggregate amount of loans on the books
of Capitol which are classified by any bank examiner, Capitol or Westamerica or
any loan review consultant engaged by Capitol or Westamerica for the purpose of
examining loans (using standard banking practice) as "Loss" shall have been
charged off. Capitol shall also have an allowance for loan losses that is
satisfactory to reserve for all nonperforming loans, as reflected in the
financial statements of Capitol as of the last day of the calendar month and the
last day of the calendar quarter preceding the calendar month in which the
Effective Date occurs and, within 30 days of the Effective Date, Capitol shall
have recognized any credit losses that Westamerica reasonably determines are
appropriate in the Bank's loan and asset portfolios, and utilized Westamerica's
standards, methodology and system in determining the adequacy of Capitol's loan
loss reserves as of and for the month end preceding the Effective Date.
(s) Satisfaction of Spending or Other Commitments. There shall have
---------------------------------------------
been no failure by Capitol to perform the obligations or satisfy the conditions
set forth in Sections 2.6, 3.2(d) and 3.2(h)(ii) of this Agreement and the
undertakings required from each Capitol director pursuant to section 3.2(a)
shall have been delivered within 15 business days after the execution and
delivery of this Agreement.
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(t) Pooling-of-Interests Accounting Treatment; Dissenters' Rights.
-------------------------------------------------------------
Westamerica shall have received a letter from KPMG to the effect that the Merger
shall qualify for the pooling-of-interests method of accounting in accordance
with GAAP and all applicable rules, regulations and policies of the Commission.
In addition, there shall have been no determination by any court, tribunal,
regulatory agency or other governmental entity, that the Merger fails or will
fail to qualify for pooling-of-interests accounting treatment and no more than
nine (9%) percent of Capitol's Shares shall have the right to dissent under the
GCL.
(u) Compliance Examinations. Prior to the Effective Date, Capitol
-----------------------
shall have taken all corrective action recommended by or resulting from its most
recent compliance examinations and any significant regulatory compliance
violations shall have been corrected by Capitol prior to the Effective Date.
(v) Opinion of Loan Review Examiner. Capitol shall have delivered to
-------------------------------
Westamerica an opinion of its loan review examiner, which opinion shall be
acceptable to Westamerica, to the effect that all loan losses in excess of
$25,000 have been identified with respect to loans and related assets on the
books of Capitol and its subsidiaries as of a date no earlier than four months
preceding the Effective Date.
(w) Regulatory Examination. Prior to the Effective Date, Capitol
----------------------
shall be in compliance with all requirements arising from its most recent safety
and soundness regulatory examination.
(x) Stock Option Agreement. Immediately following the execution and
----------------------
delivery of this Agreement, Capitol and Westamerica shall have executed and
delivered the Stock Option Agreement.
(y) Classified Loans. The percentage determined by dividing Classified
----------------
Loans by the sum of equity capital (excluding adjustments required by FASB 115)
plus reserves for loan losses as of December 31, 1994, the month end immediately
preceding the Effective Date and two business days prior to the Effective Date
shall be no greater than 42%. For purposes of this section, Classified Loans is
the sum of all loans classified according to current regulatory standards as
"Substandard", "Doubtful", or "Loss", but excludes real estate owned.
(z) Noncompetition Agreements and Certificate. Within 15 business
-----------------------------------------
days of the execution of this Agreement, Westamerica shall have received
executed noncompetition agreements substantially in the form attached hereto as
Exhibit B or B-1 from each nonofficer director of Capitol listed on Exhibit F
hereto.
(aa) Resignation of Directors and Certain Executive Officers. At least
-------------------------------------------------------
three days prior to Closing, Westamerica shall have received a letter from (i)
each director of Capitol tendering his or her resignation from the Board of
Directors effective at the Effective Time and (ii) from each of Thayer T.
Prentice and William J. Martin tendering his resignation as Vice Chairman and
Chief Executive Officer and President, respectively, of Capitol effective at the
time Capitol is merged into Westamerica Bank.
8. CONDITIONS TO THE OBLIGATIONS OF CAPITOL.
----------------------------------------
The obligations of Capitol under this Agreement are, at its option, subject
to the fulfillment at or prior to the Effective Time of each of the following
conditions provided, however, that any one or more of such conditions may be
waived by the Board of Directors of Capitol at any time at or prior to the
Effective Time:
(a) Representations and Warranties. The representations and
------------------------------
warranties of Westamerica in Section 5 hereof shall be true and correct in all
material respects on the date hereof and as of the Effective Date, with the same
effect as though such representations and warranties had been made on and as of
such date except as to any representation or warranty which specifically relates
to a specified date and does not contain any inaccuracies or omissions the
circumstances as to which either individually or in the aggregate have, or
reasonably could be expected to have, a material adverse effect on Westamerica.
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(b) Compliance and Performance Under Agreement. Westamerica and its
------------------------------------------
subsidiaries shall have performed and complied in all material respects with all
of the terms of this Agreement required to be performed or complied with by them
at or prior to the Effective Time.
(c) Material Adverse Change. No materially adverse change shall have
-----------------------
occurred since December 31, 1993, in the business, financial condition, results
of operations or properties of Westamerica and its subsidiaries taken as a
whole, and Westamerica shall not be engaged in, or a party to or so far as
Westamerica is aware, threatened with, and to Westamerica's knowledge there is
no reasonable basis for, any legal action or other proceeding before any court,
any arbitrator of any kind or any government agency which, in the reasonable
judgment of Capitol, could materially adversely affect Westamerica or its
business, financial condition, results of operations or assets.
(d) Officer's Certificate. Capitol shall have received a certificate,
---------------------
dated the Effective Date, signed on behalf of Westamerica by its President and
Chief Executive Officer and Chief Financial Officer, certifying to the
fulfillment of the conditions stated in Sections 8(a)-(c) hereof.
(e) Approval of Agreement. This Agreement and the Merger shall have
---------------------
been duly approved by the affirmative vote of a majority of the outstanding
shares of Capitol common stock at a meeting of shareholders duly called and
held.
(f) Opinion of Counsel. Westamerica shall have delivered to Capitol
------------------
such documents as may reasonably be requested by Capitol to evidence compliance
by Westamerica with the provisions of this Agreement including an opinion of its
counsel in substantially the form attached hereto as Exhibit H.
(g) Effectiveness of Registration Statement. The Westamerica
---------------------------------------
Registration Statement and any amendments or supplements thereto shall have
become effective under the 1933 Act. No stop order suspending the effectiveness
of the Westamerica Registration Statement shall be in effect and no proceedings
for such purpose shall have been initiated or threatened by or before the
Commission. All state securities and "blue sky" permits or approvals required by
applicable state securities laws to consummate the transactions contemplated by
this Agreement and the Merger Agreement shall have been received and remain in
effect.
(h) Government Approvals. The Government Approvals shall have been
--------------------
received and shall be in effect, and all conditions or requirements prescribed
by law or by any such approval shall have been satisfied.
(i) Tax Opinion or Ruling. Westamerica and Capitol shall have received
---------------------
the opinions or tax rulings referred to in Section 7(j) hereof which opinions or
rulings shall meet the requirements of such Section.
(j) Closing Documents. Capitol shall have received such certificates
-----------------
and other closing documents as counsel for Capitol shall reasonably request.
(k) Absence of Legal Impediment. No significant legal impediment to
---------------------------
the Merger shall have arisen and no litigation, proceeding or investigation
shall be pending or threatened before any court or government agency relating to
the transactions contemplated by this Agreement which affords a material basis
for a determination that it would be inadvisable or inexpedient to continue to
carry out the terms of, or to attempt to consummate the transactions
contemplated by this Agreement.
(l) Fairness Opinions. The Board of Directors of Capitol shall have
-----------------
received an opinion of each of Hoefer & Arnett, Incorporated and Smith &
Crowley, each dated within three business days of the effective date of the
Westamerica Registration Statement to the effect that the terms of the Merger
are financially fair, from a financial point of view, to Capitol and its
shareholders.
(m) Pooling-of-Interests Accounting Treatment. Westamerica shall have
-----------------------------------------
received a letter from KPMG to the effect that the Merger shall qualify for the
pooling-of-interests method of accounting in accordance with GAAP and all
applicable rules, regulations and policies of the Commission. In addition,
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<PAGE>
there shall have been no determination by any court, tribunal, regulatory agency
or other governmental entity, that the Merger fails or will fail to qualify for
pooling-of-interests accounting treatment.
9. CLOSING.
-------
(a) Closing Date. The closing (the "Closing") shall, unless another
------------
date, time or place is agreed to in writing by Westamerica and Capitol, be held
at the offices of Pillsbury Madison & Sutro, 235 Montgomery Street, San
Francisco, California on the Effective Date.
(b) Delivery of Documents. At the Closing, the opinions, certificates
---------------------
and other documents required to be delivered by this Agreement shall be
delivered.
(c) Filings. At the Closing, Westamerica and Capitol shall instruct
-------
their respective representatives to make or confirm such filings as shall be
required in the opinion of counsel to Westamerica and Capitol to give effect to
the Merger.
10. POST-CLOSING MATTERS.
--------------------
Westamerica will cause Westamerica Bank and Capitol to merge (with
Westamerica Bank being the surviving corporation) as soon as practicable
following the Effective Date. Westamerica will prepare and file with the
Commission on the appropriate form as soon as practicable the results of
combined operations of Westamerica and Capitol for the first full calendar month
after the Effective Date as contemplated in Exhibit E.
11. EXPENSES.
--------
Westamerica and Capitol hereto agree to pay, without right of reimbursement
from the other party and whether or not the transactions contemplated by this
Agreement or the Merger Agreement shall be consummated, the costs incurred by
each such party incident to the performance of its obligations under this
Agreement and the Merger Agreement, including without limitation, costs incident
to the preparation of this Agreement, the Westamerica Registration Statement,
Prospectus and the Proxy Statement (including the audited financial statements
of the parties contained therein) and incident to the consummation of the Merger
and of the other transactions contemplated herein and in the Merger Agreement,
including the fees and disbursements of counsel, accountants, consultants and
financial advisers employed by such party in connection therewith.
Notwithstanding the foregoing, Westamerica shall be solely responsible for all
fees payable pursuant to state securities laws, fees related to obtaining a
revenue ruling or tax opinion and the fee required to be paid to the Commission
to register the Westamerica Shares.
Capitol shall bear its own costs of printing and distributing (including
postage) the Proxy Statement to its shareholders and other information relating
to these transactions.
12. AMENDMENT; TERMINATION.
----------------------
(a) Amendment. This Agreement and the Merger Agreement may be amended
---------
by Westamerica and Capitol at any time prior to the Effective Time without the
approval of the shareholders of Westamerica and shareholders of Capitol with
respect to any of their terms except the terms relating to the form or amount of
consideration to be delivered to the Capitol shareholders in the Merger.
(b) Termination. This Agreement and the Merger Agreement may be
-----------
terminated as follows:
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<PAGE>
(i) By the mutual consent of the Boards of Directors of both
Westamerica and Capitol at any time prior to the consummation of the
Merger.
(ii) By the Board of Directors of Westamerica on or after July 31,
1995, if (A) any of the conditions in Section 7 to which the obligations of
Westamerica are subject have not been fulfilled, or (B) such conditions
have been fulfilled or waived by Westamerica and Capitol shall have failed
to complete the Merger.
(iii) By the Board of Directors of Westamerica if (A) after the date
of Capitol's Disclosure Statement Westamerica has become aware of any facts
or circumstances of which it was not previously aware and which materially
adversely affect Capitol or its respective properties, operations,
financial condition or prospects, (B) a materially adverse change shall
have occurred since December 31, 1993, in the business, financial
condition, results of operations or properties of Capitol, (C) there has
been failure (including any anticipatory breach) on the part of Capitol to
comply with its obligations under this Agreement, or any failure (including
any anticipatory breach) to comply with any of the conditions set forth in
Section 7 hereof, or (D) the provisions of Section 3.2(j)(iv) become
operable.
(iv) By Westamerica if, after the date hereof, any person (other
than Westamerica or any subsidiary thereof) shall become the beneficial
owner of 20% or more of the then outstanding shares of Capitol Shares or
any person (other than Westamerica or a subsidiary thereof) shall have
commenced a bona fide tender offer or exchange offer to acquire at least
20% of the then outstanding shares of Capitol.
(v) By the Board of Directors of Westamerica if it determines that
it would be inadvisable or inexpedient to continue to carry out the terms
of, or to attempt to consummate the transactions contemplated by this
Agreement, by reason of any significant legal impediment to the Merger
having arisen, or any material pending or threatened litigation,
investigation or proceeding, including, but not limited to any of the
preceding that relate to the transactions contemplated by this Agreement
which affords a material basis for such determination.
(vi) By the Board of Directors of Capitol on or after July 31,
1995, if (A) any of the conditions contained in Section 8 to which the
obligations of Capitol are subject have not been fulfilled, or (B) such
conditions have been fulfilled or waived but Westamerica shall have failed
to complete the Merger; provided, however, that if Westamerica is engaged
at the time in litigation (including an administrative appeal procedure)
relating to an attempt to obtain one or more of the Governmental Approvals
or if Westamerica shall be contesting in good faith any litigation which
seeks to prevent consummation of the transactions contemplated hereby, such
nonfulfillment shall not give Capitol the right to terminate this Agreement
until the earlier of (A) twelve (12) months after the date of this
Agreement and (B) sixty (60) days after the completion of such litigation
and of any further regulatory or judicial action pursuant thereto,
including any further action by a governmental agency as a result of any
judicial remand, order or directive or otherwise or any waiting period with
respect thereto.
(vii) By the Board of Directors of Capitol if (A) it has become
aware of any facts or circumstances of which it was not aware on the date
hereof and which can or do materially adversely affect Westamerica and its
subsidiaries (taken as a whole) or their properties, operations, financial
condition or prospects (taken as a whole), (B) a materially adverse change
shall have occurred since December 31, 1993 in the business, financial
condition, results of operations or assets (of Westamerica and its
subsidiaries taken as a whole), (C) there has been failure (including any
anticipatory breach) on the part of Westamerica to comply with its
obligations under this Agreement or any failure (including
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<PAGE>
any anticipatory breach) to comply with any condition set forth in Section
8, (D) the Average Price of Westamerica Common Stock pursuant to Section
2.1(c) is less than $30.20, or (E) Westamerica fails to comply with the
provisions of Section 3.1(f).
(c) Notice. The power of termination hereunder may be exercised by
------
Westamerica or Capitol, as the case may be, only by giving written notice,
signed on behalf of such party by its Chairman of the Board or President, to the
other party.
(d) Breach of Obligations. If there has been a material breach by
---------------------
either party in the performance of any of the obligations herein which shall not
have been cured within ten business days after written notice thereof has been
given to the defaulting party, the nondefaulting party shall have the right to
terminate this Agreement upon written notice to the other party. In any event,
the nondefaulting party shall have no obligation to consummate any transaction
or take any further steps toward such consummation contemplated hereunder until
such breach is cured.
(e) Termination and Expenses. Termination of this Agreement shall not
------------------------
terminate or affect the obligations of the parties to pay expenses as provided
in Section 11, to maintain the confidentiality of the other party's information
pursuant to Section 3.3, or the provisions of this Section 12(e) or of Sections
13(a), (d) or (e) or the second sentence of Section 13(b) below and shall not
affect any agreement after such termination. If this Agreement shall be
terminated by Westamerica pursuant to Section 12(b)(iii)(D) or Section
12(b)(iv), or if any of the events specified in Section 12(b)(iv) occurs within
twelve (12) months following termination of this Agreement pursuant to Section
12(b) as a result of the interference of a third party or group who thereafter
attempts to acquire Capitol, Capitol shall pay to Westamerica, on demand, the
sum of $600,000. If this Agreement shall be terminated by Capitol pursuant to
Section 12(b)(vii)(E) by reason of a Business Combination, Westamerica shall pay
to Capitol, on demand, the sum of $600,000. If this Agreement shall be
terminated by Westamerica pursuant to Section 12(b)(ii) or Capitol pursuant to
Section 12(b)(vi) because of a failure to satisfy the conditions set forth in
Sections 7(i) or 8(h), upon demand and subject to Capitol's compliance with
Section 3.2(c), Westamerica shall pay Capitol $1,200,000. Any payment required
pursuant to the preceding three sentences shall be paid no more than two
business days after demand by the party entitled to make such demand by wire
transfer of immediately available federal funds. Except as provided in Section
3.1(b), Section 3.1(f) or Section 3.2(j)(iv), Capitol and Westamerica agree that
any termination of this Agreement shall not in any manner release or be
construed as so releasing the nonterminating party or parties from any liability
or damage to the other party or parties arising out of, in connection with or
otherwise relating to, directly or indirectly, such parties' failure in
performance of any of its covenants or agreements hereunder.
(f) Special Westamerica Rights of Termination. Capitol shall deliver
-----------------------------------------
to Westamerica all remaining portions of the Capitol Disclosure Statement not
heretofore delivered to Westamerica as promptly as practicable after the date
hereof and in no event more than 10 days after the date hereof. Notwithstanding
any investigation made by or information known to Westamerica prior to the date
hereof and notwithstanding anything to the contrary herein, and in recognition
of the fact that Westamerica, as of the date hereof, has not had an opportunity
to complete its due diligence review of Capitol and that Capitol may not have,
as of the date hereof, delivered to Westamerica all portions of the Capitol
Disclosure Statement, in addition to the termination rights set forth above and
notwithstanding the provisions of Section 12(b)(iii), Westamerica shall have the
following rights (the "Special Termination Rights"): at any time after the date
of this Agreement through and including the date that is 30 days after the date
Capitol delivers to Westamerica all remaining portions of the Capitol Disclosure
Statement in form and detail of presentation reasonably satisfactory to
Westamerica, to terminate this Agreement if Westamerica shall identify any
circumstance which, in the reasonable business judgment of the Board of
Directors (which includes a committee thereof) of Westamerica, acting in good
faith and with due regard for principles of fair dealing, could (w) materially
and adversely impact the reasonably expected financial or business benefits to
Westamerica of the transactions contemplated by this Agreement, (x) be
inconsistent in any material and adverse respect with any of the representations
and warranties of Capitol contained in this Agreement, (y) materially and
adversely affect the business, operations, properties, financial condition,
results of operations or prospects of Capitol or (z) deviate materially and
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<PAGE>
adversely from Capitol's financial statements for the year or the quarter ended
December 31, 1993. Westamerica may exercise the Special Termination Rights by
written notice to Capitol.
13. MISCELLANEOUS.
-------------
(a) Notices. Any notice or other communication required or permitted
-------
under this Agreement shall be effective only if it is in writing and delivered
personally, or by overnight express or by facsimile or sent by first class
United States mail, postage prepaid, registered or certified mail, addressed as
follows:
To WESTAMERICA: To CAPITOL:
David L. Payne, President & J. Al Wickland
Chief Executive Officer Chairman of the Board
Westamerica Bancorporation CapitolBank Sacramento
1108 Fifth Avenue 300 Capitol Mall
San Rafael, CA 94901 Sacramento, CA 95814
With a copy to: With a copy to:
Jonathan D. Joseph, Esq. James E. Topinka, Esq.
Pillsbury Madison & Sutro Pettit & Martin
P.O. Box 7880 101 California Street
San Francisco, CA 94120 San Francisco, CA 94111
or to such other address as either party may designate by notice to the other,
and shall be deemed to have been given upon receipt.
(b) Binding Agreement. This Agreement is binding upon and is for the
-----------------
benefit of Westamerica and Capitol and their respective successors and permitted
assigns. This Agreement is not made for the benefit of any person, firm,
corporation or association not a party hereto (except as provided in Section
3.1(g)), and no other person, firm, corporation or association shall acquire or
have any right under or by virtue of this Agreement. No party may assign this
Agreement or any of its rights, privileges, duties or obligations hereunder
without the prior written consent of the other party to this Agreement.
(c) No Survival of Representations and Warranties. No investigation by
---------------------------------------------
Westamerica or Capitol made before or after the date of this Agreement shall
affect the representations and warranties which are contained in this Agreement
and such representations and warranties shall survive such investigation,
provided that, except with respect to covenants and agreements to be performed
in whole or in part subsequent to the Effective Date (as to which the related
representations and warranties shall survive until their performance) which
covenants and agreements shall survive the Closing, the representations,
warranties, covenants and agreements of Westamerica and Capitol contained in
this Agreement shall not survive the Closing.
(d) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the substantive laws of the State of California.
(e) Attorneys' Fees. In any action at law or suit in equity in
---------------
relation to this Agreement, the prevailing party in such action or suit shall be
entitled to receive a reasonable sum for its attorneys' fees and all other
reasonable costs and expenses incurred in such action or suit.
(f) Entire Agreement; Severability. This Agreement and the documents,
------------------------------
certificates, agreements, letters, schedules and exhibits attached or required
to be delivered pursuant hereto set forth the entire agreement and understanding
of the parties in respect of the transactions contemplated hereby, and supersede
all prior agreements, arrangements and understandings relating to the subject
matter hereof. Each
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<PAGE>
provision of this Agreement shall be interpreted in a manner to be effective and
valid under applicable law, but if any provision hereof shall be prohibited or
ruled invalid under applicable law, the validity, legality and enforceability of
the remaining provisions shall not, except as otherwise required by law, be
affected or impaired as a result of such prohibition or ruling. KPMG shall be
the sole arbiter of any disagreement about the application of GAAP pursuant to
this Agreement.
(g) Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Waivers. Prior to or at the Effective Time, each of Westamerica
-------
and Capitol shall have the right to waive any default in the performance of any
term of this Agreement by the other, to waive or extend the time for the
compliance or fulfillment by the other of any and all of the other's obligations
under this Agreement and to waive any or all of the conditions precedent to its
obligations under this Agreement, except any condition which, if not satisfied,
would result in the violation of any law or applicable governmental regulation.
No failure to exercise and no delay in exercising any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy or power provided
herein or by law or in equity. The waiver by any party of the time for
performance of any act or condition hereunder does not constitute a waiver of
the act or condition itself. Any requests for waivers or waivers granted
pursuant to this Section 13(i) shall be in accordance with the provisions of
Section 13(a) hereof.
IN WITNESS WHEREOF, Westamerica and Capitol have each caused this Agreement
and Plan of Reorganization to be signed by its Chairman of the Board and its
corporate seal to be hereunto affixed and attested by the signature of its
Secretary all as of the day and year first above written.
ATTEST: WESTAMERICA BANCORPORATION
/s/M. Kitty Jones /s/David L. Payne
- ------------------------------ -----------------------------------
Secretary Chairman, President and Chief
Executive Officer
ATTEST: CAPITOLBANK SACRAMENTO
/s/Lawrence D. McGovern /s/Thayer T. Prentice
- ------------------------------ -----------------------------------
Secretary Vice Chairman and Chief Executive
Officer
-36-
<PAGE>
Exhibit A-1
Form of Agreement of Merger
THIS AGREEMENT OF MERGER, dated as of , 1995 (this "Merger
------------
Agreement"), is made and entered into by and between CAPITOLBANK SACRAMENTO, a
----------------------
California banking corporation ("Capitol"), WESTAMERICA BANCORPORATION, a
--------------------------
California corporation ("Westamerica"), and WESTAMERICA MERGER SUBSIDIARY, a
-----------------------------
California corporation ("Merger Sub").
W I T N E S S E T H:
A. The Boards of Directors of Westamerica and Capitol have approved,
and deem it advisable and in the best interests of Westamerica, Capitol and
their respective shareholders, that Westamerica and Capitol consummate the
business transaction provided for herein in which Merger Sub, a wholly-owned
subsidiary of Westamerica, would merge with and into Capitol (the "Merger").
B. Westamerica and Capitol have entered into an Agreement and Plan
of Reorganization, dated as of November 17, 1994 (the "Agreement"), providing,
among other things, for the execution and filing of this Merger Agreement and
the consummation of the Merger.
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained in this Merger Agreement and in the Agreement, the parties to this
Merger Agreement hereby agree that Merger Sub shall be merged with and into
Capitol in accordance with the provisions of the laws of the State of California
upon the terms and subject to the conditions set forth as follows:
1. The Merger.
----------
1.1 The Merger shall be pursuant to the provisions of, and with the
effect provided in, the Federal Deposit Insurance Act, the Federal Reserve Act
and the California Financial Code, and the Merger shall become effective on the
date (the "Effective Date") a copy of this Agreement certified by the Secretary
of the State of California is filed with the Superintendent of Banks of the
State of California (the "Superintendent").
1.2 On the Effective Date, Merger Sub shall be merged with and into
Capitol and Capitol shall be the surviving corporation (the "Surviving
Corporation") in the Merger in accordance with the terms and provisions of this
Agreement. Capitol shall thereupon succeed, without other transfer, to all
rights and properties of, and shall be subject to all the debts and liabilities
of, Merger Sub and the separate existence of Capitol as a California
corporation, with all its purposes, objects, rights, powers, privileges,
liabilities, obligations and franchises shall continue unaffected and unimpaired
by the Merger.
2. Corporate Governance Matters.
----------------------------
2.1 From and after the Effective Date and until thereafter amended as
provided by law: (a) the Articles of Incorporation of Capitol as in effect
immediately prior to the Effective Date shall be and continue to be the Articles
of Incorporation of the Surviving Corporation; and (b) the Bylaws of Capitol as
in effect immediately prior to the Effective Date shall be and continue to be
the Bylaws of the Surviving Corporation.
2.2 On the Effective Date: (a) the directors of the Surviving
Corporation shall be [name between 7 to 13 directors]; and (b) the officers of
the Surviving Corporation shall be those persons who are the officers of Capitol
at the Effective Date. Additional members of the Board of Directors and officers
of the Surviving Corporation may be elected or appointed subsequent to the
Effective Date pursuant to the terms of the Agreement and in accordance with the
Bylaws of the Surviving Corporation. Such directors and officers shall continue
to hold office from and after the Effective Date until they shall have resigned
or shall have been legally removed or until their respective successors shall
have been elected and qualified. Removal
-1-
<PAGE>
and replacement of such directors and officers, subject to any contractual
rights they may have, shall be governed by the Bylaws of the Surviving
Corporation and the General Corporation Law of the State of California. If, at
the Effective Date, a vacancy shall exist on the Board of Directors or in the
officers of Capitol, such vacancy may be filled in the manner provided in the
Bylaws of the Surviving Corporation.
3. Effect of Conversion of Shares.
------------------------------
3.1 Conversion of Shares of Constituent Corporations. As of the
------------------------------------------------
Effective Date, by virtue of the Merger and without any action on the part of
the holder of any common stock of Capitol (a "Capitol Share" or "Capitol Common
Stock") or common stock of Merger Sub:
(a) Each issued and outstanding Capitol Share (other than
fractional shares, or any shares as to which dissenters' rights have
been perfected) shall be converted into [.0938] shares of the common
stock, without par value, of Westamerica ("Westamerica Common Stock"
or a "Westamerica Share").
(b) Each issued and outstanding share of common stock of
Merger Sub shall at the time of the Merger be converted into and
become one share of the common stock of the Surviving Corporation.
(c) From and after the Effective Date, the holders of
certificates formerly representing Capitol Shares shall cease to have
any rights with respect thereto other than any dissenters' rights they
have perfected pursuant to Chapter 13 of the California General
Corporation Law.
3.2 Fractional Shares. Notwithstanding any other provision hereof,
-----------------
no fractional shares of Westamerica Common Stock shall be issued to holders of
Capitol Shares. In lieu thereof, each such holder entitled to a fraction of a
share of Westamerica Common Stock shall receive, at the time of surrender of the
certificate or certificates representing such holder's Capitol Shares, an amount
in cash equal to the market value per share of the Common Stock of Westamerica,
calculated by taking the average of the closing price quoted on the Nasdaq, as
reported in The Wall Street Journal, for each of the twenty consecutive trading
days prior to two business days prior to the Effective Date, rounded to 4
decimal places, (whether or not there were any trades in Westamerica Common
Stock on such days), multiplied by the fraction of a share of Westamerica Common
Stock to which such holder otherwise would be entitled. No such holder shall be
entitled to dividends, voting rights, interest on the value of, or any other
rights in respect of, a fractional share.
3.3 Surrender of Capitol Shares.
---------------------------
(a) Prior to the Effective Date, Westamerica shall appoint Chemical
Trust Company of California or its successor, or any other bank or trust company
(having capital of at least $50 million) mutually acceptable to Capitol and
Westamerica, as exchange agent (the "Exchange Agent") for the purpose of
exchanging certificates representing the Westamerica Common Stock and at and
after the Effective Date, Westamerica shall issue and deliver to the Exchange
Agent certificates representing the Westamerica Common Stock, as shall be
required to be delivered to holders of Capitol Shares pursuant to Section 3.1 of
this Merger Agreement. As soon as practicable after the Effective Date, each
holder of Capitol Shares converted pursuant to Section 3.1, upon surrender to
the Exchange Agent of one or more certificates for such Capitol Shares for
cancellation, will be entitled to receive a certificate representing the number
of shares of Westamerica Common Stock determined in accordance with Section 3.1
and a payment in cash with respect to fractional shares, if any, determined in
accordance with Section 3.2. Each certificate representing Westamerica Common
Stock will bear a notation incorporating the Amended Rights Agreement (as that
term is defined in Section 5(j) of the Agreement) by reference and certificates
representing the Westamerica Common Stock will evidence and entitle the holders
thereof to certain rights as set forth in and subject to the terms of the
-2-
<PAGE>
Amended Rights Agreement ("Rights"). Certificates issued for the Westamerica
Common Stock shall be deemed to be certificates for said Rights.
(b) No dividends or other distributions of any kind which are
declared payable to shareholders of record of the Westamerica Common Stock after
the Effective Date will be paid to persons entitled to receive such certificates
for Westamerica Common Stock until such persons surrender their certificates
representing Capitol Shares. Upon surrender of such certificates representing
Capitol Shares, the holder thereof shall be paid, without interest, any
dividends or other distributions with respect to the Westamerica Common Stock as
to which the record date and payment date occurred on or after the Effective
Date and on or before the date of surrender.
(c) If any certificate for a Westamerica Share is to be issued in a
name other than that in which the certificate for a Capitol Share surrendered in
exchange therefor is registered, it shall be a condition of such exchange that
the person requesting such exchange shall pay to the Exchange Agent any transfer
costs, taxes or other expenses required by reason of the issuance of
certificates for such Westamerica Share in a name other than the registered
holder of the certificate surrendered, or such persons shall establish to the
satisfaction of Westamerica and the Exchange Agent that such costs, taxes or
other expenses have been paid or are not applicable.
(d) All dividends or distributions, and any cash to be paid
pursuant to Section 3.2 in lieu of fractional shares, if held by the Exchange
Agent for payment or delivery to the holders of unsurrendered certificates
representing Capitol Shares and unclaimed at the end of one year from the
Effective Date, shall (together with any interest earned thereon) at such time
be paid or redelivered by the Exchange Agent to Westamerica, and after such time
any holder of a certificate representing a Capitol Share who has not surrendered
such certificate to the Exchange Agent shall, subject to applicable law, look as
a general creditor only to Westamerica for payment or delivery of such dividends
or distributions or cash, as the case may be. Westamerica shall not be liable to
any holder of a share of Capitol Common Stock for such share (or dividends or
distributions with respect thereto) delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law.
4. Termination and Amendment.
-------------------------
4.1 The obligations of the parties to effect the Merger shall be
subject to all the terms and conditions contained in the Agreement.
Notwithstanding the approval of this Merger Agreement by the shareholders of
Capitol, this Merger Agreement shall terminate forthwith in the event that the
Agreement shall be terminated as therein provided.
4.2 This Merger Agreement may be amended by Westamerica and Capitol at
any time prior to the Effective Date without the approval of the shareholders of
Capitol with respect to any of its terms except the terms relating to the form
or amount of consideration to be delivered to the Capitol shareholders in the
Merger. This Merger Agreement may not be amended, except by an instrument in
writing signed on behalf of each of the parties hereto.
-3-
<PAGE>
4.3 This Merger Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, and all of which shall be deemed but
one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Merger
Agreement as of the date first written above.
WESTAMERICA BANCORPORATION
By
----------------------------
DAVID L. PAYNE, President
By
----------------------------
M. KITTY JONES, Secretary
WESTAMERICA MERGER SUBSIDIARY
By
----------------------------
DAVID L. PAYNE, President
By
----------------------------
M. KITTY JONES, Secretary
CAPITOLBANK SACRAMENTO
By
----------------------------
THAYER PRENTICE, Vice-Chairman and
Chief Executive Officer
By
----------------------------
LAWRENCE D. McGOVERN, Secretary
-4-
<PAGE>
OFFICERS' CERTIFICATE
Thayer Prentice and Lawrence D. McGovern, hereby certify that:
1. They are the President and Secretary, respectively, of
CapitolBank Sacramento, a corporation organized under the laws of the State of
California.
2. The Merger Agreement in the form attached was duly approved by
the Board of Directors and shareholders of the corporation.
3. The shareholder approval was by the holders of a number of
outstanding shares which equaled or exceeded the vote required. The percentage
vote required was more than 50% of the outstanding shares.
4. There is only one class of shares and the number of shares
outstanding is .
----------------
---------------------------
THAYER PRENTICE, Vice-Chairman and
Chief Executive Officer
----------------------------
LAWRENCE D. MCGOVERN, Secretary
The undersigned declare under penalty of perjury under the laws of the
State of California that they have read the foregoing certificate and know the
contents thereof and that the same is true of their own knowledge. Executed at
Sacramento, Sacramento County, California on , 1995.
--------------- --
----------------------------
THAYER PRENTICE, Vice-Chairman and
Chief Executive Officer
----------------------------
LAWRENCE D. McGOVERN, Secretary
-5-
<PAGE>
OFFICERS' CERTIFICATE
David L. Payne and M. Kitty Jones hereby certify that:
1. They are the President and Secretary, respectively, of
Westamerica Merger Subsidiary, a corporation organized under the laws of the
State of California.
2. The Merger Agreement in the form attached was duly approved by
the Board of Directors of the corporation.
3. The Merger Agreement was entitled to be and was approved by the
Board of Directors alone under the provisions of Section 1201 of the California
General Corporation Law.
4. No vote of the shareholders of Westamerica Bancorporation, the
parent of Westamerica Merger Subsidiary, was required.
---------------------------
DAVID L. PAYNE, President
----------------------------
M. KITTY JONES, Secretary
The undersigned declare under penalty of perjury under the laws of the
State of California that they have read the foregoing certificate and know the
contents thereof and that the same is true of their own knowledge. Executed at
San Rafael, Marin County, California on , 1995.
------------ ----
----------------------------
DAVID L. PAYNE
----------------------------
M. KITTY JONES
-6-
<PAGE>
Exhibit A-2
Form of Agreement of Merger
THIS AGREEMENT OF MERGER dated as of , 1995, between
-------
CAPITOLBANK SACRAMENTO, a California state-chartered banking corporation
(hereinafter referred to as "Disappearing Corporation"), and WESTAMERICA BANK, a
California state-chartered banking corporation (hereinafter referred to as
"Surviving Corporation").
W I T N E S S E T H:
WHEREAS, Westamerica Bancorporation, Surviving Corporation and
Disappearing Corporation are parties to an Agreement and Plan of Reorganization
(the "Reorganization Agreement") dated as of November 17, 1994 providing for the
merger (the "Merger") of Disappearing Corporation with and into Surviving
Corporation, which is a wholly-owned subsidiary of Westamerica Bancorporation,
in the manner and with the effect set forth in the Federal Deposit Insurance
Act, the Federal Reserve Act, the California Financial Code and this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and in the Reorganization Agreement, the parties
hereto agree as follows:
1. The Merger. On the Effective Date (as hereinafter defined)
----------
Disappearing Corporation shall be merged with and into Surviving Corporation in
accordance with the terms and provisions of this Agreement. The Merger shall be
pursuant to the provisions of, and with the effect provided in, the Federal
Deposit Insurance Act, the Federal Reserve Act and the California Financial
Code, and the Merger shall become effective on the date (the "Effective Date") a
copy of this Agreement certified by the Secretary of State of California is
filed with the Superintendent of Banks of the State of California (the
"Superintendent").
2. Articles of Incorporation and By-laws. The Articles of
-------------------------------------
Incorporation and By-laws, respectively, of Surviving Corporation in effect
immediately prior to the Effective Date shall be and remain the Articles of
Incorporation and By-laws, respectively, of the Surviving Corporation until
amended as provided by law.
3. Officers and Directors. From and after the Effective Date of the
----------------------
Merger, the directors and officers of Surviving Corporation shall be those
persons who are the directors and officers of Surviving Corporation at the
Effective Date of the Merger, and they shall continue to hold office from and
after the Effective Date of the Merger until they shall have resigned or shall
have been legally removed or until their respective successors shall have been
elected and qualified.
4. Effect of the Merger. (a) All assets, rights, privileges,
--------------------
immunities, powers, franchises and interests of Disappearing Corporation and
Surviving Corporation in and to every type of property (real, personal and
mixed) and choses in action, as they exist as of the Effective Date, 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 in every other fiduciary capacity, shall pass
and be transferred to and vest in Surviving Corporation by virtue of the Merger
on the Effective Date without any deed, conveyance or other transfer; the
separate existence of Disappearing Corporation shall cease and the corporate
existence of Surviving Corporation as a state-chartered banking corporation
shall continue unaffected and unimpaired by the Merger; and Surviving
Corporation shall be deemed to be the same entity as each of Disappearing
Corporation and Surviving Corporation and shall be subject to all of their
obligations and liabilities of every kind and description.
-1-
<PAGE>
(b) The Surviving Corporation shall be responsible and liable for
all the liabilities and obligations of each of Surviving Corporation and
Disappearing Corporation; and any claim existing or action or proceeding pending
by or against Surviving Corporation or Disappearing Corporation may be
prosecuted as if the Merger had not taken place, or the Surviving Corporation
may be substituted in its place. Neither the rights of creditors nor any liens
upon the property of either Surviving Corporation or Disappearing Corporation
shall be impaired by reason of the Merger.
5. Effect of Merger on Outstanding Shares.
--------------------------------------
(a) Surviving Corporation. Each share of the common and preferred
---------------------
stock of Surviving Corporation issued and outstanding immediately prior to the
Effective Date shall continue to be issued and outstanding after the Effective
Date.
(b) Disappearing Corporation. On the Effective Date, by virtue of
------------------------
the Merger and without any action on the part of the holder of any capital stock
of Disappearing Corporation, each issued and outstanding share of the common
stock of Disappearing Corporation shall be cancelled without consideration.
6. Conditions. The obligations of the parties to effect the
----------
Merger shall be subject to all of the terms and conditions contained in the
Reorganization Agreement.
7. Termination. This Agreement may be terminated by the mutual
-----------
consent of the Boards of Directors of Disappearing Corporation, Westamerica
Bancorporation and Surviving Corporation, and may be amended by the mutual
consent of Disappearing Corporation, Westamerica Bancorporation and Surviving
Corporation at any time prior to the Effective Date without the approval of the
shareholders of Disappearing Corporation or Surviving Corporation with respect
to any of its terms. This Agreement shall terminate automatically upon the
termination of the Reorganization Agreement.
8. Further Assurances. From time to time as and when requested
------------------
by the Surviving Corporation and to the extent permitted by law, the officers
and directors of Disappearing Corporation and Surviving Corporation last in
office shall execute and deliver such assignments, deeds and other instruments
and shall take or cause to be taken such further or other action as shall be
necessary in order to vest or perfect in or to confirm of record or otherwise to
Surviving Corporation title to, and possession of, all of the assets, rights,
franchises and interests of Disappearing Corporation and Surviving Corporation
in and to every type of property (real, personal and mixed) and chooses in
action, and otherwise to carry out the purposes of this Agreement; and the
proper officers and directors of Surviving Corporation are fully authorized to
take any and all such action in the name of Disappearing Corporation or
Surviving Corporation or otherwise.
-2-
<PAGE>
9. Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Merger
------------------
Agreement as of the date first written above.
ATTEST:
WESTAMERICA BANK
By
- ------------------------------ ------------------------------------------
David L. Payne
Secretary President
ATTEST: CAPITOLBANK SACRAMENTO
By
- ------------------------------ ------------------------------------------
Secretary Thayer Prentice
Vice-Chairman and Chief Executive Officer
-3-
<PAGE>
OFFICERS' CERTIFICATE
Thayer Prentice and hereby certify that:
---------------
1. They are the President and Secretary, respectively, of
CAPITOLBANK SACRAMENTO, a banking corporation organized under the laws of the
United States.
2. The Merger Agreement in the form attached was duly approved
by the Board of Directors of the corporation.
3. The Merger Agreement in the form attached was duly approved
by the holder of all of the outstanding shares of the corporation.
-------------------------
THAYER PRENTICE, Vice-Chairman and Chief
Executive Officer
-------------------------
LAWRENCE D.MCGOVERN, Secretary
The undersigned declare under penalty of perjury under the laws of the
State of California that they have read the foregoing certificate and know the
contents thereof and that the same is true of their own knowledge. Executed at
Sacramento, Sacramento County, California on , 1995.
------------ ----
-------------------------
THAYER PRENTICE,Vice Chairman and Chief
Executive Officer
-------------------------
-----------------
-4-
<PAGE>
OFFICERS' CERTIFICATE
David L. Payne and M. Kitty Jones hereby certify that:
1. They are the President and Secretary, respectively, of WESTAMERICA
BANK, a banking corporation organized under the laws of the State of California.
2. The Merger Agreement in the form attached was duly approved by the
Board of Directors of the corporation.
3. The Merger Agreement was entitled to be and was approved by the
Board of Directors alone under the provisions of Section 1201 of the California
General Corporation Law.
-----------------------------
DAVID L. PAYNE, President
------------------------------
M. KITTY JONES, Secretary
The undresigned declare under penalty of purjury under the laws of the state of
California that they have read the foregoing certificate and know the contents
thereof and that the same is true of their own knowledge. Executed at San
Rafael, Marin County, California on , 1995.
------------ --
----------------------------
DAVID L. PAYNE
----------------------------
M. KITTY JONES
-5-
<PAGE>
ANNEX B
November 17, 1994
Members of the Board of Directors
CapitolBank Sacramento
300 Capitol Mall
Sacramento, CA 95814
Members of the Board:
You have requested our opinion as investment bankers as to the fairness, from a
financial point of view, to the shareholders of CapitolBank Sacramento of the
Exchange Ratio, as defined in the Agreement and Plan of Reorganization, dated as
of November 17, 1994 (the "Agreement"), in the proposed merger (the "Merger") of
CapitolBank with and into Westamerica Bancorporation, pursuant to the Agreement
and subject to the terms and conditions therein, each holder of common stock of
CapitolBank will receive, in exchange for common stock of CapitolBank,
Westamerica common stock in the ratio of .0938 of a share of Westamerica common
stock for each share of CapitolBank common stock, subject to adjustment as more
fully set forth in the Agreement, including adjustment for Significant
Liabilities as defined in Section 2.1(b) of the agreement.
We have acted for CapitolBank and for the Board of Directors as financial
advisor in connection with this transaction and will receive a fee for our
services. We have not previously provided investment banking and financial
advisory services to CapitolBank. We currently are a market maker in
CapitolBank's Common Shares and have been since 1990. We are currently a market
maker in Westamerica Bancorporation's Common Stock and have been since 1994.
In arriving at our opinion, we have reviewed and analyzed, among other things,
the following: (i) the Agreement and the Amendments; (ii) Annual Reports to
Shareholders of CapitolBank and Westamerica Bancorporation and Annual Reports on
Form 10-K of Westamerica Bancorporation for the three years ended December 31,
1991, 1992 and 1993; (iii) Quarterly Reports on Form 10-Q of Westamerica
Bancorporation and quarterly FDIC Call reports for the quarters ended March 31,
1994, June 30, 1994 and September 30, 1994; (iv) certain other publicly
available financial and other information concerning CapitolBank and Westamerica
Bancorporation and the trading markets for the publicly traded securities of
CapitolBank and Westamerica Bancorporation; (v) publicly available information
concerning other banks and holding companies, the trading markets for their
securities and the nature and terms of certain other merger transactions we
believe relevant to our inquiry; and (vi) evaluations and analyses prepared and
presented to the Board of Directors of CapitolBank or a committee thereof in
connection with this business combination with Westamerica Bancorporation. We
have held discussions with senior management of CapitolBank and of Westamerica
Bancorporation concerning their past and current operations, financial condition
and prospects, as well as the results of regulatory examinations.
We have reviewed with senior management of CapitolBank earnings projections for
1995 through 1998 for CapitolBank as a stand-alone entity, assuming the Merger
does not occur, prepared by CapitolBank. We reviewed with the senior management
of Westamerica Bancorporation earnings projections for 1995 through 1998 for
Westamerica Bancorporation as a stand-alone entity, assuming the Merger does not
occur, as well as projected operating cost savings expected to be achieved in
each such years resulting from the Merger. Such projections were prepared by
Westamerica Bancorporation senior management. Certain pro forma financial
projections for the years 1995 through 1998 for the combined entity were derived
by us based partially upon the projections discussed above, as well as our own
assessment of general economic, market and financial conditions. In certain
cases, such combined pro forma financial projections included projected
operating cost savings derived by us partially based upon the projections
discussed above to be realizable in the Merger.
In conducting our review and in arriving at our opinion, we have relied upon and
assumed the accuracy and completeness of the financial and other information
provided to us or publicly available and have not
-1-
<PAGE>
attempted independently to verify the same. We have relied upon the managements
of CapitolBank and Westamerica Bancorporation as to the reasonableness of the
financial and operating forecasts, projections and projected operating cost
savings (and the assumptions and bases therefor) provided to us, and we have
assumed that such forecasts, projections and projected operating cost savings
reflect the best currently available estimates and judgments of the applicable
managements. We have also assumed, without independent verification, that the
aggregate allowances for loan losses for CapitolBank and Westamerica
Bancorporation are adequate to cover such losses. We have not made or obtained
any evaluations or appraisals of the property of CapitolBank or Westamerica
Bancorporation, nor have we examined any individual loan credit files. For
purposes of this opinion, we have assumed that the Merger will have the tax,
accounting and legal effects (including, without limitation, that the Merger
will be accounted for as a pooling-of-interest) described in the Agreement and
the Amendments and assumed the accuracy of the disclosures set forth in the
Agreement and the Amendments. Our opinion as expressed herein is limited to the
fairness, from a financial point of view, to the holders of the Common Shares of
CapitolBank of the Exchange Ratio in the Merger and does not address
CapitolBank's underlying business decision to proceed with the Merger.
We have considered such financial and other factors as we have deemed
appropriate under the circumstances, including among others the following: (i)
the historical and current financial position and results of operations of
CapitolBank and Westamerica Bancorporation, including interest income, interest
expense, net interest income, net interest margin, provision for loan losses,
non-interest income, non-interest expense, earnings, dividends, internal capital
generation, book value, intangible assets, return on assets, return on
shareholders' equity, capitalization, the amount and type of nonperforming
assets, loan losses and the reserve for loan losses, all as set forth in the
financial statements for CapitolBank and for Westamerica Bancorporation; (ii)
the assets and liabilities of CapitolBank and Westamerica Bancorporation,
including the loan, investment and mortgage portfolios, deposits, other
liabilities, historical and current liability sources and costs and liquidity;
and (iii) the nature and terms of certain other merger transactions involving
banks and bank holding companies. We have also taken into account our assessment
of general economic, market and financial conditions and our experience in other
transactions, as well as our experience in securities valuation and our
knowledge of the banking industry generally. Our opinion is necessarily based
upon conditions as they exist and can be evaluated on the date hereof and the
information made available to us through the date hereof.
It is understood that this letter is for the information of the Board of
Directors of CapitolBank only and may not be relied upon by any other person or
used for any other purpose without our prior written consent. This letter does
not constitute a recommendation to the Board of Directors or to any shareholder
of CapitolBank with respect to any approval of the Merger.
Based upon and subject to the foregoing, we are of the opinion as investment
bankers that, as of the date hereof, the Exchange Ratio in the Merger is fair,
from a financial point of view, to the holders of the Common Shares of
CapitolBank.
Very truly yours,
/s/ Hoefer & Arnett Incorporated
HOEFER & ARNETT INCORPORATED
-2-
<PAGE>
ANNEX C
[LETTERHEAD OF SMITH & CROWLEY APPEARS HERE]
CAPITOLBANK SACRAMENTO
- ----------------------
Page 1
November 16, 1994
Board of Directors
CapitolBank Sacramento
300 Capitol Mall
Sacramento, California 95814
Members of the Board:
We understand that CapitolBank Sacramento, a California banking corporation
("CapitolBank"), and Westamerica Bancorporation, a California corporation
("Westamerica"), have entered into an Agreement and Plan of Reorganization (the
"Agreement"), pursuant to which Westamerica will acquire CapitolBank and the
goodwill associated therewith through the merger of CapitolBank with a
Westamerica subsidiary (the "Merger"). Pursuant to the Merger and subject to the
terms and conditions more fully described in the Agreement, we understand that
each holder of common stock, $1.5625 par value, of CapitolBank will receive, in
exchange for common stock of CapitolBank, Westamerica common stock in the ratio
of .0938 of a share of Westamerica common stock for each share of CapitolBank
common stock, subject to adjustment as more fully set forth in the Agreement
(the "Consideration").
Smith & Crowley Inc. ("SCI") is an investment banking firm specializing in
commercial banks, savings and loan associations, savings banks, and other
financial intermediaries, and, as part of its investment banking activities, is
called upon to advise clients in mergers, acquisitions, valuations, and business
activities involving financial institutions. SCI has had no prior business
relationships with either party to this transaction; however, certain principals
of SCI, in former positions as senior officers of investment banking and
commercial banking companies, did, in the course of their activities in past
years, have direct contact with Westamerica, its management, and banks that were
owned or were subsequently acquired by Westamerica. SCI will receive a fee from
CapitolBank for rendering this opinion.
You have asked for our opinion as to whether the Consideration to be
received by the stockholders of CapitolBank pursuant to the Merger is fair to
such stockholders of CapitolBank from a financial point of view, as of the date
hereof.
In connection with our opinion, we have, among other things:
(i) reviewed certain publicly available financial and other data with
respect to CapitolBank and Westamerica, including the annual
audited consolidated financial statements for 1989 through 1993,
unaudited interim periods to September 30, 1994, and certain other
relevant financial and operating data relating to CapitolBank and
Westamerica made available to us from published sources and from
the internal records of CapitolBank and Westamerica;
(ii) reviewed the form of the Merger Agreement and made inquiries
regarding and discussed the Merger, the Merger Agreement and other
matters related thereto with
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<PAGE>
CAPITOLBANK SACRAMENTO
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NOVEMBER 16, 1994
PAGE 2
CapitolBank's management and counsel; we also analyzed the effect
of adjustments in the Merger Exchange Ratio potentially
attributable to Significant Liabilities as defined in the
Agreement, including the effect of the maximum Significant
Liabilities adjustment, which would reduce the Exchange Ratio to
.0861;
(iii) compared CapitolBank and Westamerica from a financial point of view
with certain other companies and groups of companies in the banking
industry that we deemed to be relevant;
(iv) considered the financial terms, to the extent publicly available,
of selected recent business combinations of companies in the
banking industry, which we deemed to be comparable, in whole or in
part, to the Merger;
(v) reviewed and discussed with representatives of the management of
CapitolBank certain information of a business and financial nature
regarding CapitolBank, furnished to us by them, including legal
matters, lease agreements, credit quality data, financial
forecasts and related assumptions of CapitolBank;
(vi) reviewed and discussed with representatives of the management of
Westamerica certain information of a business and financial nature
regarding Westamerica, furnished to us by them concerning the
holding company and its principal subsidiaries, including current
financial condition, credit quality data, other pending
transactions, and general business plans;
(vii) reviewed the price history, trading volume and valuation of
Westamerica common stock and, subject to more limited availability
of information, that of CapitolBank as well;
(viii) met with various officers and other members of management of
CapitolBank and Westamerica to discuss the foregoing, as well as
other matters we believe relevant to our analysis; and
(ix) considered such other information, financial data and analyses, and
economic and market criteria and performed such other analyses and
examinations as we have deemed appropriate.
In connection with our review, we have not assumed any responsibility for
independent verification of any of the foregoing information and have relied on
all such information and assumed that all such information provided by
CapitolBank and Westamerica is complete and accurate in all material respects.
With respect to the financial forecasts of CapitolBank provided to us by
CapitolBank's management, we have assumed for purposes of our opinion that such
forecasts have been reasonably prepared on bases reflecting the best available
estimates and judgments of CapitolBank's management at the time of preparation
as to the future financial performance of CapitolBank, and that they provide a
reasonable basis upon which we can form our opinion. We have also assumed that
there have been no material changes in CapitolBank's assets, financial
condition, results of operations, business or prospects since the date of the
last financial statements made available to us, including without limitation
those arising out of any claims that may
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<PAGE>
CAPITOLBANK SACRAMENTO
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November 16, 1994
Page 3
be made or are pending or threatened by, against or for the benefit of
CapitolBank. We have relied on advice of counsels to CapitolBank as to all legal
matters with respect to CapitolBank, the Merger and the Agreement. We are not
experts in the evaluation of loan portfolios for purposes of assessing the
adequacy of the allowance for losses with respect thereto and have assumed, with
your consent, that such allowances for CapitolBank and Westamerica are in the
aggregate adequate to cover such losses. In addition, we have not assumed any
responsibility for reviewing any individual credit files or making an
independent evaluation, appraisal or physical inspection of the assets or
individual properties of CapitolBank or Westamerica. Finally, our opinion is
based on economic, monetary, market and other conditions as in effect on, and
the information made available to us as of, the date hereof.
We have further assumed, with your consent, that the Merger will be
consummated in accordance with the terms described in the form of the Agreement
provided to us, without any amendments thereto and without waiver by CapitolBank
of any of the conditions to its obligations thereunder.
Based on the foregoing and in reliance thereon, it is our opinion that the
Consideration to be received by the stockholders of CapitolBank pursuant to the
Merger is fair to such stockholders from a financial point of view, as of the
date hereof.
This opinion is furnished pursuant to our engagement letter dated
November 10, 1994. Except as provided in such engagement letter,
this opinion may not be used or referred to by CapitolBank, or quoted or
disclosed to any person in any manner without our prior written consent.
This opinion is not intended to be and shall not be deemed to be a
recommendation to any stockholder of CapitolBank as to how such stockholder
should vote in respect to the Merger.
Respectfully submitted,
SMITH & CROWLEY INC.
By: /s/ Donald K. Crowley
----------------------
Donald K. Crowley
Managing Director
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<PAGE>
ANNEX D
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, dated as of November 17, 1994, between
WESTAMERICA BANCORPORATION, a California corporation ("Grantee"), and
CAPITOLBANK SACRAMENTO, a California corporation ("Issuer").
W I T N E S S E T H:
WHEREAS, Grantee and Issuer have entered into an Agreement and Plan of
Reorganization of even date herewith (the "Reorganization Agreement"), which
agreement has been executed by the parties hereto immediately prior to this
Agreement; and
WHEREAS, as a condition to Grantee's entering into the Reorganization
Agreement and in consideration therefor, Issuer has agreed to grant Grantee the
Option (as hereinafter defined):
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Reorganization Agreement, the parties
hereto agree as follows:
1. (a) Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "Option") to purchase, subject to the terms hereof, up
to 403,949 fully paid and nonassessable shares of Issuer's Common Stock, no par
value per share ("Common Stock"), at a price of $2.27 per share; provided,
---------
however, that in the event Issuer issues or agrees to issue any shares of
- --------
Common Stock (other than as permitted under the Reorganization Agreement) at a
price less than $2.27 per share (as adjusted pursuant to subsection (b) of
Section 5), such price shall be equal to such lesser price (such price, as
adjusted if applicable, the "Option Price"); provided further that in no event
----------------
shall the number of shares for which this Option is exercisable exceed 9.9% of
the Issuer's issued and outstanding common shares. The number of shares of
Common Stock that may be received upon the exercise of the Option and the Option
Price are subject to adjustment as herein set forth.
(b) In the event that any additional shares of Common Stock are issued
or otherwise become outstanding after the date hereof (or any treasury shares
held by Issuer have been or are sold after November 17, 1994) (other than
pursuant to this Agreement), the number of shares of Common Stock subject to the
Option shall be increased so that, after such issuance, it equals 9.9% of the
number of shares of Common Stock then issued and outstanding without giving
effect to any shares subject to or issued pursuant to the Option. Nothing
contained in this Section 1(b) or elsewhere in this Agreement shall be deemed to
authorize Issuer or Grantee to breach any provision of the Reorganization
Agreement.
2. (a) The Holder (as hereinafter defined) may exercise the Option,
in whole or part, and from time to time, if, but only if, both an Initial
Triggering Event (as hereinafter defined) and a Subsequent Triggering Event (as
hereinafter defined) shall have occurred prior to the occurrence of an Exercise
Termination Event (as hereinafter defined), provided that the Holder shall have
--------
sent the written notice of such exercise (as provided in subsection (e) of this
Section 2) within 30 days following such Subsequent Triggering Event. Each of
the following shall be an Exercise Termination Event: (i) the Effective Time of
the Merger; (ii) termination of the Reorganization Agreement in accordance with
the provisions thereof if such termination occurs prior to the occurrence of an
Initial Triggering Event; or (iii) the passage of 12 months after termination of
the Reorganization Agreement if such termination follows the occurrence of an
Initial Triggering Event (provided that if an Initial Triggering Event continues
--------
or occurs beyond such termination, the Exercise Termination Event shall be 12
months from the expiration of the Last Triggering Event but in no event more
than 18 months after such termination). The "Last Triggering Event" shall mean
the last Initial Triggering Event to occur. The term "Holder" shall mean the
holder or holders of the Option.
<PAGE>
(b) The term "Initial Triggering Event" shall mean any of the following
events or transactions occurring after the date hereof:
(i) Issuer or any of its Subsidiaries (each an "Issuer
Subsidiary"), without having received Grantee's prior written consent,
shall have entered into an agreement to engage in an Acquisition
Transaction (as hereinafter defined) with any person (the term "person" for
purposes of this Agreement having the meaning assigned thereto in Sections
3(a)(9) and 13(d)(3) of the Securities and Exchange Act of 1934 (the
"Exchange Act"), and the rules and regulations thereunder) other than
Grantee or any of its Subsidiaries (each a "Grantee Subsidiary") or the
Board of Directors of Issuer shall have recommended that the shareholders
of Issuer approve or accept any Acquisition Transaction other than as
contemplated by the Reorganization Agreement. For purposes of this
Agreement, "Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving Issuer or any
Significant Subsidiary (as defined in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission (the "SEC") of
Issuer, (y) a purchase, lease or other acquisition representing 15% or more
of the consolidated assets of Issuer and its Subsidiaries, or (z) a
purchase or other acquisition (including by way of merger, consolidation,
share exchange or otherwise) of securities representing 10% or more of the
voting power of any class of securities of Issuer or any Significant
Subsidiary of Issuer;
(ii) Issuer or any Issuer Subsidiary, without having received
Grantee's prior written consent, shall have authorized, recommended,
proposed or publicly announced its intention to authorize, recommend or
propose, an agreement to engage in an Acquisition Transaction with any
person other than Grantee or a Grantee Subsidiary, or the Board of
Directors of Issuer shall have publicly withdrawn or modified, or publicly
announced its interest to withdraw or modify, its recommendation that the
shareholders of Issuer approve the transactions contemplated by the
Reorganization Agreement;
(iii) Any person other than Grantee, any Grantee Subsidiary or
any Issuer Subsidiary acting in a fiduciary capacity shall have acquired
beneficial ownership or the right to acquire beneficial ownership of 10% or
more of the outstanding shares of Common Stock (the term "beneficial
ownership" for purposes of this Agreement having the meaning assigned
thereto in Section 13(d) of the Exchange Act, and the rules and regulations
thereunder);
(iv) Any person other than Grantee or any Grantee Subsidiary
shall have made a bona fide proposal to Issuer or its shareholders by
public announcement or written communication that is or becomes the subject
of public disclosure to engage in an Acquisition Transaction;
(v) After a proposal is made by a third party to Issuer or its
shareholders to engage in an Acquisition Transaction, Issuer shall have
breached any covenant or obligation contained in the Reorganization
Agreement and such breach (x) would entitle Grantee to terminate the
Reorganization Agreement and (y) shall not have been cured prior to the
Notice Date (as defined below); or
(vi) Any person other than Grantee or any Grantee Subsidiary,
other than in connection with a transaction to which Grantee has given its
prior written consent, shall have filed an application or notice with the
Superintendent of Banks of the State of California (the "Superintendent")
or the Federal Deposit Insurance Corporation (the "FDIC"), or any other
federal or state bank regulatory authority, which application or notice has
been accepted for processing, for approval to engage in an Acquisition
Transaction.
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<PAGE>
(c) The term "Subsequent Triggering Event" shall mean either of the
following events or transactions occurring after the date hereof:
(i) The acquisition by any person of beneficial ownership of
20% or more of the then outstanding Common Stock; or
(ii) The occurrence of the Initial Triggering Event described in
clause (i) of subsection (b) of this Section 2, except that the percentage
referred to in clause (z) shall be 20%.
(d) Issuer shall notify Grantee promptly in writing of the occurrence
of any Initial Triggering Event or Subsequent Triggering Event (together, a
"Triggering Event"), it being understood that the giving of such notice by
Issuer shall not be a condition to the right of the Holder to exercise the
Option.
(e) In the event the Holder is entitled to and wishes to exercise the
Option, it shall send to Issuer a written notice (the date of which being herein
referred to as the "Notice Date") specifying (i) the total number of shares it
will purchase pursuant to such exercise and (ii) a place and date not earlier
than three business days nor later than 60 business days from the Notice Date
for the closing of such purchase (the "Closing Date"); provided, that if the
--------
closing of the purchase and sale pursuant to the Option (the "Closing") cannot
be consummated by reason of any applicable judgment, decree, order, law or
regulation, the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which such restriction on
consummation has expired or been terminated; and provided further, without
----------------
limiting the foregoing, that if prior notification to or approval of the
Superintendent and the FDIC or any other regulatory agency is required in
connection with such purchase, the Holder shall promptly file the required
notice or application for approval and shall expeditiously process the same and
the period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which any required notification periods have expired or
been terminated or such approvals have been obtained and any requisite waiting
period or periods shall have passed. Any exercise of the Option shall be deemed
to occur on the Notice Date relating thereto. In the event (i) Grantee receives
official notice that an approval of the Superintendent or the FDIC or any other
regulatory authority required for the purchase of Option Shares (as hereinafter
defined) would not be issued or granted, or (ii) Holder (or Substitute Holder)
shall have the right pursuant to the last sentence of Section 7 (or Section 9)
to exercise the Option (or Substitute Option), Grantee shall nevertheless be
entitled to exercise its right as set forth in Section 7 and Grantee or Holder
(or Substitute Holder) shall be entitled to exercise the Option (or Substitute
Option) in connection with the resale of Issuer's Common Stock or other
securities pursuant to a registration statement as provided in Section 6.
(f) At the Closing referred to in subsection (e) of this Section 2, the
Holder shall pay to Issuer the aggregate purchase price for the shares of Common
Stock purchased pursuant to the exercise of the Option in immediately available
funds by wire transfer to a bank account designated by Issuer, provided that
--------
failure or refusal of Issuer to designate such a bank account shall not preclude
the Holder from exercising the Option.
(g) At such Closing, simultaneously with the delivery of immediately
available funds as provided in subsection (f) of this Section 2, Issuer shall
deliver to the Holder a certificate or certificates representing the number of
shares of Common Stock purchased by the Holder and, if the Option should be
exercised in part only, a new Option evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder, and the Holder
shall deliver to Issuer a copy of this Agreement and a letter agreeing that the
Holder will not offer to sell or otherwise dispose of such shares in violation
of applicable law or the provisions of this Agreement.
(h) Certificates for Common Stock delivered at a closing hereunder may
be endorsed with a restrictive legend that shall read substantially as follows:
"The transfer of the shares represented by this certificate is subject to
certain provisions of an agreement between the registered holder hereof and
Issuer and to resale restrictions
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<PAGE>
arising under the Securities Act of 1933, as amended. A copy of such
agreement is on file at the principal office of Issuer and will be provided
to the holder hereof without charge upon receipt by Issuer of a written
request therefor."
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act of 1933 (the "Securities Act") in the above legend shall
be removed by delivery of substitute certificate(s) without such reference if
the Holder shall have delivered to Issuer a copy of a letter from the staff of
the SEC, or an opinion of counsel, in form and substance reasonably satisfactory
to Issuer, to the effect that such legend is not required for purposes of the
Securities Act; (ii) the reference to the provisions of this Agreement in the
above legend shall be removed by delivery of substitute certificate(s) without
such reference if the shares have been sold or transferred in compliance with
the provisions of this Agreement and under circumstances that do not require the
retention of such reference; and (iii) the legend shall be removed in its
entirety if the conditions in the preceding clauses (i) and (ii) are both
satisfied. In addition, such certificates shall bear any other legend as may be
required by law.
(i) Upon the giving by the Holder to Issuer of the written notice of
exercise of the Option provided for under subsection (e) of this Section 2 and
the tender of the applicable purchase price in immediately available funds, the
Holder shall be deemed to be the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
Issuer shall then be closed or that certificates representing such shares of
Common Stock shall not then be actually delivered to the Holder or the Issuer
shall have failed or refused to designate the bank account described in
subsection (f) of this Section 2. Issuer shall pay all expenses, and any and
all United States federal, state and local taxes and other charges that may be
payable in connection with the preparation, issuance and delivery of stock
certificates under this Section 2 in the name of the Holder or its assignee,
transferee or designee.
3. Issuer agrees: (i) that it shall at all times maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock (and other securities issuable pursuant to Section 5(a)) so that
the Option may be exercised without additional authorization of Common Stock (or
such other securities) after giving effect to all other options, warrants,
convertible securities and other rights to purchase Common Stock (or such other
securities); (ii) that it will not, by charter amendment or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observance or performance of any
of the covenants, stipulations or conditions to be observed or performed
hereunder by Issuer; (iii) promptly to take all action as may from time to time
be required (including (x) complying with all premerger notification, reporting
and waiting period requirements specified in 15 U.S.C. (S) 18a and regulations
promulgated thereunder and (y) in the event, under the Bank Holding Company Act
of 1956, as amended ("BHCA"), or the Change in Bank Control Act of 1978, as
amended, or any state banking law, prior approval of or notice to the
Superintendent or the FDIC or to any state regulatory authority is necessary
before the Option may be exercised, cooperating fully with the Holder in
preparing such applications or notices and providing such information to the
Superintendent or the FDIC or such state regulatory authority as they may
require) in order to permit the Holder to exercise the Option and the Issuer
duly and effectively to issue shares of Common Stock pursuant hereto; and (iv)
promptly to take all action provided herein to protect the rights of the Holder
against dilution.
4. This Agreement (and the Option granted hereby) are exchangeable,
without expense, at the option of the Holder, upon presentation and surrender of
this Agreement at the principal office of Issuer, for other Agreements providing
for Options of different denominations entitling the holder thereof to purchase,
on the same terms and subject to the same conditions as are set forth herein, in
the aggregate the same number of shares of Common Stock purchasable hereunder.
The terms "Agreement" and "Option" as used herein include any Stock Option
Agreements and related Options for which this Agreement (and the Option granted
hereby) may be exchanged. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new Agreement executed and
-4-
<PAGE>
delivered shall constitute an additional contractual obligation on the part of
Issuer, whether or not the Agreement so lost, stolen, destroyed or mutilated
shall at any time be enforceable by anyone.
5. In addition to the adjustment in the number of shares of Common
Stock that are purchasable upon exercise of the Option pursuant to Section 1 of
this Agreement, the number of shares of Common Stock purchasable upon the
exercise of the Option shall be subject to adjustment from time to time as
provided in this Section 5.
(a) In the event of any change in Common Stock by reason of
stock dividends, split-ups, mergers, recapitalizations, combinations,
subdivisions, conversions, exchanges of shares or the like, the type and
number of shares of Common Stock purchasable upon exercise hereof shall be
appropriately adjusted so that Grantee shall receive upon exercise of the
Option and payment of the aggregate Option Price hereunder the number and
class of shares or other securities or property that Grantee would have
received in respect of Common Stock if the Option had been exercised in
full immediately prior to such event, or the record date therefor, as
applicable.
(b) Whenever the number of shares of Common Stock purchasable
upon exercise hereof is adjusted as provided in this Section 5, the Option
Price shall be adjusted by multiplying the Option Price by a fraction, the
numerator of which shall be equal to the number of shares of Common Stock
purchasable prior to the adjustment and the denominator of which shall be
equal to the number of shares of Common Stock purchasable after the
adjustment.
6. Upon the occurrence of a Subsequent Triggering Event that occurs
prior to an Exercise Termination Event (or as otherwise provided in the last
sentence of Section 2(e)), Issuer shall, at the request of Grantee delivered
within 30 days after such Subsequent Triggering Event (or such trigger date as
is provided in the last sentence of Section 2(e)) (whether on its own behalf or
on behalf of any subsequent holder of this Option (or part thereof) or any of
the shares of Common Stock issued pursuant hereto), promptly prepare, file and
keep current with the Superintendent the equivalent of a shelf registration
statement under the Securities Act covering any shares issued and issuable
pursuant to this Option and shall use its best efforts to cause such
registration statement to become effective and remain current in order to permit
the sale or other disposition of any shares of Common Stock issued upon total or
partial exercise of this Option ("Option Shares") in accordance with any plan of
disposition requested by Grantee. Issuer will use its best efforts to cause such
registration statement first to become effective and then to remain effective
for such period not in excess of 180 days from the day such registration
statement first becomes effective or such shorter time as may be reasonably
necessary to effect such sales or other dispositions. Grantee for a period of 18
months following such first request shall have the right to demand a second such
registration if reasonably necessary to effect such sales or dispositions. The
foregoing notwithstanding, if, at the time of any request by Grantee for
registration of Option Shares as provided above, Issuer is in registration with
respect to an underwritten public offering of shares of Common Stock, and if in
the good faith judgment of the managing underwriter or managing underwriters,
or, if none, the sole underwriter or underwriters, of such offering the
inclusion of the Holder's Option or Option Shares would interfere with the
successful marketing of the shares of Common Stock offered by Issuer, the number
of Option Shares otherwise to be covered in the registration statement
contemplated hereby may be reduced; and provided, however, that after any such
-----------------
required reduction the number of Option Shares to be included in such offering
for the account of the Holder shall constitute at least 25% of the total number
of shares to be sold by the Holder and Issuer in the aggregate; and provided
--------
further, however, that if such reduction occurs, then the Issuer shall file a
- -------
registration statement for the balance as promptly as practical and no reduction
shall thereafter occur (and such registration shall not be charged against the
Holder). Each such Holder shall provide all information reasonably requested by
Issuer for inclusion in any registration statement to be filed hereunder. If
requested by any such Holder in connection with such registration, Issuer shall
become a party to any underwriting agreement relating to the sale of such
shares, but only to the extent of obligating itself in respect of
representations, warranties, indemnities and other agreements customarily
included in such underwriting agreements for the Issuer. Upon receiving any
request
-5-
<PAGE>
under this Section 6 from any Holder, Issuer agrees to send a copy thereof to
any other person known to Issuer to be entitled to registration rights under
this Section 6, in each case by promptly mailing the same, postage prepaid, to
the address of record of the persons entitled to receive such copies.
7. (a) Upon the occurrence of a Subsequent Triggering Event that
occurs prior to an Exercise Termination Event, (i) at the request of the Holder,
delivered within 30 days after such occurrence (or such later period as provided
in Section 10 or the last sentence of Section 2(e)), Issuer (or any successor
thereto) shall repurchase the Option from the Holder at a price (the "Option
Repurchase Price") equal to (x) the amount by which (A) the market/offer price
(as defined below) exceeds (B) the Option Price, multiplied by the number of
shares for which this Option may then be exercised plus (y) Grantee's Out-of-
Pocket Expenses (as defined below) (to the extent said Expenses exceed $600,000
and were not previou sly reimbursed) and (ii) at the request of the owner of
Option Shares from time to time (the "Owner"), delivered within 30 days after
such occurrence (or such later period as provided in Section 10), Issuer shall
repurchase such number of the Option Shares from the Owner as the Owner shall
designate at a price (the "Option Share Repurchase Price") equal to (x) the
market/offer price multiplied by the number of Option Shares so designated plus
(y) Grantee's Out-of-Pocket Expenses (to the extent said Expenses exceed
$600,000 and were not previously reimbursed). The term "Out-of-Pocket Expenses"
shall mean Grantee's reasonable out-of-pocket expenses incurred in connection
with the transactions contemplated by the Reorganization Agreement, including,
without limitation, legal, accounting and investment banking fees. The term
"market/offer price" shall mean the highest of (i) the highest price per share
of Common Stock at which a tender offer or exchange offer therefor has been
made, (ii) the price per share of Common Stock to be paid by any third party
pursuant to an agreement with Issuer, (iii) the highest bid price per share as
quoted on the National Association of Securities Dealers Automated Quotation
Systems ("Nasdaq"), (or, if the shares of Common Stock are not quoted thereon,
on the principal trading market on which such shares are traded as reported by a
recognized source) within the six-month period immediately preceding the date
the Holder gives notice of the required repurchase of Option Shares, as the case
may be, or (iv) in the event of a sale of assets representing 15% or more of the
consolidated assets of Issuer and its Subsidiaries, the sum of the price paid in
such sale for such assets and the current market value of the remaining assets
of Issuer as determined by a nationally recognized investment banking firm
selected by the Holder or the Owner, as the case may be, divided by the number
of shares of Common Stock of Issuer outstanding at the time of such sale. In
determining the market/offer price, the value of consideration other than cash
shall be determined by a nationally recognized investment banking firm selected
by the Holder or Owner, as the case may be.
(b) The Holder and the Owner, as the case may be, may exercise its right
to require Issuer to repurchase the Option and any Option Shares pursuant to
this Section 7 by surrendering for such purpose to Issuer, at its principal
office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that the Holder
or the Owner, as the case may be, elects to require Issuer to repurchase this
Option and/or the Option Shares in accordance with the provisions of this
Section 7. As promptly as practicable, and in any event within five business
days after the surrender of the Option and/or certificates representing Option
Shares and the receipt of such notice or notices relating thereto, Issuer shall
deliver or cause to be delivered to the Holder the Option Repurchase Price
and/or to the Owner the Option Share Repurchase Price therefor or the portion
thereof that Issuer is not then prohibited under applicable law and regulation
from so delivering.
(c) To the extent that Issuer is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from repurchasing the
Option and/or the Option Shares in full, Issuer shall immediately so notify the
Holder and/or the Owner and thereafter deliver or cause to be delivered, from
time to time, to the Holder and/or the Owner, as appropriate, the portion of the
Option Repurchase Price and the Option Share Repurchase Price, respectively,
that it is no longer prohibited from delivering, within five business days after
the date on which Issuer is no longer so prohibited; provided, however, that if
-----------------
Issuer at any time after delivery of a notice of repurchase pursuant to
paragraph (b) of this Section 7 is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from delivering to the
Holder and/or the Owner, as appropriate, the Option Repurchase Price and the
Option Share Repurchase Price, respectively, in full (and Issuer hereby
undertakes to use its best efforts to obtain all required regulatory and
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<PAGE>
legal approvals and to file any required notices as promptly as practicable in
order to accomplish such repurchase), the Holder or Owner may revoke its notice
of repurchase of the Option or the Option Shares either in whole or to the
extent of the prohibition, whereupon, in the latter case, Issuer shall promptly
(i) deliver to the Holder and/or the Owner, as appropriate, that portion of the
Option Repurchase Price or the Option Share Repurchase Price that Issuer is not
prohibited from delivering; and (ii) deliver, as appropriate, either (A) to the
Holder, a new Stock Option Agreement evidencing the right of the Holder to
purchase that number of shares of Common Stock obtained by multiplying the
number of shares of Common Stock for which the surrendered Stock Option
Agreement was exercisable at the time of delivery of the notice of repurchase by
a fraction, the numerator of which is the Option Repurchase Price less the
portion thereof theretofore delivered to the Holder and the denominator of which
is the Option Repurchase Price, or (B) to the Owner, a certificate for the
Option Shares it is then so prohibited from repurchasing. If an Exercise
Termination Event shall have occurred prior to the date of the notice by Issuer
described in the first sentence of this subsection (c), or shall be scheduled to
occur at any time before the expiration of a period ending on the thirtieth day
after such date, the Holder shall nonetheless have the right to exercise the
Option until the expiration of such 30 day period.
8. (a) In the event that prior to an Exercise Termination Event,
Issuer shall enter into an agreement (i) to consolidate with or merge into any
person, other than Grantee or one of its Subsidiaries, and shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) to
permit any person, other than Grantee or one of its Subsidiaries, to merge into
Issuer and Issuer shall be the continuing or surviving corporation, but, in
connection with such merger, the then outstanding shares of Common Stock shall
be changed into or exchanged for stock or other securities of any other person
or cash or any other property or the then outstanding shares of Common Stock
shall after such merger represent less than 50% of the outstanding shares and
share equivalents of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Grantee or one
of its Subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of the Holder, of either (x) the Acquiring Corporation
(as hereinafter defined) or (y) any person that controls the Acquiring
Corporation.
(b) The following terms have the meanings indicated:
(1) "Acquiring Corporation" shall mean (i) the continuing or
surviving corporation of a consolidation or merger with Issuer (if other
than Issuer), (ii) Issuer in a merger in which Issuer is the continuing or
surviving person, and (iii) the transferee of all or substantially all of
Issuer's assets.
(2) "Substitute Common Stock" shall mean the common stock issued
by the issuer of the Substitute Option upon exercise of the Substitute
Option.
(3) "Assigned Value" shall mean the market/offer price, as
defined in Section 7.
(4) "Average Price" shall mean the average closing price of a
share of the Substitute Common Stock for the one year immediately preceding
the consolidation, merger or sale in question, but in no event higher than
the closing price of the shares of Substitute Common Stock on the day
preceding such consolidation, merger or sale; provided that if Issuer is
--------
the issuer of the Substitute Option, the Average Price shall be computed
with respect to a share of common stock issued by the person merging into
Issuer or by any company which controls or is controlled by such person, as
the Holder may elect.
(c) The Substitute Option shall have the same terms as the Option,
provided, that if the terms of the Substitute Option cannot, for legal reasons,
- --------
be the same as the Option, such terms shall be as similar as
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possible and in no event less advantageous to the Holder. The issuer of the
Substitute Option shall also enter into an agreement with the then Holder or
Holders of the Substitute Option in substantially the same form as this
Agreement (after giving effect for such purpose to the provisions of Section 9),
which agreement shall be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of
shares of Substitute Common Stock as is equal to the Assigned Value multiplied
by the number of shares of Common Stock for which the Option is then
exercisable, divided by the Average Price. The exercise price of the Substitute
Option per share of Substitute Common Stock shall then be equal to the Option
Price multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock for which the Option is then exercisable and the
denominator of which shall be the number of shares of Substitute Common Stock
for which the Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 9.9% of the shares of Substitute
Common Stock outstanding prior to exercise of the Substitute Option. In the
event that the Substitute Option would be exercisable for more than 9.9% of the
shares of Substitute Common Stock outstanding prior to exercise but for this
clause (e), the issuer of the Substitute Option (the "Substitute Option Issuer")
shall make a cash payment to Holder equal to the excess of (i) the value of the
Substitute Option without giving effect to the limitation in this clause (e)
over (ii) the value of the Substitute Option after giving effect to the
limitation in this clause (e). This difference in value shall be determined by
a nationally recognized investment banking firm selected by the Holder.
(f) Issuer shall not enter into any transaction described in subsection
(a) of this Section 8 unless the Acquiring Corporation and any person that
controls the Acquiring Corporation assume in writing all the obligations of
Issuer hereunder.
9. (a) At the request of the holder of the Substitute Option (the
Substitute Option Holder"), the issuer of the Substitute Option (the "Substitute
Option Issuer") shall repurchase the Substitute Option from the Substitute
Option Holder at a price (the "Substitute Option Repurchase Price") equal to (x)
the amount by which (i) the Highest Closing Price (as hereinafter defined)
exceeds (ii) the exercise price of the Substitute Option, multiplied by the
number of shares of Substitute Common Stock for which the Substitute Option may
then be exercised plus (y) Grantee's Out-of-Pocket Expenses (to the extent said
Expenses exceed $600,000 and were not previously reimbursed), and at the request
of the owner (the "Substitute Share Owner") of shares of Substitute Common Stock
(the "Substitute Shares"), the Substitute Option Issuer shall repurchase the
Substitute Shares at a price (the "Substitute Share Repurchase Price") equal to
(x) the Highest Closing Price multiplied by the number of Substitute Shares so
designated plus (y) Grantee's Out-of-Pocket Expenses (to the extent said
expenses exceed $600,000 and were not previously reimbursed). The term "Highest
Closing Price" shall mean the highest closing price for shares of Substitute
Common Stock within the six-month period immediately preceding the date the
Substitute Option Holder gives notice of the required repurchase of the
Substitute Option or the Substitute Share Owner gives notice of the required
repurchase of the Substitute Shares, as applicable.
(b) The Substitute Option Holder and the Substitute Share Owner, as the
case may be, may exercise its respective right to require the Substitute Option
Issuer to repurchase the Substitute Option and the Substitute Shares pursuant to
this Section 9 by surrendering for such purpose to the Substitute Option Issuer,
at its principal office, the agreement for such Substitute Option (or, in the
absence of such an agreement, a copy of this Agreement) and certificates for
Substitute Shares accompanied by a written notice or notices stating that the
Substitute Option Holder or the Substitute Share Owner, as the case may be,
elects to require the Substitute Option Issuer to repurchase the Substitute
Option and/or the Substitute Shares in accordance with the provision of this
Section 9. As promptly as practicable, and in any event within five business
days after the surrender of the Substitute Option and/or certificates
representing Substitute Shares and the receipt of such notice or notices
relating thereto, the Substitute Option Issuer shall deliver or cause to be
delivered to the Substitute Option Holder the Substitute Option Repurchase Price
and/or to the Substitute Share Owner the
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Substitute Share Repurchase Price therefor or the portion thereof which the
Substitute Option Issuer is not then prohibited under applicable law and
regulation from so delivering.
(c) To the extent that the Substitute Option Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
repurchasing the Substitute Option and/or the Substitute Shares in part or in
full, the Substitute Option Issuer shall immediately so notify the Substitute
Option Holder and/or the Substitute Share Owner and thereafter deliver or cause
to be delivered, from time to time, to the Substitute Option Holder and/or the
Substitute Share Owner, as appropriate, the portion of the Substitute Share
Repurchase Price, respectively, which it is no longer prohibited from
delivering, within five business days after the date on which the Substitute
Option Issuer is no longer so prohibited; provided, however, that if the
-----------------
Substitute Option Issuer is at any time after delivery of a notice of repurchase
pursuant to subsection (b) of this Section 9 prohibited under applicable law or
regulation, or as a consequence of administrative policy, from delivering to the
Substitute Option Holder and/or the Substitute Share Owner, as appropriate, the
Substitute Option Repurchase Price and the Substitute Share Repurchase Price,
respectively, in full (and the Substitute Option Issuer shall use its best
efforts to receive all required regulatory and legal approvals as promptly as
practicable in order to accomplish such repurchase), the Substitute Option
Holder or Substitute Share Owner may revoke its notice of repurchase of the
Substitute Option or the Substitute Shares either in whole or to the extent of
the prohibition, whereupon, in the latter case, the Substitute Option Issuer
shall promptly (i) deliver to the Substitute Option Holder or Substitute Share
Owner, as appropriate, that portion of the Substitute Option Repurchase Price or
the Substitute Share Repurchase Price that the Substitute Option Issuer is not
prohibited from delivering; and (ii) deliver, as appropriate, either (A) to the
Substitute Option Holder, a new Substitute Option evidencing the right of the
Substitute Option Holder to purchase that number of shares of the Substitute
Common Stock obtained by multiplying the number of shares of the Substitute
Common Stock for which the surrendered Substitute Option was exercisable at the
time of delivery of the notice of repurchase by a fraction, the numerator of
which is the Substitute Option Repurchase Price less the portion thereof
theretofore delivered to the Substitute Option Holder and the denominator of
which is the Substitute Option Repurchase Price, or (B) to the Substitute Share
Owner, a certificate for the Substitute Option Shares it is then so prohibited
from repurchasing. If an Exercise Termination Event shall have occurred prior
to the date of the notice by the Substitute Option Issuer described in the first
sentence of this subsection (c), or shall be scheduled to occur at any time
before the expiration of a period ending on the thirtieth day after such date,
the Substitute Option Holder shall nevertheless have the right to exercise the
Substitute Option until the expiration of such 30 day period.
10. The 30-day period for exercise of certain rights under Sections 2,
6, 7, 9 and 13 shall be extended: (i) to the extent necessary to obtain all
regulatory approvals for the exercise of such rights, and for the expiration of
all statutory waiting periods; and (ii) to the extent necessary to avoid
liability under Section 16(b) of the Exchange Act by reason of such exercise.
11. Issuer hereby represents and warrants to Grantee as follows:
(a) Issuer has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Issuer and no other corporate proceedings on the part of
Issuer are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by Issuer. This Agreement is the valid and legally binding
obligation of Issuer, enforceable against Issuer in accordance with its terms.
(b) Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof through
the termination of this Agreement in accordance with its terms will have
reserved for issuance upon the exercise of the Option, that number of shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, and all such shares, upon issuance
pursuant hereto, will be duly authorized, validly issued, fully
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paid, nonassessable, and will be delivered free and clear of all claims, liens,
encumbrance and security interests and not subject to any preemptive rights.
(c) Except as disclosed pursuant to the Reorganization Agreement, the
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation pursuant to any provisions of the Articles of Incorporation or by-laws
of Issuer or any Subsidiary of Issuer or, subject to obtaining any approvals or
consents contemplated hereby, result in any violation of any loan or credit
agreement, note, mortgage, indenture, lease, plan or other agreement,
obligation, instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Issuer or any
Subsidiary of Issuer or their respective properties or assets which violation
would have a material adverse effect on Issuer.
12. Grantee hereby represents and warrants that it is acquiring the
Option for its own account and not with a view to or for sale in connection with
any distribution.
13. Neither of the parties hereto may assign any of its rights or
obligations under this Option Agreement or the Option created hereunder to any
other person, without the express written consent of the other party, except
that in the event a Subsequent Triggering Event shall have occurred prior to an
Exercise Termination Event, Grantee, subject to the express provisions hereof,
may assign in whole or in part its rights and obligations hereunder within 30
days following such Subsequent Triggering Event (or such later period as
provided in Section 10); provided, however, that until the date 30 days
-----------------
following the date on which the Superintendent or the FDIC approve an
application by Grantee under the BHCA or any change in bank control laws to
acquire the shares of Common Stock subject to the Option, Grantee may not assign
its rights under the Option except in (i) a widely dispersed public
distribution, (ii) a private placement in which no one party acquires the right
to purchase in excess of 2% of the voting shares of Issuer, (iii) an assignment
to a single party (e.g., a broker or investment banker) for the purpose of
conducting a widely dispersed public distribution on Grantee's behalf, or (iv)
any other manner approved by the Superintendent or the FDIC.
14. Each of Grantee and Issuer will use its best efforts to make all
filings with, and to obtain consents of, all third parties and governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement, including without limitation making application to list the
shares of Common Stock issuable hereunder on Nasdaq upon official notice of
issuance and applying to the Superintendent or the FDIC under the BHCA or any
change in bank control laws for approval to acquire the shares issuable
hereunder, but Grantee shall not be obligated to apply to state banking
authorities for approval to acquire the shares of Common Stock issuable
hereunder until such time, if ever, as it deems appropriate to do so.
15. Notwithstanding anything to the contrary herein, in the event that
the Holder or Owner or any Related Person thereof is a person making without the
prior written consent of Issuer an offer or proposal to engage in an Acquisition
Transaction (other than the transaction contemplated by the Reorganization
Agreement), then (i) in the case of a Holder or any Related Person thereof, the
Option held by it shall immediately terminate and be of no further force or
effect, and (ii) in the case of an Owner or any Related Person thereof, the
Option Shares held by it shall be immediately repurchasable by Issuer at the
Option Price. A Related Person of a Holder or Owner means any Affiliate (as
defined in Rule 12b-2 of the rules and regulations under the Exchange Act) of
the Holder or Owner and any person that is the beneficial owner of 20% or more
of the voting power of the Holder or Owner, as the case may be.
16. The parties hereto acknowledge that damages would be an inadequate
remedy for a breach of this Agreement by either party hereto and that the
obligations of the parties hereto shall be enforceable by either party hereto
through injunctive or other equitable relief.
17. If any term, provision, covenant or restriction contained in this
Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected, impaired
or invalidated. If for any reason such court or
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regulatory agency determines that the Holder or Substitute Option Holder is not
permitted to acquire, or Issuer or Substitute Option Issuer is not permitted to
repurchase pursuant to Section 7 or Section 9, as the case may be, the full
number of shares of Common Stock provided in Section 1(a) hereof (as adjusted
pursuant to Section 1(b) or Section 5 hereof), it is the express intention of
Issuer to allow the Holder to acquire or to require Issuer to repurchase such
lesser number of shares as may be permissible, without any amendment or
modification hereof.
18. All notices, requests, claims, demands and other communications
hereunder shall be deemed to have been duly given when delivered in person, by
cable, telegram, telecopy or telex, or by registered or certified mail (postage
prepaid, return receipt requested) at the respective addresses of the parties
set forth in the Reorganization Agreement.
19. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
20. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
21. Except as otherwise expressly provided herein or in the
Reorganization Agreement, each of the parties hereto shall bear and pay all
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses of its own
financial consultants, investment bankers, accountants and counsel.
22. Except as otherwise expressly provided herein or in the
Reorganization Agreement, this Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereof,
written or oral. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors except as assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein. Any provision of this Agreement may be waived at any
time by the party that is entitled to the benefits of such provision. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
23. In the event of any exercise of the Option by Grantee, Issuer and
Grantee shall execute and deliver all other documents and instruments and take
all other action that may be reasonably necessary in order to consummate the
transactions provided for by such exercise.
24. Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned thereto in the Reorganization Agreement.
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IN WITNESS WHEREOF, Grantee and Issuer have caused this Agreement to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
WESTAMERICA BANCORPORATION
By: /s/David L. Payne
-------------------------------------
Name: David L. Payne
---------------------------------
Attest: /s/M. Kitty Jones Title: Chairman, President & CEO
---------------------------- ----------------------------------
Name: M. Kitty Jones
---------------------------
Title: Secretary
-----------------------
CAPITOLBANK SACRAMENTO
By: /s/Thayer T. Prentice
-------------------------------------
Name: Thayer T. Prentice
---------------------------------
Attest: /s/Lawrence D. McGovern Title: Vice-Chairman & CEO
---------------------------- ----------------------------------
Name: Lawrence D. McGovern
----------------------
Title: Senior Vice President/CFO/Secretary
-----------------------------------
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ANNEX E
CALIFORNIA GENERAL CORPORATION LAW
(S) 1300. REORGANIZATION OR SHORT-FORM MERGER; DISSENTING SHARES; CORPORATION
PURCHASE AT FAIR MARKET VALUE; DEFINITIONS
(a) If the approval of the outstanding shares (Section 152) of a
corporation is required for a reorganization under subdivisions (a) and (b) or
subdivision (e) or (f) of Section 1201, each shareholder of the corporation
entitled to vote on the transaction and each shareholder of a subsidiary
corporation in a short-form merger may, by complying with this chapter, require
the corporation in which the shareholder holds shares to purchase for cash at
their fair market value the shares owned by the shareholder which are dissenting
shares as defined in subdivision (b). The fair market value shall be determined
as of the day before the first announcement of the terms of the proposed
reorganization or short-form merger, excluding any appreciation or depreciation
in consequence of the proposed action, but adjusted for any stock split, reverse
stock split, or share dividend which becomes effective thereafter.
(b) As used in this chapter, "dissenting shares" means shares which
come within all of the following descriptions:
(1) Which were not immediately prior to the reorganization or short-
form merger either (A) listed on any national securities exchange certified by
the Commissioner of Corporations under subdivision (o) of Section 25100 or (B)
listed on the list of OTC margin stocks issued by the Board of Governors of the
Federal Reserve System, and the notice of meeting of shareholders to act upon
the reorganization summarizes this section and Sections 1301, 1302, 1303 and
1304; provided, however, that this provision does not apply to any shares with
respect to which there exists any restriction on transfer imposed by the
corporation or by any law or regulation; and provided, further, that this
provision does not apply to any class of shares described in subparagraph (A) or
(B) if demands for payment are filed with respect to 5 percent or more of the
outstanding shares of that class.
(2) Which were outstanding on the date for the determination of
shareholders entitled to vote on the reorganization and (A) were not voted in
favor of the reorganization or, (B) if described in subparagraph (A) or (B) of
paragraph (1) (without regard to the provisos in that paragraph), were voted
against the reorganization, or which were held of record on the effective date
of a short-form merger; provided, however, that subparagraph (A) rather than
subparagraph (B) of this paragraph applies in any case where the approval
required by Section 1201 is sought by written consent rather than at a meeting.
(3) Which the dissenting shareholder has determined that the
corporation purchase at their fair market value, in accordance with Section
1301.
(4) Which the dissenting shareholder has submitted for endorsement, in
accordance with Section 1302.
(c) As used in this chapter, "dissenting shareholder" means the
recordholder of dissenting shares and includes a transferee of record.
(S) 1301. NOTICE TO HOLDERS OF DISSENTING SHARES IN REORGANIZATIONS; DEMAND FOR
PURCHASE; TIME; CONTENTS.
(a) If, in the case of a reorganization, any shareholders of a
corporation have a right under Section 1300, subject to compliance with
paragraphs (3) and (4) of subdivision (b) thereof, to require the corporation to
purchase their shares for cash, such corporation shall mail to each such
shareholder a notice of the approval of the reorganization by its outstanding
shares (Section 152) within 10 days after the date of such approval, accompanied
by a copy of Sections
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1300, 1302, 1303, 1304 and this section, a statement of the price determined by
the corporation to represent the fair market value of the dissenting shares, and
a brief description of the procedure to be followed if the shareholder desires
to exercise the shareholder's right under such sections. The statement of price
constitutes an offer by the corporation to purchase at the price stated any
dissenting shares as defined in subdivision (b) of Section 1300, unless they
lose their status as dissenting shares under Section 1309.
(b) Any shareholder who has a right to require the corporation to
purchase the shareholder's shares for cash under Section 1300, subject to
compliance with paragraphs (3) and (4) of subdivision (b) thereof, and who
desires the corporation to purchase such shares shall make written demand upon
the corporation for the purchase of such shares and payment to the shareholder
in cash of their fair market value. The demand is not effective for any purpose
unless it is received by the corporation or any transfer agent thereof (1) in
the case of shares described in clause [(A)] or [(B)] of paragraph (1) of
subdivision (b) of Section 1300 (without regard to the provisos in that
paragraph), not later than the date of the shareholders' meeting to vote upon
the reorganization, or (2) in any other case within 30 days after the date on
which the notice of the approval by the outstanding shares pursuant to
subdivision (a) or the notice pursuant to subdivision (i) of Section 1110 was
mailed to the shareholder.
(c) The demand shall state the number and class of the shares held of
record by the shareholder which the shareholder demands that the corporation
purchase and shall contain a statement of what such shareholder claims to be the
fair market value of those shares as of the day before the announcement of the
proposed reorganization or short-form merger. The statement of fair market
value constitutes an offer by the shareholder to sell the shares at such price.
(S) 1302. SUBMISSION OF SHARE CERTIFICATES FOR ENDORSEMENT; UNCERTIFICATED
SECURITIES
Within 30 days after the date on which notice of the approval by the
outstanding shares or the notice pursuant to subdivision (i) of Section 1110 was
mailed to the shareholder, the shareholder shall submit to the corporation at
its principal office or at the office of any transfer agent thereof, (a) if the
shares are certificated securities, the shareholder's certificates representing
any shares which the shareholder demands that the corporation purchase, to be
stamped or endorsed with a statement that the shares are dissenting shares or to
be exchanged for certificates of appropriate denomination so stamped or endorsed
or (b) if the shares are uncertificated securities, written notice of the number
of shares which the shareholder demands that the corporation purchase. Upon
subsequent transfers of the dissenting shares on the books of the corporation,
the new certificates, initial transaction statement, and other written
statements issued therefor shall bear a like statement, together with the name
of the original dissenting holder of the shares.
(S) 1303. PAYMENT OF AGREED PRICE WITH INTEREST; AGREEMENT FIXING FAIR MARKET
VALUE; FILING; TIME OF PAYMENT
(a) If the corporation and the shareholder agree that the shares are
dissenting shares and agree upon the price of the shares, the dissenting
shareholder is entitled to the agreed price with interest thereon at the legal
rate on judgments from the date of the agreement. Any agreements fixing the
fair market value of any dissenting shares as between the corporation and the
holders thereof shall be filed with the secretary of the corporation.
(b) Subject to the provisions of Section 1306, payment of the fair
market value of dissenting shares shall be made within 30 days after the amount
thereof has been agreed or within 30 days after any statutory or contractual
conditions to the reorganization are satisfied, whichever is later, and in the
case of certificated securities, subject to surrender of the certificates
therefor, unless provided otherwise by agreement.
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(S) 1304. ACTION TO DETERMINE WHETHER SHARES ARE DISSENTING SHARES OR FAIR
MARKET VALUE; LIMITATION; JOINDER; CONSOLIDATION; DETERMINATION OF ISSUES;
APPOINTMENT OF APPRAISERS
(a) If the corporation denies that the shares are dissenting shares,
or the corporation and the shareholder fail to agree upon the fair market value
of the shares, then the shareholder demanding purchase of such shares as
dissenting shares or any interested corporation, within six months after the
date on which notice of the approval by the outstanding shares (Section 152) or
notice pursuant to subdivision (i) of Section 1110 was mailed to the
shareholder, but not thereafter, may file a complaint in the superior court of
the proper county praying the court to determine whether the shares are
dissenting shares or the fair market value of the dissenting shares or both or
may intervene in any action pending on such a complaint.
(b) Two or more dissenting shareholders may join as plaintiffs or be
joined as defendants in any such action and two or more such actions may be
consolidated.
(c) On the trial of the action, the court shall determine the issues.
If the status of the shares as dissenting shares is in issue, the court shall
first determine that issue. If the fair market value of the dissenting shares
is in issue, the court shall determine, or shall appoint one or more impartial
appraisers to determine, the fair market value of the shares.
(S) 1305. REPORT OF APPRAISERS; CONFIRMATION; DETERMINATION BY COURT; JUDGMENT;
PAYMENT; APPEAL; COSTS
(a) If the court appoints an appraiser or appraisers, they shall
proceed forthwith to determine the fair market value per share. Within the time
fixed by the court, the appraisers, or a majority of them, shall make and file a
report in the office of the clerk of the court. Thereupon, on the motion of any
party, the report shall be submitted to the court and considered on such
evidence as the court considers relevant. If the court finds the report
reasonable, the court may confirm it.
(b) If a majority of the appraisers appointed fail to make and file a
report within 10 days from the date of their appointment or within such further
time as may be allowed by the court or the report is not confirmed by the court,
the court shall determine the fair market value of the dissenting shares.
(c) Subject to the provisions of Section 1306, judgment shall be
rendered against the corporation for payment of an amount equal to the fair
market value of each dissenting share multiplied by the number of dissenting
shares which any dissenting shareholder who is a party, or who has intervened,
is entitled to require the corporation to purchase, with interest thereon at the
legal rate from the date on which judgment was entered.
(d) Any such judgment shall be payable forthwith with respect to
uncertificated securities and, with respect to certificated securities, only
upon the endorsement and delivery to the corporation of the certificates for the
shares described in the judgment. Any party may appeal from the judgment.
(e) The costs of the action, including reasonable compensation to the
appraisers to be fixed by the court, shall be assessed or apportioned as the
court consideres equitable, but, if the appraisal exceeds the price offered by
the corporation, the corporation shall pay the costs (including in the
discretion of the court attorneys' fees, fees of expert witnesses and interest
at the legal rate on judgments from the date of compliance with Sections 1300,
1301 and 1302 if the value awarded by the court for the shares is more than 125
percent of the price offered by the corporation under subdivision (a) of Section
1301).
(S) 1306. PREVENTION OF IMMEDIATE PAYMENT; STATUS AS CREDITORS; INTEREST
To the extent that the provisions of Chapter 5 prevent the payment to
any holders of dissenting shares of their fair market value, they shall become
creditors of the corporation for
-3-
<PAGE>
the amount thereof together with interest at the legal rate on judgments until
the date of payment, but subordinate to all other creditors in any liquidation
proceeding, such debt to be payable when permissible under the provisions of
Chapter 5.
(S) 1307. DIVIDENDS ON DISSENTING SHARES
Cash dividends declared and paid by the corporation upon the
dissenting shares after the date of approval of the reorganization by the
outstanding shares (Section 152) and prior to payment for the shares by the
corporation shall be credited against the total amount to be paid by the
corporation therefor.
(S) 1308. RIGHTS OF DISSENTING SHAREHOLDERS PENDING VALUATION; WITHDRAWAL OF
DEMAND FOR PAYMENT
Except as expressly limited in this chapter, holders of dissenting
shares continue to have all the rights and privileges incident to their shares,
until the fair market value of their shares is agreed upon or determined. A
dissenting shareholder may not withdraw a demand for payment unless the
corporation consents thereto.
(S) 1309. TERMINATION OF DISSENTING SHARE AND SHAREHOLDER STATUS
Dissenting shares lose their status as dissenting shares and the
holders thereof cease to be dissenting shareholders and cease to be entitled to
require the corporation to purchase their shares upon the happening of any of
the following:
(a) The corporation abandons the reorganization. Upon abandonment of
the reorganization, the corporation shall pay on demand to any dissenting
shareholder who has initiated proceedings in good faith under this chapter all
necessary expenses incurred in such proceedings and reasonable attorneys' fees.
(b) The shares are transferred prior to their submission for
enforcement in accordance with Section 1302 or are surrendered for conversion
into shares of another class in accordance with the articles.
(c) The dissenting shareholder and the corporation do not agree upon
the status of the shares as dissenting shares or upon the purchase price of the
shares, and neither files a complaint or intervenes in a pending action as
provided in Section 1304, within six months after the date on which notice of
the approval by the outstanding shares or notice pursuant to subdivision (i) of
Section 1110 was mailed to the shareholder.
(d) The dissenting shareholder, with the consent of the corporation,
withdraws the shareholder's demand for purchase of the dissenting shares.
(S) 1310. SUSPENSION OF RIGHT TO COMPENSATION OR VALUATION PROCEEDINGS;
LITIGATION OF SHAREHOLDERS' APPROVAL
If litigation is instituted to test the sufficiency or regularity of
the votes of the shareholders in authorizing a reorganization, any proceedings
under Sections 1304 and 1305 shall be suspended until final determination of
such litigation.
(S) 1311. EXEMPT SHARES
This chapter, except Section 1312, does not apply to classes of shares
whose terms and provisions specifically set forth the amount to be paid in
respect to such shares in the event of a reorganization or merger.
-4-
<PAGE>
(S) 1312. RIGHT OF DISSENTING SHAREHOLDER TO ATTACK, SET ASIDE OR RESCIND
MERGER OR REORGANIZATION; RESTRAINING ORDER OR INJUNCTION; CONDITIONS
(a) No shareholder of a corporation who has a right under this chapter
to demand payment of cash for the shares held by the shareholder shall have any
right at law or in equity to attack the validity of the reorganization or short-
form merger, or to have the reorganization or short-form merger set aside or
rescinded, except in an action to test whether the number of shares required to
authorize or approve the reorganization have been legally voted in favor
thereof; but any holder of shares of a class whose terms and provisions
specifically set forth the amount to be paid in respect to them in the event of
a reorganization or short-form merger is entitled to payment in accordance with
those terms and provisions or, if the principal terms of the reorganization are
approved pursuant to subdivision (b) of Section 1202, is entitled to payment in
accordance with the terms and provisions of the approved reorganization.
(b) If one of the parties to a reorganization or short-form merger is
directly or indirectly controlled by, or under common control with, another
party to the reorganization or short-form merger, subdivision (a) shall not
apply to any shareholder of such party who has not demanded payment of cash for
such shareholder's shares pursuant to this chapter; but if the shareholder
institutes any action to attack the validity of the reorganization or short-form
merger or to have the reorganization or short-form merger set aside or
rescinded, the shareholder shall not thereafter have any right to demand payment
of cash for the shareholder's shares pursuant to this chapter. The court in any
action attacking the validity of the reorganization or short-form merger or to
have the reorganization or short-form merger set aside or rescinded shall not
restrain or enjoin the consummation of the transaction except upon 10 days'
prior notice to the corporation and upon a determination by the court that
clearly no other remedy will adequately protect the complaining shareholder or
the class of shareholders of which such shareholder is a member.
(c) If one of the parties to a reorganization or short-form merger is
directly or indirectly controlled by, or under common control with, another
party to the reorganization or short-form merger, in any action to attack the
validity of the reorganization or short-form merger or to have the
reorganization or short-form merger set aside or rescinded, (1) a party to a
reorganization or short-form merger which controls another party to the
reorganization or short-form merger shall have the burden of proving that the
transaction is just and reasonable as to the shareholders of the controlled
party, and (2) a person who controls two or more parties to a reorganization
shall have the burden of proving that the transaction is just and reasonable as
to the shareholders of any party so controlled.
-5-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to
directors, officers, employees and other agents of the corporation
("Agents") in terms sufficiently broad to permit such indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended.
Article VII of the Registrant's Restated Articles of Incorporation,
as amended, authorizes the Registrant to indemnify its Agents, through
bylaw provisions, agreements, votes of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise
permitted by Section 317 of the California Corporations Code, subject to
the applicable limits set forth in Section 204 of the California
Corporations Code with respect to actions for breach of duty to the
Registrant and its shareholders. Article VII also authorizes the
Registrant to provide insurance for Agents provided that, in cases where
the Registrant owns all or a portion of the shares of the company issuing
the insurance policy, such company and/or the policy must meet certain
conditions set forth in Section 317. Article V of the Registrant's Bylaws
provides for mandatory indemnification of each director of the Registrant
except as prohibited by law.
The Registrant maintains a directors' and officers' liability
insurance policy that indemnifies the Registrant's directors and officers
against certain losses in connection with claims made against them for
certain wrongful acts. In addition, the Registrant has entered into
separate indemnification agreements with its directors and officers that
require the Registrant, among other things, (i) to maintain directors' and
officers' insurance in reasonable amounts in favor of such individuals,
and (ii) to indemnify them against certain liabilities that may arise by
reason of their status or service as Agents of the Registrant to the
fullest extent permitted by California law.
Item 21. Exhibits and Financial Statement Schedules.
Note: Exhibits marked with a + are incorporated by reference to the
Registrant's Registration Statement on Form S-4 (No. 33-52146). Each such
Exhibit had the number in parentheses immediately following the
description of the Exhibit herein. Exhibits marked with a * have been
previously filed.
(A) Exhibits.
Exhibit
Number
-------
2.1 Agreement and Plan of Reorganization among the Registrant and
CapitolBank, dated as of November 17, 1994 (included as Annex
A to the Proxy Statement/Prospectus (without certain
exhibits)).
3(i) Restated Articles of Incorporation of Registrant.
3(ii) Composite By-laws of Registrant.
4.1+ Specimen of the Registrant's Common Stock certificate with
Rights Legend. (4.1)
4.2+ Amended and Restated Rights Agreement, dated as of September
28, 1989, between the Registrant and Bank of America, NT&SA,
as amended by the Appointment and Acceptance Agreement, dated
as of May 25, 1992, between the Registrant and Chemical Trust
Company of California. (4.2)
4.3 The Registrant and certain of its consolidated subsidiaries
have outstanding certain long-term debt. None of such debt
exceeds 10% of the total assets of the Registrant and its
consolidated subsidiaries; therefore, copies of the
constituent instruments defining the rights of the holders of
such debt are not included as exhibits to this Registration
Statement. The Registrant agrees to furnish copies of such
instruments to the SEC upon request.
5.1* Opinion of Pillsbury Madison & Sutro.
II-1
<PAGE>
Exhibit
Number
-------
10.1 Stock Option Agreement, dated as of November 17, 1994,
between the Registrant and CapitolBank (included as Annex D
to the Proxy Statement/Prospectus).
23.1 Consent of KPMG Peat Marwick LLP (Westamerica) (see Page II-6).
23.2 Consent of KPMG Peat Marwick LLP (CapitolBank) (see Page II-7).
23.3 Consent of Arthur Andersen LLP (CapitolBank) (see Page II-8).
23.4* Consent of Pillsbury Madison & Sutro (included in Exhibit
5.1).
23.5* Consent of Hoefer & Arnett Incorporated.
23.6* Consent of Smith & Crowley Inc.
23.7 Consent of Grant Thornton (PV Financial).
23.8 Consent of Arthur Andersen LLP (North Bay Bancorp).
99.1 Form of proxy to be used in soliciting shareholders of
CapitolBank for its Special Meeting.
(B) Financial Statement Schedules: Not applicable.
Item 22. Undertakings.
(1) The undersigned Registrant hereby undertakes: (a) To file,
during any period in which offers or sales are being made, a post-
effective amendment to this registration statement: (i) To include any
prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; (iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; (b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof;
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) 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 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.
(4) The Registrant undertakes that every prospectus (i) that is
filed pursuant to paragraph (3) immediately preceding, or (ii) that
purports to meet the requirements of section 10(a)(3) of the Securities
Act of 1933 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.
II-2
<PAGE>
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person 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.
(6) 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 Form S-4, 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.
(7) 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
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of San Rafael, State of California, on the 30th day of January,
1995.
WESTAMERICA BANCORPORATION
By /s/ David L. Payne
-------------------------------------
David L. Payne
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints David L. Payne his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective
amendments, to this Amendment to Registration Statement, and to file the
same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-
in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or his substitute
or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------- ----- ----
<S> <C> <C>
/s/ Etta Allen Director January 30, 1995
- --------------------------------
Etta Allen
/s/ James M. Barnes Executive Vice President January 30, 1995
- -------------------------------- and Chief Financial
James M. Barnes Officer (Principal
Financial Officer)
/s/ Louis E. Bartolini Director January 30, 1995
- --------------------------------
Louis E. Bartolini
/s/ Charles I. Daniels, Jr. Director January 30, 1995
- --------------------------------
Charles I. Daniels, Jr.
Director January 30, 1995
- --------------------------------
Don Emerson
/s/ Dennis R. Hansen Senior Vice President and January 30, 1995
- -------------------------------- Controller (Principal
Dennis R. Hansen Accounting Officer)
/s/ Arthur C. Latno Director January 30, 1995
- --------------------------------
Arthur C. Latno
Director January 30, 1995
- --------------------------------
Patrick D. Lynch
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
----------- ----- ----
<S> <C> <C>
Director January 30, 1995
- --------------------------------
Catherine Cope MacMillan
Director January 30, 1995
- --------------------------------
James A. Maggetti
Director January 30, 1995
- --------------------------------
Dwight H. Murray, Jr., M.D.
/s/ Ronald A. Nelson Director January 30, 1995
- --------------------------------
Ronald A. Nelson
Director January 30, 1995
- --------------------------------
Carl R. Otto
/s/ David L. Payne Chairman of the Board, January 30, 1995
- -------------------------------- President and Chief
David L. Payne Executive Officer
/s/ Edward B. Sylvester Director January 30, 1995
- --------------------------------
Edward B. Sylvester
</TABLE>
II-5
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Westamerica Bancorporation:
We consent to incorporation by reference in Amendment No. 1 to the Registration
Statement (No. 33-57033) on Form S-4 of Westamerica Bancorporation (the Company)
of our report dated January 25, 1994 relating to the consolidated balance sheets
of Westamerica Bancorporation and subsidiaries as of December 31, 1993 and 1992,
and the related consolidated statements of income, changes in shareholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1993, which report appears in the December 31, 1993, annual report
on Form 10-K of Westamerica Bancorporation. On April 15, 1993, the Company
acquired Napa Valley Bancorp on a pooling-of-interests basis. We did not audit
the financial statements of Napa Valley Bancorp as of December 31, 1992 and for
the two year period ended December 31, 1992. Those statements, which are
included in the 1992 and 1991 restated consolidated totals, were audited by
other auditors. Our report, insofar as it relates to the amounts included for
Napa Valley Bancorp, is based solely on the report of the other auditors.
In addition, we consent to the reference to our firm under the heading "Experts"
in the Joint Proxy Statement/Prospectus which is included in the Registration
Statement on Form S-4.
/s/ KPMG Peat Marwick LLP
San Francisco, California
January 31, 1995
II-6
<PAGE>
[LETTERHEAD OF KPMG PEAT MARWICK LLP APPEARS HERE]
To the Board of Directors
of CapitolBank Sacramento:
We consent to the use of our report included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Sacramento, California
January 30, 1995
II-7
<PAGE>
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the use of our report
(and to all references to our Firm) included in or made a part of Amendment
No. 1 to this Form S-4 registration statement (File No. 33-57033).
/s/ Arthur Andersen LLP
Sacramento, California
January 30, 1995
II-8
<PAGE>
EXHIBIT INDEX
Note: Exhibits marked with a + are incorporated by reference to the
Registrant's Registration Statement on Form S-4 (No. 33-52146). Each such
Exhibit had the number in parentheses immediately following the
description of the Exhibit herein. Exhibits marked with a * have been
previously filed.
Exhibit
Number Document Description Page
------- -------------------- ----
2.1 Agreement and Plan of Reorganization among the
Registrant and CapitolBank, dated as of November 17,
1994 (included as Annex A to the Proxy
Statement/Prospectus (without certain exhibits)).
3(i) Restated Articles of Incorporation of Registrant
3(ii) Composite By-Laws of Registrant
4.1+ Specimen of the Registrant's Common Stock certificate
with Rights Legend. (4.1)
4.2+ Amended and Restated Rights Agreement, dated as of
September 28, 1989, between the Registrant and Bank of
America, NT&SA, as amended by the Appointment and
Acceptance Agreement, dated as of May 25, 1992, between
the Registrant and Chemical Trust Company of California.
(4.2)
4.3 The Registrant and certain of its consolidated
subsidiaries have outstanding certain long-term debt.
None of such debt exceeds 10% of the total assets of the
Registrant and its consolidated subsidiaries; therefore,
copies of the constituent instruments defining the
rights of the holders of such debt are not included as
exhibits to this Registration Statement. The Registrant
agrees to furnish copies of such instruments to the SEC
upon request.
5.1* Opinion of Pillsbury Madison & Sutro.
10.1 Stock Option Agreement, dated as of November 17, 1994,
between the Registrant and CapitolBank (included as
Annex D to the Proxy Statement/Prospectus).
23.1 Consent of KPMG Peat Marwick LLP (Westamerica) (see Page II-6).
23.2 Consent of KPMG Peat Marwick LLP (CapitolBank) (see Page II-7).
23.3 Consent of Arthur Andersen LLP (CapitolBank) (see Page
II-8).
23.4* Consent of Pillsbury Madison & Sutro (included in
Exhibit 5.1).
23.5* Consent of Hoefer & Arnett Incorporated.
23.6* Consent of Smith & Crowley Inc.
23.7 Consent of Grant Thornton (PV Financial).
23.8 Consent of Arthur Andersen LLP (North Bay Bancorp).
99.1 Form of proxy to be used in soliciting shareholders of
CapitolBank for its Special Meeting.
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
WESTAMERICA BANCORPORATION
ARTICLE I. Name.
----
The name of the Corporation is WESTAMERICA BANCORPORATION.
ARTICLE II. Purpose.
-------
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business, or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III. Capital.
-------
1. Capitalization. This corporation is authorized to issue three classes
--------------
of shares designated "Common Stock," "Class B Common Stock" and "Preferred
Stock," respectively. The number of shares of Common Stock authorized to be
issued is 20,000,000, the number of shares of Class B Common Stock authorized to
be issued is 1,000,000, and the number of shares of Preferred Stock authorized
to be issued is 1,000,000. Upon the effectiveness of this Amendment to read as
herein set forth, each outstanding share of Common Stock is split and converted
into (2) two shares of Common Stock. The Board of Directors may determine, fix,
alter, or revoke by resolution the rights, preferences, privileges, and
restrictions of any wholly unissued class or series of shares other than the
Common Stock, and the series designation and number of shares to constitute any
series (which number may thereafter in the same manner be increased or
decreased, but not below the number of shares of such series then outstanding),
and a certificate of determination shall then be filed with the California
Secretary of State.
2. Voting Rights. Each holder of Common Stock shall be entitled to vote
-------------
on all matters one vote for each share of Common Stock held by him, provided,
that in all elections of Directors, each holder of Common Stock shall have the
right to vote the votes allocated to the number of shares owned by him for as
many persons as there are Directors to be elected, or to cumulate such votes and
give one candidate as many votes as the number of Directors to be elected
multiplied by the number of votes allocable to his shares shall equal, or to
distribute such votes on the same principle among as many candidates as he shall
think fit. Except as otherwise provided by law or by the Board
-1-
<PAGE>
of Directors pursuant to the provisions of paragraph 1 of this Article III, the
holders of Class B Common Stock or Preferred Stock, or any series thereof, shall
have no voting rights.
ARTICLE IV. Amended Corporations Code.
-------------------------
This Corporation elects to be governed by all of the provisions of the
General Corporation Law effective January 1, 1977, not otherwise applicable to
it under Chapter 23 thereof.
ARTICLE V. Special Shareholder Approval Requirements.
-----------------------------------------
1. Definition of "Interested Person." For purposes of this Article,
--------------------------------
"Interested Person" means a person, firm, corporation, or other entity which is
the beneficial owner of at least ten (10%) percent of the outstanding shares of
this Corporation's Common Stock.
2. Greater Than Majority Vote Required For Certain Corporate Actions
-----------------------------------------------------------------
Involving Interested Persons. Subject to the exceptions set forth in Section 3
- ----------------------------
below, the affirmative vote of eighty (80%) percent of the outstanding shares of
this Corporation's Common Stock will be required to authorize any of the
following transactions between this Corporation and an Interested Person:
a. a merger or consolidation with an Interested Person; or
b. the sale or other disposition by this Corporation of all or any
substantial part of its assets to an Interested Person; or
c. the purchase or other acquisition by this Corporation of all or
any substantial part of the assets of an Interested Person; or
d. any other transaction with an Interested Person which requires the
approval of this Corporation's shareholders under the California
Corporations Code.
3. Exceptions to Special Approval Requirements. The special approval
-------------------------------------------
requirements set forth in Section 2 above shall be inapplicable in the following
cases:
a. the transaction was approved by the Board of Directors of this
Corporation prior to the time that the person, firm, corporation, or other
entity became an Interested Person; or
-2-
<PAGE>
b. the transaction was approved by the Board of Directors of this
Corporation after the time that the person, firm, corporation, or other
entity became an Interested Person where both of the following conditions
have been fulfilled:
(1) a majority of the directors at the time that the person,
firm, corporation, or other entity became an Interested Person voted
in favor of the transaction; and
(2) in such transaction the cash, or fair market value of other
consideration as valued by the Board of Directors of this Corporation as of
the date of its approval of the transaction, to be received by the
shareholders of this Corporation is not less per share than the highest
price per share (including brokerage commissions and/or soliciting dealers'
fees) paid by the Interested Person for any shares of the same class of
stock in this Corporation from the time that the Interested Person had
obtained a beneficial ownership in excess of five (5%) percent of the
outstanding shares of this Corporation's Common Stock.
ARTICLE VI. Director Liability.
------------------
The liability of the directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
ARTICLE VII. Indemnification.
---------------
The Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject to the applicable
limits as set forth in Section 204 of the California Corporations Code with
respect to actions for breach of duty to the Corporation and its shareholders.
The Corporation is further authorized to provide insurance for agents as set
forth in Section 317 of the California Corporations Code provided that, in cases
where the Corporation owns all or a portion of the shares of the company issuing
the insurance policy, the company and/or the policy must meet one of the two
sets of conditions set forth in Section 317, as amended.
-3-
<PAGE>
ARTICLE VIII. Effect of Future Amendments.
---------------------------
Any repeal or modification of the foregoing provisions of Articles VI
or VII by the shareholders of this Corporation shall not adversely affect any
right or protection of an agent of this Corporation existing at the time of such
repeal or modification.
-4-
<PAGE>
COMPOSITE COPY
--------------
BYLAWS
OF
WESTAMERICA BANCORPORATION
a California corporation
Last Amendment:
April 28, 1994
-1-
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page(s)
--------
<S> <C>
ARTICLE I - OFFICES.................................................................. 1
Section 1.01. Principal Offices................................................. 1
Section 1.02. Other Offices..................................................... 1
ARTICLE II - MEETINGS OF SHAREHOLDERS................................................ 1
Section 2.01. Place of Meetings................................................. 1
Section 2.02. Annual Meeting.................................................... 1
Section 2.03. Special Meeting................................................... 2
Section 2.04. Notice of Shareholders' Meetings.................................. 2
Section 2.05. Manner of Giving Notice: Affidavit of Notice...................... 2
Section 2.06. Quorum............................................................ 3
Section 2.07. Adjourned Meeting: Notice......................................... 3
Section 2.08. Voting............................................................ 3
Section 2.09. Waiver of Notice or Consent by Absent Shareholders................ 3
Section 2.10. Shareholder Action by Written Consent Without a Meeting........... 4
Section 2.11. Record Date for Shareholder Notice, Voting and Giving Consents.... 4
Section 2.12. Proxies........................................................... 5
Section 2.13. Inspectors of Election............................................ 5
Section 2.14. Nominations for Director.......................................... 5
ARTICLE III - DIRECTORS.............................................................. 6
Section 3.01. Powers............................................................ 6
Section 3.02. Number and Qualification of Directors............................. 6
Section 3.03. Election and Term of Office of Directors.......................... 7
Section 3.04. Vacancies......................................................... 7
Section 3.05. Place of Meetings and Meetings by Telephone....................... 7
Section 3.06. Annual Meeting.................................................... 7
Section 3.07. Other Regular Meetings............................................ 7
Section 3.08. Special Meetings.................................................. 8
Section 3.09. Quorum............................................................ 8
Section 3.10. Waiver of Notice.................................................. 8
Section 3.11. Adjournment....................................................... 8
Section 3.12. Notice of Adjournment............................................. 8
Section 3.13. Action Without Meeting............................................ 8
Section 3.14. Fees and Compensation of Directors................................ 9
Section 3.15. Committees of Directors........................................... 9
Section 3.16. Meetings and Action of Committees................................. 9
ARTICLE IV - OFFICERS................................................................ 9
Section 4.01. Officers.......................................................... 9
Section 4.02. Election of Officers.............................................. 9
Section 4.03. Subordinate Officers.............................................. 10
Section 4.04. Removal and Resignation of Officers............................... 10
Section 4.05. Vacancies in Offices.............................................. 10
Section 4.06. Chairman of the Board............................................. 10
Section 4.07. President......................................................... 10
Section 4.08. Vice Presidents................................................... 10
Section 4.09. Secretary......................................................... 10
Section 4.10. Chief Financial Officer........................................... 11
ARTICLE V - MISCELLANEOUS........................................................... 11
Section 5.01. Indemnification Provisions........................................ 11
Section 5.02. Maintenance and Inspection of Share Register...................... 12
Section 5.03. Maintenance and Inspection of Bylaws.............................. 12
</TABLE>
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<TABLE>
<S> <C>
Section 5.04. Maintenance and Inspection of Other Corporate Records............. 13
Section 5.05. Inspection of Books and Records by Directors...................... 13
Section 5.06. Annual Report to Shareholders..................................... 13
Section 5.07. Financial Statements.............................................. 13
Section 5.08. Record Date for Purposes Other than Notice and Voting............. 14
Section 5.09. Checks, Drafts.................................................... 14
Section 5.10. Corporate Contracts and Instruments; How Executed................. 14
Section 5.11. Certificates for Shares........................................... 14
Section 5.12. Lost Certificates................................................. 14
Section 5.13. Representation of Shares of Other Corporations..................... 14
Section 5.14. Construction and Definitions...................................... 15
ARTICLE VI - AMENDMENTS.............................................................. 15
Section 6.01. Amendment by Shareholders......................................... 15
Section 6.02. Amendment by Directors............................................ 15
</TABLE>
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<PAGE>
BYLAWS
------
OF
--
WESTAMERICA BANCORPORATION
--------------------------
ARTICLE I
---------
OFFICES
-------
Section 1.01. Principal Offices. The principal executive office of the
------------ -----------------
corporation shall be located at 1108 Fifth Avenue, San Rafael, California, or
such other place within or outside the State of California as shall be fixed by
the board of directors. If the principal executive office is located outside
this state, and the corporation has one or more business offices in this state,
the board of directors shall fix and designate a principal business office in
the State of California.
Section 1.02. Other Offices. The board of directors may at any time
------------ -------------
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II
----------
MEETINGS OF SHAREHOLDERS
------------------------
Section 2.01. Place of Meetings. Meetings of shareholders shall be held at
------------ -----------------
any place within or outside the State of California designated by the board of
directors. In the absence of any such designation, shareholders' meetings shall
be held at the principal executive office of the corporation.
Section 2.02. Annual Meeting. The annual meeting of shareholders shall be
------------ --------------
held each year on a date and at a time designated by the board of directors. At
each annual meeting directors shall be elected, and any other proper business
may be transacted which shall have been properly brought before the meeting. To
be properly brought before an annual meeting, business must have been (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the board of directors, (b) otherwise properly brought before
the meeting by or at the direction of the board of directors, or (c) otherwise
properly brought before the meeting by a shareholder. In addition to any other
applicable requirements, for business to be properly brought before an annual
meeting by a shareholder, the shareholder must have given timely notice thereof
in writing to the secretary of the corporation. To be timely, a shareholder's
notice must be delivered to or mailed to the secretary of the corporation not
less than 14 days nor more than 50 days prior to the meeting; provided, however,
that in the event that less than 21 days' notice of the date of the meeting is
given to shareholders, notice by the shareholder, to be timely, must be
delivered or mailed to the secretary of the corporation not later than the close
of business on the 7th day following the day on which such notice of the date of
the annual meeting was mailed. A shareholder's notice to the secretary of the
corporation shall set forth as to each matter that the shareholder proposes to
bring before the annual meeting (a) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and residence address of the
shareholder proposing such business, (c) the number of shares of capital stock
of the corporation that are owned by the shareholder, and (d) any material
interest of the shareholder in such business.
Notwithstanding anything in the bylaws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 2.02.
The chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.02, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
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<PAGE>
Section 2.03. Special Meeting. A special meeting of the shareholders may be
------------ ---------------
called at any time by the board of directors, or by the chairman of the board,
or by the president, or by one or more shareholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at that meeting.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president, any
vice president, or the secretary of the corporation. The officer receiving the
request shall cause notice to be promptly given to the shareholders entitled to
vote, in accordance with the provisions of Sections 2.04 and 2.05 hereof, that a
meeting will be held at the time requested by the person or persons calling the
meeting, not less than thirty-five (35) nor more than sixty (60) days after the
receipt of the request. If the notice is not given within twenty (20) days after
receipt of the request, the person or persons requesting the meeting may give
the notice. Nothing contained in this paragraph of this Section 2.03 shall be
construed as limiting, fixing or affecting the time when a meeting of
shareholders called by action of the board of directors may be held.
Section 2.04. Notice of Shareholders' Meetings. All notices of meetings of
------------ --------------------------------
shareholders shall be sent or otherwise given to shareholders entitled to vote
thereat in accordance with Section 2.05 not less than ten (10) (or if sent by
third-class mail, thirty (30) nor more than sixty (60)) days before the date of
the meeting. The notice shall specify the place, date and hour of the meeting
and (i) in the case of a special meeting, the general nature of the business to
be transacted, and no other business may be transacted, or (ii) in the case of
the annual meeting, those matters which the board of directors, at the time of
giving the notice, intends to present for action by the shareholders. The notice
of any meeting at which directors are to be elected shall include the name of
any nominee or nominees whom, at the time of the notice, management intends to
present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the articles of incorporation, pursuant to Section 902 of that
Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
that Code, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of that Code, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007 of
that Code, the notice shall also state the general nature of that proposal.
Section 2.05. Manner of Giving Notice: Affidavit of Notice. Notice of any
------------ --------------------------------------------
meeting of shareholders shall be given to shareholders entitled to vote thereat
either personally or by first-class mail or, in the event this corporation has
outstanding shares held of record by 500 or more persons (determined as provided
in Section 605 of the California Corporations Code) on the record date for the
shareholders meeting, by third-class mail, or other means of written
communication, addressed to the shareholder at the address of such shareholder
appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or is given, notice shall be deemed to have been given if
sent to that shareholder by first-class mail or telegraphic or other written
communication to the corporation's principal executive office, or if published
at least once in a newspaper of general circulation in the county where that
office is located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or other means
of written communication.
If any notice addressed to a shareholder at the address of that shareholder
appearing on the books of the corporation is returned to the corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice to the shareholder at that address, all
future notices or reports shall be deemed to have been duly given without
further mailing if these shall be available to the shareholder on written demand
of the shareholder at the principal executive office of the corporation for a
period of one year from the date of the giving of the notice.
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<PAGE>
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting may be executed by the secretary, assistant secretary, or
any transfer agent of the corporation giving the notice, and shall be filed and
maintained in the minute book of the corporation.
Section 2.06. Quorum. The presence in person or by proxy of the holders of
------------ ------
one-third (1/3) of the shares entitled to vote at any meeting of the
shareholders shall constitute a quorum for the transaction of business. The
shareholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
Section 2.07. Adjourned Meeting: Notice. Any shareholders' meeting, annual
------------ -------------------------
or special, whether or not a quorum is present, may be adjourned from time to
time by the vote of the majority of the shares represented at that meeting,
either in person or by proxy, but in the absence of a quorum, no other business
may be transacted at that meeting, except as provided in Section 2.06 hereof.
When any meeting of shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or unless the
adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the board of directors shall set a new record
date. Notice of any such adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 2.04 and 2.05. At any adjourned meeting the corporation
may transact any business which might have been transacted at the original
meeting.
Section 2.08. Voting. The shareholders entitled to vote at any meeting of
------------ ------
shareholders shall be determined in accordance with the provisions of Section
2.11 hereof, subject to the provisions of Sections 702 to 704, inclusive, of the
Corporations Code of California (relating to voting shares held by a fiduciary,
in the name of a corporation, or a joint ownership). The shareholders' vote may
be by voice vote or by ballot; provided, however, that any election for
directors must be by ballot if demanded by any shareholder before the voting has
begun. On any matter other than elections of directors, any shareholder may vote
part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but, if the shareholder
fails to specify the number of shares which the shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares that the shareholder is entitled to vote. The
affirmative vote of a majority of the shares represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute a majority of the required quorum) shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by California General Corporation Law or the articles.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of votes which such shareholder normally
is entitled to cast) unless the candidates' names have been placed in nomination
prior to commencement of the voting and a shareholder has given notice prior to
commencement of the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder entitled to vote
may cumulate votes for candidates in nomination and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which that shareholder's shares are normally entitled, or distribute
the shareholder's votes on the same principle among any or all of the
candidates, as the shareholder thinks fit. The candidates receiving the highest
number of votes, up to the number of directors to be elected, shall be elected.
Section 2.09. Waiver of Notice or Consent by Absent Shareholders. The
------------ --------------------------------------------------
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled
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<PAGE>
to vote, who was not present in person or by proxy, signs a written waiver of
notice or a consent to a holding of the meeting, or an approval of the minutes.
The waiver of notice, consent or approval need not specify either the business
to be transacted or the purpose of any annual or special meeting of
shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in the second paragraph of Section
2.04 hereof, the waiver of notice, consent or approval shall state the general
nature of the proposal. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included if that objection is
expressly made at the meeting.
Section 2.10. Shareholder Action by Written Consent Without a Meeting. Any
------------ -------------------------------------------------------
action which may be taken at any annual or special meeting of shareholders may
be taken without a meeting and without prior notice, if a consent in writing
setting forth the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes that would be necessary
to authorize or take that action at a meeting at which all shares entitled to
vote on that action were present and voted. In the case-of election of
directors, such a consent shall be effective only if signed by the holders of
all outstanding shares entitled to vote for the election of directors; provided,
however, that a director may be elected at any-time to fill a vacancy on the
board of directors that has not been filled by the directors, by the written
consent of the holders of a majority of the outstanding shares entitled to vote
for the election of directors. All such consents shall be filed with the
secretary of the corporation and shall be maintained in the corporate records.
Any shareholder giving a written consent, or the shareholder's proxy holders, or
a transferee of the shares or a personal representative of the shareholder or
their respective proxy holders, may revoke the consent by a writing received by
the secretary of the corporation before written consents of the number of shares
required to authorize the proposed action have been filed with the secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
This notice shall be given in the manner specified in Section 2.05 hereof. In
the case of approval of (i) contracts or transactions in which a director has a
direct or indirect financial interest, pursuant to Section 310 of the
Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of that Code, and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of that Code, the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
Section 2.11. Record Date for Shareholder Notice, Voting and Giving
------------ -----------------------------------------------------
Consents. For purposes of determining the shareholders entitled to notice of any
- --------
meeting or to vote or entitled to give consent to corporate action without a
meeting, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of
any such meeting nor more than sixty (60) days before any such action without a
meeting, and in this event only shareholders at the close of business on the
record date are entitled to notice and to vote or to give consents, as the case
may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the
California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining the shareholders entitled to notice of
or to vote at a meeting of shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held.
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<PAGE>
(b) The record date for determining shareholders entitled to give consent
to corporate action in writing without a meeting, (i) when no prior action by
the board has been taken, shall be the day on which the first written consent is
given, or (ii) when prior action of the board has been taken, shall be at the
close of business on the day on which the board adopts the resolution relating
to that action, or the sixtieth (60th) day before the date of such other action,
whichever is later.
Section 2.12. Proxies. Every person entitled to vote for directors or on
------------- -------
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person and filed with
the secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney-in-fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, before the vote pursuant to that proxy, by a
writing delivered to the corporation stating that the proxy is revoked, or by a
subsequent proxy executed by, or as to any meeting by attendance at such meeting
and voting in person by, the person executing the proxy; or (ii) written notice
of the death or incapacity of the maker of that proxy is received by the
corporation before the vote pursuant to that proxy is counted; provided,
however, that no proxy shall be valid after the expiration of eleven (11) months
from the date of the proxy, unless otherwise provided in the proxy. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Sections 705(e) and 705(f) of the Corporations
Code of California.
Section 2.13. Inspectors of Election. Before any meeting of shareholders,
------------ ----------------------
the board of directors may appoint any persons other than nominees for office to
act as inspectors of election at the meeting or its adjournment. If no
inspectors of election are so appointed, the chairman of the meeting may, and on
the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one (1) or three (3). If inspectors are appointed at a meeting on the request of
one or more shareholders or proxies, the holders of a majority of shares or
their proxies present at the meeting shall determine whether one (1) or three
(3) inspectors are to be appointed. If any person appointed as inspector fails
to appear or fails or refuses to act, the chairman of the meeting may, and upon
the request of any shareholder or a shareholder's proxy shall, appoint a person
to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, and the
authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any way arising in
connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or vote
with fairness to all shareholders.
Section 2.14. Nominations for Director. Nominations for election to the
------------ ------------------------
board of directors may be made by the board of directors or by any shareholder
of any outstanding class of capital stock of the corporation entitled to vote
for the election of directors. Nominations, other than those made by or on
behalf of the board of directors of the corporation, shall be made in writing
and shall be delivered or mailed to the secretary of the corporation not less
than 14 days nor more than 50 days prior to any meeting of shareholders called
for the election of directors; provided, however,
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<PAGE>
that if less than 21 days' notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the secretary of the corporation not
later than the close of business on the seventh (7th) day following the day on
which the notice of the meeting was mailed. Any such written nomination shall
contain the following information to the extent known to the nominating
shareholder: (a) the name and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the total number of shares of
capital stock of the corporation that the shareholder expects will be voted for
each proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the corporation
owned by the notifying shareholder. Nominations not made in accordance herewith
may be disregarded by the chairman of the applicable meeting of shareholders
called for the election of directors in his sole discretion, and upon his
instructions, the inspectors of election may disregard all votes cast for each
such nominee.
ARTICLE III
-----------
DIRECTORS
---------
Section 3.01. Powers. Subject to the provisions of the California General
------------ ------
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the articles of incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service.
(b) Change the principal executive office or the principal business office
in the State of California from one location to another; cause the corporation
to be qualified to do business in any other state, territory, dependency, or
country and conduct business within or without the State of California; and
designate any place within or without the State of California for the holding of
any shareholders' meeting, or meetings, including annual meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the corporation on any
lawful terms, in consideration of money paid, labor done, services actually
rendered, debts or securities cancelled, or tangible or intangible property
actually received.
(e) Borrow money and incur indebtedness on behalf of the corporation, and
cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecation, and other evidences of debt and securities.
Section 3.02. Number and Qualification of Directors. The number of
------------ -------------------------------------
directors of the corporation shall be not less than eight (8) nor more than
fifteen (15). The exact number of directors shall be thirteen (13) until
changed, within the limits specified above, with the approval of the board of
directors or the shareholders. The indefinite number of directors may be
changed, or a definite number fixed without provision for an indefinite number,
by a duly adopted amendment to the articles of incorporation or by an amendment
to this bylaw duly adopted by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that an
amendment reducing the fixed number or the minimum number of directors to a
number less than five (5) cannot be adopted if the votes cast against its
adoption at a meeting of the shareholders, or the shares not consenting in the
case of action by written consent, are equal
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<PAGE>
to more than 16-2/3% of the outstanding shares entitled to vote. No amendment
may change the stated maximum number of authorized directors to a number greater
than two times the stated minimum number of directors minus one.
Section 3.03. Election and Term of Office of Directors. Directors shall be
------------ ----------------------------------------
elected at each annual meeting of the shareholders to hold office until the next
annual meeting. Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified. No person shall be eligible for
election to the board of directors unless nominated in the manner described by
Section 2.14 of these bylaws.
Section 3.04. Vacancies. Vacancies in the board of directors may be filled
------------ ---------
by a majority of the remaining directors, though less than a quorum, or by a
sole remaining director, except that a vacancy created by the removal of a
director by the vote or written consent of the shareholders or by court order
may be filled only by the vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present, or by the
written consent of holders of a majority of the outstanding shares entitled to
vote. Each director so elected shall hold office until the next annual meeting
of the shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to exist
in the event of the death, resignation, or removal of any director, or if the
board of directors by resolution declares vacant the office of a director who
has been declared of unsound mind by an order of court or convicted of a felony,
or if the authorized number of directors is increased, or if the shareholders
fail, at any meeting of shareholders at which any director or directors are
elected, to elect the number of directors to be voted for at that meeting.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors, but any such election by
written consent other than to fill a vacancy created by removal shall require
the consent of a majority of the outstanding shares entitled to vote.
Any director may resign effective on giving written notice to the chairman
of the board, the president, the secretary, or the board of directors, unless
the notice specifies a later time for that resignation to become effective. If
the resignation of a director is effective at a future time, the board of
directors may elect a successor to take office when the resignation becomes
effective.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires.
Section 3.05. Place of Meetings and Meetings by Telephone. Regular meetings
------------ -------------------------------------------
of the board of directors may be held at any place within or outside the State
of California that has been designated from time to time by resolution of the
board. In the absence of such a designation, regular meetings shall be held at
the principal executive office of the corporation. Special meetings of the board
shall be held at any place within or outside the State of California that has
been designated in the notice of the meeting or, if not stated in the notice or
there is no notice, at the principal executive office of the corporation. Any
meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all directors participating in the meeting
can hear one another, and all such directors shall be deemed to be present in
person at the meeting.
Section 3.06. Annual Meeting. Immediately following each annual meeting of
------------ --------------
shareholders, the board of directors shall hold a regular meeting for the
purpose of organization, any desired election of officers, and the transaction
of other business. Notice of this meeting shall not be required.
Section 3.07. Other Regular Meetings. Other regular meetings of the board
------------ ----------------------
of directors shall be held without call at such time as shall from time to time
be fixed by the board of directors. Such regular meetings may be held without
notice.
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<PAGE>
Section 3.08. Special Meetings. Special meetings of the board of directors
------------ ----------------
for any purpose or purposes may be called at any time by the chairman of the
board or the president or any vice president or the secretary or any two
directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. In case the notice is mailed,
it shall be deposited in the United States mail at least four (4) days before
the time of the holding of the meeting. In case the notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at the
principal executive office of the corporation.
Section 3.09. Quorum. A majority of the authorized number of directors
------------ ------
shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.11. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the board of directors, subject to the provisions of
Section 310 of the Corporations Code of California (as to approval of contracts
or transactions in which a director has a direct or indirect material financial
interest), Section 311 of that Code (as to appointment of committees), and
Section 317(e) of that Code (as to indemnification of directors). A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by
at least a majority of the required quorum for that meeting.
Section 3.10. Waiver of Notice. The transactions of any meeting of the
------------ ----------------
board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes. The waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents, and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting. Notice of a meeting shall also be deemed given to any director who
attends the meeting without protesting, before or at its commencement, the lack
of notice to that director.
Section 3.11. Adjournment. A majority of the directors present, whether or
------------ -----------
not constituting a quorum, may adjourn any meeting to another time and place.
Section 3.12. Notice of Adjournment. Notice of the time and place of
------------ ---------------------
holding an adjourned meeting need not be given, unless the meeting is adjourned
for more than twenty-four (24) hours, in which case notice of the time and place
shall be given before the time of the adjourned meeting, in the manner specified
in Section 3.08, to the directors who were not present at the time of the
adjournment.
Section 3.13. Action Without Meeting. Any action required or permitted to
------------ ----------------------
be taken by the board of directors may be taken without a meeting, if all
members of the board shall individually or collectively consent in writing to
that action. Such action by written consent shall have the same force and effect
as a unanimous vote of the board of directors. Such written consent or consents
shall be filed with the minutes of the proceedings of the board.
Section 3.14. Fees and Compensation of Directors. Directors and members of
------------ ----------------------------------
committees may receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
board of directors. This Section 3.14 shall not be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for those services.
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Section 3.15. Committees of Directors. The board of directors may, by
------------ -----------------------
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number
of directors. Any committee, to the extent provided in the resolution of the
board, shall have all the authority of the board, except with respect to:
(a) The approval of any action which, under the General Corporation Law of
California, also requires shareholders' approval or approval of the outstanding
shares;
(b) The filling of vacancies on the board of directors or in any committee;
(c) The fixing of compensation of the directors for serving on the board or
on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board of directors
which by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation, except at a rate
or in a periodic amount or within a price range determined by the board of
directors; or
(g) The appointment of any other committees of the board of directors or
the members of these committees.
Section 3.16. Meetings and Action of Committees. Meetings and action of
------------ ---------------------------------
committees shall be governed by, and held and taken in accordance with, the
provisions of Sections 3.05 (place of meetings), 3.07 (regular meetings), 3.08
(special meetings and notice), 3.09 (quorum), 3.10 (waiver of notice), 3.11
(adjournment), 3.12 (notice of adjournment), and 3.13 (action without meeting)
of these bylaws, with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members, except that the time of regular meetings of committees may be
determined either by resolution of the board of directors or by resolution of
the committee; special meetings of committees may also be called by resolution
of the board of directors; and notice of special meetings of committees shall
also be given to all alternate members, who shall have the right to attend all
meetings of the committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions of these
bylaws.
ARTICLE IV
----------
OFFICERS
--------
Section 4.01. Officers. The officers of the corporation shall be a chairman
------------ --------
of the board, a president, a secretary, and a chief financial officer. The
corporation may also have, at the discretion of the board of directors, one or
more vice presidents, one or more assistant secretaries, one or more treasurers
or assistant treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 4.03. Any number of offices may be
held by the same person.
Section 4.02. Election of Officers. The officers of the corporation, except
------------ --------------------
such officers as may be appointed in accordance with the provisions of Sections
4.03 or 4.05 hereof, shall be chosen by the board of directors, and each shall
serve at the pleasure of the board, subject to the rights, if any, of an officer
under any contract of employment.
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Section 4.03. Subordinate Officers. The board of directors may appoint, and
------------ --------------------
may empower the chairman of the board to appoint, such other officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time determine.
Section 4.04. Removal and Resignation of Officers. Subject to the rights,
------------ -----------------------------------
if any, of an officer under any contract of employment, any officer may be
removed, either with or without cause, by the board of directors, at any regular
or special meeting of the board of directors, or, except in the case of an
officer chosen by the board of directors, by any other officer upon whom such
power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
Section 4.05. Vacancies in Offices. A vacancy in any office because of
------------ --------------------
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these bylaws for regular appointments to that
office.
Section 4.06. Chairman of the Board. The board of directors shall appoint
------------ ---------------------
one of its members to be chairman of the board to serve at the pleasure of the
board. Such person shall preside at all meetings of the board. The chairman of
the board shall have the powers conferred by these bylaws and shall also have
and may exercise such further powers and duties as from time to time may be
conferred or assigned by the board of directors.
Section 4.07. President. The president of the corporation shall, in the
------------ ---------
absence of the chairman of the board, preside at all meetings of shareholders
and at all meetings of the board of directors. The president shall exercise and
perform such duties as may be assigned to him by the board of directors or the
chairman of the board or as prescribed by the bylaws.
Section 4.08. Vice Presidents. In the absence or disability of the
------------ ---------------
president, the vice presidents, if any, in order of their rank as fixed by the
board of directors or, if not ranked, a vice president designated by the board
of directors, shall perform all the duties of the president, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors or the bylaws, and the president.
Section 4.09. Secretary. The secretary shall keep or cause to be kept, at
------------ ---------
the principal executive office or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors, and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the names
of those present at directors' meetings or committee meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, as
determined by resolution of the board of directors, a share register, or a
duplicate share register, showing the names of all shareholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of
the shareholders and of the board of directors required by the bylaws or by law
to be given, and he shall keep the seal of the corporation, if one be adopted,
in safe custody, and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by the bylaws.
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Section 4.10. Chief Financial Officer. The chief financial officer shall
------------ -----------------------
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as chief financial officer and of the financial condition of the
corporation, and shall have other powers and perform such other duties as may be
prescribed by the board of directors or these bylaws.
ARTICLE V
---------
MISCELLANEOUS
-------------
Section 5.01. Indemnification Provisions. Except as prohibited by law,
------------ --------------------------
every director of this corporation shall be entitled as a matter of right to be
indemnified by the corporation against reasonable expense and any liability paid
or incurred by such person in connection with any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative, investigative or other, whether brought by or in the name of the
corporation or otherwise, in which he or she may be involved, as a party or
otherwise, by reason of such person being or having been a director, officer,
employee or agent of the corporation or by reason of the fact that such person
is or was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise or was a director, officer, employee
or agent of a corporation which was a predecessor corporation of the corporation
or of another enterprise at the request of such predecessor corporation (such
claim, action, suit or proceeding hereinafter being referred to as an "Action");
provided, however, that no such right of indemnification shall exist in favor of
a director with respect to an Action brought by such director against the
corporation (other than a suit for indemnification as provided below in this
Section 5.01). Such indemnification shall include the right to have expenses
incurred by such person in connection with an Action paid in advance by the
corporation until the final disposition of the Action, subject to such
conditions as may be prescribed by law. As used herein, "liability" shall
include amounts of judgments, excise taxes, fines and penalties, and amounts
paid in settlement; and "expense" shall include fees and expenses of counsel
subject to the terms of the following paragraph.
If the corporation shall be obligated to pay the expenses of any Action
against a director, the corporation, if appropriate, shall be entitled to assume
the defense of such Action, with counsel approved by the director, upon the
delivery to the director of written notice of its election so to do. After
delivery of such notice, approval of such counsel by the director and the
retention of such counsel by the corporation, the corporation will not be liable
to the director under this Section 5.01 for any fees or expenses of counsel
subsequently incurred by the director with respect to the same Action, provided
that (i) the director shall have the right to employ his counsel in any such
Action at the director's expense; and (ii) the fees and expenses of the
director's counsel shall be at the expense of the corporation if (A) the
employment of counsel by the director has been previously authorized by the
corporation, (B) the director shall have reasonably concluded that there may be
a conflict of interest between the corporation and the director in the conduct
of any such defense or (C) the corporation shall not, in fact, have employed
counsel to assume the defense of such Action. Notwithstanding anything contained
herein to the contrary, the corporation shall have no obligation under this
Section 5.01 to indemnify any director for any amounts paid in settlement of an
Action unless the corporation consents to such settlement, which consent shall
not be unreasonably withheld.
If a claim under the two preceding paragraphs is not paid in full by the
corporation within thirty (30) days after a written notice thereof has been
received by the corporation, the claimant
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<PAGE>
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim, and if successful in whole or in part, the claimant
shall also be entitled to be paid the expense of prosecuting such claim. It
shall be a defense to any such action that the conduct of the claimant was such
that under California law the corporation would be prohibited from indemnifying
the claimant for the amount claimed, but the burden of proving such defense
shall be on the corporation. Neither the failure of the corporation (including
its board) to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances because the
conduct of the claimant was not such that indemnification would be prohibited by
law, nor an actual determination by the corporation (including the board of
directors, independent legal counsel or its shareholders) that the conduct of
the claimant was such that indemnification would be prohibited by law, shall be
a defense to the action or create a presumption that the conduct of the claimant
was such that indemnification would be prohibited by law.
The right of indemnification provided for herein (a) shall not be deemed
exclusive of any other rights, whether now existing or hereafter created, to
which those seeking indemnification hereunder may be entitled under any
agreement, bylaw or article provision, vote of shareholders or directors or
otherwise, (b) shall continue as to persons who have ceased to have the status
pursuant to which they were entitled or were denominated as entitled to
indemnification hereunder and shall inure to the benefit of the heirs and legal
representatives of persons entitled to indemnification hereunder, and (c) shall
be applicable to actions, suits or proceedings commenced after the adoption
hereof, whether arising from acts or omissions occurring before or after the
adoption hereof. The right of indemnification provided for herein may not be
amended, modified or repealed so as to limit in any way the indemnification
provided for herein with respect to any acts or omissions occurring prior to the
adoption of any such amendment or repeal.
The corporation has full power and authority to extend any of the
indemnification benefits provided for in this Section 5.01 to any officer or
agent of the corporation, but the corporation is under no obligation to extend
such benefits to any person who is not entitled thereto by law or pursuant to
the first paragraph of this Section 5.01.
Section 5.02. Maintenance and Inspection of Share Register. The corporation
------------ --------------------------------------------
shall keep at its principal executive office, or at the office of its transfer
agent or registrar, if either be appointed and as determined by resolution of
the board of directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each
shareholder.
A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours on five (5) days' prior
written demand on the corporation, and (ii) obtain from the transfer agent of
the corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the shareholders' names and addresses,
who are entitled to vote for the election of directors, and their shareholdings,
as of the most recent record date for which that list has been compiled or as of
a date specified by the shareholder after the date of demand. This list shall be
made available to any such shareholder by the transfer agent on or before the
later of five (5) days after the demand is received or the date specified in the
demand as the date as of which the list is to be compiled. The record of
shareholders shall also be open to inspection on the written demand of any
shareholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. Any inspection and
copying under this Section 5.02 may be made in person or by an agent or attorney
of the shareholder or holder of a voting trust certificate making the demand.
Section 5.03. Maintenance and Inspection of Bylaws. The corporation shall
------------ ------------------------------------
keep at its principal executive office, or if its principal executive office is
not in the State of California, at its principal business office in this state,
the original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside the State of
California and the
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<PAGE>
corporation has no principal business office in this state, the secretary shall,
upon the written request of any shareholder, furnish to that shareholder a copy
of the bylaws as amended to date.
Section 5.04. Maintenance and Inspection of Other Corporate Records. The
------------ -----------------------------------------------------
accounting books and records and minutes of proceedings of the shareholders and
the board of directors and any committee or committees of the board of directors
shall be kept at such place or places designated by the board of directors, or,
in the absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted into written form. The minutes and accounting books and records
shall be open to inspection upon the written demand of any shareholder or holder
of a voting trust certificate, at any reasonable time during usual business
hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. The inspection may
be made in person or by an agent or attorney, and shall include the right to
copy and make extracts. These rights of inspection shall extend to the records
of each subsidiary corporation of the corporation.
Section 5.05. Inspection of Books and Records by Directors. Every director
------------ --------------------------------------------
shall have the absolute right at any reasonable time to inspect all books,
records, and documents of every kind and the physical properties of the
corporation and each of its subsidiary corporations. This inspection by a
director may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
Section 5.06. Annual Report to Shareholders. The board of directors shall
------------ -----------------------------
cause an annual report to be sent to the shareholders not later than one hundred
twenty (120) days after the close of the fiscal year adopted by the corporation.
This report shall be sent at least fifteen (15) (or, if sent by third-class
mail, thirty-five (35)) days before the annual meeting of shareholders to be
held during the next fiscal year and in the manner specified in Section 2.05 of
these bylaws for giving notice to shareholders of the corporation. The annual
report shall contain a balance sheet as of the end of the fiscal year and an
income statement and statement of changes in financial position for the fiscal
year, accompanied by any report of independent accountants or, if there is no
such report, the certificate of an authorized officer of the corporation that
the statements were prepared without audit from the books and records of the
corporation.
Section 5.07. Financial Statements. A copy of any annual financial
------------ --------------------
statement and any income statement of the corporation for each quarterly period
of each fiscal year, and any accompanying balance sheet of the corporation as of
the end of each such period, that has been prepared by the corporation shall be
kept on file in the principal executive office of the corporation for twelve
(12) months and each such statement shall be exhibited at all reasonable times
to any shareholder demanding an examination of any such statement or a copy
shall be mailed to any such shareholder.
If a shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the corporation makes a written
request to the corporation for an income statement of the corporation for the
three-month, six-month, or nine-month period of the then current fiscal year
ended more than thirty (30) days before the date of the request, and a balance
sheet of the corporation as of the end of that period, the chief financial
officer shall cause the statements referred to above to be prepared, if not
already prepared, and shall deliver personally or mail that statement or
statements to the person making the request within thirty (30) days after the
receipt of the request. If the corporation has not sent to the shareholders its
annual report for the last fiscal year, this report shall likewise be delivered
or mailed to any shareholder or shareholders within thirty (30) days after the
request.
The corporation shall also, on the written request of any shareholder, mail
to the shareholder a copy of the last annual, semi-annual, or quarterly income
statement which it has prepared, and a balance sheet as of the end of that
period.
The quarterly income statements and balance sheets referred to in this
Section 5.07 shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
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Section 5.08. Record Date for Purposes Other than Notice and Voting. For
------------ -----------------------------------------------------
purposes of determining the shareholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the board of directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
before any such action, and in that case only shareholders at the close of
business on the record date are entitled to receive the dividend, distribution,
or allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date so fixed, except as otherwise provided in the California General
Corporation Law.
If the board of directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the day on which the board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
Section 5.09. Checks, Drafts. Evidences of Indebtedness. All checks,
------------ --------------
drafts, or other orders for payment of money, notes, or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time to
time, shall be determined by resolution of the board of directors.
Section 5.10. Corporate Contracts and Instruments; How Executed. The board
------------ -------------------------------------------------
of directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation, and this authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent, or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
Section 5.11. Certificates for Shares. A certificate or certificates for
------------ -----------------------
shares of the capital stock of the corporation shall be issued to each
shareholder when any of these shares are fully paid, and the board of directors
may authorize the issuance of certificates or shares as partly paid provided
that these certificates shall state the amount of the consideration to be paid
for them and the amount paid. All certificates shall be signed in the name of
the corporation by the chairman of the board or vice chairman of the board or
the president or vice president and by the chief financial officer or the
treasurer or an assistant treasurer or the secretary or any assistant secretary,
certifying the number of shares and the class or series of shares owned by the
shareholder. Any or all of the signatures on the certificate may be facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed on a certificate shall have ceased to be
that officer, transfer agent, or registrar before that certificate is issued, it
may be issued by the corporation with the same effect as if that person were an
officer, transfer agent or registrar at the date of issue.
Section 5.12. Lost Certificates. Except as provided in this Section 5.12,
------------ -----------------
no new certificates for shares shall be issued to replace an old certificate
unless the latter is surrendered to the corporation and cancelled at the same
time. The board of directors may, in case any share certificate or certificate
for any other security is lost, stolen or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the board may require,
including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
Section 5.13. Representation of Shares of Other Corporations. The chairman
------------ ----------------------------------------------
of the board, the president, or any vice president, or any other person
authorized by resolution of the board of directors or by any of the foregoing
designated officers, is authorized to vote on behalf of the corporation any and
all shares of any other corporation or corporations, foreign or domestic,
standing in the name of the corporation. The authority granted to these officers
to vote or represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or
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<PAGE>
corporations may be exercised by any of these officers in person or by any
person authorized to do so by a proxy duly executed by these officers.
Section 5.14. Construction and Definitions. Unless the context requires
------------ ----------------------------
otherwise, the general provisions, rules of construction and definitions in the
California General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
ARTICLE VI
----------
AMENDMENTS
----------
Section 6.01. Amendment by Shareholders. New bylaws may be adopted or
------------ -------------------------
these bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the articles of incorporation of the corporation set forth the
number of authorized directors of the corporation, the authorized number of
directors may be changed only by an amendment of the articles of incorporation.
Section 6.02. Amendment by Directors. Subject to the rights of the
------------ ----------------------
shareholders as provided in Section 6.01 hereof, to adopt, amend, or repeal
bylaws, bylaws may be adopted, amended, or repealed by the board of directors;
provided, however, that the board of directors may adopt a bylaw or amendment of
a bylaw changing the authorized number of directors only for the purpose of
fixing the exact number of directors within the limits specified in the articles
of incorporation or in Section 3.02 of these bylaws.
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<PAGE>
EXHIBIT 23.7
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
We consent to the incorporation by reference in this Registration Statement on
Form S-4 (File No. 33-57033) our report dated January 15, 1994, appearing in
the Westamerica Registration Statement on Form S-4 (File No. 33-55417) filed on
October 5, 1994 with the Securities and Exchange Commission pursuant to the
Securities Act of 1933.
/s/ Grant Thornton
Stockton, California
January 27, 1995
<PAGE>
EXHIBIT 23.8
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our firm) included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
San Francisco, California,
January 23, 1995
<PAGE>
EXHIBIT 99.1
CAPITOLBANK SACRAMENTO
THIS REVOCABLE PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Thayer T. Prentice, Vice Chairman of the
Board and Chief Executive Officer, and Bernard Rao, Senior Vice President and
Chief Administrative Officer, and each of them, with full power of substitution,
as proxies of the undersigned, to attend the Special Meeting of Shareholders of
CapitolBank Sacramento ("CapitolBank") to be held at 300 Capitol Mall,
Sacramento, California, on Thursday, March 9, 1995 at 5:00 p.m. and any
adjournment or postponement thereof, and to vote the number of shares the
undersigned would be entitled to vote if personally present upon the following
items and to vote according to their discretion on any other matter which may
properly be presented for action at said meeting or any adjournment or
postponement thereof:
1. TO ADOPT AND APPROVE THE AGREEMENT AND PLAN OF REORGANIZATION DATED AS
OF NOVEMBER 17, 1994, BY AND BETWEEN WESTAMERICA BANCORPORATION
("WESTAMERICA") AND CAPITOLBANK, AN AGREEMENT OF MERGER AMONG
WESTAMERICA, CAPITOLBANK AND WESTAMERICA MERGER SUBSIDIARY, A WHOLLY-
OWNED SUBSIDIARY OF WESTAMERICA ("MERGER SUB") AND THE TRANSACTIONS
CONTEMPLATED THEREBY, INCLUDING THE MERGER OF MERGER SUB WITH AND INTO
CAPITOLBANK.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
(To be completed and signed on the reverse side)
<PAGE>
(Continued from other side)
THIS PROXY WILL BE VOTED AS SPECIFIED, OR IF NO CHOICE IS SPECIFIED, THIS
PROXY WILL BE VOTED "FOR" THE PROPOSAL SET FORTH. Please sign exactly as name
appears. When shares are held by joint tenants, both should sign. When signing
as attorney, executor, administrator, trustee or guardian, please give full
title as such. If a corporation, please provide full corporate name and name and
capacity of the authorized officer signing on behalf of such corporation. If a
partnership, please provide partnership name and name and capacity of the person
signing on behalf of such partnership.
Dated:_____________________,1995
Signature______________________________________
Signature, if held jointly_____________________
SHAREHOLDERS ARE URGED TO MARK, DATE, SIGN AND RETURN THIS PROXY IN THE
ENVELOPE PROVIDED, WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES.
