<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(X) Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended March 31, 1999
OR
( ) Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from ______to______
Commission File No. 0-13882
FIRST WESTERN BANCORP, INC.
---------------------------
(Exact name of Registrant as specified in its charter)
Commonwealth of Pennsylvania 25-1461570
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
101 East Washington Street, New Castle, Pennsylvania 16101
(Address of principal executive offices) (Zip Code)
(724) 652-8550
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO______
The number of shares outstanding of the Registrant's common stock as of May 13,
1999 was:
Common Stock, $5.00 par value - 11,172,200 shares outstanding
<PAGE> 2
FIRST WESTERN BANCORP, INC.
INDEX
<TABLE>
<CAPTION>
Page
Number
------
<S> <C> <C> <C>
Part I. Financial Information:
Item 1. Financial Statements:
Independent Accountants' Report....................... 3
Consolidated Balance Sheets:
March 31, 1999, December 31, 1998 and
March 31, 1998....................................... 4
Consolidated Statements of Income:
Three months ended March 31, 1999
and three months ended March 31, 1998................ 5
Consolidated Statements of Comprehensive Income:
Three months ended March 31, 1999
and three months ended March 31, 1998................ 6
Consolidated Statements of Changes
in Shareholders' Equity:
Three months ended March 31, 1999
and three months ended March 31, 1998................ 7
Consolidated Statements of Cash Flows:
Three months ended March 31, 1999
and three months ended March 31, 1998................ 8
Notes to Consolidated Financial Statements............ 10
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations......... 13
Item 3. Quantitative and Qualitative Disclosures about
Market Risk........................................... 28
Part II. Other Information:
Item 1. - Item 6.............................................. 28
Signature..................................................... 29
</TABLE>
<PAGE> 3
INDEPENDENT ACCOUNTANTS' REPORT
To the Board of Directors and Shareholders
of First Western Bancorp, Inc.
We have reviewed the accompanying consolidated balance sheets of First Western
Bancorp, Inc. and subsidiaries as of March 31, 1999 and 1998, and the related
consolidated statements of income, comprehensive income, changes in
shareholders' equity, and cash flows for the three-month periods then ended.
These financial statements are the responsibility of the Corporation's
management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and of making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to such consolidated financial statements for them to be in conformity
with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of First Western Bancorp, Inc. and
subsidiaries as of December 31, 1998, and the related consolidated statements of
income, changes in shareholders' equity, and cash flows for the year then ended
(not presented herein); and in our report dated January 25, 1999, we expressed
an unqualified opinion on those consolidated financial statements. In our
opinion, the information set forth in the accompanying consolidated balance
sheet as of December 31, 1998 is fairly stated, in all material respects, in
relation to the consolidated balance sheet from which it has been derived.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
April 14, 1999
3
<PAGE> 4
Part I. Item 1. Financial Information
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
March 31, December 31, March 31,
1999 1998 1998
------------- ------------ -------------
<S> <C> <C> <C>
ASSETS:
- -------
Cash and due from banks........................................ $ 46,973 $ 45,997 $ 38,149
------------- ------------ -------------
Interest-bearing deposits with other banks..................... 3,967 2,960 1,727
------------- ------------ -------------
Securities available for sale, at market value
(amortized cost of $747,922, $860,338 and $366,926)........ 752,136 868,699 376,245
------------- ------------ -------------
Investment securities, held to maturity
(market value of $217,208 at March 31, 1998)............... - - 216,750
------------- ------------ -------------
Loans held for sale............................................ 3,951 15,475 20,601
------------- ------------ -------------
Loans (net of unearned income of $35,280, $37,821 and $39,658). 1,109,379 1,131,206 1,001,977
Less: Allowance for possible loan losses....................... 18,312 18,297 18,133
------------- ------------ -------------
Net loans.................................................. 1,091,067 1,112,909 983,844
------------- ------------ -------------
Premises and equipment......................................... 22,292 23,163 20,290
------------- ------------ -------------
Bank-owned life insurance...................................... 26,765 26,410 25,351
------------- ------------ -------------
Intangible assets.............................................. 44,316 60,389 4,836
------------- ------------ -------------
Other assets................................................... 21,242 71,349 16,864
------------- ------------ -------------
Total Assets....................................... $ 2,012,709 $ 2,227,351 $ 1,704,657
============= ============ =============
LIABILITIES:
- ------------
Deposits:
Noninterest-bearing demand................................. $ 165,162 $ 142,162 $ 100,118
Interest-bearing demand.................................... 48,448 54,668 43,434
Savings.................................................... 417,038 479,644 360,020
Time....................................................... 718,304 812,282 634,460
------------- ------------ -------------
Total deposits..................................... 1,348,952 1,488,756 1,138,032
------------- ------------ -------------
Borrowed funds:
Federal funds purchased and other short-term borrowings.... 2,305 61,078 80,874
Repurchase agreements and secured lines of credit.......... 224,227 222,620 111,964
Advances from the Federal Home Loan Bank................... 218,400 178,400 177,400
------------- ------------ -------------
Total borrowed funds............................... 444,932 462,098 370,238
------------- ------------ -------------
Long-term debt................................................. 23,600 23,600 3,868
------------- ------------ -------------
Due to paying agent............................................ 478 53,385 1,133
------------- ------------ -------------
Other liabilities.............................................. 20,627 26,614 23,349
------------- ------------ -------------
Total Liabilities.................................. 1,838,589 2,054,453 1,536,620
------------- ------------ -------------
Corporation-obligated mandatorily redeemable capital securities
of subsidiary trust holding solely junior subordinated
debentures of the Corporation.............................. 23,887 23,877 23,847
------------- ------------ -------------
SHAREHOLDERS' EQUITY:
- ---------------------
Preferred stock, no stated value, 4,000,000
shares authorized, none issued - - -
Common stock, $5.00 par value, 20,000,000 shares authorized,
11,877,044, 11,866,002 and 11,815,398 shares issued and
11,157,485, 11,146,443 and 11,162,267 shares outstanding... 59,385 59,330 59,077
Additional paid-in capital..................................... 4,449 4,239 3,225
Retained earnings.............................................. 98,410 94,767 88,596
Accumulated other comprehensive income......................... 2,739 5,435 6,057
Treasury stock, 685,273, 685,273 and 610,273 shares at cost.... (14,150) (14,150) (12,015)
Unallocated common stock held by ESOP (at cost)................ (600) (600) (750)
------------- ------------ -------------
Total Shareholders' Equity......................... 150,233 149,021 144,190
------------- ------------ -------------
Total Liabilities and Shareholders' Equity......... $ 2,012,709 $ 2,227,351 $ 1,704,657
============= ============ =============
See Notes to Consolidated Financial Statements.
</TABLE>
4
<PAGE> 5
Part I. Item 1. Financial Information
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
-----------------------------
March 31, March 31,
1999 1998
------------- -------------
<S> <C> <C>
INTEREST INCOME:
- ----------------
Interest and fees on loans........................................ $ 22,588 $ 22,619
Interest on deposits with other banks............................. 19 29
Interest on securities available for sale......................... 12,790 5,587
Interest and dividends on investment securities:
Taxable interest............................................. - 2,162
Tax-exempt interest.......................................... - 996
Interest on federal funds sold.................................... 86 1
------------- -------------
Total Interest Income.................................... 35,483 31,394
------------- -------------
INTEREST EXPENSE:
- -----------------
Interest on deposits:
Demand....................................................... 229 313
Savings...................................................... 2,590 1,940
Time......................................................... 9,674 8,946
Interest on borrowed funds:
Federal funds purchased and other short-term borrowings...... 223 1,265
Repurchase agreements and secured lines of credit............ 3,075 1,819
Advances from the Federal Home Loan Bank..................... 2,618 2,396
Interest on long-term debt........................................ 347 77
------------- -------------
Total Interest Expense................................... 18,756 16,756
------------- -------------
NET INTEREST INCOME............................................... 16,727 14,638
Provision for loan losses.................................... 1,125 1,000
------------- -------------
NET INTEREST INCOME AFTER PROVISION FOR LOAN LOSSES............... 15,602 13,638
------------- -------------
OTHER INCOME:
- -------------
Trust fees........................................................ 811 804
Service charges on deposit accounts............................... 1,558 1,016
Net securities gains.............................................. 216 49
Net gains on loan sales........................................... 193 1,419
Other operating income............................................ 1,402 2,340
------------- -------------
Total Other Income....................................... 4,180 5,628
------------- -------------
OTHER EXPENSES:
- ---------------
Salaries and wages................................................ 4,066 4,144
Employee benefits................................................. 1,377 1,335
Net occupancy expense............................................. 981 820
Equipment rentals, depreciation and maintenance................... 705 668
Amortization of intangible assets................................. 1,199 196
Professional fees................................................. 489 451
Data processing expense........................................... 483 375
Marketing......................................................... 171 623
Minority interest expense......................................... 620 584
Other operating expense........................................... 2,250 2,232
------------- -------------
Total Other Expenses...................................... 12,341 11,428
------------- -------------
INCOME BEFORE INCOME TAXES........................................ 7,441 7,838
Income Taxes.............................................. 2,128 2,219
------------- -------------
NET INCOME........................................................ $ 5,313 $ 5,619
============= =============
BASIC EARNINGS PER SHARE.......................................... $ 0.48 $ 0.50
============= =============
BASIC WEIGHTED AVERAGE SHARES OUTSTANDING......................... 11,155 11,149
============= =============
DILUTED EARNINGS PER SHARE........................................ $ 0.47 $ 0.49
============= =============
DILUTED WEIGHTED AVERAGE SHARES OUTSTANDING....................... 11,390 11,376
============= =============
DIVIDENDS PER SHARE............................................... $ 0.15 $ 0.15
============= =============
</TABLE>
See Notes To Consolidated Financial Statements.
5
<PAGE> 6
Part I. Item 1. Financial Information
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
-----------------------------
March 31, March 31,
1999 1998
------------- -------------
<S> <C> <C>
Net income........................................................ $ 5,313 $ 5,619
Other comprehensive income, net of tax:
Unrealized holding gains (losses) arising during period...... (2,556) 646
Less: reclassification adjustment for (gains) losses
included in net income................................. (140) (32)
------------- -------------
Other comprehensive income........................................ (2,696) 614
------------- -------------
Comprehensive income.............................................. $ 2,617 $ 6,233
============= =============
</TABLE>
See Notes To Consolidated Financial Statements.
6
<PAGE> 7
Part I. Item 1. Financial Information
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended March 31, 1999
------------------------------------------------------------------------------
Common Stock
Accumulated Held by ESOP
Common Stock Other (at cost)
--------------- Retained Comprehensive Treasury ---------------
Shares Amount Surplus Earnings Income Stock Shares Amount
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance - January 1, 1999...... 11,866 $59,330 $ 4,239 $94,767 $ 5,435 ($14,150) (34) ($600)
Net income..................... - - - 5,313 - - - -
Cash dividends paid
($0.15 per share)........... - - - (1,670) - - - -
Exercise of options, net of
shares redeemed............. 3 17 (17) - - - - -
Common stock issued for
dividend reinvestment....... 7 33 172 - - - - -
Value of ESOP shares to be
allocated in excess of cost. - - 29 - - - - -
Restricted shares issued....... 1 5 26 - - - - -
Net change in accumulated
other comprehensive income.. - - - - (2,696) - - -
------------------------------------------------------------------------------
Balance - March 31, 1999....... 11,877 $59,385 $4,449 $98,410 $2,739 ($14,150) (34) ($600)
==============================================================================
</TABLE>
<TABLE>
<CAPTION>
For the Three Months Ended March 31, 1998
------------------------------------------------------------------------------
Common Stock
Accumulated Held by ESOP
Common Stock Other (at cost)
--------------- Retained Comprehensive Treasury ---------------
Shares Amount Surplus Earnings Income Stock Shares Amount
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance - January 1, 1998...... 11,787 $58,934 $ 2,611 $84,647 $ 5,443 ($12,043) (43) ($750)
Net income..................... - - - 5,619 - - - -
Cash dividends paid
($0.15 per share)........... - - - (1,670) - - - -
Exercise of options, net of
shares redeemed............. 3 17 (17) - - - - -
Common stock issued for
dividend reinvestment....... 25 126 594 - - - - -
Value of ESOP shares to be
allocated in excess of cost. - - 23 - - - - -
Treasury stock issued.......... - - 14 - - 28 - -
Net change in accumulated
other comprehensive income.. - - - - 614 - - -
------------------------------------------------------------------------------
Balance - March 31, 1998....... 11,815 $59,077 $3,225 $88,596 $6,057 ($12,015) (43) ($750)
==============================================================================
</TABLE>
See Notes To Consolidated Financial Statements.
7
<PAGE> 8
Part I. Item 1. Financial Information
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
-----------------------------
March 31, March 31,
1999 1998
------------- -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
- -------------------------------------
Net income.................................................................. $ 5,313 $ 5,619
------------- -------------
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation.......................................................... 704 629
Amortization and accretion............................................ 1,615 555
Income from bank-owned life insurance................................. (355) (351)
Provision for loan losses............................................. 1,125 1,000
Gain on sale of securities............................................ (216) (49)
Gain on sale of loans................................................. (193) (1,419)
Gain on sale of branch offices........................................ - (1,071)
Proceeds from loan sales.............................................. 19,698 94,784
Increase in interest receivable....................................... (1,360) (227)
Decrease in interest payable.......................................... (4,041) (521)
Other - net........................................................... (2,276) (429)
------------- -------------
Total adjustments........................................................ 14,701 92,901
------------- -------------
Net cash provided by operating activities................................... 20,014 98,520
------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
- - -------------------------------------
Proceeds from sales of securities available for sale........................ 108,856 3,869
Proceeds from maturity or paydown of securities available for sale.......... 71,555 44,171
Purchase of securities available for sale................................... (67,896) (99,552)
Proceeds from maturity or paydown of investment securities.................. - 25,827
Purchase of investment securities........................................... - (9,783)
Net increase in loans....................................................... (8,324) (31,172)
Decrease (increase) in deposits with other banks............................ (1,007) 5,109
Purchase of premises and equipment.......................................... (207) (901)
Proceeds from sale of premises and equipment................................ 61 94
Proceeds from sale of other real estate owned............................... 93 69
Cash received in branch office purchase..................................... 4,765 -
Cash paid for branch office sales........................................... (95,917) (40,884)
------------- -------------
Net cash provided by (used in) investing activities......................... 11,979 (103,153)
------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
- - ------------------------------------
Net decrease in deposits.................................................... (12,417) (7,602)
Net decrease in federal funds purchased and other
short-term borrowings.................................................... (58,773) (899)
Net increase (decrease) in repurchase agreements and secured
lines of credit.......................................................... 1,607 (9,792)
Net increase in advances from the Federal Home Loan Bank.................... 40,000 21,400
Payments on long-term debt.................................................. - (390)
Proceeds from common stock issued........................................... 205 720
Restricted stock issued..................................................... 31 -
Treasury stock issued....................................................... - 42
Dividends paid on common stock.............................................. (1,670) (1,670)
------------- -------------
Net cash (used in) provided by financing activities......................... (31,017) 1,809
------------- -------------
NET INCREASE (DECREASE) IN CASH AND DUE FROM BANKS.......................... 976 (2,824)
CASH AND DUE FROM BANKS - Beginning of year................................. 45,997 40,973
------------- -------------
CASH AND DUE FROM BANKS - End of period..................................... $ 46,973 $ 38,149
============= =============
</TABLE>
See Notes To Consolidated Financial Statements
8
<PAGE> 9
Part I. Item 1. Financial Information
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
-----------------------------
March 31, March 31,
1999 1998
------------- -------------
<S> <C> <C>
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest.............................................................. $ 22,797 $ 17,277
============= =============
Income taxes.......................................................... $ - $ 268
============= =============
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING ACTIVITIES:
Deposits sold in branch dispositions..................................... $ 135,486 $ 46,702
============= =============
Deposits assumed in branch acquisition................................... $ 8,101 $ -
============= =============
Securities purchased settling after March 31............................. $ 478 $ 1,133
============= =============
Securities sold settling after March 31.................................. $ - $ 263
============= =============
Transfers to other real estate owned..................................... $ 125 $ 452
============= =============
Net change in accumulated other comprehensive income..................... $ (2,696) $ 614
============= =============
</TABLE>
See Notes To Consolidated Financial Statements.
9
<PAGE> 10
FIRST WESTERN BANCORP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
(Unaudited)
1. Principles of Consolidation:
The consolidated financial statements include the accounts of First Western
Bancorp, Inc. ("First Western") and its wholly-owned subsidiaries: First Western
Bank, National Association ("First Western Bank, N.A."); First Western
Investment Services Company ("Investment Services") and First Western Capital
Trust I ("Capital Trust"). All significant intercompany transactions have been
eliminated in consolidation.
The consolidated balance sheets as of March 31, 1999 and March 31, 1998, and the
related consolidated statements of income, comprehensive income, changes in
shareholders' equity, and cash flows for the three month periods ended March 31,
1999 and 1998 are unaudited. In the opinion of management, all adjustments
necessary for a fair presentation of such financial statements have been
included. Such adjustments consisted only of normal recurring items. Interim
results are not necessarily indicative of results for a full year.
The financial statements and notes are presented as permitted by Form 10-Q. The
interim statements are unaudited and should be read in conjunction with the
financial statements and notes thereto contained in First Western's 1998 Annual
Report on Form 10-K.
2. Earnings Per Share:
Earnings per common share are based on the weighted average number of common
shares outstanding and common share equivalents in each period. Weighted average
shares outstanding include common share equivalents under First Western's
Incentive Stock Option Plan for Key Officers.
3. Recent Accounting Pronouncements:
In June 1998, the FASB issued Statement No. 133, "Accounting for Derivative
Instruments and Hedging Activities". This statement addresses the accounting for
derivative instruments, including certain derivative instruments embedded in
other contracts, and hedging activities. It requires that an entity recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. Management is in the
process of evaluating the impact of this statement on First Western's financial
statements. This statement is effective for all fiscal quarters of fiscal years
beginning after June 15, 1999.
4. Branch Purchases and Sales:
In January 1998, First Western completed the sale of its three Lake County, Ohio
branches to FirstMerit Bank. These branches had approximately $47 million in
deposits. First Western realized a net gain of $1.1 million on this transaction.
10
<PAGE> 11
On June 19, 1998, First Western Bank, N.A. completed the purchase of 16
branches in western Pennsylvania from PNC Bank. The purchase included branches,
related deposits, consumer loans, small business banking relationships and
certain brokerage relationships of the following branches: Farrell, Grove City,
Hermitage, Sharon, Transfer and West Middlesex (Mercer County); Beaver,
Chippewa, Midland and New Brighton (Beaver County); Ebensburg and Barnesboro
(Cambria County); Evans City (Butler County); McDonald (Washington County);
Punxsutawney (Jefferson County); and Kiski Valley (Westmoreland County). First
Western acquired approximately $384 million in deposits, $74 million in consumer
and small business loans, and $11 million in brokerage assets, along with
related fixed assets, leases, safe deposit business and other agreements. First
Western paid consideration of approximately $59 million for the deposit and
brokerage relationships and the right to acquire, at book value, the loan
portfolio and the real estate and related assets of the 16 branches. This
premium was recorded as an intangible asset and is being amortized over twelve
years.
In February 1999, First Western sold the recently acquired Punxsutawney,
Ebensburg, Barnesboro and Kiski Valley branches to three banks that are
unrelated to First Western. As part of this transaction, First Western acquired
the deposits and consumer loans of a branch in Moon Township, Allegheny County,
Pennsylvania from one of these banks. First Western sold these branches because
they were not located near First Western's core banking markets. These branches
were acquired in June 1998 from PNC Bank as part of a 16 branch purchase. The
remaining twelve branches from the PNC branch purchase are located within First
Western's strategic market. The four branches that were sold had approximately
$135 million of deposits and $23 million of consumer loans. The Moon Township
branch acquired by First Western had approximately $8 million of deposits and $2
million of consumer loans. The premium that First Western received from the sale
of these branches, $15.8 million, was used to write-off the intangible assets
that were created when these branches were purchased. First Western did not
recognize either a gain or a loss on the sales of these branches.
11
<PAGE> 12
5. Comprehensive Income:
First Western has chosen to disclose comprehensive income in a separate income
statement, in which the components of comprehensive income are displayed net of
income taxes. The following tables set forth the related tax effects allocated
to each element of comprehensive income for the three months ended March 31,
1999 and 1998 (in thousands):
<TABLE>
<CAPTION>
Three Months Ended March 31, 1999
---------------------------------------------
Pre-tax Tax (Expense) Net-of-tax
Amount or Benefit Amount
------------- ------------- -------------
<S> <C> <C> <C>
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising
during period $ (3,931) $ 1,375 $ (2,556)
Less: reclassification adjustment for
(gains) losses realized in net income (216) 76 (140)
------------- ------------- -------------
Net unrealized gains (losses) (4,147) 1,451 (2,696)
------------- ------------- -------------
Other comprehensive income $ (4,147) $ 1,451 $ (2,696)
============= ============= =============
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended March 31, 1998
---------------------------------------------
Pre-tax Tax (Expense) Net-of-tax
Amount or Benefit Amount
------------- ------------- -------------
<S> <C> <C> <C>
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising
during period $ 993 $ (347) $ 646
Less: reclassification adjustment for
(gains) losses realized in net income (49) 17 (32)
------------- ------------- -------------
Net unrealized gains (losses) 944 (330) 614
------------- ------------- -------------
Other comprehensive income $ 944 $ (330) $ 614
============= ============= =============
</TABLE>
12
<PAGE> 13
Part 1. Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
FORWARD-LOOKING STATEMENTS
Except for historical information contained herein, the matters discussed in
this report contain forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended (the "Securities Act"), and Section
21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
that involve substantial risks and uncertainties. When used in this report, or
in the documents incorporated by reference herein, the words "anticipate,"
"believe," "estimate," "may," "intend," "expect" and similar expressions
identify certain of such forward-looking statements. Actual results, performance
or achievements could differ materially from those contemplated, expressed or
implied by the forward-looking statements contained herein. Factors that could
cause future results to vary from current expectations include, but are not
limited to, the following: changes in economic conditions (both generally and
more specifically in the markets in which First Western operates); changes in
interest rates, deposit flows, loan demand, real estate values and competition;
changes in accounting principles, policies or guidelines and in government
legislation and regulation (which change from time to time and over which First
Western has no control); other factors affecting First Western's operations,
markets, products and services, including but not limited to, year 2000
compliance issues; and other risks detailed in this Form 10-Q and in First
Western's other Securities and Exchange Commission filings. Readers are
cautioned not to place undue reliance on these forward-looking statements, which
reflect management's analysis only as of the date hereof. The Company undertakes
no obligation to publicly revise these forward-looking statements to reflect
events or circumstances that arise after the date hereof.
RECENT DEVELOPMENTS
On December 13, 1998, First Western's Board of Directors approved a definitive
agreement pursuant to which First Western will be merged with and into Sky
Financial Group, Inc. ("Sky Financial"). Under the terms of the agreement, First
Western's shareholders will receive 1.211 shares of Sky Financial common stock
for each share of First Western common stock in a transaction intended to be a
tax-free exchange. The merger is intended to be accounted for as a pooling of
interests. In connection with this agreement, First Western has issued an option
to Sky Financial to purchase up to 19.9% of outstanding shares of First Western,
at an exercise price of $28.50 per share, which is exercisable only upon the
occurrence of certain events. The merger is subject to shareholder and
regulatory approval and is expected to be completed during the third quarter of
1999.
13
<PAGE> 14
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 1999 COMPARED WITH
THE THREE MONTHS ENDED MARCH 31, 1998:
For the three months ended March 31, 1999, First Western's net income was $5.3
million compared with $5.6 million for the three months ended March 31, 1998.
First Western's net income decreased $306,000 or 5.4% from the first three
months of 1998 to the first three months of 1999 primarily due to a decrease in
net gains realized on loan sales along with a decrease in gains realized on the
sales of branches. Excluding gains on sales of loans, branches and securities,
First Western's core earnings increased approximately $1.1 million or 27.2% for
the first quarter of 1999 compared with the first quarter of 1998. The
improvement in First Western's core earnings was the result of increased net
interest income combined with reduced non-interest expense, excluding the
amortization of intangible assets expense, as a result of the Profit Improvement
Initiative undertaken during the fourth quarter of 1998. First Western's basic
and diluted earnings per share for the first quarter of 1999 were $0.48 and
$0.47, respectively, compared with $0.50 and $0.49 for the first quarter of
1998. First Western's return on average assets and return on average equity for
the first three months of 1999 were 1.03% and 14.36%, respectively, compared
with 1.32% and 16.15% for the first three months of 1998, with the decrease in
these ratios primarily attributable to the lower gains on loan sales and branch
sales.
Net Interest Income:
First Western's net interest income was $16.7 million for the three months ended
March 31, 1999, increasing $2.1 million or 14.3% from $14.6 million for the
first three months of 1998. The increase in net interest income was generated by
an increase in First Western's average earning assets resulting from the
purchase of 16 branches from PNC Bank during the second quarter of 1998. First
Western's average earning assets increased $299.4 million or 18.4% for the first
quarter of 1999 compared with the first quarter of 1998.
First Western's net interest margin or net interest income expressed as a
percentage of average earning assets was 3.64% for the first three months of
1999 compared with 3.80% for the first three months of 1998. The decrease in
First Western's net interest margin was due to a decrease in net funds provided
by noninterest-bearing sources. The increase in intangible assets resulting from
the premium paid for the branches acquired during 1998 contributed to a net
decrease in First Western's funding from noninterest-bearing sources. These
"free funds" decreased from 12.4% of First Western's average earning assets for
the first quarter of 1998 to 9.8% for the first quarter of 1999. First Western's
net interest margin also decreased due in part to an interest recovery on a
nonaccrual loan that paid- off during the first quarter of 1998. This interest
recovery accounted for approximately five basis points of the decrease in First
Western's net interest margin compared with the prior year. First Western's
yield on earning assets decreased 38 basis points primarily due to the continued
downward repricing of loans throughout 1998. First Western's cost of funds
decreased 39 basis points for the first three months of 1999 compared with the
prior year due to decreases in the rates paid for time deposits and borrowed
funds.
Provision for Possible Loan Losses:
First Western's provision for possible loan losses was $1.1 million for the
first three months of 1999, increasing $125,000 from $1.0 million for the first
14
<PAGE> 15
three months of 1998. The increase in the provision for possible loan losses for
the first quarter of 1999 compared with the first quarter of 1998 reflects the
increase in net charge-offs along with an increase in specific reserves as
determined by First Western's loan review program. First Western's net
charge-offs for the first three months of 1999 were $1.1 million or 0.40% of
average loans, compared with $944,000 or 0.36% of average loans for the first
three months of 1998. Substantially all of First Western's charge-offs for the
first three months of 1999 and 1998 were consumer loans, primarily indirect
automobile loans. First Western's net charge-offs (recoveries) by loan type are
as follows (in thousands):
<TABLE>
<CAPTION>
Three months ended March 31,
-------------------------------
1999 1998
---------- ----------
<S> <C> <C>
Commercial, financial and agricultural loans........... $ 15 $ (5)
Real estate construction loans......................... - -
Real estate mortgage loans............................. 16 (64)
Installment loans...................................... 1,079 1,013
---------- ----------
Total net charge-offs............................... $ 1,110 $ 944
========== ==========
Net charge-offs as a percentage of
average loans....................................... 0.40% 0.36%
========== ==========
</TABLE>
Other Income and Other Expenses:
Other income decreased $1.4 million or 25.7% from $5.6 million for the first
three months of 1998 to $4.2 million for the first three months of 1999
primarily due to a $1.2 million decrease in net gains on loan sales along with a
$1.1 million gain realized on the sale of the three Lake County, Ohio branches
during the first quarter of 1998. Partially offsetting these decreases in other
income was a $542,000 increase in service charges on deposit accounts and a
$167,000 increase in securities gains. Excluding the gains on sales of loans,
branches and securities, First Western's other income from operations increased
$682,000 or 22.1% for the first quarter of 1999 compared with the prior year.
First Western's service charges on deposit accounts increased $542,000 or 53.3%
for the first quarter of 1999 compared with the prior year. The branches that
were acquired in June 1998 contributed approximately one-half of the increase
with the remaining increase due to First Western increasing its service charges
beginning in March 1998.
During the first three months of 1999, First Western realized net gains on loan
sales of $193,000 compared with a gain of $1.4 million for the first three
months of 1998. The gains on loan sales realized by First Western during the
first quarter of 1998 were primarily the result of First Western selling $92.3
million of residential mortgage loans. The gains on loan sales realized by First
Western during the first quarter of 1999 resulted from the sale of ongoing
residential mortgage loan production and did not include any large sales from
First Western's loan portfolio.
Other operating income decreased $938,000 from $2.3 million for the first three
months of 1998 to $1.4 million for the first three months of 1999 primarily due
to a $1.1 million gain realized on the sale of First Western's Lake County
branches during the first quarter of 1998. First Western's Lake County branches
had deposits of $47 million when they were sold and First Western received a
total
15
<PAGE> 16
premium of approximately $5.3 million on this sale with $4.2 million of this
premium used to eliminate the remaining intangible assets related to those
branches. First Western sold four branches during the first quarter of 1999 with
no gains or losses recognized on these sales.
Total other expenses for the first three months of 1999 were $12.3 million,
increasing $913,000 or 8.0%, from $11.4 million due to an increase in the
amortization of intangible assets expense. Excluding the amortization of
intangible assets expense, First Western's other expenses decreased $90,000 due
to the impact of First Western's fourth quarter 1998 Profit Improvement
Initiative which reduced operating expenses, primarily through the elimination
of approximately 70 positions.
First Western's salaries and employee benefits expense decreased slightly from
$5.5 million for the first quarter of 1998 to $5.4 million for the first quarter
of 1999 due to the reduction of First Western's workforce as a result of the
Profit Improvement Initiative with this decrease partially offset by normal
salary and wage increases along with the additional staffing related to the
branches acquired in June 1998.
First Western's occupancy and equipment expense increased a combined $198,000 or
13.3% primarily due to the acquisition of the 16 branches in June 1998.
For the three month period ended March 31, 1999, First Western's marketing
expense decreased $452,000 compared with the prior year due to First Western
undertaking a $1.5 million corporate image campaign in late 1997 and early 1998.
First Western's amortization of intangible assets expense increased $1.0 million
from $196,000 for the first quarter of 1998 to $1.2 million for the first
quarter of 1999 due to the premium paid for the branches that were acquired from
PNC Bank. First Western recorded an intangible asset of $59 million in June 1998
related to these branches with this intangible asset being amortized over a 12
year period on a straight-line basis. In February 1999, First Western sold four
of these branches and the premium that First Western received from the sale of
these branches, $15.8 million, was used to write-off the intangible assets that
were created when these four branches were purchased.
Income Taxes:
First Western's income tax expense was $2.1 million for the first three months
of 1999 compared with $2.2 million for the first three months of 1998. The
decrease in First Western's income tax expense was due to a decrease in pre-tax
earnings. First Western's effective tax rate for the three months ended March
31, 1999 was 28.6% compared with 28.3% for the first three months of 1998.
16
<PAGE> 17
FINANCIAL CONDITION AS OF MARCH 31, 1999 AS COMPARED WITH DECEMBER 31, 1998 AND
MARCH 31, 1998.
As of March 31, 1999, First Western's total assets were $2.013 billion compared
with $2.227 billion at December 31, 1998 and $1.705 billion at March 31, 1998.
During the first three months of 1999, First Western's total assets decreased
$214.6 million primarily due to the sales of four branches along with the
related deposits and loans. Total average assets for the first three months of
1999 were $2.098 billion compared with $1.722 billion for the first three months
of 1998, an increase of 21.8% with this increase primarily due to the June 1998
branch acquisitions.
17
<PAGE> 18
Loan Portfolio:
Net loans, including loans held for sale, decreased $33.4 million or 2.9% during
the first three months of 1999 with this decrease in loans primarily due to the
sale of approximately $23 million of residential mortgage loans and consumer
loans in connection with the first quarter 1999 branch sales. The following
table shows the composition of First Western's loan portfolio, including loans
held for sale, at March 31, 1999, December 31, 1998 and March 31, 1998:
<TABLE>
<CAPTION>
March 31, 1999 December 31, 1998 March 31, 1998
---------------------- --------------------- ---------------------
Amount Percent Amount Percent Amount Percent
------------ -------- ----------- -------- ----------- --------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Commercial, financial
and agricultural:
Automobile floorplan
loans.............. $ 39,008 3.5% $ 41,995 3.7% $ 30,827 3.0%
Loans to
municipalities..... 6,945 0.6 3,643 0.3 6,202 0.6
Other commercial
loans.............. 154,712 13.9 141,492 12.3 106,560 10.4
------------ -------- ----------- -------- ----------- --------
Subtotal........ 200,665 18.0 187,130 16.3 143,589 14.0
------------ -------- ----------- -------- ----------- --------
Real estate-
construction....... 10,506 0.9 11,239 1.0 13,121 1.3
------------ -------- ----------- -------- ----------- --------
Real estate-mortgage:
1-4 Family
residential........ 360,945 32.4 383,429 33.4 321,574 31.4
Multi-family
residential........ 25,616 2.3 25,902 2.3 29,322 2.9
Home equity........... 68,590 6.2 72,008 6.3 58,200 5.7
Commercial and other.. 179,583 16.1 183,987 16.0 172,015 16.8
------------ -------- ----------- -------- ----------- --------
Subtotal.......... 634,734 57.0 665,326 58.0 581,111 56.8
------------ -------- ----------- -------- ----------- --------
Installment and
other.............. 267,425 24.1 282,986 24.7 284,757 27.9
------------ -------- ----------- -------- ----------- --------
Total............. $ 1,113,330 100.0% $ 1,146,681 100.0% $ 1,022,578 100.0%
============ ======== =========== ======== =========== ========
</TABLE>
18
<PAGE> 19
First Western has several policies and procedures in place to assist in
maintaining and monitoring the overall quality of its loan portfolio. First
Western has established underwriting guidelines to be followed by its banking
subsidiary. In addition, a formal, ongoing loan review program (discussed
below), which concentrates principally on commercial credits, has been
established to help monitor the loan portfolio of the banking subsidiary. First
Western also regularly monitors its delinquency and nonperforming levels for any
negative or adverse trends and particularly monitors credits which have total
exposure of $1.5 million or more. However, there can be no assurance that First
Western's loan portfolio will not become subject to increasing pressures from
deteriorating borrower credit due to general economic conditions.
First Western's delinquent loans, nonaccrual loans and nonperforming assets
consisted of the following at March 31, 1999, December 31, 1998 and March 31,
1998:
<TABLE>
<CAPTION>
March 31, December 31, March 31,
1999 1998 1998
------------- ------------ -------------
(Dollars in Thousands)
<S> <C> <C> <C>
Loans delinquent and still accruing interest:
Loans past due 30 to 89 days .............. $ 4,475 $ 6,419 $ 5,777
Loans past due 90 days or more ............ 2,710 2,879 2,150
------------- ------------ -------------
Total loan delinquencies ................ $ 7,185 $ 9,298 $ 7,927
============= ============ =============
Nonaccrual loans ................................ $ 2,339 $ 1,928 $ 2,913
Other real estate owned ......................... 642 617 777
------------- ------------ -------------
Total nonperforming assets .............. $ 2,981 $ 2,545 $ 3,690
============= ============ =============
Total nonperforming assets and loans
past due 90 days or more ............. $ 5,691 $ 5,424 $ 5,840
============= ============ =============
Nonaccrual loans to total loans ................. 0.21 % 0.17 % 0.28 %
Nonperforming assets to total loans
and other real estate owned .................. 0.27 % 0.22 % 0.36 %
Nonperforming assets to total assets ............ 0.15 % 0.11 % 0.22 %
Nonperforming assets and loans past due
90 days or more to total assets .............. 0.28 % 0.24 % 0.34 %
Nonaccrual loans and loans past due
90 days or more to total loans ............... 0.45 % 0.42 % 0.50 %
Allowance for possible loan losses
to nonaccrual loans .......................... 782.80 % 949.01 % 622.39 %
Allowance for possible loan losses
to loans past due 90 days or more
and nonaccrual loans ......................... 362.65 % 380.61 % 358.10 %
Allowance for possible loan losses to
total loans .................................. 1.64 % 1.60 % 1.77 %
</TABLE>
First Western's total delinquencies decreased $2.1 million, or 22.7%, from $9.3
million at December 31, 1998 to $7.2 million at March 31, 1998. First Western's
coverage ratio of the allowance for loan losses to nonaccrual loans decreased
from
19
<PAGE> 20
949% at December 31, 1998 to 783% at March 31, 1999, due to an increase in
nonaccrual loans during the first quarter of 1999.
Commercial and mortgage loans are placed on nonaccrual status when, in the
opinion of management, collection of principal or interest is doubtful and the
loan is not both well secured and in the process of collection. Installment
loans are generally charged off between 90 and 120 days past due or when deemed
uncollectible in the opinion of management. Cash payments received while a loan
is classified as nonaccrual are recorded as a reduction to principal as long as
doubt exists as to collection.
First Western maintains a loan review program to evaluate the credit risk in its
commercial loan portfolio for substantially all commercial loans and commercial
real estate loans greater than $200,000. Through the loan review process, First
Western maintains a classified account list which, along with the nonperforming
and delinquency lists of loans, helps management assess the overall quality of
the loan portfolio and the adequacy of the allowance for loan losses. Loans
classified as "substandard" are those loans with clear and defined weaknesses,
such as highly leveraged positions, unfavorable financial ratios, uncertain
repayment sources or poor financial condition, which may jeopardize collection
of the debt. Loans classified as "doubtful" are those loans which have
characteristics similar to the sub-standard accounts but with an increased risk
that a loss may occur, or at least a portion of the loan may require a
charge-off if liquidated at present. First Western reviews these loans in
assessing the adequacy of the allowance for loan losses. Substandard loans
include some loans that are delinquent or on nonaccrual status. All doubtful
loans are on nonaccrual status. As of March 31, 1999, substandard and doubtful
loans, including unfunded commitments, totaled $4.6 million.
In addition to its classified account list and delinquency list of loans, First
Western maintains a separate list of "Other Loans Especially Mentioned"
("OLEM"), which further aids First Western in monitoring its loan portfolio.
These OLEM loans do not have all the characteristics of a classified loan
(substandard or doubtful), but do show potentially weak elements as compared
with those of a satisfactory credit. First Western reviews these loans in
assessing the adequacy of the allowance for loan losses. Substantially all of
the loans on the OLEM list as of March 31, 1999 are current and paying in
accordance with loan terms. As of March 31, 1999, OLEM list loans, including
unfunded commitments, totaled $15.7 million.
First Western maintains an allowance for possible loan losses to absorb losses
inherent in the loan portfolio. The allowance is based on a quarterly assessment
of the probable estimated losses inherent in the loan portfolio. First Western's
methodology for assessing the appropriateness of the allowance for loan losses
consists of several key elements which include:
* specific allowances for identified problem loans and portfolio segments, *
formula allowances, and * an unallocated reserve
First Western establishes specific reserves for potential problem loans as
determined by its loan review program described above. The specific reserves on
these loans are determined in accordance with Statement of Financial Accounting
Standards ("SFAS") No. 114, "Accounting by Creditors for Impairment of a Loan,"
and SFAS No. 118,"Accounting by Creditors for Impairment of a Loan - Income
Recognition and Disclosures" taking into account the credit's current operating
status, pledged
20
<PAGE> 21
collateral and plans of action for resolving any deficiencies. The specific
reserves are usually only considered for First Western's commercial loan
portfolio.
First Western maintains formula reserves for all loans not considered by the
specific reserve method. The loans that have been assigned specific reserves are
excluded from the calculation of the formula reserves. First Western's formula
reserves are calculated for each pool of homogeneous loans. First Western
establishes formula reserves based on a loan's risk rating according to First
Western's loan review program, delinquency status and historical charge-off
experience by loan type. The loss factors used in determining the formula
reserves for substandard, doubtful and OLEM credits are based on management's
judgment of inherent losses from these classifications of loans. First Western
establishes formula reserves based on a loan's delinquency status based on a
credit's loan type and delinquency aging. The loss factors applied by loan type
and delinquency aging are based on management's judgment of inherent losses from
these delinquency categories. First Western also establishes formula based
reserves for all loan types based on the historical charge-off percentages for
each loan type as calculated by pool of homogeneous loans. The historical
charge-off percentage used by First Western is based on the greater of First
Western's one year or three year historical charge-off averages for each
homogeneous loan pool.
These formula reserves are based on First Western's historical charge-off
experience. If current charge-off levels deviate from First Western's historical
charge-off levels this deviation will be reflected in First Western's ongoing
formula reserves and will adjust the allowance for loan losses accordingly.
First Western maintains an unallocated reserve which takes the following factors
into consideration:
* Concentrations of credit * Delinquency and nonaccrual trends * Local and
national economic conditions * Changes in lending and collection practices *
Trends in volume and terms of loans
* Other external factors that could affect the ability of First Western's
customers to repay their obligations
Executive management reviews these conditions quarterly with our senior credit
officers. If any of these conditions is evidenced by a specifically identified
problem credit or portfolio segment as of the evaluation date, management's
estimate of this condition may be reflected as a specific allowance applicable
to this credit or portfolio segment. Where any of these conditions is not
evidenced by a specifically identifiable problem credit or portfolio segment as
of the evaluation date, management's evaluation of the probable loss concerning
this condition is reflected in the unallocated allowance.
21
<PAGE> 22
The composition of First Western's allowance for loan losses was as follows at
March 31, 1999 and December 31, 1998 (in thousands):
<TABLE>
<CAPTION>
March 31, December 31, March 31,
1999 1998 1998
------------ ------------ ------------
<S> <C> <C> <C>
Specific reserves.......... $ 1,669 $ 1,343 $ 1,720
Formula reserves........... 6,623 7,355 6,647
Unallocated reserves....... 10,020 9,599 9,766
------------ ------------ ------------
Total...................... $ 18,312 $ 18,297 $ 18,133
============ ============ ============
</TABLE>
First Western's specific reserves increased $326,000 from December 31, 1998 to
March 31, 1999 primarily due to an increase in the loans that are classified as
OLEM. The formula reserve portion of First Western's allowance for loan losses
decreased $732,000 primarily due to a decrease in First Western's delinquent
loans and a decrease in First Western's consumer installment loans outstanding.
The unallocated reserve portion of First Western's allowance for loan losses
increased $421,000 or 4.4% during the first quarter of 1999 due to First Western
increasing its reserve for market pressures on credit underwriting standards.
At March 31, 1999, First Western's average annual net charge-offs for the past
five years were $3.6 million, compared with $3.5 million at December 31, 1998.
These net charge-offs represented 5.0 years of losses based on the level of the
allowance for loan losses at March 31, 1999 and 5.2 years based on the level of
the allowance for loan losses at December 31, 1998. Historical net charge-offs
are not necessarily indicative of the amount of net charge-offs that First
Western will realize in the future.
First Western believes that the allowance for loan losses of $18.3 million at
March 31, 1999 is adequate to cover losses inherent in the portfolio as of such
date. However, there can be no assurance that First Western will not sustain
losses in future periods, which could be substantial in relation to the size of
the allowance at March 31, 1999.
Investment Securities, Mortgage-Backed Securities, and Securities Available
for Sale:
Securities available for sale decreased $116.6 million during the first three
months of 1999 with this decrease the result of First Western liquidating
securities available for sale with the proceeds used to fund the first quarter
1999 branch sales. Securities available for sale and investment securities
increased a combined $159.1 million from $593.0 million at March 31, 1998 to
$752.1 million at March 31, 1999 with this increase due to the purchase of
securities using the funds provided by the June 1998 branch purchases. At March
31, 1999, First Western had net unrealized appreciation on securities available
for sale of $4.2 million or 0.6% compared with unrealized appreciation of $8.4
million or 1.0% and unrealized appreciation of $9.3 million or 2.5% at December
31, 1998 and March 31, 1998, respectively.
22
<PAGE> 23
Deposits:
Total deposits decreased $139.8 million or 9.4% from $1.489 billion at December
31, 1998 to $1.349 billion at March 31, 1999. Deposits decreased during the
first three months of 1999 primarily due to the sale of branches. First
Western's deposits increased $210.9 million from March 31, 1998 to March 31,
1999 with most of this increase attributable to the purchase of 16 branches in
June 1998.
Borrowed Funds:
First Western's borrowed funds decreased $17.2 million during the first three
months of 1999 from $462.1 million at December 31, 1998 to $444.9 million at
March 31, 1999. Total borrowed funds increased $74.7 million from March 31, 1998
to March 31, 1999 as these borrowings were increased primarily as a result of an
investment strategy implemented by First Western during the second quarter of
1998.
Shareholders' Equity:
Shareholders' equity increased $1.2 million during the first three months of
1999 primarily due to the retention of earnings with this increase partially
offset by a $2.7 million decrease in the market value of securities available
for sale, net of income tax effects. First Western's capital ratios improved
from December 31, 1998 to March 31, 1999 as a result of the retention of
earnings along with a $16.1 million reduction in intangible assets resulting
primarily from the sale of the four branches in February 1999.
23
<PAGE> 24
The following table presents First Western's capital ratios at March 31, 1999
and December 31, 1998:
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
------------- ------------
(Dollars in Thousands)
<S> <C> <C>
Tier I:
Common shareholders' equity ..................... $ 150,233 $ 149,021
Non-exempt intangible assets .................... (44,316) (60,389)
Trust preferred capital securities............... 23,887 23,877
Unrealized appreciation in securities
available for sale ............................ (2,739) (5,435)
------------- ------------
Total Tier I ................................ 127,065 107,074
------------- ------------
Tier II:........................................... 16,208 17,349
------------- ------------
Total capital ..................................... $ 143,273 $ 124,423
============= ============
Risk weighted assets .............................. $ 1,186,216 $ 1,271,390
============= ============
Tier I capital ratio .............................. 10.71% 8.42%
============= ============
Required Tier I capital ratio ..................... 4.00% 4.00%
============= ============
Total capital ratio ............................... 12.08% 9.79%
============= ============
Required total capital ratio ...................... 8.00% 8.00%
============= ============
Tier I leverage ratio .............................. 6.19% 5.00%
============= ============
Required Tier I leverage ratio * ................... 3.00% 3.00%
============= ============
<FN>
* For all but the most highly rated, low risk profile organizations, the minimum Tier I leverage ratio is to be 3% plus a
cushion of 100 to 200 basis points.
</FN>
</TABLE>
Liquidity and Cash Flows:
Liquidity is the ability to provide the cash necessary to meet customer credit
needs, satisfy depositor withdrawal requirements and to pay-off short-term
borrowings. One source of liquidity is cash and due from banks and short-term
assets such as interest-bearing deposits in other banks and federal funds sold,
which totaled $50.9 million at March 31, 1999 as compared with $47.8 million at
December 31, 1998 and $39.9 million at March 31, 1998. Another source of
liquidity is borrowing capability. First Western's banking subsidiaries have a
variety of sources of short-term liquidity available to them, including federal
funds purchased from correspondent banks, sales of securities available for
sale, sales of securities under agreements to repurchase, the Federal Reserve
discount window, interbank deposits, FHLB advances and loan participations or
sales. First Western also generates liquidity from the regular principal
payments and prepayments made on its portfolio of loans and mortgage-backed
securities. First Western's banking subsidiaries had $48.0 million of unused
overnight credit lines available at March 31, 1999.
24
<PAGE> 25
First Western's operating activities provided cash flows of $20.0 million during
the first three months of 1999 compared with $98.5 million during the first
three months of 1998. Loan sales provided $19.7 million and $94.8 million of the
cash flows from operating activities for the three months ended March 31, 1999
and 1998, respectively.
Investing activities provided cash flows of $12.0 million during the first three
months of 1999 compared with using cash flows of $103.2 million for the first
three months of 1998. During the first quarter of 1999, net securities
activities provided $112.5 million of cash flows with most of these cash flows
used to fund the branch sales which used cash flows of $95.9 million. During the
first quarter of 1998, net securities activities used cash flows of $35.5
million and branch sales used cash flows of $40.9 million.
Financing activities used cash flows of $31.0 million during the first three
months of 1999 primarily due to a decrease in borrowings using net cash flows of
$17.2 million and a net decrease in deposits, exclusive of the deposits that
were sold, using cash flows of $12.4 million. During the first quarter of 1998,
financing activities provided $1.8 million of cash flows with increases in
borrowings providing cash flows of $10.3 million and a net decrease in deposits
using $7.6 million of cash flows.
YEAR 2000 CONSIDERATIONS
First Western has reviewed its mission critical systems to determine its
readiness for the year 2000. The mission critical systems identified by First
Western include: the mainframe computer hardware and operating system, the item
capture system, the core banking software applications and the trust department
accounting system.
First Western performs its own data processing for most bank operations using an
IBM AS/400 computer and the OS/400 operating system. First Western has completed
testing on its AS/400 computer and OS/400 operating system and has determined
that they will process year 2000 dates correctly.
First Western processes its own checks for collection from other financial
institutions ("item capture"). The hardware and software used to perform First
Western's item capture have been tested for year 2000 compliance and certain
minor modifications were required. These modifications were made and tested
during the fourth quarter of 1998 with no additional modifications necessary.
First Western uses the Fiserve CBS software for its core banking systems such as
loan and deposit processing. First Western's core banking system software
provider has provided First Western with year 2000 compliant software.
Installation of this software was completed during the fourth quarter of 1998.
First Western has received reports from other financial institutions that use
this software that it has passed their year 2000 testing. First Western tested
its version of this software during the fourth quarter of 1998 and has
determined that it will process year 2000 dates correctly.
First Western's trust department uses an outside vendor for data processing. The
trust department will be changing data processing vendors during the second
quarter of 1999, therefore, First Western has not tested the year 2000 readiness
of its current trust data processing provider. The trust data processing
provider that First Western will be changing to in 1999 has certified its year
2000 compliance.
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<PAGE> 26
Although First Western believes that its mission critical systems will be year
2000 compliant, any undetected flaws could result in a business interruption
that could have a material adverse effect on First Western's financial condition
or results of operations.
First Western has prepared a remediation contingency plan to be followed if any
of its mission critical systems cannot be updated to achieve year 2000
compliance. As of March 31, 1999, progress in correcting the mission critical
systems was sufficient that none of the actions in the contingency plan have
been triggered. First Western is in the process of preparing a year 2000
business recovery plan to address potential failures of automated information
systems; intermittent and isolated failures in public infrastructure (electric,
telephone, water, gas, etc.) and liquidity concerns due to public demand for
cash.
First Western is currently in the process of testing its non-mission critical
systems for year 2000 compliance. Any systems that are found to be non-compliant
will be replaced.
First Western has reviewed its non-information technology ("non-IT") systems and
has not found any significant year 2000 problems. Most of the non-IT year 2000
problems discovered by First Western consisted of non-compliant security systems
and automated teller machines. This non-compliant equipment has either already
been replaced or will be replaced before the year 2000. The estimated cost of
replacing the non-compliant equipment is less than $100,000.
First Western has contacted all of its significant commercial loan customers to
alert them to the importance of being prepared for year 2000 issues and to
determine the state of their year 2000 readiness. If a loan customer suffers a
business interruption as a result of a year 2000 problem it could result in a
loss for First Western which could be material. First Western is not aware of
any of its loan customers having a significant year 2000 compliance problem.
However, there is no assurance that these customers will not have year 2000
related business interruptions that may have a material adverse effect on First
Western's financial condition or results of operations.
First Western has contacted all of its material vendors and correspondent banks
to determine their year 2000 readiness. First Western has not been notified by
any third party vendor or correspondent bank of a year 2000 compliance problem.
However, there is still a risk that a provider of services to First Western,
such as telecommunications or electricity, may suffer a business interruption
which, may in turn, result in a business interruption for First Western that may
have a material adverse effect on First Western's financial condition or results
of operations.
As of March 31, 1999, First Western has incurred cumulative year 2000 compliance
costs of approximately $487,000, of which $16,000 was for outside consultants to
test First Western's mission critical systems and the remaining $471,000
represented the salaries and benefit costs of First Western's employees working
on year 2000 issues. For the past 15 months, approximately one-half of First
Western's computer programming and systems personnel have been working on year
2000 testing and remediation. First Western estimates that the remaining year
2000 testing will result in additional expenditures of approximately $287,000
over the next nine months with this amount consisting primarily of the salaries
and benefits of First Western's employees. Since the amount expended by First
Western for year 2000 compliance consisted primarily of the salaries and
benefits of existing First Western employees, First Western has not experienced
a significant increase in other
26
<PAGE> 27
operating expenses as a result of year 2000 remediation efforts. Most of the
corrections to First Western's year 2000 problems were incorporated into
regularly scheduled software and hardware upgrades, therefore there were not
significant expenditures above First Western's regular software and hardware
costs. First Western did not postpone any specific projects as a result of
dedicating certain employees to year 2000 concerns. However, it is impossible to
measure what these employees could have accomplished if they had not been
dedicated to year 2000 concerns.
27
<PAGE> 28
Part I. Item 3. Quantitative and Qualitative Disclosures about Market Risk
Since December 31, 1998, there have been no significant changes in First
Western's exposure to interest rate risk. The interest rate environment has
remained relatively flat since year-end 1998 and there have been no significant
changes in market risk. A complete discussion of market risk is included in
First Western's 1998 report on Form 10-K.
Part II. Other Information
Item 1-5. Not Applicable.
Item 6. Exhibits and Reports on Form 8-K:
a. Exhibits:
2.1 Agreement and Plan of Merger dated as of December 14, 1998 as
amended and restated as of April 19, 1999 by and among Sky
Financial Group, Inc., First Western Bancorp, Inc. and First
Western Acquisition Corporation
15.1 Letter re: Unaudited Interim Financial Information
27.1 Financial Data Schedule
b. Reports on Form 8-K: None.
28
<PAGE> 29
c. Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FIRST WESTERN BANCORP, INC.
(Registrant)
May 13, 1999 /s/ Kenneth J. Romig
-----------------------
Kenneth J. Romig
Chief Financial Officer,
(Principal Financial Officer)
29
<PAGE> 30
FIRST WESTERN BANCORP, INC.
EXHIBITS TO FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1999
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Method of
Number Description Filing
- ------- -------------------------------------- ---------
<S> <C> <C>
2.1 Agreement and Plan of Merger dated as Filed
of December 14, 1998 as amended and Herewith
restated as of April 19, 1999 by and
among Sky Financial Group, Inc.,
First Western Bancorp, Inc. and First
Western Acquisition Corporation
15.1 Letter re: Unaudited Interim Financial Filed
Information herewith
27.1 Financial Data Schedule Filed
herewith
</TABLE>
<PAGE> 1
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
dated as of
December 14, 1998
as amended and restated
as of April 19, 1999
by and among
SKY FINANCIAL GROUP, INC.,
FIRST WESTERN BANCORP, INC.
and
FIRST WESTERN ACQUISITION CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
RECITALS........................................................................... 1
ARTICLE I Certain Definitions
1.01 Certain Definitions....................................................... 1
ARTICLE II The Merger
2.01 The FWB Merger............................................................ 7
2.02 The Capital Contribution.................................................. 7
2.03 The Subsidiary Merger..................................................... 7
2.04 Effectiveness of the FWB Merger........................................... 8
2.05 Effective Date and Effective Time......................................... 8
ARTICLE III Consideration; Exchange Procedures
3.01 Merger Consideration...................................................... 8
3.02 Rights as Stockholders; Stock Transfers................................... 9
3.03 Fractional Shares......................................................... 9
3.04 Exchange Procedures....................................................... 9
3.05 Anti-Dilution Provisions.................................................. 10
3.06 Options................................................................... 10
ARTICLE IV Actions Pending Acquisition
4.01 Forbearances of FWB....................................................... 11
4.02 Forbearances of SFG....................................................... 13
ARTICLE V Representations and Warranties
5.01 Disclosure Schedules...................................................... 14
5.02 Standard.................................................................. 15
5.03 Representations and Warranties of FWB..................................... 15
5.04 Representations and Warranties of SFG..................................... 25
ARTICLE VI Covenants
6.01 Reasonable Best Efforts................................................... 33
6.02 Stockholder Approvals..................................................... 33
6.03 Registration Statement.................................................... 33
6.04 Press Releases............................................................ 34
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
6.05 Access; Information....................................................... 35
6.06 Acquisition Proposals..................................................... 35
6.07 Affiliate Agreements...................................................... 36
6.08 Takeover Laws............................................................. 36
6.09 Certain Policies.......................................................... 36
6.10 NASDAQ Listing............................................................ 36
6.11 Regulatory Applications................................................... 36
6.12 Indemnification........................................................... 37
6.13 Opportunity of Employment; Employee Benefits.............................. 38
6.14 Notification of Certain Matters........................................... 38
6.15 Dividend Coordination..................................................... 38
6.16 SFG Board Representation.................................................. 39
6.17 Resulting Bank Board of Directors......................................... 39
6.18 Formation of Advisory Board............................................... 39
6.19 Accounting and Tax Treatment.............................................. 39
6.20 No Breaches of Representations and Warranties............................. 39
6.21 Consents.................................................................. 39
6.22 Insurance Coverage........................................................ 39
6.23 Correction of Information................................................. 39
6.24 Confidentiality........................................................... 40
6.25 Supplemental Assurances................................................... 40
6.26 Employment Agreement...................................................... 40
ARTICLE VII Conditions to Consummation of the Merger
7.01 Conditions to Each Party's Obligation to Effect the Merger................ 41
7.02 Conditions to Obligation of FWB........................................... 42
7.03 Conditions to Obligation of SFG........................................... 43
ARTICLE VIII Termination
8.01 Termination............................................................... 44
8.02 Effect of Termination and Abandonment; Enforcement of Agreement........... 45
ARTICLE IX Miscellaneous
9.01 Survival.................................................................. 46
9.02 Waiver; Amendment......................................................... 46
9.03 Counterparts.............................................................. 46
9.04 Governing Law............................................................. 46
9.05 Expenses.................................................................. 46
9.06 Notices................................................................... 46
9.07 Entire Understanding; No Third Party Beneficiaries........................ 47
9.08 Interpretation; Effect.................................................... 48
9.09 Waiver of Jury Trial...................................................... 48
</TABLE>
ii
<PAGE> 4
EXHIBIT A Form of Stock Option Agreement
EXHIBIT B Form of FWB Affiliate Agreement
EXHIBIT C Procedure Regarding Section 8.01(e) of the Agreement
<PAGE> 5
AGREEMENT AND PLAN OF MERGER, dated as of December 14, 1998, and
amended and restated as of April 19, 1999 (this "Agreement"), is by and among
Sky Financial Group, Inc. ("SFG"), First Western Bancorp, Inc. ("FWB") and First
Western Acquisition Corporation ("Transitory Sub").
RECITALS
A. FWB. FWB is a Pennsylvania corporation, having its principal place
of business in New Castle, Pennsylvania.
B. SFG. SFG is an Ohio corporation, having its principal place of
business in Bowling Green, Ohio.
C. Transitory Sub. Transitory Sub is a Pennsylvania corporation that
has been newly organized as a wholly owned subsidiary of SFG. Its sole purpose
is to participate in the transactions contemplated by this Agreement.
D. Stock Option Agreement. As an inducement to the willingness of SFG
to continue to pursue the transactions contemplated by this Agreement, FWB
intends to grant to SFG an option pursuant to a stock option agreement, in
substantially the form of Exhibit A.
E. Intentions of the Parties. It is the intention of the parties to
this Agreement that the business combinations contemplated hereby be accounted
for under the "pooling-of-interests" accounting method and that each be treated
as a "reorganization" under Section 368(a) of the Internal Revenue Code of 1986,
as amended (the "Code").
F. Board Action. The respective Boards of Directors of each of SFG and
FWB have determined that it is in the best interests of their respective
companies and their stockholders to consummate the strategic business
combinations provided for herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein the
parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 CERTAIN DEFINITIONS. The following terms are used in this
Agreement with the meanings set forth below:
"Acquisition Proposal" means any tender or exchange offer, proposal for
a merger, consolidation or other business combination involving FWB or any
of its Subsidiaries or any proposal or offer to acquire in any manner a
substantial equity interest in, or a substantial portion of the assets or
deposits of, FWB or any of its Subsidiaries, other than the transactions
contemplated by this Agreement.
1
<PAGE> 6
"Agreement" means this Agreement, as amended or modified from time to
time in accordance with Section 9.02.
"Agreement to Merge" has the meaning set forth in Section 2.03.
"Bank" means First Western Bank, National Association, a wholly-owned
subsidiary of FWB.
"BHCA" means the Bank Holding Company Act of 1956, as amended.
"Capital Contribution" has the meaning set forth in Section 2.02.
"CBC" means The Citizens Banking Company, an Ohio banking corporation
which is a wholly-owned subsidiary of SFG.
"Code" means the Internal Revenue Code of 1986, as amended.
"Compensation and Benefit Plans" has the meaning set forth in Section
5.03(m).
"Consultants" has the meaning set forth in Section 5.03(m).
"Costs" has the meaning set forth in Section 6.12(a).
"Directors" has the meaning set forth in Section 5.03(m).
"Disclosure Schedule" has the meaning set forth in Section 5.01.
"Dissenting Shares" means any shares of FWB Common Stock held by a
holder who properly demands and perfects appraisal rights with respect to
such shares in accordance with applicable provisions of the PBCL.
"DSCP" means the Department of State of the Commonwealth of
Pennsylvania.
"Effective Date" means the date on which the Effective Time occurs.
"Effective Time" means the effective time of the Merger, as provided
for in Section 2.05.
"Employees" has the meaning set forth in Section 5.03(m).
"Environmental Laws" means all applicable local, state and federal
environmental, health and safety laws and regulations, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Clean Water
Act, the Federal Clean Air Act, and the Occupational Safety and Health Act,
each as amended, regulations promulgated thereunder, and state
counterparts.
2
<PAGE> 7
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning set forth in Section 5.03(m).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Exchange Agent" has the meaning set forth in Section 3.04.
"Exchange Fund" has the meaning set forth in Section 3.04.
"Exchange Ratio" has the meaning set forth in Section 3.01.
"FDIC" means the Federal Deposit Insurance Corporation.
"FFIEC" means Federal Financial Institutions Examination Committee.
"FWB" has the meaning set forth in the preamble to this Agreement.
"FWB Articles" means the Articles of Incorporation of FWB.
"FWB Affiliate" has the meaning set forth in Section 6.07(a).
"FWB Board" means the Board of Directors of FWB.
"FWB By-Laws" means the By-Laws of FWB.
"FWB Common Stock" means the common stock, par value $5.00 per share,
of FWB.
"FWB Meeting" has the meaning set forth in Section 6.02.
"FWB Merger" has the meaning set forth in Section 2.01.
"FWB Preferred Stock" means the preferred stock, without par value, of
FWB.
"FWB SEC Documents" has the meaning set forth in Section 5.03(g).
"FWB Stock" means FWB Common Stock and FWB Preferred Stock.
"FWB Stock Option" has the meaning set forth in Section 3.06.
"FWB Stock Plans" means the option plans and agreements of FWB and its
Subsidiaries pursuant to which rights to purchase FWB Common Stock are
outstanding immediately prior to the Effective Time pursuant to the
Incentive Stock Option Plan for Key Officers and
3
<PAGE> 8
the Equity Compensation Plan for Non-Employee Directors of First
Western Bancorp, Inc. and First Western Bank, National Association.
"Governmental Authority" means any court, administrative agency or
commission or other federal, state or local governmental authority or
instrumentality.
"Indemnified Party" has the meaning set forth in Section 6.12(a).
"IRS" has the meaning set forth in Section 5.03(m).
The term "knowledge" means, with respect to a party hereto, actual
knowledge of any officer of that party with the title of not less than a
senior vice president and that party's in-house counsel, if any.
"Lien" means any charge, mortgage, pledge, security interest,
restriction, claim, lien, or encumbrance.
"Material Adverse Effect" means, with respect to SFG or FWB, any effect
that (i) is material and adverse to the financial position, results of
operations or business of SFG and its Subsidiaries taken as a whole, or FWB
and its Subsidiaries taken as a whole, respectively, or (ii) would
materially impair the ability of either SFG or FWB to perform its
obligations under this Agreement or otherwise materially threaten or
materially impede the consummation of the Merger and the other transactions
contemplated by this Agreement; provided, however, that Material Adverse
Effect shall not be deemed to include the impact of (a) changes in banking
and similar laws of general applicability or interpretations thereof by
courts or governmental authorities or other changes affecting depository
institutions generally, including changes in general economic conditions
and changes in prevailing interest and deposit rates, (b) any modifications
or changes to valuation policies and practices in connection with the
Merger or restructuring charges taken in connection with the Merger, in
each case in accordance with generally accepted accounting principles, (c)
changes resulting from expenses (such as legal, accounting and investment
bankers' fees) incurred in connection with this Agreement or the
transactions contemplated herein, and (d) actions or omissions of a party
which have been waived in accordance with Section 9.02 hereof.
"Merger" collectively refers to the FWB Merger, the Capital
Contribution and the Subsidiary Merger, as set forth in Section 2.01,
Section 2.02 and Section 2.03, respectively.
"Merger Consideration" has the meaning set forth in Section 2.01.
"NASDAQ" means The NASDAQ Stock Market, Inc.'s National Market System.
"New Certificate" has the meaning set forth in Section 3.04.
"NASD" means The National Association of Securities Dealers.
4
<PAGE> 9
"OCC" means The Office of the Comptroller of the Currency.
"OGCL" means the Ohio General Corporation Law.
"Old Certificate" has the meaning set forth in Section 3.04.
"OSS" means the Office of the Secretary of State of the State of Ohio.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PBCL" means the Pennsylvania Business Corporation Law of 1988, as
amended.
"PDB" means the Pennsylvania Department of Banking.
"Person" means any individual, bank, corporation, partnership,
association, joint-stock company, business trust or unincorporated
organization.
"Pension Plan" has the meaning set forth in Section 5.03(m).
"Previously Disclosed" by a party shall mean information set forth in
its Disclosure Schedule.
"Proxy/Prospectus" has the meaning set forth in Section 6.03.
"Proxy Statement" has the meaning set forth in Section 6.03.
"Registration Statement" has the meaning set forth in Section 6.03.
"Regulatory Authority" has the meaning set forth in Section 5.03(i).
"Replacement Option" has the meaning set forth in Section 3.06.
"Representatives" means, with respect to any Person, such Person's
directors, officers, employees, legal or financial advisors or any
representatives of such legal or financial advisors.
"Resulting Bank" has the meaning set forth in Section 2.03.
"Rights" means, with respect to any Person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any person
any right to subscribe for or acquire, or any options, calls or commitments
relating to, or any stock appreciation right or other instrument the value
of which is determined in whole or in part by reference to the market price
or value of, shares of capital stock of such person.
"SEC" means the Securities and Exchange Commission.
5
<PAGE> 10
"SFG" has the meaning set forth in the preamble to this Agreement.
"SFG Articles" means the Articles of Incorporation of SFG, as amended.
"SFG Board" means the Board of Directors of SFG.
"SFG Code" means the Code of Regulations of SFG, as amended.
"SFG Common Stock" means the common stock, without par value, of SFG.
"SFG Meeting" has the meaning set forth in Section 6.02.
"SFG SEC Documents" has the meaning set forth in Section 5.04(g).
"SFG Stock" means the SFG Common Stock and SFG serial preferred stock.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Stock Option Agreement" has the meaning set forth in Recital D.
"Subsidiary" and "Significant Subsidiary" have the meanings ascribed to
them in Rule 1-02 of Regulation S-X of the SEC.
"Subsidiary Merger" has the meaning set forth in Section 2.03.
"Surviving Corporation" has the meaning set forth in Section 2.01.
"Takeover Laws" has the meaning set forth in Section 5.03(o).
"Tax" and "Taxes" means all federal, state, local or foreign taxes,
charges, fees, levies or other assessments, however denominated, including,
without limitation, all net income, gross income, gains, gross receipts,
sales, use, ad valorem, goods and services, capital, production, transfer,
franchise, windfall profits, license, withholding, payroll, employment,
disability, employer health, excise, estimated, severance, stamp,
occupation, property, environmental, unemployment or other taxes, custom
duties, fees, assessments or charges of any kind whatsoever, together with
any interest and any penalties, additions to tax or additional amounts
imposed by any taxing authority whether arising before, on or after the
Effective Date.
"Tax Returns" means any return, amended return or other report
(including elections, declarations, disclosures, schedules, estimates and
information returns) required to be filed with respect to any Tax.
6
<PAGE> 11
"Transitory Sub" has the meaning set forth in the preamble to this
Agreement.
"Treasury Stock" shall mean shares of FWB Stock held by FWB or any of
its Subsidiaries or by SFG or any of its Subsidiaries, in each case other
than in a fiduciary capacity or as a result of debts previously contracted
in good faith.
ARTICLE II
THE MERGER
2.01 THE FWB MERGER. At the Effective Time, 1) Transitory Sub, a newly
formed Pennsylvania corporation, all of the stock of which is owned by SFG,
shall be merged with and into FWB (the "FWB Merger"), 2) the separate corporate
existence of Transitory Sub shall cease and the outstanding shares of Transitory
Sub held by SFG will be converted to, and become, all of the outstanding shares
of FWB, and 3) FWB shall survive and continue to exist as a Pennsylvania
corporation (FWB, as the surviving corporation in the FWB Merger, sometimes
being referred to herein as the "Surviving Corporation"). The Articles of
Incorporation of FWB, as in effect immediately prior to the Effective Time,
shall be the Articles of Incorporation of the Surviving Corporation; and the
Bylaws of FWB, as in effect immediately prior to the Effective Time, shall be
the Bylaws of the Surviving Corporation. SFG may at any time prior to the
Effective Time change the method of effecting the Merger (including, without
limitation, the provisions of this Article II) if and to the extent it deems
such change to be necessary, appropriate or desirable; provided, however, that
no such change shall (i) alter or change the amount or kind of consideration to
be issued to holders of FWB Stock as provided for in this Agreement (the "Merger
Consideration"), (ii) adversely affect either the tax treatment of FWB's
stockholders as a result of receiving the Merger Consideration or the Merger
qualifying for "pooling-of-interests" accounting treatment, or (iii) materially
impede or delay consummation of the transactions contemplated by this Agreement.
2.02 THE CAPITAL CONTRIBUTION. Immediately after the Effective Time,
SFG will contribute to the capital of FWB, as its wholly owned direct
subsidiary, all of the outstanding capital stock of CBC (the "Capital
Contribution"). CBC will then be a wholly owned subsidiary of FWB.
2.03 THE SUBSIDIARY MERGER. At the time specified by CBC in its
certificate of merger filed with the OSS (which shall not be earlier than the
Effective Time and shall be after the Capital Contribution), Bank shall merge
with and into CBC (the "Subsidiary Merger") pursuant to an agreement to merge
(the "Agreement to Merge") to be executed by Bank and CBC and filed with the
OSS, the OCC and the PBD, as required. Upon consummation of the Subsidiary
Merger, the separate corporate existence of Bank shall cease and CBC shall
survive and continue to exist as a state banking corporation (CBC, as the
resulting bank in the Subsidiary Merger, sometimes being referred to herein as
the "Resulting Bank"). (The FWB Merger, the Capital Contribution and the
Subsidiary Merger shall sometimes collectively be referred to herein as the
"Merger".)
7
<PAGE> 12
2.04 EFFECTIVENESS OF THE FWB MERGER. Subject to the satisfaction or
waiver of the conditions set forth in Article VII, the FWB Merger shall become
effective upon the occurrence of the filing in the office of the DSCP of
articles of merger in accordance with Section 1928 of the PBCL, or such later
date and time as may be set forth in such filings.
2.05 EFFECTIVE DATE AND EFFECTIVE TIME. Subject to the satisfaction or
waiver of the conditions set forth in Article VII, the parties shall cause the
effective date of the FWB Merger (the "Effective Date") to occur on (i) the
third business day to occur after the last of the conditions set forth in
Article VII shall have been satisfied or waived in accordance with the terms of
this Agreement (or, at the election of SFG, on the last business day of the
month in which such third business day occurs or, if such third business day
occurs within the last three business days of such month, on the last business
day of the succeeding month; provided, no such election shall cause the
Effective Date to fall after the date specified in Section 8.01(c) hereof or
after the date or dates on which any Regulatory Authority approval or any
extension thereof expires, or (ii) such other date to which the parties may
agree in writing. The time on the Effective Date when the FWB Merger shall
become effective is referred to as the "Effective Time."
ARTICLE III
CONSIDERATION; EXCHANGE PROCEDURES
3.01 MERGER CONSIDERATION. Subject to the provisions of this Agreement,
at the Effective Time, automatically by virtue of the FWB Merger and without any
action on the part of any Person:
(a) Outstanding FWB Common Stock and FWB Rights. Each share, excluding
Treasury Stock and Dissenting Shares, of FWB Common Stock issued and outstanding
immediately prior to the Effective Time shall become and be converted into 1.211
shares of SFG Common Stock (the "Exchange Ratio"). The Exchange Ratio shall be
subject to adjustment as set forth in Section 3.05. One preferred share purchase
right issuable pursuant to the Shareholder Rights Agreement dated as of July 21,
1998 between SFG and CBC or any other purchase right issued in substitution
thereof (the "SFG Rights") shall be issued together with and shall attach to
each share of SFG Common Stock issued pursuant to this Section 3.01(a).
(b) Treasury Shares. Each share of FWB Common Stock held as Treasury
Stock immediately prior to the Effective Time shall be canceled and retired at
the Effective Time and no consideration shall be issued in exchange therefor.
(c) Outstanding SFG Stock. Each share of SFG Common Stock issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding and unaffected by the FWB Merger.
8
<PAGE> 13
3.02 RIGHTS AS STOCKHOLDERS; STOCK TRANSFERS. At the Effective Time,
holders of FWB Common Stock shall cease to be, and shall have no rights as,
stockholders of FWB, other than to receive any dividend or other distribution
with respect to such FWB Common Stock with a record date occurring prior to the
Effective Time and the consideration provided under this Article III, and
appraisal rights in the case of Dissenting Shares. After the Effective Time,
there shall be no transfers on the stock transfer books of FWB or the Surviving
Corporation of any shares of FWB Stock.
3.03 FRACTIONAL SHARES. Notwithstanding any other provision hereof, no
fractional shares of SFG Common Stock and no certificates or scrip therefor, or
other evidence of ownership thereof, will be issued in the FWB Merger; instead,
SFG shall pay to each holder of FWB Common Stock who would otherwise be entitled
to a fractional share of SFG Common Stock (after taking into account all Old
Certificates delivered by such holder) an amount in cash (without interest)
determined by multiplying such fractional share of SFG Common Stock to which the
holder would be entitled by the last sale price of SFG Common Stock, as reported
by the NASDAQ (as reported in The Wall Street Journal or, if not reported
therein, in another authoritative source), for the NASDAQ trading day
immediately preceding the Effective Date.
3.04 EXCHANGE PROCEDURES. (a) At or prior to the Effective Time, SFG
shall deposit, or shall cause to be deposited, with the Bank of New York (in
such capacity, the "Exchange Agent"), for the benefit of the holders of
certificates formerly representing shares of FWB Common Stock ("Old
Certificates"), for exchange in accordance with this Article III, certificates
representing the shares of SFG Common Stock ("New Certificates") and an
estimated amount of cash (such cash and New Certificates, together with any
dividends or distributions with a record date occurring on or after the
Effective Date with respect thereto (without any interest on any such cash,
dividends or distributions), being hereinafter referred to as the "Exchange
Fund") to be paid pursuant to this Article III in exchange for outstanding
shares of FWB Common Stock.
(b) As promptly as practicable after the Effective Date, SFG shall send
or cause to be sent to each former holder of record of shares of FWB Common
Stock immediately prior to the Effective Time transmittal materials for use in
exchanging such stockholder's Old Certificates for the consideration set forth
in this Article III. SFG shall cause the New Certificates into which shares of a
stockholder's FWB Common Stock are converted on the Effective Date and/or any
check in respect of any fractional share interests or dividends or distributions
which such person shall be entitled to receive to be delivered to such
stockholder upon delivery to the Exchange Agent of Old Certificates representing
such shares of FWB Common Stock (or an indemnity affidavit reasonably
satisfactory to SFG and the Exchange Agent, if any of such certificates are
lost, stolen or destroyed) owned by such stockholder. No interest will be paid
on any such cash to be paid in lieu of fractional share interests or in respect
of dividends or distributions which any such person shall be entitled to receive
pursuant to this Article III upon such delivery.
(c) Notwithstanding the foregoing, neither the Exchange Agent, if any,
nor any party hereto shall be liable to any former holder of FWB Stock for any
amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
9
<PAGE> 14
(d) No dividends or other distributions with respect to SFG Common
Stock with a record date occurring on or after the Effective Date shall be paid
to the holder of any unsurrendered Old Certificate representing shares of FWB
Common Stock converted in the FWB Merger into the right to receive shares of
such SFG Common Stock until the holder thereof shall be entitled to receive New
Certificates in exchange therefor in accordance with the procedures set forth in
this Section 3.04. After becoming so entitled in accordance with this Section
3.04, the record holder thereof also shall be entitled to receive any such
dividends or other distributions, without any interest thereon, which theretofor
had become payable with respect to shares of SFG Common Stock such holder had
the right to receive upon surrender of the Old Certificates.
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of FWB for six months after the Effective Time shall be paid to
SFG. Any stockholders of FWB who have not theretofor complied with this Article
III shall thereafter look only to SFG for payment of the shares of SFG Common
Stock, cash in lieu of any fractional shares and unpaid dividends and
distributions on SFG Common Stock deliverable in respect of each share of FWB
Common Stock such stockholder holds as determined pursuant to this Agreement, in
each case, without any interest thereon.
3.05 ANTI-DILUTION PROVISIONS. In the event SFG changes (or establishes
a record date for changing) the number of shares of SFG Common Stock issued and
outstanding between the date hereof and the Effective Date as a result of a
stock split, stock dividend, recapitalization, reclassification, split up,
combination, exchange of shares, readjustment or similar transaction with
respect to the outstanding SFG Common Stock and the record date therefor shall
be prior to the Effective Date, the Exchange Ratio shall be proportionately
adjusted.
3.06 OPTIONS. (a) At the Effective Time, each outstanding option to
purchase shares of FWB Common Stock under the FWB Stock Plans (each, a "FWB
Stock Option"), whether vested or unvested, shall be converted into an option to
acquire, on the same terms and conditions as were applicable under such FWB
Stock Option, the number of shares of SFG Common Stock equal to (i) the number
of shares of FWB Common Stock subject to the FWB Stock Option, multiplied by
(ii) the Exchange Ratio (such product rounded to the nearest whole number) (a
"Replacement Option"), at an exercise price per share (rounded to the nearest
whole cent) equal to (y) the aggregate exercise price for the shares of FWB
Common Stock which were purchasable pursuant to such FWB Stock Option divided by
(z) the number of full shares of SFG Common Stock subject to such Replacement
Option in accordance with the foregoing. Notwithstanding the foregoing, each FWB
Stock Option which is intended to be an "incentive stock option" (as defined in
Section 422 of the Code) shall be adjusted in accordance with the requirements
of Section 424 of the Code. At or prior to the Effective Time, FWB shall use its
best efforts, including using its best efforts to obtain any necessary consents
from optionees, with respect to the FWB Stock Plans to permit the replacement of
the outstanding FWB Stock Options by SFG pursuant to this Section and to permit
SFG to assume the FWB Stock Plans. FWB shall further take all action necessary
to amend the FWB Stock Plans to eliminate automatic grants or awards thereunder
following the Effective Time. At the Effective Time, SFG shall assume the FWB
Stock Plans; provided, that such assumption shall be only in respect of the
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Replacement Options and that SFG shall have no obligation with respect to any
awards under the FWB Stock Plans other than the Replacement Options and shall
have no obligation to make any additional grants or awards under such assumed
FWB Stock Plans.
(b) At all times after the Effective Time, SFG shall reserve for
issuance such number of shares of SFG Common Stock as necessary so as to permit
the exercise of the Replacement Options in the manner contemplated by this
Agreement and the instruments pursuant to which the corresponding FWB Stock
Options were granted. SFG shall make all filings required under federal and
state securities laws no later than the Effective Time so as to permit the
exercise of such options and the sale of the shares received by the optionee
upon such exercise at and after the Effective Time and SFG shall continue to
make such filings thereafter as may be necessary to permit the continued
exercise of options and subsequent sale of such shares.
ARTICLE IV
ACTIONS PENDING ACQUISITION
4.01 FOREBEARANCES OF FWB. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement and/or disclosed on the
Disclosure Schedule, without the prior written consent of SFG, FWB will not, and
will cause each of its Subsidiaries not to:
(a) Ordinary Course. Conduct the business of FWB and its Subsidiaries
other than in the ordinary and usual course or fail to use reasonable efforts to
preserve intact their business organizations and assets and maintain their
rights, franchises and existing relations with customers, suppliers, employees
and business associates, or voluntarily take any action which, at the time
taken, is reasonably likely to have an adverse affect upon FWB's ability to
perform any of its material obligations under this Agreement.
(b) Capital Stock. Other than pursuant to Rights Previously Disclosed
and outstanding on the date hereof and options for up to 60,000 shares of FWB
Common Stock to be issuable under FWB's Stock Plans, (i) issue, sell or
otherwise permit to become outstanding, or authorize the creation of, any
additional shares of FWB Stock or any Rights, (ii) enter into any agreement with
respect to the foregoing, or (iii) permit any additional shares of FWB Stock to
become subject to new grants of employee or director stock options, other Rights
or similar stock-based employee rights.
(c) Dividends, Etc. (i) Make, declare, pay or set aside for payment any
dividend, other than (A) quarterly cash dividends on FWB Stock in an amount not
to exceed the per share amount declared and paid in its most recent quarterly
cash dividend, with record and payment dates as indicated in Section 6.15
hereof, and (B) dividends from wholly owned Subsidiaries to FWB, or (ii)
directly or indirectly adjust, split, combine, redeem, reclassify, purchase or
otherwise acquire, any shares of its capital stock.
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(d) Compensation; Employment Agreements; Etc. Enter into or amend or
renew any employment, consulting, severance or similar agreements or
arrangements with any director, officer or employee of FWB or its Subsidiaries
(other than the normal extension of the four existing change of control
agreements with senior management), or grant any salary or wage increase or
increase any employee benefit, (including incentive or bonus payments) except
(i) for normal individual increases in compensation to employees in the ordinary
course of business consistent with past practice, (ii) for other changes that
are required by applicable law, (iii) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof, or (iv) for grants of
awards to newly hired employees consistent with past practice. FWB shall have
available, to facilitate retention of FWB employees, a bonus pool of up to $1
million for key employees of FWB for use or commitment prior to the Closing
Date, it being understood and agreed that the designation of such employees and
the amount of the bonus payable to each of them shall be subject to the prior
reasonable approval of SFG.
(e) Benefit Plans. Enter into, establish, adopt or amend ((i) except
for a proposed amendment regarding early retirement under the existing defined
contribution plan which in any event will not materially increase FWB's funding
obligation thereunder, (ii) as may be required by applicable law, (iii) to
satisfy Previously Disclosed contractual obligations existing as of the date
hereof or (iv) the regular annual renewal of insurance contracts) any pension,
retirement, stock option, stock purchase, savings, profit sharing, deferred
compensation, consulting, bonus, group insurance or other employee benefit,
incentive or welfare contract, plan or arrangement, or any trust agreement (or
similar arrangement) related thereto, in respect of any director, officer or
employee of FWB or its Subsidiaries, or take any action to accelerate the
vesting or exercisability of stock options, restricted stock or other
compensation or benefits payable thereunder.
(f) Dispositions. Sell, transfer, mortgage, encumber or otherwise
dispose of or discontinue any of its assets, deposits, business or properties
except in the ordinary course of business.
(g) Acquisitions. Acquire (other than by way of foreclosures or
acquisitions of control in a bona fide fiduciary capacity or in satisfaction of
debts previously contracted in good faith, in each case in the ordinary and
usual course of business consistent with past practice) all or any portion of,
the assets, business, deposits or properties of any other entity.
(h) Governing Documents. Amend the FWB Articles, FWB By-Laws or the
articles of incorporation or by-laws (or similar governing documents) of any of
FWB's Subsidiaries, except for immaterial by-law amendments Previously Disclosed
to SFG.
(i) Accounting Methods. Implement or adopt any change in its accounting
principles, practices or methods, other than as may be required by generally
accepted accounting principles.
(j) Contracts. Except in the ordinary course of business consistent
with past practice, enter into or terminate any material contract (as defined in
Section 5.03(k)) or amend or modify in any material respect any of its existing
material contracts, except for a proposed contract with Marshall & Islay for
trust accounting services.
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(k) Claims. Except in the ordinary course of business consistent with
past practice, settle any claim, action or proceeding, except for any claim,
action or proceeding which does not involve precedent for other material claims,
actions or proceedings and which involve solely money damages in an amount,
individually or in the aggregate for all such settlements, that is not material
to FWB and its Subsidiaries, taken as a whole.
(l) Adverse Actions. (a) Take any action while knowing that such action
would, or is reasonably likely to, prevent or impede the Merger from qualifying
(i) for "pooling-of-interests" accounting treatment or (ii) as a reorganization
within the meaning of Section 368(a) of the Code; or (b) knowingly take any
action that is intended or is reasonably likely to result in (i) any of its
representations and warranties set forth in this Agreement being or becoming
untrue in any material respect at any time at or prior to the Effective Time,
(ii) any of the conditions to the Merger set forth in Article VII not being
satisfied or (iii) a material violation of any provision of this Agreement
except, in each case, as may be required by applicable law or regulation.
(m) Risk Management. Except pursuant to applicable law or regulation,
(i) implement or adopt any material change in its interest rate risk management
and other risk management policies, procedures or practices; (ii) fail to follow
its existing policies or practices with respect to managing its exposure to
interest rate and other risk; or (iii) fail to use commercially reasonable means
to avoid any material increase in its aggregate exposure to interest rate risk.
(n) Indebtedness. Incur any indebtedness for borrowed money other than
in the ordinary course of business.
(o) Commitments. Agree or commit to do any of the foregoing.
4.02 FORBEARANCES OF SFG. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement, without the prior
written consent of FWB, SFG will not, and will cause each of its Subsidiaries
not to:
(a) Ordinary Course. Conduct the business of SFG and its Subsidiaries
other than in the ordinary and usual course or fail to use reasonable efforts to
preserve intact their business organizations and assets and maintain their
rights, franchises and existing relations with customers, suppliers, employees
and business associates, or voluntarily take any action which, at the time
taken, is reasonably likely to have an adverse affect upon SFG's ability to
perform any of its material obligations under this Agreement.
(b) Preservation. Fail to use reasonable efforts to preserve intact in
any material respect their business organizations and assets and maintain their
rights, franchises and existing relations with customers, suppliers, employees
and business associates.
(c) Extraordinary Dividends. Make, declare, pay or set aside for
payment any dividend other than normal quarterly dividends in accordance with
past practice.
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(d) Accounting Methods. Implement or adopt any change in its accounting
principles, practices or methods, other than as may be required by generally
accepted accounting principles.
(e) Claims. Except in the ordinary course of business consistent with
past practice, settle any claim, action or proceeding, except for any claim,
action or proceeding which does not involve precedent for other material claims,
actions or proceedings and which involve solely money damages in an amount,
individually or in the aggregate for all such settlements, that is not material
to SFG and its Subsidiaries, taken as a whole.
(f) Adverse Actions. (a) Take any action while knowing that such action
would, or is reasonably likely to, prevent or impede the Merger from qualifying
(i) for "pooling-of-interests" accounting treatment or (ii) as a reorganization
within the meaning of Section 368(a) of the Code; or (b) knowingly take any
action that is intended or is reasonably likely to result in (i) any of its
representations and warranties set forth in this Agreement being or becoming
untrue in any material respect at any time at or prior to the Effective Time,
(ii) any of the conditions to the Merger set forth in Article VII not being
satisfied or (iii) a material violation of any provision of this Agreement
except, in each case, as may be required by applicable law or regulation;
provided, however, that nothing contained herein shall limit the ability of SFG
to exercise its rights under the Stock Option Agreement.
(g) Risk Management. Except pursuant to applicable law or regulation,
(i) fail to follow its existing policies or practices with respect to managing
its exposure to interest rate and other risk, or (ii) fail to use commercially
reasonable means to avoid any material increase in its aggregate exposure to
interest rate risk.
(h) Commitments. Agree or commit to do any of the foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 DISCLOSURE SCHEDULES. On or prior to the date hereof, SFG has
delivered to FWB a schedule and FWB has delivered to SFG a schedule
(respectively, its "Disclosure Schedule") setting forth, among other things,
items, the disclosure of which are necessary or appropriate either in response
to an express disclosure requirement contained in a provision hereof or as an
exception to one or more representations or warranties contained in Section 5.03
or 5.04 or to one or more of its respective covenants contained in Article IV
and Article VI; provided, that (a) no such item is required to be set forth in a
Disclosure Schedule as an exception to a representation or warranty if its
absence would not be reasonably likely to result in the related representation
or warranty being deemed untrue or incorrect under the standard established by
Section 5.02, and (b) the mere inclusion of an item in a Disclosure Schedule as
an exception to a representation or warranty shall not be deemed an admission by
a party that such item represents a material exception or fact, event or
circumstance or that such item is reasonably likely to have or result in a
Material Adverse Effect on the party making the representation.
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FWB's representations, warranties and covenants contained in this Agreement
shall not be deemed to be untrue, incorrect or to have been breached as a result
of effects on FWB arising solely from actions taken in compliance with a written
request of SFG.
5.02 STANDARD. No representation or warranty of FWB or SFG contained in
Section 5.03 or 5.04 shall be deemed untrue or incorrect, and no party hereto
shall be deemed to have breached a representation or warranty, as a consequence
of the existence of any fact, event or circumstance unless such fact,
circumstance or event, individually or taken together with all other facts,
events or circumstances inconsistent with any representation or warranty
contained in Section 5.03 or 5.04 has had, or is reasonably likely to have, a
Material Adverse Effect.
5.03 REPRESENTATIONS AND WARRANTIES OF FWB. Subject to Sections 5.01
and 5.02 and except as Previously Disclosed in a paragraph of its Disclosure
Schedule corresponding to the relevant paragraph below, FWB hereby represents
and warrants to SFG:
(a) Organization, Standing and Authority. FWB is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and any foreign jurisdictions where its ownership
or leasing of property or assets or the conduct of its business requires it to
be so qualified. FWB is registered as a bank holding company under the BHCA.
Bank is a national banking association duly organized, validly existing and in
good standing under the laws of the United States of America. Bank is duly
qualified to do business and is in good standing in the Commonwealth of
Pennsylvania and any foreign jurisdictions where its ownership or leasing of
property or assets or the conduct of its business requires it to be so
qualified.
(b) Capital Structure of FWB. As of November 30, 1998, the authorized
capital stock of FWB consisted solely of 20,000,000 shares of FWB Common Stock,
of which 11,863,813 shares were outstanding as of November 30, 1998 (of which
685,273 shares are held as Treasury Stock and 42,858 shares are unallocated
shares held in FWB's Employee Stock Ownership Plan ("ESOP")) and 4,000,000
shares of FWB Preferred Stock, of which none were outstanding as of November 30,
1998. The outstanding shares of FWB Common Stock have been duly authorized, are
validly issued and outstanding, fully paid and nonassessable, and are not
subject to any preemptive rights (and were not issued in violation of any
preemptive rights). As of November 30, 1998, except as Previously Disclosed in
its Disclosure Schedule, (i) there were no shares of FWB Common Stock authorized
and reserved for issuance, (ii) FWB did not have any Rights issued or
outstanding with respect to FWB Common Stock, and (iii) FWB did not have any
commitment to authorize, issue or sell any FWB Common Stock or Rights, except
pursuant to this Agreement and the Stock Option Agreement. The number of shares
of FWB Common Stock which were issuable and reserved for issuance upon exercise
of FWB Stock Options as of November 30, 1998 were Previously Disclosed in FWB's
Disclosure Schedule.
(c) Subsidiaries. (i)(A) FWB has Previously Disclosed a list of all of
its Subsidiaries together with the jurisdiction of organization of each such
Subsidiary, (B) except as Previously Disclosed, it owns, directly or indirectly,
all the issued and outstanding equity securities of each of its Subsidiaries,
(C) except as Previously Disclosed, no equity securities of any of its
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Subsidiaries are or may become required to be issued (other than to it or its
wholly-owned Subsidiaries) by reason of any Right or otherwise, (D) except as
Previously Disclosed, there are no contracts, commitments, understandings or
arrangements by which any of such Subsidiaries is or may be bound to sell or
otherwise transfer any equity securities of any such Subsidiaries (other than to
it or its wholly-owned Subsidiaries), (E) except as Previously Disclosed, there
are no contracts, commitments, understandings, or arrangements relating to its
rights to vote or to dispose of such securities and (F) except as Previously
Disclosed, all the equity securities of each Subsidiary held by FWB or its
Subsidiaries are fully paid and nonassessable (except pursuant to 12 U.S.C.
Section 55) and are owned by FWB or its Subsidiaries free and clear of any
Liens.
(ii) FWB does not own beneficially, directly or indirectly,
any equity securities or similar interests of any Person, or any interest in a
partnership or joint venture of any kind, other than its Subsidiaries.
(iii) Each of FWB's Subsidiaries has been duly organized and
is validly existing in good standing under the laws of the jurisdiction of its
organization, and is duly qualified to do business and in good standing in the
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified.
(d) Corporate Power; Authorized and Effective Agreement. Each of FWB
and its Subsidiaries has full corporate power and authority to carry on its
business as it is now being conducted and to own all its properties and assets;
FWB has the corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Stock Option Agreement; and Bank has
the corporate power and authority to consummate the Subsidiary Merger and the
Agreement to Merge in accordance with the terms of this Agreement.
(e) Corporate Authority. Subject to receipt of the requisite adoption
of this Agreement by the holders of a majority of the outstanding shares of FWB
Common Stock entitled to vote thereon (which is the only stockholder vote
required thereon), this Agreement, the Stock Option Agreement and the
transactions contemplated hereby and thereby have been authorized by all
necessary corporate action of FWB and the FWB Board prior to the date hereof.
The Agreement to Merge, when executed by Bank, shall have been approved by the
Board of Directors of Bank and by the FWB Board, as the sole stockholder of
Bank. This Agreement is a valid and legally binding obligation of FWB,
enforceable in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or
affecting creditors' rights or by general equity principles). The FWB Board has
received the written opinion of Sandler O'Neill & Partners, L.P. to the effect
that as of the date hereof the consideration to be received by the holders of
FWB Common Stock in the FWB Merger is fair to the holders of FWB Common Stock
from a financial point of view.
(f) Regulatory Filings; No Defaults. (i) No consents or approvals of,
or filings or registrations with, any Governmental Authority or with any third
party are required to be made or obtained by FWB or any of its Subsidiaries in
connection with the execution, delivery or performance by FWB of this Agreement
or the Stock Option Agreement or to consummate the
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Merger except for (A) filings of applications, notices and the Agreement to
Merge, as applicable, with federal and state banking authorities, (B) filings
with the SEC and state securities authorities, and (C) the filing of the
articles of merger with the DSCP pursuant to the PBCL. As of the date hereof,
FWB is not aware of any reason why the approvals set forth in Section 7.01(b)
will not be received without the imposition of a condition, restriction or
requirement of the type described in Section 7.01(b).
(ii) Subject to receipt of the regulatory and stockholder
approvals referred to above and expiration of related regulatory waiting
periods, and required filings under federal and state securities laws, the
execution, delivery and performance of this Agreement and the Stock Option
Agreement and the consummation of the transactions contemplated hereby and
thereby do not and will not (A) constitute a breach or violation of, or a
default under, or give rise to any Lien, any acceleration of remedies or any
right of termination under, any law, rule or regulation or any judgment, decree,
order, governmental permit or license, or agreement, indenture or instrument of
FWB or of any of its Subsidiaries or to which FWB or any of its Subsidiaries or
properties is subject or bound, (B) constitute a breach or violation of, or a
default under, the FWB Articles or the FWB By-Laws, or (C) require any consent
or approval under any such law, rule, regulation, judgment, decree, order,
governmental permit or license, agreement, indenture or instrument.
(g) Financial Reports and SEC Documents; Material Adverse Effect. (i)
FWB's Annual Reports on Form 10-K for the fiscal years ended December 31, 1995,
1996 and 1997 and all other reports, registration statements, definitive proxy
statements or information statements filed or to be filed by it or any of its
Subsidiaries subsequent to December 31, 1997 under the Securities Act, or under
Section 13, 14 or 15(d) of the Exchange Act, in the form filed or to be filed
(collectively, "FWB SEC Documents") with the SEC, as of the date filed, (A)
complied or will comply in all material respects with the applicable
requirements under the Securities Act or the Exchange Act, as the case may be,
and (B) did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and each of the balance sheets or statements of condition
contained in or incorporated by reference into any such SEC Document (including
the related notes and schedules thereto) fairly presents, or will fairly
present, the financial position of FWB and its Subsidiaries as of its date, and
each of the statements of income and changes in stockholders' equity and cash
flows or equivalent statements in such FWB SEC Documents (including any related
notes and schedules thereto) fairly presents, or will fairly present, the
results of operations, changes in stockholders' equity and cash flows, as the
case may be, of FWB and its Subsidiaries for the periods to which they relate,
in each case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except in each case as may be
noted therein, subject to normal year-end audit adjustments and the absence of
footnotes in the case of unaudited statements.
(ii) Since December 31, 1997, FWB and its Subsidiaries have
not incurred any material liability not disclosed in FWB's SEC Documents, other
than in the ordinary course of business consistent with past practice.
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(iii) Since December 31, 1997, except as disclosed in the FWB
SEC Documents, (A) FWB and its Subsidiaries have conducted their respective
businesses in the ordinary and usual course consistent with past practice
(excluding matters related to this Agreement and the transactions contemplated
hereby) and (B) no event has occurred or circumstance arisen that, individually
or taken together with all other facts, circumstances and events (described in
any paragraph of Section 5.03 or otherwise), is reasonably likely to have a
Material Adverse Effect with respect to FWB.
(h) Litigation. No litigation, claim or other proceeding before any
court or governmental agency is pending against FWB or any of its Subsidiaries
and, to FWB's knowledge, no such litigation, claim or other proceeding has been
threatened.
(i) Regulatory Matters.
(i) Neither FWB nor any of its Subsidiaries or properties is a
party to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or similar
submission to, or extraordinary supervisory letter from, any federal or state
governmental agency or authority charged with the supervision or regulation of
financial institutions (or their holding companies) or issuers of securities or
engaged in the insurance of deposits (including, without limitation, the Office
of the Comptroller of the Currency, the Federal Reserve System and the FDIC) or
the supervision or regulation of it or any of its Subsidiaries (collectively,
the "Regulatory Authorities").
(ii) Neither it nor any of its Subsidiaries has been advised
by any Regulatory Authority that such Regulatory Authority is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter, supervisory letter or similar submission.
(j) Compliance with Laws. Each of FWB and its Subsidiaries:
(i) is in compliance with all applicable federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or
decrees applicable thereto or to the employees conducting such businesses,
including, without limitation, the Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act
and all other applicable fair lending laws and other laws relating to
discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all
Governmental Authorities that are required in order to permit them to own or
lease their properties and to conduct their businesses as presently conducted;
all such permits, licenses, certificates of authority, orders and approvals are
in full force and effect and, to FWB's knowledge, no suspension or cancellation
of any of them is threatened; and
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(iii) has received, since December 31, 1997, no notification
or communication from any Governmental Authority (A) asserting that FWB or any
of its Subsidiaries is not in compliance with any of the statutes, regulations,
or ordinances which such Governmental Authority enforces or (B) threatening to
revoke any license, franchise, permit, or governmental authorization (nor, to
FWB's knowledge, do any grounds for any of the foregoing exist).
(k) Material Contracts; Defaults. Except for this Agreement, the Stock
Option Agreement, those agreements and other documents filed as exhibits to the
FWB SEC Documents, neither it nor any of its Subsidiaries is a party to, bound
by or subject to any agreement, contract, arrangement, commitment or
understanding (whether written or oral) (i) that is a "material contract" within
the meaning of Item 601(b)(10) of the SEC's Regulation S-K or (ii) that
restricts or limits in any way the conduct of business by it or any of its
Subsidiaries (including without limitation a non-compete or similar provision).
Neither it nor any of its Subsidiaries is in default under any contract,
agreement, commitment, arrangement, lease, insurance policy or other instrument
to which it is a party, by which its respective assets, business, or operations
may be bound or affected in any way, or under which it or its respective assets,
business, or operations receive benefits, and there has not occurred any event
that, with the lapse of time or the giving of notice or both, would constitute
such a default.
(l) No Brokers. No action has been taken by FWB that would give rise to
any valid claim against any party hereto for a brokerage commission, finder's
fee or other like payment with respect to the transactions contemplated by this
Agreement, except for a fee to be paid to Sandler O'Neill & Partners, L.P.
(m) Employee Benefit Plans. (i) Section 5.03(m)(i) of FWB's Disclosure
Schedule contains a complete and accurate list of all existing bonus, incentive,
deferred compensation, pension, retirement, profit-sharing, thrift, savings,
employee stock ownership, stock bonus, stock purchase, restricted stock, stock
option, severance, welfare and fringe benefit plans, employment or severance
agreements and all similar practices, policies and arrangements maintained or
contributed to by FWB or any of its Subsidiaries and in which any employee or
former employee (the "Employees"), consultant or former consultant (the
"Consultants") or director or former director (the "Directors") of FWB or any of
its Subsidiaries participates or to which any such Employees, Consultants or
Directors are a party (the "Compensation and Benefit Plans"). Neither FWB nor
any of its Subsidiaries has any commitment to create any additional Compensation
and Benefit Plan or to modify or change any existing Compensation and Benefit
Plan, except as otherwise contemplated by Section 4.01(e) of this Agreement.
(ii) Each Compensation and Benefit Plan has been operated and
administered in all material respects in accordance with its terms and with
applicable law, including, but not limited to, ERISA, the Code, the Securities
Act, the Exchange Act, the Age Discrimination in Employment Act, or any
regulations or rules promulgated thereunder, and all filings, disclosures and
notices required by ERISA, the Code, the Securities Act, the Exchange Act, the
Age Discrimination in Employment Act and any other applicable law have been
timely made. Each Compensation and Benefit Plan which is an "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and
which is intended to be qualified under
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Section 401(a) of the Code has received a favorable determination letter
(including a determination that the related trust under such Compensation and
Benefit Plan is exempt from tax under Section 501(a) of the Code) from the
Internal Revenue Service ("IRS"), and FWB is not aware of any circumstances
likely to result in revocation of any such favorable determination letter. There
is no material pending or, to the knowledge of FWB, threatened legal action,
suit or claim relating to the Compensation and Benefit Plans other than routine
claims for benefits thereunder. Neither FWB nor any of its Subsidiaries has
engaged in a transaction, or omitted to take any action, with respect to any
Compensation and Benefit Plan that would reasonably be expected to subject FWB
or any of its Subsidiaries to a tax or penalty imposed by either Section 4975 of
the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the
Code that the taxable period of any such transaction expired as of the date
hereof.
(iii) No liability (other than for payment of premiums to the
PBGC which have been made or will be made on a timely basis) under Title IV of
ERISA has been or is expected to be incurred by FWB or any of its Subsidiaries
with respect to any ongoing, frozen or terminated "single-employer plan," within
the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by
any of them, or any single-employer plan of any entity (an "ERISA Affiliate")
which is considered one employer with FWB under Section 4001(a)(14) of ERISA or
Section 414(b) or (c) of the Code (an "ERISA Affiliate Plan"). None of FWB, any
of its Subsidiaries or any ERISA Affiliate has contributed, or has been
obligated to contribute, to a multiemployer plan under Subtitle E of Title IV of
ERISA at any time since September 26, 1980. No notice of a "reportable event",
within the meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for any
Compensation and Benefit Plan or by any ERISA Affiliate Plan within the 12-month
period ending on the date hereof, and no such notice will be required to be
filed as a result of the transactions contemplated by this Agreement. The PBGC
has not instituted proceedings to terminate any Pension Plan or ERISA Affiliate
Plan and, to FWB's knowledge, no condition exists that presents a material risk
that such proceedings will be instituted. To the knowledge of FWB, there is no
pending investigation or enforcement action by the PBGC, the Department of Labor
(the "DOL") or IRS or any other governmental agency with respect to any
Compensation and Benefit Plan. Under each Pension Plan and ERISA Affiliate Plan,
as of the date of the most recent actuarial valuation performed prior to the
date of this Agreement, the actuarially determined present value of all "benefit
liabilities", within the meaning of Section 4001(a)(16) of ERISA (as determined
on the basis of the actuarial assumptions contained in such actuarial valuation
of such Pension Plan or ERISA Affiliate Plan), did not exceed the then current
value of the assets of such Pension Plan or ERISA Affiliate Plan and since such
date there has been neither an adverse change in the financial condition of such
Pension Plan or ERISA Affiliate Plan nor any amendment or other change to such
Pension Plan or ERISA Affiliate Plan that would increase the amount of benefits
thereunder which reasonably could be expected to change such result.
(iv) All contributions required to be made under the terms of
any Compensation and Benefit Plan or ERISA Affiliate Plan or any employee
benefit arrangements under any collective bargaining agreement to which FWB or
any of its Subsidiaries is a party have been timely made or have been reflected
on FWB's financial statements. Neither any
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Pension Plan nor any ERISA Affiliate Plan has an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section 412 of the
Code or Section 302 of ERISA and all required payments to the PBGC with respect
to each Pension Plan or ERISA Affiliate Plan have been made on or before their
due dates. None of FWB, any of its Subsidiaries or any ERISA Affiliate (x) has
provided, or would reasonably be expected to be required to provide, security to
any Pension Plan or to any ERISA Affiliate Plan pursuant to Section 401(a)(29)
of the Code, and (y) has taken any action, or omitted to take any action, that
has resulted, or would reasonably be expected to result, in the imposition of a
lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither FWB nor any of its Subsidiaries has any
obligations to provide retiree health and life insurance or other retiree death
benefits under any Compensation and Benefit Plan, other than benefits mandated
by Section 4980B of the Code. There has been no communication to Employees by
FWB or any of its Subsidiaries that would reasonably be expected to promise or
guarantee such Employees retiree health or life insurance or other retiree death
benefits on a permanent basis.
(vi) FWB and its Subsidiaries do not maintain any Compensation
and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if
applicable, FWB has provided or made available to SFG, true and complete copies
of existing: (A) Compensation and Benefit Plan documents and amendments thereto;
(B) trust instruments and insurance contracts; (C) two most recent Forms 5500
filed with the IRS; (D) most recent actuarial report and financial statement;
(E) the most recent summary plan description; (F) forms filed with the PBGC
within the past year (other than for premium payments); (G) most recent
determination letter issued by the IRS; (H) any Form 5310 or Form 5330 filed
within the past year with the IRS; and (I) most recent nondiscrimination tests
performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as disclosed on Section 5.03(m)(viii) of FWB's
Disclosure Schedule, the consummation of the transactions contemplated by this
Agreement would not, directly or indirectly (including, without limitation, as a
result of any termination of employment prior to or following the Effective
Time) reasonably be expected to (A) entitle any Employee, Consultant or Director
to any payment (including severance pay or similar compensation) or any increase
in compensation, (B) result in the vesting or acceleration of any benefits under
any Compensation and Benefit Plan or (C) result in any material increase in
benefits payable under any Compensation and Benefit Plan.
(ix) Except as disclosed on Section 5.03(m)(ix) of FWB's
Disclosure Schedule, neither FWB nor any of its Subsidiaries maintains any
compensation plans, programs or arrangements the payments under which would not
reasonably be expected to be deductible as a result of the limitations under
Section 162(m) of the Code and the regulations issued thereunder.
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(x) Except as disclosed on Section 5.03(m)(x) of FWB's
Disclosure Schedule, as a result, directly or indirectly, of the transactions
contemplated by this Agreement (including, without limitation, as a result of
any termination of employment prior to or following the Effective Time), none of
SFG, FWB or the Surviving Corporation, or any of their respective Subsidiaries
will be obligated to make a payment that would be characterized as an "excess
parachute payment" to an individual who is a "disqualified individual" (as such
terms are defined in Section 280G of the Code) of FWB on a consolidated basis,
without regard to whether such payment is reasonable compensation for personal
services performed or to be performed in the future.
(n) Labor Matters. Neither FWB nor any of its Subsidiaries is a party
to or is bound by any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is FWB
or any of its Subsidiaries the subject of a proceeding asserting that it or any
such Subsidiary has committed an unfair labor practice (within the meaning of
the National Labor Relations Act) or seeking to compel FWB or any such
Subsidiary to bargain with any labor organization as to wages or conditions of
employment, nor is there any strike or other labor dispute involving it or any
of its Subsidiaries pending or, to FWB's knowledge, threatened, nor is FWB aware
of any activity involving its or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in other organizational
activity.
(o) Takeover Laws. FWB has taken all action required to be taken by it
in order to exempt this Agreement, the Stock Option Agreement and the
transactions contemplated hereby and thereby from, and this Agreement, the Stock
Option Agreement and the transactions contemplated hereby and thereby are exempt
from, the requirements of any "moratorium", "control share", "fair price",
"affiliate transaction", "business combination" or other antitakeover laws and
regulations of any state (collectively, "Takeover Laws") applicable to it,
including, without limitation, the Commonwealth of Pennsylvania, and including,
without limitation, Subchapters D (Section 2538), E, F, G, H, I and J of Chapter
25 of the PBCL.
(p) Environmental Matters. To FWB's knowledge, neither the conduct nor
operation of FWB or its Subsidiaries nor any condition of any property presently
or previously owned, leased or operated by any of them (including, without
limitation, in a fiduciary or agency capacity), or on which any of them holds a
Lien, violates or violated Environmental Laws and to FWB's knowledge, no
condition has existed or event has occurred with respect to any of them or any
such property that, with notice or the passage of time, or both, is reasonably
likely to result in liability under Environmental Laws. To FWB's knowledge,
neither FWB nor any of its Subsidiaries has received any notice from any person
or entity that FWB or its Subsidiaries or the operation or condition of any
property ever owned, leased, operated, or held as collateral or in a fiduciary
capacity by any of them are or were in violation of or otherwise are alleged to
have liability under any Environmental Law, including, but not limited to,
responsibility (or potential responsibility) for the cleanup or other
remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on, beneath, or originating from any such property.
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(q) Tax Matters. (i) All Tax Returns that are required to be filed by
or with respect to FWB and its Subsidiaries have been duly filed, (ii) all Taxes
shown to be due on the Tax Returns referred to in clause (i) have been paid in
full, (iii) the Tax Returns referred to in clause (i) have been examined by the
Internal Revenue Service or the appropriate state, local or foreign taxing
authority or the period for assessment of the Taxes in respect of which such Tax
Returns were required to be filed has expired, (iv) all deficiencies asserted or
assessments made as a result of such examinations have been paid in full, (v) no
issues that have been raised by the relevant taxing authority in connection with
the examination of any of the Tax Returns referred to in clause (i) are
currently pending, and (vi) no waivers of statutes of limitation have been given
by or requested with respect to any Taxes of FWB or its Subsidiaries. FWB has
made or will make available to SFG true and correct copies of the United States
federal income Tax Returns filed by FWB and its Subsidiaries for each of the
three most recent fiscal years ended on or before December 31, 1997. Neither FWB
nor any of its Subsidiaries has any liability with respect to income, franchise
or similar Taxes that accrued on or before the end of the most recent period
covered by FWB's SEC Documents filed prior to the date hereof in excess of the
amounts accrued with respect thereto that are reflected in the financial
statements included in FWB's SEC Documents filed on or prior to the date hereof.
As of the date hereof, neither FWB nor any of its Subsidiaries has any reason to
believe that any conditions exist that might prevent or impede the FWB Merger
from qualifying as a reorganization within the meaning of Section 368(a) of the
Code.
(ii) No Tax is required to be withheld pursuant to Section
1445 of the Code as a result of the transfer contemplated by this Agreement.
(iii) FWB and its Subsidiaries will not be liable for any
taxes as a result of any Covered Transaction.
(r) Risk Management Instruments. All material interest rate swaps,
caps, floors, option agreements, futures and forward contracts and other similar
risk management arrangements, whether entered into for FWB's own account, or for
the account of one or more of FWB's Subsidiaries or their customers (all of
which are listed on FWB's Disclosure Schedule), were entered into (i) in
accordance with prudent business practices and all applicable laws, rules,
regulations and regulatory policies and (ii) with counterparties believed to be
financially responsible at the time; and each of them constitutes the valid and
legally binding obligation of FWB or one of its Subsidiaries, enforceable in
accordance with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors' rights
or by general equity principles), and is in full force and effect. Neither FWB
nor its Subsidiaries, nor to FWB's knowledge any other party thereto, is in
breach of any of its obligations under any such agreement or arrangement.
(s) Books and Records. The books and records of FWB and its
Subsidiaries have been fully, properly and accurately maintained in all material
respects, have been maintained in accordance with sound business practices and
the requirements of Section 13(b)(2) of the Securities Exchange Act of 1934, as
amended, and there are no material inaccuracies or
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discrepancies of any kind contained or reflected therein and they fairly reflect
the substance of events and transactions included therein.
(t) Insurance. FWB's Disclosure Schedule sets forth all of the
insurance policies, binders, or bonds maintained by FWB or its Subsidiaries. FWB
and its Subsidiaries are insured with reputable insurers against such risks and
in such amounts as the management of FWB reasonably has determined to be prudent
in accordance with industry practices. All such insurance policies are in full
force and effect; FWB and its Subsidiaries are not in material default
thereunder; and all claims thereunder have been filed in due and timely fashion.
(u) Accounting Treatment. As of the date hereof, it is aware of no
reason why the Merger will fail to qualify for "pooling-of-interests" accounting
treatment.
(v) Disclosure. The representations and warranties contained in this
Section 5.03 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 5.03 not misleading.
(w) Year 2000. Neither FWB nor any of its Subsidiaries has received, or
has reason to believe that it will receive, a rating of less than "satisfactory"
on any Office of the Comptroller of the Currency or other Regulatory Authority
Year 2000 Report of Examination. FWB has disclosed to SFG a complete and
accurate copy of its plan, including an estimate of the anticipated associated
costs, for addressing the issues set forth in the statements of the FFIEC dated
May 5, 1997, entitled "Year 2000 Project Management Awareness," and December 17,
1997, entitled "Safety and Soundness Guidelines Concerning the Year 2000
Business Risk," as such issues affect it and its Subsidiaries and such plan is
in material compliance with the schedule set forth in the FFIEC statements.
(x) Material Adverse Change. FWB has not, on a consolidated basis,
suffered a change in its business, financial condition or results of operations
since December 31, 1997, except as disclosed in the FWB SEC Documents, that has
had a Material Adverse Effect on FWB.
(y) Absence of Undisclosed Liabilities. Neither FWB nor any of its
Subsidiaries has any liability (contingent or otherwise) that is material to FWB
on a consolidated basis, or that, when combined with all liabilities as to
similar matters would be material to FWB on a consolidated basis, except as
disclosed in the FWB Financial Statements.
(z) Properties. FWB and its Subsidiaries have good and marketable
title, free and clear of all liens, encumbrances, charges, defaults or equitable
interests to all of the properties and assets, real and personal, reflected on
the FWB Financial Statements as being owned by FWB as of December 31, 1997 or
acquired after such date, except (i) statutory liens for amounts not yet due and
payable, (ii) pledges to secure deposits and other liens incurred in the
ordinary course of banking business, (iii) such imperfections of title,
easements, encumbrances, liens, charges, defaults or equitable interests, if
any, as do not affect the use of properties or assets subject thereto or
affected thereby or otherwise materially impair business operations at such
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<PAGE> 29
properties, (iv) dispositions and encumbrances in the ordinary course of
business, and (v) liens on properties acquired in foreclosure or on account of
debts previously contracted. All leases pursuant to which FWB or any of its
Subsidiaries, as lessee, leases real or personal property (except for leases
that have expired by their terms or that FWB or any such Subsidiary has agreed
to terminate since the date hereof) are valid without default thereunder by the
lessee or, to FWB's knowledge, the lessor.
(aa) Loans. Each loan reflected as an asset in the FWB financial
statements as of December 31, 1997 and each balance sheet date subsequent
thereto, other than loans the unpaid balance of which does not exceed $1 million
in the aggregate, (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be, (ii) to the
extent secured, has been secured by valid liens and security interests which
have been perfected, and (iii) is the legal, valid and binding obligation of the
obligor named therein, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Except as Previously Disclosed, as of December 31, 1997, Bank is not
a party to a loan, including any loan guaranty, with any director, executive
officer or 5% shareholder of FWB or any of its Subsidiaries or any person,
corporation or enterprise controlling, controlled by or under common control
with any of the foregoing. All loans and extensions of credit that have been
made by Bank and that are subject either to Section 22(b) of the Federal Reserve
Act, as amended, or to 12 C.F.R. Section 563.43, comply therewith.
(bb) Allowance for Loan Losses. The allowance for loan losses reflected
on the FWB Financial Statements, as of their respective dates, is adequate in
all material respects under the requirements of generally accepted accounting
principles to provide for reasonably anticipated losses on outstanding loans.
(cc) Repurchase Agreements. With respect to all agreements pursuant to
which FWB or any of its Subsidiaries has purchased securities subject to an
agreement to resell, if any, FWB or such Subsidiary, as the case may be, has a
valid, perfected first lien or security interest in or evidence of ownership in
book entry form of the government securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or exceeds the
amount of the debt secured thereby.
(dd) Deposit Insurance. The deposits of Bank are insured by the FDIC in
accordance with The Federal Deposit Insurance Act ("FDIA"), and Bank has paid
all assessments and filed all reports required by the FDIA.
5.04 REPRESENTATIONS AND WARRANTIES OF SFG. Subject to Sections 5.01
and 5.02 and except as Previously Disclosed in a paragraph of its Disclosure
Schedule corresponding to the relevant paragraph below, SFG hereby represents
and warrants to FWB as follows :
(a) Organization, Standing and Authority. SFG is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio. SFG is duly qualified to do business and is in good standing in the State
of Ohio and any foreign jurisdictions where its
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ownership or leasing of property or assets or the conduct of its business
requires it to be so qualified. SFG is registered as a bank holding company
under the BHCA. CBC is a state banking association duly organized, validly
existing and in good standing under the laws of the State of Ohio. CBC is duly
qualified to do business and is in good standing in the State of Ohio and any
foreign jurisdictions where its ownership or leasing of property or assets or
the conduct of its business requires it to be so qualified.
(b) SFG Stock. (i) As of November 30, 1998, the authorized capital
stock of SFG consists of 160,000,000 shares, of which 150,000,000 shares are SFG
Common Stock, of which 45,095,083 shares were outstanding as of November 30,
1998, and 10,000,000 shares are SFG serial preferred stock, par value $10.00 per
share, of which no shares are outstanding as of November 30, 1998. As of
November 30, 1998, except as set forth in its Disclosure Schedule, SFG does not
have any Rights issued or outstanding with respect to SFG Common Stock and SFG
does not have any commitment to authorize, issue or sell any SFG Common Stock or
Rights, except pursuant to this Agreement. The outstanding shares of SFG Common
Stock have been duly authorized and are validly issued and outstanding, fully
paid and nonassessable, and subject to no preemptive rights (and were not issued
in violation of any preemptive rights).
(ii) The shares of SFG Common Stock to be issued in exchange
for shares of FWB Common Stock in the FWB Merger, when issued in accordance with
the terms of this Agreement, will be duly authorized, validly issued, fully paid
and nonassessable and subject to no preemptive rights.
(c) Subsidiaries. SFG has Previously Disclosed a list of all its
Subsidiaries together with the jurisdiction or organization of each Subsidiary.
Each of SFG's Subsidiaries has been duly organized and is validly existing in
good standing under the laws of the jurisdiction of its organization, and is
duly qualified to do business and is in good standing in the jurisdictions where
its ownership or leasing of property or the conduct of its business requires it
to be so qualified and it owns, directly or indirectly, all the issued and
outstanding equity securities of each of its Significant Subsidiaries.
(d) Corporate Power. Each of SFG and its Subsidiaries has the corporate
power and authority to carry on its business as it is now being conducted and to
own all its properties and assets; and SFG has the corporate power and authority
to execute, deliver and perform its obligations under this Agreement and the
Stock Option Agreement and to consummate the transactions contemplated hereby
and thereby.
(e) Corporate Authority; Authorized and Effective Agreement. Subject in
the case of this Agreement to receipt of the requisite adoption of this
Agreement by the holders of a majority of the outstanding shares of SFG Common
Stock entitled to vote thereon, this Agreement, the Stock Option Agreement and
the transactions contemplated hereby and thereby have been authorized by all
necessary corporate action of SFG and the SFG Board prior to the date hereof and
no stockholder approval is required on the part of SFG. The Agreement to Merge,
when executed by CBC, shall have been approved by the Board of Directors of CBC
and by the SFG Board, as the sole stockholder of CBC. This Agreement is a valid
and legally binding agreement
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<PAGE> 31
of SFG, enforceable in accordance with its terms (except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or
affecting creditors rights or by general equity principles).
(f) Regulatory Approvals; No Defaults. (i) No consents or approvals of,
or filings or registrations with, any Governmental Authority or with any third
party are required to be made or obtained by SFG or any of its Subsidiaries in
connection with the execution, delivery or performance by SFG of this Agreement
or to consummate the Merger except for (A) the filing of applications, notices,
or the Agreement to Merge, as applicable, with the federal and state banking
authorities; (B) the filing and declaration of effectiveness of the Registration
Statement; (C) the filing of the articles of merger with the DSCP pursuant to
the PBCL; (D) such filings as are required to be made or approvals as are
required to be obtained under the securities or "Blue Sky" laws of various
states in connection with the issuance of SFG Common Stock in the FWB Merger;
and (E) receipt of the approvals set forth in Section 7.01(b). As of the date
hereof, SFG is not aware of any reason why the approvals set forth in Section
7.01(b) will not be received without the imposition of a condition, restriction
or requirement of the type described in Section 7.01(b).
(ii) Subject to the satisfaction of the requirements referred
to in the preceding paragraph and expiration of the related waiting periods, and
required filings under federal and state securities laws, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (A) constitute a breach or
violation of, or a default under, or give rise to any Lien, any acceleration of
remedies or any right of termination under, any law, rule or regulation or any
judgment, decree, order, governmental permit or license, or agreement, indenture
or instrument of SFG or of any of its Subsidiaries or to which SFG or any of its
Subsidiaries or properties is subject or bound, (B) constitute a breach or
violation of, or a default under, the Articles of Incorporation or Code of
Regulations (or similar governing documents) of SFG or any of its Subsidiaries,
or (C) require any consent or approval under any such law, rule, regulation,
judgment, decree, order, governmental permit or license, agreement, indenture or
instrument.
(g) Financial Reports and SEC Documents; Material Adverse Effect. (i)
SFG's supplemental consolidated financial statements as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997, as
filed with the SEC on SFG's Current Report on Form 8-K dated October 15, 1998
(which include the financial statements of Mid Am, Inc., Citizens Bancshares,
Inc., Century Financial Corporation and Unibank), copies of which have been
delivered to FWB, and all other reports, registration statements, definitive
proxy statements or other statements filed or to be filed by it or any of its
Subsidiaries with the SEC subsequent to December 31, 1997 under the Securities
Act, or under Section 13, 14 or 15(d) of the Exchange Act, in the form filed or
to be filed (collectively, "SFG SEC Documents") as of the date filed, (A)
complied or will comply in all material respects with the applicable
requirements under the Securities Act or the Exchange Act, as the case may be,
and (B) did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the
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<PAGE> 32
circumstances under which they were made, not misleading; and each of the
balance sheets or statements of condition contained in or incorporated by
reference into any such SFG SEC Document (including the related notes and
schedules thereto) fairly presents, or will fairly present, the financial
position of SFG and its Subsidiaries as of its date, and each of the statements
of income or results of operations and changes in stockholders' equity and cash
flows or equivalent statements in such SFG SEC Documents (including any related
notes and schedules thereto) fairly presents, or will fairly present, the
results of operations, changes in shareholders' equity and cash flows, as the
case may be, of SFG and its Subsidiaries for the periods to which they relate,
in each case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except in each case as may be
noted therein, subject to normal year-end audit adjustments in the case of
unaudited statements.
(ii) The Ohio Bank and the Unibank financial statements as of
December 31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997, copies of which have been delivered to FWB, (A) complied or
will comply in all material respects with generally accepted accounting
principles, and (B) did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(iii) Each of Mid Am Inc.'s ("Mid Am") and Citizens
Bancshares, Inc.'s ("Citizens") Annual Reports on Form 10-K for the fiscal years
ended December 31, 1995, 1996 and 1997 and all other reports, registration
statements, definitive proxy statements or information statements filed or to be
filed by either of them or any of their respective Subsidiaries subsequent to
December 31, 1997 under the Securities Act, or under Section 13, 14 or 15(d) of
the Exchange Act, in the form filed or to be filed (collectively, "the Mid
Am/Citizens SEC Documents") with the SEC, as of the date filed, (A) complied or
will comply in all material respects with the applicable requirements under the
Securities Act or the Exchange Act, as the case may be, and (B) did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and
each of the balance sheets or statements of condition contained in or
incorporated by reference into any such SEC Document (including the related
notes and schedules thereto) fairly presents, or will fairly present, the
financial position of each of Mid Am and Citizens, respectively, and their
respective Subsidiaries as of its date, and each of the statements of income and
changes in stockholders' equity and cash flows or equivalent statements in such
Mid Am/Citizens SEC Documents (including any Mid Am/Citizens related notes and
schedules thereto) fairly presents, or will fairly present, the results of
operations, changes in stockholders' equity and cash flows, as the case may be,
of each of Mid Am and Citizens, respectively, and their respective Subsidiaries
for the periods to which they relate, in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except in each case as may be noted therein, subject to normal year-end audit
adjustments and the absence of footnotes in the case of unaudited statements.
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<PAGE> 33
(iv) To SFG's knowledge (without any independent
investigation), Century Financial Corporation's ("Century") Annual Reports on
Form 10-K for the fiscal years ended December 31, 1995, 1996 and 1997 and all
other reports, registration statements, definitive proxy statements or
information statements filed or to be filed by it or any of its Subsidiaries
subsequent to December 31, 1997 under the Securities Act, or under Section 13,
14 or 15(d) of the Exchange Act, in the form filed or to be filed (collectively,
"Century SEC Documents") with the SEC, as of the date filed, (A) complied or
will comply in all material respects with the applicable requirements under the
Securities Act or the Exchange Act, as the case may be, and (B) did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and
each of the balance sheets or statements of condition contained in or
incorporated by reference into any such Century SEC Document (including the
related notes and schedules thereto) fairly presents, or will fairly present,
the financial position of Century and its Subsidiaries as of its date, and each
of the statements of income and changes in stockholders' equity and cash flows
or equivalent statements in such Century SEC Documents (including any related
notes and schedules thereto) fairly presents, or will fairly present, the
results of operations, changes in stockholders' equity and cash flows, as the
case may be, of Century and its Subsidiaries for the periods to which they
relate, in each case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except in each case as may be
noted therein, subject to normal year-end audit adjustments and the absence of
footnotes in the case of unaudited statements.
(v) Since December 31, 1997, no event has occurred or
circumstance arisen that, individually or taken together with all other facts,
circumstances and events (described in any paragraph of Section 5.04 or
otherwise), is reasonably likely to have a Material Adverse Effect with respect
to SFG, except as disclosed in the SFG, Mid Am/Bancshares and Century SEC
Documents.
(h) Litigation; Regulatory Action. (i) No litigation, claim or other
proceeding before any court or governmental agency is pending against SFG or any
of its Subsidiaries and, to the best of SFG's knowledge, no such litigation,
claim or other proceeding has been threatened.
(ii) Neither SFG nor any of its Subsidiaries or properties is
a party to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or similar
submission to, or extraordinary supervisory letter from a Regulatory Authority,
nor has SFG or any of its Subsidiaries been advised by a Regulatory Authority
that such agency is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, commitment letter, supervisory letter or similar
submission.
(i) Compliance with Laws. Each of SFG and its Subsidiaries:
(i) is in compliance with all applicable federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or
decrees applicable thereto or to
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the employees conducting such businesses, including, without limitation, the
Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment
Act, the Home Mortgage Disclosure Act and all other applicable fair lending laws
and other laws relating to discriminatory business practices; and
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all
Governmental Authorities that are required in order to permit them to conduct
their businesses substantially as presently conducted; all such permits,
licenses, certificates of authority, orders and approvals are in full force and
effect and, to the best of its knowledge, no suspension or cancellation of any
of them is threatened; and
(iii) has received, since December 31, 1996, no notification
or communication from any Governmental Authority (A) asserting that SFG or any
of its Subsidiaries is not in compliance with any of the statutes, regulations,
or ordinances which such Governmental Authority enforces or (B) threatening to
revoke any license, franchise, permit, or governmental authorization (nor, to
SFG's knowledge, do any grounds for any of the foregoing exist).
(j) Brokerage and Finder's Fees. Except for fees payable to its
financial advisor, McDonald Investments, Inc. ("McDonald"), SFG has not employed
any broker, finder, or agent, or agreed to pay or incurred any brokerage fee,
finder's fee, commission or other similar form of compensation in connection
with this Agreement or the transactions contemplated hereby.
(k) Takeover Laws. SFG has taken all action required to be taken by it
in order to exempt this Agreement, the Stock Option Agreement and the
transactions contemplated hereby and thereby from, and this Agreement, the Stock
Option Agreement and the transactions contemplated hereby and thereby are exempt
from, the requirements of any Takeover Laws applicable to SFG.
(l) Environmental Matters. To SFG's knowledge, neither the conduct nor
operation of SFG or its Subsidiaries nor any condition of any property presently
or previously owned, leased or operated by any of them (including, without
limitation, in a fiduciary or agency capacity), or on which any of them holds a
Lien, violated Environmental Laws and to SFG's knowledge no condition has
existed or event has occurred with respect to any of them or any such property
that, with notice or the passage of time, or both, is reasonably likely to
result in liability under Environmental Laws. To SFG's knowledge, neither SFG
nor any of its Subsidiaries has received any notice from any person or entity
that SFG or its Subsidiaries or the operation or condition of any property ever
owned, leased, operated, or held as collateral or in a fiduciary capacity by any
of them are or were in violation of or otherwise are alleged to have liability
under any Environmental Law, including, but not limited to, responsibility (or
potential responsibility) for the cleanup or other remediation of any
pollutants, contaminants, or hazardous or toxic wastes, substances or materials
at, on, beneath, or originating from any such property.
(m) Tax Matters. (i) All Tax Returns that are required to be filed by
or with respect to SFG and its Subsidiaries have been duly filed, (ii) all Taxes
shown to be due on the
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Tax Returns referred to in clause (i) have been paid in full, (iii) the Tax
Returns referred to in clause (i) have been examined by the Internal Revenue
Service or the appropriate state, local or foreign taxing authority or the
period for assessment of the Taxes in respect of which such Tax Returns were
required to be filed has expired, (iv) all deficiencies asserted or assessments
made as a result of such examinations have been paid in full, (v) no issues that
have been raised by the relevant taxing authority in connection with the
examination of any of the Tax Returns referred to in clause (i) are currently
pending, and (vi) no waivers of statutes of limitation have been given by or
requested with respect to any Taxes of SFG or its Subsidiaries. Neither SFG nor
any of its Subsidiaries has any liability with respect to income, franchise or
similar Taxes that accrued on or before the end of the most recent period
covered by SFG's SEC Documents filed prior to the date hereof in excess of the
amounts accrued with respect thereto that are reflected in the financial
statements included in SFG's SEC Documents filed on or prior to the date hereof.
As of the date hereof, SFG has no reason to believe that any conditions exist
that might prevent or impede the FWB Merger from qualifying as a reorganization
with the meaning of Section 368(a) of the Code.
(n) Books and Records. The books and records of SFG and its
Subsidiaries have been fully, properly and accurately maintained in all material
respects, have been maintained in accordance with sound business practices and
the requirements of Section 13(b)(2) of the Securities Exchange Act of 1934, as
amended, and there are no material inaccuracies or discrepancies of any kind
contained or reflected therein, and they fairly present the substance of events
and transactions included therein.
(o) Insurance. SFG's Disclosure Schedule sets forth all of the
insurance policies, binders, or bonds maintained by SFG or its Subsidiaries. SFG
and its Subsidiaries are insured with reputable insurers against such risks and
in such amounts as the management of SFG reasonably has determined to be prudent
in accordance with industry practices. All such insurance policies are in full
force and effect; SFG and its Subsidiaries are not in material default
thereunder; and all claims thereunder have been filed in due and timely fashion.
(p) Accounting Treatment. As of the date hereof, SFG is aware of no
reason why the Merger will fail to qualify for "pooling-of-interests" accounting
treatment and is aware of no reason why any other merger of SFG consummated
within the prior two years will fail to so qualify.
(q) Contracts. Neither SFG nor any of its Subsidiaries is in default
under any contract, agreement, commitment, arrangement, lease, insurance policy
or other instrument to which it is a party, by which its respective assets,
business, or operations may be bound or affected in any way, or under which it
or its respective assets, business, or operations receive benefits, and there
has not occurred any event that, with the lapse of time or the giving of notice
or both, would constitute such a default.
(r) Disclosure. The representations and warranties contained in this
Section 5.04 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 5.04 not misleading.
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(s) Risk Management Instruments. All material interest rate swaps,
caps, floors, option agreements, futures and forward contracts and other similar
risk management arrangements, whether entered into for SFG's own account, or for
the account of one or more of its Subsidiaries or their customers, were entered
into (i) in accordance with prudent business practices and all applicable laws,
rules, regulations and regulatory policies and with counterparties believed to
be financially responsible at the time; and each of them constitutes the valid
and legally binding obligation of SFG or one of its Subsidiaries, enforceable in
accordance with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors' rights
or by general equity principles), and is in full force and effect. Neither SFG
nor its Subsidiaries, nor to SFG's knowledge any other party thereto, is in
breach of any of its obligations under any such agreement or arrangement in any
material respect.
(t) Year 2000. Neither SFG nor any of its Subsidiaries has received, or
has reason to believe that it will receive, a rating of less than "satisfactory"
on any Year 2000 Report of Examination of any Regulatory Authority. SFG has
disclosed to FWB a complete and accurate copy of its plan, including an estimate
of the anticipated associated costs, for addressing the issues set forth in the
statements of the FFIEC dated May 5, 1997, entitled "Year 2000 Project
Management Awareness," and December 17, 1997, entitled "Safety and Soundness
Guidelines Concerning the Year 2000 Business Risk," as such issues affect it and
its Subsidiaries, and such plan is in material compliance with the schedule set
forth in the FFIEC statements.
(u) Material Adverse Change. SFG has not, on a consolidated basis,
suffered a change in its business, financial condition or results of operations
since December 31, 1997 that has had a Material Adverse Effect on SFG, except as
described in the SFG, Mid Am/Citizens and Century SEC Documents.
(v) Loans. Each loan reflected as an asset in the SFG financial
statements as of December 31, 1997 and each balance sheet date subsequent
thereto, other than loans the unpaid balance of which does not exceed $1 million
in the aggregate, (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be, (ii) to the
extent secured, has been secured by valid liens and security interests which
have been perfected, and (iii) is the legal, valid and binding obligation of the
obligor named therein, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Except as Previously Disclosed, as of December 31, 1997, CBC is not
a party to a loan, including any loan guaranty, with any director, executive
officer or 5% shareholder of SFG or any of its Subsidiaries or any person,
corporation or enterprise controlling, controlled by or under common control
with any of the foregoing. All loans and extensions of credit that have been
made by Bank and that are subject either to Section 22(b) of the Federal Reserve
Act, as amended, or to 12 C.F.R. Section 563.43, comply therewith.
(w) Allowance for Loan Losses. The allowance for loan losses reflected
on the SFG financial statements, as of their respective dates, is adequate in
all material respects under the
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requirements of generally accepted accounting principles to provide for
reasonably anticipated losses on outstanding loans.
(x) Repurchase Agreements. With respect to all agreements pursuant to
which SFG or any of its Subsidiaries has purchased securities subject to an
agreement to resell, if any, SFG or such Subsidiary, as the case may be, has a
valid, perfected first lien or security interest in or evidence of ownership in
book entry form of the government securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or exceeds the
amount of the debt secured thereby.
(y) Deposit Insurance. The deposits of CBC are insured by the FDIC in
accordance with the FDIA, and CBC has paid all assessments and filed all reports
required by the FDIA.
ARTICLE VI
COVENANTS
6.01 REASONABLE BEST EFFORTS. Subject to the terms and conditions of
this Agreement, each of FWB and SFG agrees to use their reasonable best efforts
in good faith to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall cooperate fully with the other party hereto to
that end.
6.02 STOCKHOLDER APPROVALS. FWB agrees to take, in accordance with
applicable law and the FWB Articles and FWB By-Laws, all action necessary to
convene an appropriate meeting of its stockholders to consider and vote upon the
adoption of this Agreement and any other matters required to be approved or
adopted by FWB's stockholders for consummation of the FWB Merger (including any
adjournment or postponement, the "FWB Meeting"), as promptly as practicable
after the Registration Statement is declared effective. The FWB Board shall
recommend that its stockholders adopt this Agreement at the FWB Meeting unless
otherwise necessary under the applicable fiduciary duties of the FWB Board, as
determined by the FWB Board in good faith after consultation with and based upon
advice of independent legal counsel. SFG agrees to take, in accordance with
applicable law, the SFG Articles and SFG Code, all action necessary to convene
an appropriate meeting of its stockholders to consider and vote upon the
adoption of this Agreement and any other matters required to be approved or
adopted by SFG's stockholders for consummation of the FWB Merger (including any
adjournment or postponement, the "SFG Meeting"), as promptly as practicable
after the Registration Statement is declared effective. The SFG Board shall
recommend that its stockholders adopt this Agreement at the SFG Meeting unless
otherwise necessary under the applicable fiduciary duties of the SFG Board, as
determined by the SFG Board in good faith after consultation with and based upon
advice of independent legal counsel.
6.03 REGISTRATION STATEMENT. (a) SFG agrees to prepare pursuant to all
applicable laws, rules and regulations a registration statement on Form S-4 (the
"Registration Statement")
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to be filed by SFG with the SEC in connection with the issuance of SFG Common
Stock in the FWB Merger (including the proxy statement and prospectus and other
proxy solicitation materials of FWB constituting a part thereof (the "Proxy
Statement") and all related documents). FWB agrees to cooperate, and to cause
its Subsidiaries to cooperate, with SFG, its counsel and its accountants, in
preparation of the Registration Statement and the Proxy Statement; and provided
that FWB and its Subsidiaries have cooperated as required above, SFG agrees to
file the Proxy Statement and the Registration Statement (together, the
"Proxy/Prospectus") with the SEC as promptly as reasonably practicable. Each of
FWB and SFG agrees to use all reasonable efforts to cause the Proxy/Prospectus
to be declared effective under the Securities Act as promptly as reasonably
practicable after filing thereof. SFG also agrees to use all reasonable efforts
to obtain, prior to the effective date of the Registration Statement, all
necessary state securities law or "Blue Sky" permits and approvals required to
carry out the transactions contemplated by this Agreement. FWB agrees to furnish
to SFG all information concerning FWB, its Subsidiaries, officers, directors and
stockholders as may be reasonably requested in connection with the foregoing.
(b) Each of FWB and SFG agrees, as to itself and its Subsidiaries, that
none of the information supplied or to be supplied by it for inclusion or
incorporation by reference in (i) the Registration Statement will, at the time
the Registration Statement and each amendment or supplement thereto, if any,
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (ii) the Proxy
Statement and any amendment or supplement thereto will, at the date of mailing
to the FWB stockholders and at the time of the FWB Meeting, as the case may be,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading or any statement which, in the light of the circumstances under
which such statement is made, will be false or misleading with respect to any
material fact, or which will omit to state any material fact necessary in order
to make the statements therein not false or misleading or necessary to correct
any statement in any earlier statement in the Proxy Statement or any amendment
or supplement thereto. Each of FWB and SFG further agrees that if it shall
become aware prior to the Effective Date of any information furnished by it that
would cause any of the statements in the Proxy Statement to be false or
misleading with respect to any material fact, or to omit to state any material
fact necessary to make the statements therein not false or misleading, to
promptly inform the other party thereof and to take the necessary steps to
correct the Proxy Statement.
(c) SFG agrees to advise FWB, promptly after SFG receives notice
thereof, of the time when the Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order or the
suspension of the qualification of SFG Stock for offering or sale in any
jurisdiction, of the initiation or threat of any proceeding for any such
purpose, or of any request by the SEC for the amendment or supplement of the
Registration Statement or for additional information.
6.04 PRESS RELEASES. Each of FWB and SFG agrees that it will not,
without the prior approval of the other party, issue any press release or
written statement for general circulation
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relating to the transactions contemplated hereby, except as otherwise required
by applicable law or regulation or NASDAQ rules.
6.05 ACCESS; INFORMATION. (a) Each of FWB and SFG agrees that upon
reasonable notice and subject to applicable laws relating to the exchange of
information, it shall afford the other party and the other party's officers,
employees, counsel, accountants and other authorized representatives, such
access during normal business hours throughout the period prior to the Effective
Time to the books, records (including, without limitation, tax returns and work
papers of independent auditors), properties, personnel and to such other
information as any party may reasonably request and, during such period, it
shall furnish promptly to such other party (i) a copy of each material report,
schedule and other document filed by it pursuant to federal or state securities
or banking laws, and (ii) all other information concerning the business,
properties and personnel of it as the other may reasonably request.
(b) Each agrees that it will not, and will cause its representatives
not to, use any information obtained pursuant to this Section 6.05 (as well as
any other information obtained prior to the date hereof in connection with the
entering into of this Agreement) for any purpose unrelated to the consummation
of the transactions contemplated by this Agreement. Subject to the requirements
of law, each party will keep confidential, and will cause its representatives to
keep confidential, all information and documents obtained pursuant to this
Section 6.05 (as well as any other information obtained prior to the date hereof
in connection with the entering into of this Agreement) unless such information
(i) was already known to such party, (ii) becomes available to such party from
other sources not known by such party to be bound by a confidentiality
obligation, (iii) is disclosed with the prior written approval of the party to
which such information pertains or (iv) is or becomes readily ascertainable from
published information or trade sources. In the event that this Agreement is
terminated or the transactions contemplated by this Agreement shall otherwise
fail to be consummated, each party shall promptly cause all copies of documents
or extracts thereof containing information and data as to another party hereto
to be returned to the party which furnished the same. No investigation by either
party of the business and affairs of the other shall affect or be deemed to
modify or waive any representation, warranty, covenant or agreement in this
Agreement, or the conditions to either party's obligation to consummate the
transactions contemplated by this Agreement.
(c) During the period from the date of this Agreement to the Effective
Time, each party shall promptly furnish the other with copies of all monthly and
other interim financial statements produced in the ordinary course of business
as the same shall become available.
6.06 ACQUISITION PROPOSALS. FWB agrees that it shall not, and shall
cause its Subsidiaries and its and its Subsidiaries' officers, directors,
agents, advisors and affiliates not to, solicit or encourage inquiries or
proposals with respect to, or engage in any negotiations concerning, or provide
any confidential information to, or have any discussions with, any person
relating to, any Acquisition Proposal, subject to the extent that the FWB Board
determines in good faith, after consultations with independent legal counsel
that it is required by its fiduciary duties to do so. It shall immediately cease
and cause to be terminated any activities, discussions or negotiations conducted
prior to the date of this Agreement with any parties other than SFG
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with respect to any of the foregoing and shall use its reasonable best efforts
to enforce any confidentiality or similar agreement relating to an Acquisition
Proposal. FWB shall promptly (within 24 hours) advise SFG following the receipt
by FWB of any Acquisition Proposal and the substance thereof (including the
identity of the person making such Acquisition Proposal), and advise SFG of any
material developments with respect to such Acquisition Proposal immediately upon
the occurrence thereof.
6.07 AFFILIATE AGREEMENTS. (a) Not later than the 15th day prior to the
mailing of the Proxy Statement, FWB shall deliver to SFG a schedule of each
person that, to the best of its knowledge, is or is reasonably likely to be, as
of the date of the FWB Meeting, deemed to be an "affiliate" of FWB (each, a "FWB
Affiliate") as that term is used in Rule 145 under the Securities Act or SEC
Accounting Series Releases 130 and 135. FWB shall use its reasonable best
efforts to cause each person who may be deemed to be a FWB Affiliate to execute
and deliver to FWB on or before the date of mailing of the Proxy Statement an
agreement in the form attached hereto as Exhibit B.
6.08 TAKEOVER LAWS. No party hereto shall take any action that would
cause the transactions contemplated by this Agreement or the Stock Option
Agreement to be subject to requirements imposed by any Takeover Law and each of
them shall take all necessary steps within its control to exempt (or ensure the
continued exemption of) the transactions contemplated by this Agreement from, or
if necessary challenge the validity or applicability of, any applicable Takeover
Law, as now or hereafter in effect.
6.09 CERTAIN POLICIES. Prior to the Effective Date, FWB shall,
consistent with generally accepted accounting principles and on a basis mutually
satisfactory to it and SFG, modify and change its loan, litigation and real
estate valuation policies and practices (including loan classifications and
levels of reserves) so as to be applied on a basis that is consistent with that
of SFG; provided, however, that FWB shall not be obligated to take any such
action pursuant to this Section 6.09 unless and until SFG acknowledges that all
conditions to its obligation to consummate the Merger have been satisfied and
certifies to FWB that SFG's representations and warranties, subject to Section
5.02, are true and correct as of such date and that SFG is otherwise material in
compliance with this Agreement. FWB's representations, warranties and covenants
contained in this Agreement shall not be deemed to be untrue or breached in any
respect for any purpose as a consequence of any modifications or changes
undertaken solely on account of this Section 6.09.
6.10. NASDAQ LISTING. SFG shall file a listing application, or a NASDAQ
Notification Form for Change in the Number of Shares Outstanding, as required by
NASDAQ, with respect to the shares of SFG Common Stock to be issued to the
holders of FWB Common Stock in the Merger.
6.11 REGULATORY APPLICATIONS. (a) SFG and FWB and their respective
Subsidiaries shall cooperate and use their respective reasonable best efforts to
prepare all documentation, to timely effect all filings and to obtain all
permits, consents, approvals and authorizations of all third parties and
Governmental Authorities necessary to consummate the transactions
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contemplated by this Agreement. Each of SFG and FWB shall have the right to
review in advance, and to the extent practicable each will consult with the
other, in each case subject to applicable laws relating to the exchange of
information, with respect to, and shall be provided in advance so as to
reasonably exercise its right to review in advance, all material written
information submitted to any third party or any Governmental Authority in
connection with the transactions contemplated by this Agreement. In exercising
the foregoing right, each of the parties hereto agrees to act reasonably and as
promptly as practicable. Each party hereto agrees that it will consult with the
other party hereto with respect to the obtaining of all material permits,
consents, approvals and authorizations of all third parties and Governmental
Authorities necessary or advisable to consummate the transactions contemplated
by this Agreement and each party will keep the other party apprised of the
status of material matters relating to completion of the transactions
contemplated hereby.
(b) Each party agrees, upon request, to furnish the other party with
all information concerning itself, its Subsidiaries, directors, officers and
stockholders and such other matters as may be reasonably necessary or advisable
in connection with any filing, notice or application made by or on behalf of
such other party or any of its Subsidiaries to any third party or Governmental
Authority.
6.12 INDEMNIFICATION. (a) Following the Effective Date, SFG shall
indemnify, defend and hold harmless the present directors, officers and
employees of FWB and its Subsidiaries (each, an "Indemnified Party") against all
costs or expenses (including reasonable attorneys' fees), judgments, fines,
losses, claims, damages or liabilities (collectively, "Costs") incurred in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, arising out of actions or
omissions occurring on or prior to the Effective Time (including, without
limitation, the transactions contemplated by this Agreement) to the fullest
extent that FWB is permitted to indemnify (and advance expenses to) its
directors, officers, and employees under the laws of the State of Pennsylvania,
the FWB Articles and the FWB By-Laws as in effect on the date hereof; provided
that any determination required to be made with respect to whether an officer's,
director's or employee's conduct complies with the standards set forth under
Pennsylvania law, the FWB Articles and the FWB By-Laws shall be made by
independent counsel (which shall not be counsel that provides material services
to SFG) selected by SFG and reasonably acceptable to such officer, director or
employee.
(b) For a period of three years from the Effective Time, SFG shall use
its reasonable best efforts to provide that portion of director's and officer's
liability insurance that serves to reimburse the present and former officers and
directors of FWB or any of its Subsidiaries (determined as of the Effective
Time) (as opposed to FWB) with respect to claims against such directors and
officers arising from facts or events which occurred before the Effective Time,
on terms no less favorable than those in effect on the date hereof; provided,
however, that SFG may substitute therefor policies providing at least comparable
coverage containing terms and conditions no less favorable than those in effect
on the date hereof; and provided, further, that officers and directors of FWB or
any Subsidiary may be required to make application and provide customary
representations and warranties to SFG's insurance carrier for the purpose of
obtaining such insurance.
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(c) Any Indemnified Party wishing to claim indemnification under
Section 6.12(a), upon learning of any claim, action, suit, proceeding or
investigation described above, shall promptly notify SFG thereof; provided that
the failure so to notify shall not affect the obligations of SFG under Section
6.12(a) unless and to the extent that SFG is actually prejudiced as a result of
such failure.
(d) If SFG or any of its successors or assigns shall consolidate with
or merge into any other entity and shall not be the continuing or surviving
entity of such consolidation or merger or shall transfer all or substantially
all of its assets to any entity, then and in each case, proper provision shall
be made so that the successors and assigns of SFG shall assume the obligations
set forth in this Section 6.12.
6.13 OPPORTUNITY OF EMPLOYMENT; EMPLOYEE BENEFITS. The existing
employees of FWB shall have the opportunity to continue as employees of SFG or
one of its Subsidiaries, on the Closing Date; subject, however, to the right of
SFG and its Subsidiaries to terminate any such employees either (i) for "cause"
or (ii) pursuant to the procedures set forth in the SFG Workforce Redesign
Process previously disclosed to FWB. It is understood and agreed that nothing in
this Section 6.13 or elsewhere in this Agreement shall be deemed to be a
contract of employment or be construed to give said employees any rights other
than as employees at will under applicable law and said employees shall not be
deemed to be third-party beneficiaries of this provision. From and after the
Effective Time, FWB employees shall continue to participate in the FWB employee
benefit plans in effect at the Effective Time unless and until SFG, in its sole
discretion, shall determine that FWB employees shall, subject to applicable
eligibility requirements, participate in employee benefit plans of SFG and that
all or some of the FWB plans shall be terminated or merged into certain employee
benefit plans of SFG. Notwithstanding the foregoing, each FWB employee shall be
credited with years of FWB (or predecessor) service for purposes of eligibility
and vesting in the employee benefit plans of SFG.
6.14 NOTIFICATION OF CERTAIN MATTERS. Each of FWB and SFG shall give
prompt notice to the other of any fact, event or circumstance known to it that
(i) is reasonably likely, individually or taken together with all other facts,
events and circumstances known to it, to result in any Material Adverse Effect
with respect to it or (ii) would cause or constitute a material breach of any of
its representations, warranties, covenants or agreements contained herein.
6.15 DIVIDEND COORDINATION. It is agreed by the parties hereto that
they will cooperate to assure that as a result of the FWB Merger, during any
applicable period, there shall not be a payment of both a SFG and a FWB
dividend. The parties further agree that if the Effective Closing Date is at the
end of a fiscal quarter, then they will cooperate to assure that the FWB
shareholders receive the dividend, if any, declared by FWB rather than the
dividend for that period, if any, declared by SFG. FWB intends to change its
existing dividend payment policy such that for 1999 its dividends shall be
declared with record and payment dates the same as SFG's. To accomplish this
program, FWB shall declare a dividend equal to 2/3's of what its normal dividend
for its fiscal dividend quarter ended January 31, 1999 would have been, which
dividend shall be payable January 4, 1999 to shareholders of record on December
24, 1998. In no event will the selection of
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the Effective Date cause the stockholders of FWB to lose a quarterly or a
portion of a quarterly dividend.
6.16 SFG BOARD REPRESENTATION. SFG shall cause its Executive Committee
to nominate for election Thomas J. O'Shane and Robert C. Duvall to the SFG Board
and Thomas J. O'Shane to the Executive Committee, which nominees shall be
recommended by FWB and selected by SFG in its discretion. Additional matters
regarding future representation are as set forth in a letter dated of even date
herewith from SFG.
6.17 RESULTING BANK BOARD OF DIRECTORS. Following the consummation of
the Subsidiary Merger, it is contemplated that six (6) members of the FWB Board
of Directors will be selected by SFG to serve as directors of the Resulting Bank
to be recommended by FWB and to be selected by SFG in its reasonable discretion.
6.18 FORMATION OF ADVISORY BOARD. Following the consummation of the
Subsidiary Merger, the members of the FWB Board of Directors who do not become
members of the Resulting Bank's Board of Directors shall be given the
opportunity to serve on an advisory board to the Resulting Bank.
6.19 ACCOUNTING AND TAX TREATMENT. Each of SFG and FWB agrees not to
take any actions subsequent to the date of this Agreement that would adversely
affect the ability to treat the Merger as a "pooling-of-interests" in accordance
with GAAP or FWB or the shareholders of FWB to characterize the Merger as a
tax-free reorganization under Section 368(a) of the Code, and each of SFG and
FWB agrees to take such action as may be reasonably required, if such action may
be reasonably taken to reverse the impact of any past actions which would
adversely impact the ability of SFG or FWB (as the case may be) to treat the
Merger as a "pooling-of-interests" for accounting purposes or for the Merger to
be characterized as a tax-free reorganization under Section 368(a) of the Code.
6.20 NO BREACHES OF REPRESENTATIONS AND WARRANTIES. Between the date of
this Agreement and the Effective Time, without the written consent of the other
party, each of SFG and FWB will not do any act or suffer any omission of any
nature whatsoever which would cause any of the representations or warranties
made in Article V of this Agreement to become untrue or incorrect in any
material respect.
6.21 CONSENTS. Each of SFG and FWB shall use its best efforts to obtain
any required consents to the transactions contemplated by this Agreement.
6.22 INSURANCE COVERAGE. FWB shall cause the policies of insurance
listed in the Disclosure Schedule to remain in effect between the date of this
Agreement and the Closing Date.
6.23 CORRECTION OF INFORMATION. Each of SFG and FWB shall promptly
correct and supplement any information furnished under this Agreement so that
such information shall be
39
<PAGE> 44
correct and complete in all material respects at all times, and shall include
all facts necessary to make such information correct and complete in all
material respects at all times.
6.24 CONFIDENTIALITY. Except for the use of information in connection
with the Registration Statement described in Section 7.1 hereof and any other
governmental filings required in order to complete the transactions contemplated
by this Agreement, all information (collectively, the "Information") received by
each of FWB and SFG, pursuant to the terms of this Agreement shall be kept in
strictest confidence; provided that, subsequent to the filing of the
Registration Statement with the Securities and Exchange Commission, this Section
6.24 shall not apply to information included in the Registration Statement or to
be included in the official proxy/prospectus to be sent to the shareholders of
FWB and SFG under Section 6.03. FWB and SFG agree that the Information will be
used only for the purpose of completing the transactions contemplated by this
Agreement. FWB and SFG agree to hold the Information in strictest confidence and
shall not use, and shall not disclose directly or indirectly any of such
Information except when, after and to the extent such Information (i) is or
becomes generally available to the public other than through the failure of FWB
or SFG to fulfill its obligations hereunder, (ii) was already known to the party
receiving the Information on a nonconfidential basis prior to the disclosure or
(iii) is subsequently disclosed to the party receiving the Information on a
nonconfidential basis by a third party having no obligation of confidentiality
to the party disclosing the Information. It is agreed and understood that the
obligations of FWB and SFG contained in this Section 6.24 shall survive the
Closing. In the event the transactions contemplated by this Agreement are not
consummated, FWB and SFG agree to return all copies of the Information provided
to the other promptly.
6.25 SUPPLEMENTAL ASSURANCES. (a) On the date the Registration
Statement becomes effective and on the Effective Date, FWB shall deliver to SFG
a certificate signed by its principal executive officer and its principal
financial officer to the effect, to such officers' knowledge, that the
information contained in the Registration Statement relating to the business and
financial condition and affairs of FWB, does not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(b) On the date the Registration Statement becomes effective and on the
Effective Date, SFG shall deliver to FWB a certificate signed by its chief
executive officer and its chief financial officer to the effect, to such
officers' knowledge, that the Registration Statement (other than the information
contained therein relating to the business and financial condition and affairs
of FWB) does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
6.26 EMPLOYMENT AGREEMENT. As a result of the FWB Merger, Thomas J.
O'Shane, Chief Executive Officer of FWB, shall be entitled to payment under an
existing change in control agreement. Immediately thereafter, SFG shall enter
into a new 10-year employment agreement at a base compensation of $275,000 per
year plus a 50% incentive compensation opportunity under SFG's incentive
compensation plan and an appropriate amount of stock options for the
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<PAGE> 45
new position on terms and conditions mutually satisfactory to SFG and the said
Chief Executive Officer.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each of SFG and FWB to consummate the Merger is subject
to the fulfillment or written waiver by SFG and FWB prior to the Effective Time
of each of the following conditions:
(a) Stockholder Approvals. This Agreement shall have been duly adopted
by the requisite vote of the stockholders of SFG and FWB.
(b) Regulatory Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby shall have been obtained and
shall remain in full force and effect and all statutory waiting periods in
respect thereof shall have expired and no such approvals shall contain (i) any
conditions, restrictions or requirements which the SFG Board reasonably
determines would either before or after the Effective Time have a Material
Adverse Effect on SFG and its Subsidiaries taken as a whole after giving effect
to the consummation of the Merger, or (ii) any conditions, restrictions or
requirements that are not customary and usual for approvals of such type and
which the SFG Board reasonably determines would either before or after the
Effective Date be unduly burdensome.
(c) No Injunction. No Governmental Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and prohibits consummation of the
transactions contemplated by this Agreement.
(d) Registration Statement. The Registration Statement shall have
become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC.
(e) Blue Sky Approvals. All permits and other authorizations under
state securities laws necessary to consummate the transactions contemplated
hereby and to issue the shares of SFG Common Stock to be issued in the FWB
Merger shall have been received and be in full force and effect.
(f) Accounting Treatment. SFG shall have received from Crowe, Chizek
and Company, LLP, SFG's independent auditors, a letter, dated the date of or
shortly prior to each of the mailing date of the Proxy Statement and the
Effective Date, stating its opinion that the Merger shall qualify for
pooling-of-interests accounting treatment.
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<PAGE> 46
7.02 CONDITIONS TO OBLIGATION OF FWB. The obligation of FWB to
consummate the Merger is also subject to the fulfillment or written waiver by
FWB prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of SFG set forth in this Agreement shall be true and correct, subject to Section
5.02, as of the date of this Agreement and as of the Effective Date as though
made on and as of the Effective Date (except that representations and warranties
that by their terms speak as of the date of this Agreement or some other date
shall be true and correct as of such date), and FWB shall have received a
certificate, dated the Effective Date, signed on behalf of SFG by the Chief
Executive Officer and the Chief Financial Officer of SFG to such effect.
(b) Performance of Obligations of SFG. SFG shall have performed in all
material respects all obligations required to be performed by them under this
Agreement at or prior to the Effective Time, and FWB shall have received a
certificate, dated the Effective Date, signed on behalf of SFG by the Chief
Executive Officer and the Chief Financial Officer of SFG to such effect.
(c) Tax Opinion. FWB shall have received an opinion of counsel to SFG,
dated the Effective Date, to the effect that, on the basis of facts,
representations and assumptions set forth in such opinion, (i) the FWB Merger
constitutes a "reorganization" within the meaning of Section 368 of the Code and
(ii) no gain or loss will be recognized by stockholders of FWB who receive
shares of SFG Common Stock in exchange for shares of FWB Common Stock, and cash
in lieu of fractional share interests, other than the gain or loss to be
recognized as to cash received in lieu of fractional share interests. In
rendering its opinion, counsel to SFG's independent auditors may require and
rely upon representations contained in letters from FWB and SFG.
(d) Opinion of SFG's Counsel. FWB shall have received an opinion of
Squire, Sanders & Dempsey L.L.P., counsel to SFG, dated the Effective Date, to
the effect that, on the basis of the facts, representations and assumptions set
forth in the opinion, (i) SFG is a corporation duly organized and in good
standing under the laws of the State of Ohio, (ii) this Agreement has been duly
executed by SFG and constitutes the binding obligation of SFG, enforceable in
accordance with its terms against SFG, except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, by general equitable principles (regardless of whether enforceability
is considered in a proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing, (iii) that, assuming approval of SFG's
stockholders, the SFG Common Stock to be issued as Merger Consideration, when
issued, shall be duly authorized, fully paid and non-assessable, and (iv) that,
assuming approval of SFG's stockholders, upon the filing of the articles of
merger with the DSCP, the FWB Merger shall become effective.
(e) Fairness Opinion. FWB shall have received a fairness opinion from
Sandler O'Neill & Partners, L.P., financial advisor to FWB, dated as of a date
reasonably proximate to
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<PAGE> 47
the date of the Proxy Statement, stating that the Merger Consideration is fair
to the stockholders of FWB from a financial point of view.
7.03 CONDITIONS TO OBLIGATION OF SFG. The obligation of SFG to
consummate the Merger is also subject to the fulfillment or written waiver by
SFG prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of FWB set forth in this Agreement shall be true and correct, subject to Section
5.02, as of the date of this Agreement and as of the Effective Date as though
made on and as of the Effective Date (except that representations and warranties
that by their terms speak as of the date of this Agreement or some other date
shall be true and correct as of such date) and SFG shall have received a
certificate, dated the Effective Date, signed on behalf of FWB by the Chief
Executive Officer and the Chief Financial Officer of FWB to such effect.
(b) Performance of Obligations of FWB. FWB shall have performed in all
material respects all obligations required to be performed by it under this
Agreement at or prior to the Effective Time, and SFG shall have received a
certificate, dated the Effective Date, signed on behalf of FWB by the Chief
Executive Officer and the Chief Financial Officer of FWB to such effect.
(c) Opinion of FWB's Counsel. SFG shall have received an opinion of
Kirkpatrick and Lockhart, LLP counsel to FWB, dated the Effective Date, to the
effect that, on the basis of the facts, representations and assumptions set
forth in the opinion, (i) FWB is a corporation duly organized and in good
standing under the laws of the Commonwealth of Pennsylvania, (ii) this Agreement
has been duly executed by FWB and constitutes a binding obligation on FWB,
enforceable in accordance with its terms against FWB, except as the same may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and other similar laws relating to or affecting the enforcement of
creditors' rights generally, by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at law) and by
an implied covenant of good faith and fair dealing and (iii) that, assuming
approval of FWB's stockholders, upon the filing of the articles of merger with
the DSCP, the FWB Merger shall become effective.
(d) Affiliate Agreements. SFG shall have received the agreements
referred to in Section 6.07 from each affiliate of FWB.
(e) Fairness Opinion. SFG shall have received a fairness opinion from
McDonald, dated as of a date reasonably proximate to the date of the Proxy
Statement, stating that the Merger Consideration is fair to the stockholders of
SFG from a financial point of view.
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<PAGE> 48
ARTICLE VIII
TERMINATION
8.01 TERMINATION. This Agreement may be terminated, and the Acquisition
may be abandoned:
(a) Mutual Consent. At any time prior to the Effective Time, by the
mutual consent of SFG and FWB, if the Board of Directors of each so determines
by vote of a majority of the members of its entire Board.
(b) Breach. At any time prior to the Effective Time, by SFG or FWB, if
its Board of Directors so determines by vote of a majority of the members of its
entire Board, in the event of either: (i) a breach by the other party of any
representation or warranty contained herein (subject to the standard set forth
in Section 5.02), which breach cannot be or has not been cured within 30 days
after the giving of written notice to the breaching party of such breach; or
(ii) a breach by the other party of any of the covenants or agreements contained
herein, which breach cannot be or has not been cured within 30 days after the
giving of written notice to the breaching party of such breach, provided that
such breach (whether under (i) or (ii)) would be reasonably likely, individually
or in the aggregate with other breaches, to result in a Material Adverse Effect.
(c) Delay. At any time prior to the Effective Time, by SFG or FWB, if
its Board of Directors so determines by vote of a majority of the members of its
entire Board, in the event that the FWB Merger is not consummated by September
30, 1999, except to the extent that the failure of the FWB Merger then to be
consummated arises out of or results from the knowing action or inaction of the
party seeking to terminate pursuant to this Section 8.01(c).
(d) No Approval. By FWB or SFG, if its Board of Directors so determines
by a vote of a majority of the members of its entire Board, in the event (i) the
approval of any Governmental Authority required for consummation of the Merger
and the other transactions contemplated by this Agreement shall have been denied
by final nonappealable action of such Governmental Authority; (ii) the FWB
stockholders fail to adopt this Agreement at the FWB Meeting; or (iii) any of
the closing conditions have not been met as required by Article VII hereof.
(e) SFG Common Stock. By FWB in accordance with the procedures set
forth in Exhibit C hereto if its Board of Directors so determines by a vote of
the majority of its entire Board of Directors in the event the Average NMS
Closing Price (as defined below) of SFG Common Stock is (i) lower than $25.00
and (ii) is more than ten percent (10%) lower than the average of the NMS
Closing Prices of an index of selected, publicly traded, peer group commercial
financial institutions set forth on Exhibit C hereto, unless SFG determines to
issue additional Merger Consideration such that the condition set forth in (i)
above will no longer exist. For purposes of this Section 8.01(e), the term "NMS
Closing Price" shall mean the price per share of the last sale of SFG Common
Stock reported on the NASDAQ National Market System at the close of the trading
day by the National Association of Securities Dealers, Inc. The term "Average
NMS
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<PAGE> 49
Closing Price" shall mean the arithmetic mean of the NMS Closing Prices for
the ten (10) trading days immediately preceding the fifth (5th) trading day
prior to the receipt of final federal regulatory approval of the Merger.
(f) Due Diligence. By SFG, if after SFG conducts its due diligence
inquiry of FWB for up to thirty days following the date hereof, the SFG Board
determines in good faith, within fifteen days thereafter, that the due diligence
inquiry has revealed one or more matters that (i) are inconsistent with any of
the representations and warranties of FWB and which have had, constitute or are
reasonably likely to have a Material Adverse Effect on FWB, or (ii) in the
reasonable judgment of the SFG Board either (A) is of such significance as to
constitute or have or be reasonably likely to have a Material Adverse Effect on
FWB, or (B) deviates materially and adversely from the financial statements for
the fiscal year ended December 31, 1997 of FWB.
(g) Due Diligence. By FWB, if after FWB conducts its due diligence
inquiry of SFG for up to thirty days following the date hereof, the FWB Board
determines in good faith, within fifteen days thereafter, that the due diligence
inquiry has revealed one or more matters that (i) are inconsistent with any of
the representations and warranties of SFG and which have had, constitute or are
reasonably likely to have a Material Adverse Effect on SFG, or (ii) in the
reasonable judgment of the FWB Board either (A) is of such significance as to
constitute or have or be reasonably likely to have a Material Adverse Effect on
SFG, or (B) deviates materially and adversely from the financial statements for
the fiscal year ended December 31, 1997 of SFG.
(h) Failure to Execute and Deliver Stock Option Agreement. By SFG, if
at any time prior to the close of business, Eastern Standard Time on December
15, 1998, FWB shall not have executed and delivered the Stock Option Agreement
to SFG.
8.02 EFFECT OF TERMINATION AND ABANDONMENT; ENFORCEMENT OF AGREEMENT.
In the event of termination of this Agreement and the abandonment of the Merger
pursuant to this Article VIII, no party to this Agreement shall have any
liability or further obligation to any other party hereunder except (i) as set
forth in Section 9.01 and (ii) that termination will not relieve a breaching
party from liability for any willful breach of this Agreement giving rise to
such termination. Notwithstanding anything contained herein to the contrary, the
parties hereto agree that irreparable damage will occur in the event that a
party breaches any of its obligations, duties, covenants and agreements
contained herein. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches or threatened breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled by law or in equity.
45
<PAGE> 50
ARTICLE IX
MISCELLANEOUS
9.01 SURVIVAL. No representations, warranties, agreements and covenants
contained in this Agreement shall survive the Effective Time (other than
Sections 6.12, 6.13, 6.16, and 6.17 and this Article IX which shall survive the
Effective Time) or the termination of this Agreement if this Agreement is
terminated prior to the Effective Time (other than Sections 6.03(b), 6.04,
6.05(b), 8.02, and this Article IX which shall survive such termination).
9.02 WAIVER; AMENDMENT. Prior to the Effective Time, any provision of
this Agreement may be (i) waived by the party benefited by the provision, or
(ii) amended or modified at any time, by an agreement in writing between the
parties hereto executed in the same manner as this Agreement, except that after
the FWB Meeting, this Agreement may not be amended if it would violate the PBCL
or the federal securities laws.
9.03 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
9.04 GOVERNING LAW. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Ohio applicable to
contracts made and to be performed entirely within such State (except to the
extent that mandatory provisions of Federal law are applicable).
9.05 EXPENSES. Each party hereto will bear all expenses incurred by it
in connection with this Agreement and the transactions contemplated hereby,
except that printing and mailing expenses shall be shared equally between FWB
and SFG. All fees to be paid to Regulatory Authorities and the SEC in connection
with the transactions contemplated by this Agreement shall be borne by SFG.
9.06 NOTICES. All notices, requests and other communications hereunder
to a party shall be in writing and shall be deemed given if personally
delivered, telecopied (with confirmation) or mailed by registered or certified
mail (return receipt requested) to such party at its address set forth below or
such other address as such party may specify by notice to the parties hereto.
If to FWB, to:
First Western Bancorp, Inc.
101 E. Washington
New Castle, Pennsylvania 16101
Attn: Thomas J. O'Shane, Chairman and CEO
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<PAGE> 51
With a copy to:
First Western Bancorp, Inc.
101 E. Washington
New Castle, Pennsylvania 16101
Attn: Thomas Mansell, General Counsel
With a copy to:
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
Attn: J. Robert Van Kirk, Esq.
If to SFG or to Transitory Sub, to:
Sky Financial Group, Inc.
10 E. Main Street
Salineville, OH 43945
Attn: Marty E. Adams, President and COO
With a copy to:
Sky Financial Group, Inc.
221 S. Church Street
Bowling Green, OH 43402
Attn: W. Granger Souder, General Counsel
With a copy to:
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
Attention: M. Patricia Oliver, Esq.
9.07 ENTIRE UNDERSTANDING; NO THIRD PARTY BENEFICIARIES. This
Agreement, any separate agreement entered into by the parties on even date
herewith, and any Stock Option Agreement entered into represent the entire
understanding of the parties hereto with reference to the transactions
contemplated hereby and thereby and this Agreement supersedes any and all other
oral or written agreements heretofore made (other than any such separate
agreement or Stock Option Agreement). Nothing in this Agreement, whether express
or implied, is intended to confer upon any person, other than the parties hereto
or their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
47
<PAGE> 52
9.08 INTERPRETATION; EFFECT. When a reference is made in this Agreement
to Sections, Exhibits or Schedules, such reference shall be to a Section of, or
Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and are not part of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
9.09 WAIVER OF JURY TRIAL. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement or the transactions contemplated
hereby.
[the rest of this page is intentionally left blank]
48
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
FIRST WESTERN BANCORP, INC.
By: /s/ Thomas J. O'Shane
----------------------------------
Name: Thomas J. O'Shane
Title: Chairman and CEO
SKY FINANCIAL GROUP, INC.
By: /s/ Marty E. Adams
----------------------------------
Name: Marty E. Adams
Title: President and COO
FIRST WESTERN ACQUISITION CORPORATION
By: /s/ Marty E. Adams
----------------------------------
Name: Marty E. Adams
Title: CEO
49
<PAGE> 1
Exhibit 15.1
May 13, 1999
To the Board of Directors and Shareholders of
First Western Bancorp, Inc.
New Castle, Pennsylvania 16103
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim financial information of First Western Bancorp, Inc. and
subsidiaries for the periods ended March 31, 1999 and 1998, as
indicated in our report dated April 14, 1999; because we did not
perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in
your Quarterly Report on Form 10-Q for the quarter ended March 31, 1999, is
incorporated by reference in the Registration Statements of First Western
Bancorp, Inc. on Form S-8 (No. 33-46923) for the First Western Bancorp, Inc.
401(k) Profit-Sharing and Stock Bonus Plan, on Forms S-8 (Nos. 33-00528 and
33-50372) for the First Western Bancorp, Inc. Incentive Stock Option Plan for
Key Employees, and on Form S-3 (No. 33-40596) for the First Western Bancorp,
Inc. Dividend Reinvestment and Additional Stock Purchase Plan.
We also are aware that the aforementioned report, pursuant to Rule
436(c) under the Securities Act of 1933, is not considered a part of the
Registration Statements prepared or certified by an accountant or a
report prepared or certified by an accountant within the meaning of
Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
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<NAME> FIRST WESTERN BANCORP INC.
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<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
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<INT-BEARING-DEPOSITS> 3,967
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