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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 15, 1996
------------------------------
West Coast Bancorp, Inc.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Florida 0-21564 65-0018667
- ---------------------------- ----------------------- --------------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
Incorporation) Identification
Number)
2724 Del Prado Boulevard South, Cape Coral, Florida 33904
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (813) 772-2220
--------------
<PAGE> 2
ITEM 5. OTHER EVENTS.
West Coast Bancorp, Inc. a Florida corporation ("West Coast"), F.N.B.
Corporation, a Pennsylvania corporation ("FNB"), and Southwest Banks, Inc., a
Florida corporation which will be a wholly-owned subsidiary of FNB, have
entered into an Agreement and Plan of Merger dated November 15, 1996 ("Merger
Agreement") pursuant to which, among other things, West Coast will be merged
with and into Southwest, with Southwest as the surviving corporation (the
"Merger"). A copy of the Merger Agreement is attached hereto as Exhibit 2.1
and is incorporated herein by reference. The press release describing the
proposed Merger is attached hereto as Exhibit 99.1.
FNB is a Pennsylvania-based bank holding company registered under the
Bank Holding Company Act of 1956, as amended (the "BHCA"), with total assets of
approximately $1.7 billion. Pursuant to the terms of the Merger Agreement,
each West Coast common share, $1.00 par value per share ("West Coast Common
Shares"), other than certain shares owned by FNB or its subsidiaries, issued
and outstanding immediately prior to the Effective Time (as defined in the
Merger Agreement) of the Merger will be converted into 0.794 shares of FNB
common stock, $2.00 par value per share ("FNB Common Stock"). No fractional
shares of FNB Common Stock will be issued in the Merger, and West Coast
shareholders who otherwise would be entitled to receive a fractional share of
FNB Common Stock will receive a cash payment in lieu thereof. Outstanding
warrants and options held by employees and directors of West Coast will be
converted into FNB options at the same exchange ratio. In addition, the Merger
Agreement provides that through the Effective Time, not only may West Coast
continue to declare and pay regular quarterly dividends to its shareholders, it
may increase the amount of its dividend to that amount of dividends which is
currently paid by FNB to its shareholders, as adjusted by the exchange ratio.
The Merger is intended to be a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and to be accounted for under the
pooling of interest method.
FNB and Southwest entered into an Agreement and Plan of Merger dated
February 2, 1996 ("FNB/Southwest Merger Agreement") pursuant to which Southwest
will be merged with and into a wholly-owned FNB subsidiary on or about January
19, 1997, with Southwest as the surviving corporation. As a result of the
FNB/Southwest Merger, Southwest will become a wholly-owned subsidiary of FNB.
The Merger between Southwest and West Coast which is the subject of the Merger
Agreement is expected to take place after consummation of the FNB/Southwest
Merger. If the FNB/Southwest Merger is not completed prior to closing of the
Merger, the Merger Agreement provides for the Merger of West Coast into another
wholly-owned FNB subsidiary.
Consummation of the Merger is subject to a number of conditions,
including: (i) receipt of the approval of a majority of the outstanding West
Coast Common Shares, (ii) receipt of all requisite governmental and regulatory
approvals (including approval of the Board of Governors of the Federal Reserve
System), (iii) West Coast's receipt of a fairness opinion from its investment
banker within five days from the date of its proxy statement, (iv) effectiveness
of a registration statement to be filed by FNB with the Securities and Exchange
Commission ("SEC") with respect to the FNB Common Stock to be issued in the
Merger, (v) receipt of a letter from FNB's independent public accountants that
the Merger will be accounted as a pooling of interests, (vi) receipt of a
favorable opinion of counsel with respect to the tax free nature of certain
aspects of the Merger, and (vii) the satisfaction of certain other closing
conditions customary in a transaction of this type. The Merger Agreement
provides that the Board of Directors of Southwest's subsidiary banks after the
Merger will include current members of the West Coast Board of Directors for at
least one year. The Merger Agreement is subject to termination under certain
circumstances, including if the Merger is not consummated by September 30, 1997.
In addition,
2
<PAGE> 3
West Coast may terminate the Merger Agreement if the average of the high bid
and low asked prices of the FNB Common Stock in the over-the-counter market for
the ten consecutive trading day period ending on the fifth business day prior
to the Effective Time is less than $20.625.
Concurrently with the execution of the Merger Agreement, West Coast
and FNB entered into a Stock Option Agreement (the "FNB Option") pursuant to
which West Coast has granted FNB an option to purchase up to 426,991 West Coast
Common Shares at a price, subject to certain customary anti-dilution rights and
adjustments, of $15.00 per share (representing approximately 19.9% of the
outstanding shares on a fully diluted basis assuming exercise of all the
currently existing outstanding warrants and options to purchase West Coast
Common Shares). The FNB Option was granted by West Coast as an inducement and
condition to FNB's willingness to enter into the Merger Agreement. A copy of
the FNB Option is an exhibit to the Merger Agreement and is attached hereto as
Exhibit 10.1 and is incorporated herein by reference.
The FNB Option is exercisable only upon the occurrence of an "Initial
Triggering Event" (as defined in the FNB Option) and a "Subsequent Triggering
Event" (as defined in the FNB Option) prior to termination of the FNB Option.
The FNB Option will expire upon the occurrence of any of the following:
(i) the Effective Time of the Merger, (ii) the termination of the Merger
Agreement if termination occurs prior to an Initial Triggering Event (unless
termination was due to (a) FNB's inability to satisfy a condition to closing,
(b) failure to receive the requisite West Coast shareholders approval following
a favorable recommendation by the West Coast Board of Directors, or (c) the
withdrawal of the fairness opinion of West Coast's investment banker, in which
case the FNB Option will expire upon termination of the Merger Agreement
notwithstanding the occurrence of a Initial Triggering Event), (iii) the passage
of 12 months after termination of Merger Agreement if termination follows the
occurrence of an Initial Triggering Event not subject to the parenthetical
above, or (iv) such other date as the parties may agree.
An Initial Triggering Event, the occurrence of which serves as a
condition precedent to exercise of the FNB Option and, under certain
circumstances, serves to extend the term of the FNB Option beyond a termination
of the Merger Agreement, generally includes (i) West Coast, without the prior
written consent of FNB, entering into or its Board of Directors recommending
shareholder approval of, an agreement with a third party to effect any of the
following transactions (each an "Acquisition Transaction"): (a) a merger,
consolidation, or a similar transaction involving West Coast or any of its
subsidiaries, (b) a purchase, lease, or other acquisition of all or
substantially all of the assets or deposits of West Coast of any of its
subsidiaries, or (c) a purchase or other acquisition (including by way of
merger, consolidation, share exchange, or otherwise of securities representing
15% or more of the voting power of West Coast or any of its subsidiaries; (ii)
any person (excluding the officers and directors of West Coast) other than FNB,
acquiring beneficial ownership or the right to acquire beneficial ownership of
15% or more of the outstanding West Coast Common Shares; (iii) failure of West
Coast shareholders to approve the Merger Agreement after withdrawal of the West
Coast Board of Directors' recommendation that shareholders approve the Merger
which withdrawal occurs following its authorization, recommendation, or a
public proposal of an intent or authorization to engage in an Acquisition
Transaction with a third party; (iv) receipt of a bona fide proposal from a
third party having economic value at least equal to the Merger, (v) willful
breach of the Merger Agreement by West Coast in anticipation of engaging in an
Acquisition Transaction with a third party; or (vi) filing of application or
notice by third party with, and which has been accepted by, the Federal Reserve
Board or other banking authority seeking approval to engage in an Acquisition
Transaction.
3
<PAGE> 4
Notwithstanding the occurrence of an Initial Triggering Event, the FNB
Option will become exercisable only if a Subsequent Triggering Event shall
occur thereafter but prior to termination of the FNB Option. A Subsequent
Triggering Event generally includes any acquisition by a third party of 25% or
more of the outstanding West Coast Common Shares or any Acquisition Transaction
of the type referred to in clause (i) of the preceding paragraph, except that
the percentage referred to in clauses (i)(c) shall be 25%.
As more fully set forth in the FNB Option, FNB (or a subsequent holder
of an FNB Option or the shares issued thereunder) has the right under specified
circumstances to require West Coast to repurchase the FNB Option or such
shares. West Coast's ability to engage in a subsequent pooling of interests
transaction may be adversely affected if holders of the FNB Option exercise
such rights. In addition, the FNB Option provides holders of the FNB Option
with certain rights to require West Coast to register the West Coast Common
Shares acquired by or issuable upon the exercise of the FNB Option under the
Securities Act of 1933, as amended.
The foregoing summary of the contents of the Merger Agreement and the
FNB Option is qualified in its entirety by reference to Exhibits 2.1 and 10.1
hereto.
On November 15, 1996, West Coast announced the execution of the
definitive Merger Agreement with FNB and its general terms.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Not Applicable
(b) Not Applicable
(c) Exhibits required by Item 601 of Regulation S-B
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger dated November 15, 1996, by and
among F.N.B.Corporation, Southwest Banks, Inc. and West Coast
Bancorp, Inc.
10.1 Stock Option Agreement, dated November 15, 1996 by and between
F.N.B. Corporation and West Coast Bancorp, Inc.
99.1 Press Release, issued November 15, 1996, regarding the Merger.
[Rest of Page Intentionally Blank. Signatures on following Page.]
4
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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 hereunto duly authorized.
WEST COAST BANCORP, INC.
Date: November 26, 1996 By: /s/ Michael P. Geml
-------------------------------------------
Michael P. Geml
President and Chief Executive Officer
<PAGE> 6
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger dated November 15, 1996, by and
among F.N.B.Corporation, Southwest Banks, Inc. and West Coast
Bancorp, Inc.
10.1 Stock Option Agreement, dated November 15, 1996 by and between
F.N.B. Corporation and West Coast Bancorp, Inc.
99.1 Press Release, issued November 15, 1996, regarding the Merger.
<PAGE> 1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
F.N.B. CORPORATION,
SOUTHWEST BANKS, INC.
AND
WEST COAST BANCORP, INC.
DATED AS OF NOVEMBER 15, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Execution of Stock Option Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Articles of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 - MANNER OF CONVERTING SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Anti-Dilution Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Shares Held by West Coast or FNB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.5 Conversion of Stock Options, Warrants, and Other Rights . . . . . . . . . . . . . . . . . . . 3
ARTICLE 4 - EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Rights of Former West Coast Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF WEST COAST . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Authority; No Breach by Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4 West Coast Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.5 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.6 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.8 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.9 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.10 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.11 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.12 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.13 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.14 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.15 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.16 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.17 Accounting, Tax and Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.18 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.19 Articles of Incorporation Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.20 Derivatives Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
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<TABLE>
<S> <C>
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF FNB AND SOUTHWEST . . . . . . . . . . . . . . . . . . . . 14
6.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4 FNB Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.5 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.6 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.7 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.8 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.9 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.10 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.12 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.13 Accounting, Tax and Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.14 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.15 Derivatives Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.16 Outstanding West Coast Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.1 Affirmative Covenants of West Coast . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.2 Negative Covenants of West Coast . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.3 Covenants of FNB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.4 Adverse Changes In Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.5 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 8 - ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.1 Registration Statement; Proxy Statement; Shareholder Approval . . . . . . . . . . . . . . . . 24
8.2 Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3 Filings With State Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.4 Agreement As To Efforts To Consummate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.5 Access to Information; Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.6 Divided Equivalency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.7 Current Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.8 Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.9 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.10 Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.11 Accounting and Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.12 Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.13 Articles of Incorporation Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.14 Agreement of Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.15 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.16 Employment Contracts of Certain Officers of West Coast . . . . . . . . . . . . . . . . . . . 27
8.17 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE . . . . . . . . . . . . . . . . . . . . . 28
9.1 Conditions to Obligations of Each Party . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.2 Conditions to Obligations of FNB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.3 Conditions to Obligations of West Coast . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
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<TABLE>
<S> <C>
ARTICLE 10 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.3 Non-Survival of Representations and Covenants . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 11 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.3 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.6 Obligations of FNB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.7 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.8 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.12 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.13 Enforcement of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
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LIST OF EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
1. Form of Stock Option Agreement. (Section 1.4).
2. Form of Agreement of Affiliates of West Coast. (Section 8.14).
</TABLE>
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of November 15, 1996, by and among F.N.B. CORPORATION ("FNB"),
a Pennsylvania corporation having its principal office located in Hermitage,
Pennsylvania; SOUTHWEST BANKS, INC. ("Southwest"), a Florida corporation having
its principal office located in Naples, Florida, which will be a wholly owned
subsidiary of FNB on or about January 19, 1997 pursuant to the terms of that
certain Agreement and Plan of Merger dated February 2, 1996 among Southwest,
FNB and Southwest Affiliation Corporation, a wholly owned subsidiary of FNB
(the "FNB/Southwest Merger"); and WEST COAST BANCORP, INC. ("West Coast"), a
Florida corporation having its principal office located in Cape Coral, Florida.
PREAMBLE
The Boards of Directors of West Coast and FNB are of the opinion that
the acquisition described herein is in the best interests of the parties and
their respective shareholders. This Agreement provides for the acquisition of
West Coast by FNB pursuant to the merger of West Coast with and into Southwest
(the "Merger"). In the event that the FNB/Southwest Merger has not been
consummated prior to the effective time of the Merger, FNB will substitute
another of its wholly owned subsidiaries as a party to this Agreement in place
of Southwest. At the effective time of such Merger, the outstanding shares of
the capital stock of West Coast shall be converted into the right to receive
shares of the common stock of FNB (except as provided herein). As a result,
shareholders of West Coast shall become shareholders of FNB. The transactions
described in this Agreement are subject to the approvals of the shareholders of
West Coast, the Board of Governors of the Federal Reserve System, the Florida
Department of Banking and Finance, and the satisfaction of certain other
conditions described in this Agreement. It is the intention of the parties to
this Agreement that the Merger (as hereinafter defined) for federal income tax
purposes shall qualify as a "reorganization" within the meaning of Section
368(a) of the Internal Revenue Code, and for accounting purposes shall qualify
for treatment as a pooling of interests.
Immediately after the execution and delivery of this Agreement, as a
condition and inducement to FNB's willingness to enter into this Agreement,
West Coast and FNB are entering into a stock option agreement (the "Stock
Option Agreement"), in substantially the form of Exhibit 1, pursuant to which
West Coast is granting to FNB an option to purchase shares of West Coast Common
Shares.
Certain terms used in this Agreement are defined in Section 11.1 of this
Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions of this Agreement, at
the Effective Time, West Coast shall be merged with and into Southwest in
accordance with the provisions of the Florida Business Corporation Act (the
"FBCA"). The separate corporate existence of West Coast shall thereupon cease,
and Southwest shall be the Surviving Corporation resulting from the Merger and
shall continue to be governed by the Laws of the State of Florida. The Merger
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shall have the effects specified in the FBCA. The Merger shall be consummated
pursuant to the terms of this Agreement, which has been approved and adopted by
the respective Boards of Directors of West Coast, FNB and Southwest.
1.2 Time and Place of Closing. The Parties shall use their reasonable
efforts to cause the closing of the transactions contemplated by this Agreement
to take place at 9:00 A.M. on or before the fifth business day (as designated
by FNB) but not prior to the second business day following the Effective Time,
or at such other time as the Parties, acting through their chief executive
officers or chief financial officers, may mutually agree. The place of closing
shall be at such location as may be mutually agreed upon by the Parties.
1.3 Effective Time. The Merger and other transactions contemplated by
this Agreement shall become effective on the date and at the time the Florida
Articles of Merger containing the provisions required by, and executed in
accordance with the FBCA, shall have been accepted for filing by the Secretary
of State of the State of Florida or at such later date and time as is agreed
upon by the Parties as specified in the Florida Articles of Merger (the
"Effective Time"). Subject to the terms and conditions hereof, unless otherwise
mutually agreed upon in writing by each Party, the Effective Time shall occur
on the last to occur of (i) the effective date (including expiration of any
applicable waiting period) of the last required Consent of any Regulatory
Authority having authority over and approving or exempting the Merger if such
action is required, and (ii) the date on which the shareholders of West Coast
approve this Agreement to the extent such approval is required by applicable
Law.
1.4 Execution of Stock Option Agreement. Concurrently with the
execution of this Agreement and as a condition thereto, West Coast is executing
and delivering to FNB the Stock Option Agreement.
ARTICLE 2
TERMS OF MERGER
2.1 Articles of Incorporation. Pursuant to the Merger, the Articles
of Incorporation of Southwest in effect at the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation until otherwise amended
or repealed.
2.2 Bylaws. Pursuant to the Merger, the Bylaws of Southwest in effect
at the Effective Time shall be the Bylaws of the Surviving Corporation until
otherwise amended or repealed.
2.3 Directors. Upon the Effective Time, the directors of West Coast
shall be elected as directors for a term of one year of a subsidiary bank of
FNB having its headquarters in Lee County, Florida and FNB shall cause
directors fees to be paid to such individuals for such term in an amount at
least equal to the higher of the amount currently paid to the directors of the
Southwest Subsidiaries or the amount currently paid to the West Coast
directors.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 Conversion of Shares. Subject to the provisions of this Article
3, at the Effective Time, by virtue of the Merger and without any action on the
part of FNB, Southwest or West Coast, or the shareholders of any of the
foregoing, the shares of the constituent corporations shall be converted as
follows:
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(a) Each of the Surviving Corporation common shares issued and
outstanding immediately prior to the Effective Time shall remain
outstanding and issued entirely to FNB.
(b) Each share of FNB Capital Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time.
(c) Each of the West Coast Common Shares (excluding shares to
be canceled pursuant to Section 3.3 of the Agreement) issued and
outstanding at the Effective Time shall cease to be outstanding and
shall be converted into the right to receive and exchanged for .794
shares of FNB Common Stock (the "Exchange Ratio").
3.2 Anti-Dilution Provisions. In the event FNB changes the number of
shares of FNB Common Stock issued and outstanding prior to the Effective Time
as a result of a stock split, stock dividend, recapitalization,
reclassification or similar transaction with respect to such stock and the
record date therefor (in the case of a stock dividend) or the effective date
thereof (in the case of a stock split or similar recapitalization for which a
record date is not established) shall be prior to the Effective Time, the
Exchange Ratio shall be proportionately adjusted.
3.3 Shares Held by West Coast or FNB. Each of the West Coast Common
Shares held by West Coast or by any FNB Company, in each case other than those
West Coast Common Shares held in a fiduciary capacity or as a result of debts
previously contracted, shall be canceled and retired at the Effective Time and
no consideration shall be issued in exchange therefor.
3.4 Fractional Shares. Notwithstanding any other provision of this
Agreement, each holder of West Coast Common Shares exchanged pursuant to the
Merger who would otherwise have been entitled to receive a fraction of a share
of FNB Common Stock (after taking into account all certificates delivered by
such holder) shall receive, in lieu thereof, cash (without interest) in an
amount equal to such fractional part of a share of FNB Common Stock multiplied
by the "market value" of one share of FNB Common Stock at the Effective Time.
The market value of one share of FNB Common Stock at the Effective Time shall
be the average of the high bid and low asked prices of such common stock in the
over-the-counter market, as reported by Nasdaq (or, if not reported thereby,
any other authoritative source selected by FNB) on the last trading day
preceding the Effective Time. No such holder will be entitled to dividends,
voting rights, or any other rights as a shareholder in respect of any
fractional shares.
3.5 Conversion of Stock Options, Warrants, and Other Rights.
(a) At the Effective Time, each award, option, warrant, or other
right to purchase or acquire West Cost Common Shares pursuant to stock awards,
stock options, warrant agreements, or stock appreciation rights ("West Coast
Options") granted by West Coast under the West Coast Stock Plans or otherwise
(including, without limitation, those warrants issued to certain officers and
directors of West Coast), which are outstanding at the Effective Time and as
were previously listed and described in Section 3.5 of the West Coast
Disclosure Memorandum, whether or not vested or exercisable, shall be converted
into and become rights with respect to FNB Common Stock, and FNB shall assume
each West Coast Option, in accordance with the terms of the West Coast Stock
Plan and stock option agreement or warrant agreement by which it is evidenced,
except that from and after the Effective Time, (i) FNB and its Compensation
Committee shall be substituted for West Coast and the committee of West Coast's
Board of Directors (including, if applicable, the entire Board of Directors of
West Coast) administering such West Coast Stock Plan, (ii) each West Coast
Option assumed by FNB may be exercised solely for shares of FNB Common Stock
(or cash in the case of
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stock appreciation rights), (iii) the number of shares of FNB Common Stock
subject to such West Coast Option shall be equal to the number of shares of
West Coast Common Shares subject to such West Coast Option immediately prior to
the Effective Time multiplied by the Exchange Ratio, and (iv) the per share
exercise price (or similar threshold price, in the case of stock awards) under
each such West Coast Option shall be adjusted by dividing the per share
exercise (or threshold) price under each such West Coast Option by the Exchange
Ratio and rounding up to the nearest cent. Notwithstanding the provisions of
clause (iii) of the preceding sentence, FNB shall not be obligated to issue any
fraction of a share of FNB Common Stock upon exercise of West Coast Options and
any fraction of a share of FNB Common Stock that otherwise would be subject to
a converted West Coast Option shall represent the right to receive a cash
payment equal to the product of such fraction and the difference between the
"market value" as defined in Section 3.4 of one share of FNB Common Stock and
the per share exercise price of such right. In addition, notwithstanding the
provisions of clauses (iii) and (iv) of the first sentence of this Section
3.5(a), each West Coast Option which is an "incentive stock option" shall be
adjusted as required by Section 424 of the Internal Revenue Code, and the
regulations promulgated thereunder, so as not to constitute a modification,
extension, or renewal of the option, within the meaning of Section 424(h) of
the Internal Revenue Code. FNB agrees to take all necessary steps to effectuate
the foregoing provisions of this Section 3.5.
(b) As soon as practicable after the Effective Time, FNB shall
deliver to the participants in each West Coast Stock Plan an appropriate notice
setting forth such participant's rights pursuant thereto and the grants
pursuant to such West Coast Stock Plan shall continue in effect on the same
terms and conditions (subject to the adjustments required by Section 3.5(a) of
this Agreement after giving effect to the Merger), and FNB shall comply with
the terms of each West Coast Stock Plan to ensure, to the extent required by,
and subject to the provisions of, such West Coast Stock Plan, the West Coast
Options which qualified as incentive stock options prior to the Effective Time
continue to qualify as incentive stock options after the Effective Time. At or
prior to the Effective Time, FNB shall take all corporate action necessary to
reserve for issuance sufficient shares of FNB Common Stock for delivery upon
exercise of West Coast Options assumed by FNB in accordance with this Section
3.5. As soon as practicable after the Effective Time, FNB shall file a
registration statement on Form S-3 or Form S-8, as the case may be (or any
successor or other appropriate forms), with respect to the shares of FNB Common
Stock subject to such options and shall use its reasonable efforts to maintain
the effectiveness of such registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as such
options remain outstanding. With respect to those individuals who subsequent
to the Merger will be subject to the reporting requirements under Section 16(a)
of the Exchange Act, where applicable, FNB shall administer the West Coast
Stock Plan assumed pursuant to this Section 3.5 in a manner that complies with
Rule 16b-3 promulgated under the Exchange Act to the extent the West Coast
Stock Plan complied with such rule prior to the Merger.
(c) All restrictions or limitations on transfer with respect to
West Coast Common Shares awarded under the West Coast Stock Plans, to the
extent that such restrictions or limitations shall not have already lapsed, and
except as otherwise expressly provided in such plan, program, or arrangement,
shall remain in full force and effect with respect to shares of FNB Common
Stock into which such restricted stock is converted pursuant to Section 3.1 of
this Agreement.
ARTICLE 4
EXCHANGE OF SHARES
4.1 Exchange Procedures. At the Effective Time, FNB shall deposit, or
shall cause to be deposited, with the Exchange Agent selected by FNB (the
"Exchange Agent") certificates evidencing shares of FNB
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Common Stock and cash in such amounts necessary to provide all consideration
required to be exchanged by FNB for West Coast Common Shares pursuant to the
terms of this Agreement. Promptly after the Effective Time, FNB shall cause
the Exchange Agent to mail to the former shareholders of West Coast appropriate
transmittal materials (which shall specify that delivery shall be effected, and
risk of loss and title to the certificates theretofore representing shares of
West Coast Common Shares shall pass, only upon proper delivery of such
certificates to the Exchange Agent). After the Effective Time, each holder of
shares of West Coast Common Shares (other than shares to be canceled pursuant
to Section 3.3 of this Agreement) issued and outstanding at the Effective Time
shall surrender the certificate or certificates representing such shares to the
Exchange Agent and shall upon surrender thereof promptly receive in exchange
therefor the consideration provided in Section 3.1 of this Agreement, together
with all declared but undelivered dividends or distributions in respect of such
shares (without interest thereon) pursuant to Section 4.2 of this Agreement.
To the extent required by Section 3.4 of this Agreement, each holder of West
Coast Common Shares issued and outstanding at the Effective Time also shall
receive, upon surrender of the certificate or certificates representing such
shares, cash in lieu of any fractional share of FNB Common Shares to which such
holder may be otherwise entitled (without interest). FNB shall not be obligated
to deliver the consideration to which any former holder of West Coast Common
Shares is entitled as a result of the Merger until such holder surrenders such
holder's certificate or certificates representing the West Coast Common Shares
for exchange as provided in this Section 4.1. The certificate or certificates
of West Coast Common Shares so surrendered shall be duly endorsed as the
Exchange Agent may require. Any other provision of this Agreement
notwithstanding, neither FNB nor the Exchange Agent shall be liable to a holder
of West Coast Common Shares for any amounts paid or property delivered in good
faith to a public official pursuant to any applicable abandoned property Law.
4.2 Rights of Former West Coast Shareholders. At the Effective Time,
the stock transfer books of West Coast shall be closed as to holders of West
Coast Common Shares immediately prior to the Effective Time and no transfer of
West Coast Common Shares by any such holder shall thereafter be made or
recognized. Until surrendered for exchange in accordance with the provisions of
Section 4.1 of this Agreement, each certificate theretofore representing West
Coast Common Shares (other than shares to be canceled pursuant to Section 3.3
of this Agreement) shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in Sections 3.1
and 3.4 of this Agreement in exchange therefor, subject, however, to FNB's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which have been declared or made by West Coast
in respect of such West Coast Common Shares in accordance with the terms of
this Agreement and which remain unpaid at the Effective Time. Until 90 days
after the Effective Time, former shareholders of record of West Coast shall be
entitled to vote at any meeting of FNB stockholders the number of shares of FNB
Common Stock into which their respective West Coast Common Shares are
converted, regardless of whether such holders have exchanged their certificates
representing West Coast Common Shares for certificates representing FNB Common
Stock in accordance with the provisions of this Agreement. Whenever a dividend
or other distribution is declared by FNB on the FNB Common Stock, the record
date for which is at or after the Effective Time, the declaration shall include
dividends or other distributions on all shares issuable pursuant to this
Agreement, but beginning 30 days after the Effective Time no dividend or other
distribution payable to the holders of record of FNB Common Stock as of any
time subsequent to the Effective Time shall be delivered to the holder of any
certificate representing shares of West Coast Common Shares issued and
outstanding at the Effective Time until such holder surrenders such certificate
for exchange as provided in Section 4.1 of this Agreement. However, upon
surrender of such West Coast Common Shares certificate, both the FNB Common
Stock certificate (together with all such undelivered dividends or other
distributions without interest) and any undelivered dividends and cash payments
to be paid for fractional share interests (without interest) shall be delivered
and paid with respect to each share represented by such certificate. Any
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portion of the consideration (including the proceeds of any investments
thereof) which had been made available to the Exchange Agent pursuant to
Section 4.1 of this Agreement that remain unclaimed by the shareholders of West
Coast for six months after the Effective Time shall be paid to FNB. Any
shareholders of West Coast who have not theretofore complied with this Article
4 shall thereafter look only to FNB for payment of their shares of FNB Common
Stock, cash in lieu of fractional shares, and unpaid dividends and
distributions on the FNB Common Stock deliverable in respect of each West Coast
Common Share such shareholder holds as determined pursuant to this Agreement,
in each case, without any interest thereon.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF WEST COAST
West Coast hereby represents and warrants to FNB as follows:
5.1 Organization, Standing, and Power. West Coast is a corporation
duly organized, validly existing, and in active status under the laws of the
State of Florida, and has the corporate power and authority to carry on its
business as now conducted and to own, lease, and operate its material Assets.
West Coast is duly qualified or licensed to transact business as a foreign
corporation and is in good standing in each jurisdiction where the character of
its Assets or the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the failure to be
so qualified or licensed is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on the West Coast and its Subsidiaries
taken as a whole.
5.2 Authority; No Breach by Agreement.
(a) West Coast has the corporate power and authority necessary to
execute and deliver this Agreement, and, subject to the approval and adoption
of this Agreement by the shareholders of West Coast, to perform its obligations
under this Agreement and consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Agreement by West Coast and the
consummation by West Coast of the transactions contemplated herein, including
the Merger, have been duly and validly authorized by all necessary corporate
action in respect thereof on the part of West Coast, subject to the approval of
this Agreement by its shareholders as contemplated by Section 8.1 hereof.
Subject to such requisite shareholder approval (and assuming due authorization,
execution, and delivery by FNB and Surviving Corporation), this Agreement
represents a legal, valid, and binding obligation of West Coast, enforceable
against West Coast in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought). The
affirmative vote of the holders of a majority of the outstanding West Coast
Common Shares is the only shareholder vote necessary to approve this Agreement
and the transactions contemplated hereby. The West Coast Board of Directors
has received from Advest, Inc. a letter dated as of the date of this Agreement
to the effect that, in the opinion of such firm, the Exchange Ratio is fair,
from a financial point of view, to the holders of West Coast Common Shares.
(b) Except as disclosed in Section 5.2(b) of the West Coast Disclosure
Memorandum, neither the execution and delivery of this Agreement by West Coast,
nor the consummation by West Coast of the transactions contemplated hereby, nor
compliance by West Coast with any of the provisions hereof, will (i) conflict
with or result in a breach of any provision of West Coast's Articles of
Incorporation or Bylaws,
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or, (ii) constitute or result in a default under, or result in the creation of
any Lien on any material Asset of any West Coast Company under, or require any
consent pursuant to, any Contract or Permit of any West Coast Company, where
such default or Lien, or any failure to obtain such Consent, is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
West Coast and its Subsidiaries taken as a whole, or, (iii) subject to receipt
of the requisite Consents referred to in Sections 9.1(a), (b) and (c) of this
Agreement, violate any Order or, to its knowledge, any law applicable to any
West Coast Company or any of their respective material Assets which will have a
Material Adverse Effect on West Coast and its Subsidiaries taken as a whole.
(c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities Laws, and rules of
the Nasdaq, and other than Consents required from Regulatory Authorities, and
other than notices to or filings with the Small Business Administration,
Internal Revenue Service or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans, or under the HSR Act, and other than
Consents, filings, or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on West Coast and its Subsidiaries, taken as a whole; no notice to,
filing with, or Consent of, any public body or authority is necessary for the
consummation by West Coast of the Merger and the other transactions
contemplated in this Agreement.
5.3 Capital Stock.
(a) The authorized capital stock of West Coast consists of (i)
7,500,000 West Coast Common Shares, of which 1,544,466 shares are issued and
outstanding as of the date of this Agreement and not more than 1,718,691 shares
will be issued and outstanding at the Effective Time, and (ii) 2,500,000
preferred shares, par value $1.00 per share, none of which is issued and
outstanding. All of the issued and outstanding West Coast Common Shares are
duly and validly issued and outstanding and are fully paid and nonassessable
under the FBCA. None of the outstanding West Coast Common Shares has been
issued in violation of any preemptive rights. West Coast has reserved 239,700
West Coast Common Shares for issuance under the West Coast Stock Plans,
pursuant to which options and warrants to purchase not more than 174,225 West
Coast Common Shares are outstanding.
(b) Except as set forth in Section 5.3(a) of this Agreement, or as
provided pursuant to the Stock Option Agreement, there are no shares of capital
stock or other equity securities of West Coast outstanding and no outstanding
Rights relating to the capital stock of West Coast.
5.4 West Coast Subsidiaries. Except as disclosed in Section 5.4 of
the West Coast Disclosure Memorandum, the list of Subsidiaries of West Coast
filed by West Coast with its most recent West Coast SEC Report on Form 10-KSB
is a true and complete list of all of the West Coast Subsidiaries as of the
date of this Agreement. Except as disclosed in Section 5.4 of the West Coast
Disclosure Memorandum, West Coast or one of its Subsidiaries owns all of the
issued and outstanding shares of capital stock of each West Coast Subsidiary.
No equity securities of any West Coast Subsidiary are or may become required to
be issued (other than to another West Coast Company) by reason of any Rights,
and there are no Contracts by which any West Coast Subsidiary is bound to issue
(other than to another West Coast Company) additional shares of its capital
stock or Rights or by which any West Coast Company is or may be bound to
transfer any shares of the capital stock of any West Coast Subsidiary (other
than to another West Coast Company). There are no Contracts relating to the
rights of any West Coast Company to vote or to dispose of any shares of the
capital stock of any West Coast Subsidiary. All of the shares of capital stock
of each West Coast Subsidiary held by a West Coast Company are fully paid and
nonassessable under the applicable corporation Law of the jurisdiction in
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which such Subsidiary is incorporated or organized (except, in the case of
Subsidiaries that are national banks, for the assessment contemplated by 12
U.S.C. Section 55), and are owned by the West Coast Company free and clear of
any Lien. Each West Coast Subsidiary is either a bank or a corporation, and is
duly organized, validly existing, and (as to corporations) in good standing
under the Laws of the jurisdiction in which it is incorporated or organized,
and has the corporate power and authority necessary for it to own, lease, and
operate its Assets and to carry on its business as now conducted. Each West
Coast Subsidiary is duly qualified or licensed to transact business as a
foreign corporation and is in good standing in each jurisdiction where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on West Coast and its
Subsidiaries taken as a whole. Each West Coast Subsidiary that is a depository
institution is an "insured institution" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder, and the deposits in which
are insured by the Bank Insurance Fund.
5.5 SEC Filings; Financial Statements.
(a) West Coast has filed or will file and has made or will make
available to FNB all forms, reports, and documents required to be filed by West
Coast with the SEC since January 1, 1993 (collectively, the "West Coast SEC
Reports"). The West Coast SEC Reports (i) at the time filed, complied in all
material respects with the applicable requirements of the 1933 Act and the 1934
Act, as the case may be, and (ii) did not at the time they were filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or
omit to state a material fact required to be stated in such West Coast SEC
Reports or necessary in order to make the statements in such West Coast SEC
Reports, in light of the circumstances under which they were made, not
misleading (except any statement or omission therein which has been corrected
or otherwise disclosed or updated in a subsequent West Coast SEC Report).
Except for West Coast Subsidiaries that are registered as a broker, dealer or
investment advisor, none of West Coast's Subsidiaries is required to file any
forms, reports, or other documents with the SEC. West Coast has made available
to FNB a copy of the balance sheets and the related consolidated statements of
income, consolidated statement of changes in shareholders' equity (including
related notes and schedules) of its subsidiary banks as of and for the three
year period ended December 31, 1995 and consolidated statements or earnings
releases for West Coast and its consolidated subsidiaries as of and for the
three year period ended December 31, 1995 and subsequent interim periods that
have been prepared by or for West Coast as of the date of this Agreement.
(b) Each of the West Coast Financial Statements (including, in each
case, any related notes) contained in any West Coast SEC Report on Form 10-QSB
or Form 10-KSB, including any West Coast SEC Report on Form 10-QSB or Form
10-KSB filed after the date of this Agreement until the Effective Time, are or
will be prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated therein or in the
notes to such financial statements, or, in the case of unaudited statements, as
permitted by Form 10-QSB of the SEC), and present or will present fairly the
consolidated financial position of West Coast and its Subsidiaries at the
respective dates and the consolidated results of its operations and cash flows
at and for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount, and except for the
absence of certain footnote information in the unaudited statements.
5.6 Absence of Certain Changes or Events. Except as disclosed in
Section 5.6 of the West Coast Disclosure Memorandum and except as set forth in
West Coast SEC Reports filed prior to the date of this
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Agreement, since June 30, 1996, (i) there have been no events, changes, or
occurrences which have had, or are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on West Coast and its Subsidiaries
taken as a whole, and (ii) the West Coast Companies have not taken any action,
or failed to take any action, prior to the date of this Agreement, which action
or failure, if taken after the date of this Agreement, would represent or
result in a material breach or violation of any of the covenants and agreements
of West Coast provided in Article 7 of this Agreement.
5.7 Tax Matters.
(a) All Tax Returns required to be filed by or on behalf of any of the
West Coast Companies have been timely filed or requests for extensions have
been timely filed, granted, and have not expired for periods ended on or before
September 30, 1996, except to the extent that all such failures to file, taken
together, are not reasonably likely to have a Material Adverse Effect on West
Coast, and to the Knowledge of West Coast, all Tax Returns filed are complete
and accurate in all material respects. All Taxes shown on filed Tax Returns
have been paid. There is no audit examination, deficiency, or refund Litigation
with respect to any Taxes that is reasonably likely to result in a
determination that would have, individually or in the aggregate, a Material
Adverse Effect on West Coast and its Subsidiaries taken as a whole, except as
reserved against in the West Coast Financial Statements delivered prior to the
date of this Agreement or as disclosed in Section 5.7 of the West Coast
Disclosure Memorandum. All Taxes and other liabilities due with respect to
completed and settled examinations or concluded Litigation have been paid,
accrued or provided for as disclosed in Section 5.7 of the West Coast
Disclosure Memorandum.
(b) Except as disclosed in Section 5.7 of the West Coast Disclosure
Memorandum, none of the West Coast Companies has executed an extension or
waiver of any statute of limitations on the assessment or collection of any
material Tax due that is currently in effect.
(c) Except as disclosed in Section 5.7 of the West Coast Disclosure
Memorandum, adequate provision for any Taxes due or to become due for any of
the West Coast Companies for the period or periods through and including the
date of the respective West Coast Financial Statements has been made and is
reflected on such West Coast Financial Statements.
(d) Deferred Taxes of the West Coast Companies and related valuation
allowance have been adequately provided for in the West Coast Financial
Statements in accordance with GAAP.
(e) To the knowledge of West Coast, each of the West Coast Companies
is in compliance with, and its records contain all information and documents
(including properly completed Internal Revenue Service Forms W- 9) necessary to
comply with, all applicable information reporting and Tax withholding
requirements under federal, state, and local Tax Laws, and such records
identify with specificity all accounts subject to backup withholding under
Section 3406 of the Internal Revenue Code, except for such instances of
noncompliance and such omissions as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on West Coast and
its Subsidiaries taken as a whole.
(f) There are no Liens with respect to Taxes upon any of the assets of
the West Coast Companies except for loans on the Subsidiaries' books generated
in the normal course of business.
(g) No West Coast Company has filed any consent under Section 341(f)
of the Internal Revenue Code concerning collapsible corporation.
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(h) All material elections with respect to Taxes affecting the West
Coast Companies as of the date of this Agreement have been or will be timely
made as set forth in Section 5.7 of the West Coast Disclosure Memorandum. After
the date hereof, other than as set forth in Section 5.7 of the West Coast
Disclosure Memorandum, no election with respect to Taxes will be made without
the prior written consent of FNB, which consent will not be unreasonably
withheld.
5.8 Assets. Except as disclosed in Section 5.8 of the West Coast
Disclosure Memorandum, the West Coast Companies have good and marketable title,
free and clear of all Liens (except for those Liens which are not likely to
have a Material Adverse Effect on West Coast or its Subsidiaries taken as a
whole), to all of their respective material Assets, reflected in West Coast
Financial Statements as being owned by West Coast as of the date hereof. All
material tangible properties used in the businesses of the West Coast Companies
are in good condition, reasonable wear and tear excepted, and are usable in the
ordinary course of business consistent with West Coast's past practices. All
Assets which are material to West Coast's business on a consolidated basis,
held under leases or subleases by any of the West Coast Companies, are held
under valid Contracts enforceable in accordance with their respective terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought), and each
such Contract is in full force and effect. The West Coast Companies currently
maintain insurance in amounts, scope, and coverage as disclosed in Section 5.8
of the West Coast Disclosure Memorandum. None of the West Coast Companies has
received written notice from any insurance carrier that (i) such insurance will
be canceled or that coverage thereunder will be reduced or eliminated, or (ii)
premium costs with respect to such policies of insurance will be substantially
increased. Except as disclosed in Section 5.8 of the West Coast Disclosure
Memorandum, to the Knowledge of West Coast there are presently no occurrences
giving rise to a claim under such policies of insurance and no notices have
been given by any West Coast Company under such policies.
5.9 Environmental Matters.
(a) To the Knowledge of West Coast, except as disclosed in Section 5.9
of the West Coast Disclosure Memorandum, each West Coast Company, its
Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except for violations which are not
reasonably likely to have, a Material Adverse Effect on West Coast and its
Subsidiaries taken as a whole.
(b) Except as disclosed in Section 5.9 of the West Coast Disclosure
Memorandum, to the Knowledge of West Coast, there is no Litigation pending or
threatened before any court, governmental agency, or authority or other forum
in which any West Coast Company or any of its Loan Properties or Participation
Facilities has been or, with respect to threatened Litigation, may be named as
a defendant or potentially responsible party (i) for alleged noncompliance
(including by any predecessor) with any Environmental Law or (ii) relating to
the release into the environment of any Hazardous Material, whether or not
occurring at, on, under, or involving any of its Loan Properties or
Participation Facilities, except for such Litigation pending or threatened that
is not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on West Coast and its Subsidiaries taken as a whole.
(c) To the Knowledge of West Coast, except as disclosed in Section 5.9
of the West Coast Disclosure Memorandum, there is no reasonable basis for any
Litigation of a type described above in Section 5.9(b), except such as is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on West Coast and its Subsidiaries taken as a whole.
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(d) To the Knowledge of West Coast, except as disclosed in Section 5.9
of the West Coast Disclosure Memorandum, during the period of (i) West Coast's
or any of its Subsidiaries' ownership or operation of any of their respective
properties, (ii) West Coast's or any of its Subsidiaries' participation in the
management of any Participation Facility, or (iii) West Coast's or any of its
Subsidiaries' holding a security interest in a Loan Property, to the Knowledge
of West Coast there have been no releases of Hazardous Material in, on, under,
or affecting any Participation Facility or Loan Property of a West Coast
Company, except such as are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on West Coast and its Subsidiaries
taken as a whole.
5.10 Compliance With Laws. West Coast is duly registered as a bank
holding company under the BHC Act. Each West Coast Company has in effect all
Permits necessary for it to own, lease, or operate its material Assets and to
carry on its business as now conducted, except for those Permits the absence of
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on West Coast and its Subsidiaries taken as a whole.
None of the West Coast Companies is presently in default under any such Permit,
other than defaults which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on West Coast and its Subsidiaries
taken as a whole. Except as disclosed in Section 5.10 of the West Coast
Disclosure Memorandum, none of the West Coast Companies:
(a) to the Knowledge of West Coast is in violation of any Laws
or Orders, applicable to its business or employees conducting its
business, except for violations which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
West Coast and its Subsidiaries taken as a whole; and
(b) has received any written notification or communication
from any agency or department of federal, state, or local government
or any Regulatory Authority or the staff thereof (i) asserting that
any West Coast Company is not in substantial compliance with any of
the Laws or Orders which such governmental authority or Regulatory
Authority enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
West Coast and its Subsidiaries taken as a whole, (ii) threatening to
revoke any Permits, the revocation of which is reasonably likely to
have, a Material Adverse Effect on West Coast and its Subsidiaries
taken as a whole, or (iii) requiring any West Coast Company to enter
into or consent to the issuance of a cease and desist order, formal
agreement, directive, commitment, or memorandum of understanding, or
to adopt any Board resolution or similar undertaking, which restricts
materially the conduct of its business, or in any manner relates to
its capital adequacy, its credit or reserve policies, its management,
or the payment of dividends.
5.11 Labor Relations. No West Coast Company is the subject of any
Litigation asserting that it or any other West Coast Company has committed an
unfair labor practice (within the meaning of the National Labor Relations Act
or comparable state law) or seeking to compel it or any other West Coast
Company to bargain with any labor organization as to wages or conditions of
employment, nor is there any strike or other labor dispute involving any West
Coast Company, pending or to the Knowledge of West Coast threatened, nor is
there any activity involving any West Coast Company's employees seeking to
certify a collective bargaining unit or engaging in any other organization
activity.
5.12 Employee Benefit Plans.
(a) West Coast has disclosed in Section 5.12 of the West Coast
Disclosure Memorandum, and has delivered or made available to FNB prior to the
execution of this Agreement copies or summaries in each
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case of, all material pension, retirement, profit-sharing, deferred
compensation, stock option, employee stock ownership, severance pay, vacation,
bonus, or other incentive plan, all other written employee programs,
arrangements, or agreements, all medical, vision, dental, or other health
plans, all life insurance plans, and all other employee benefit plans or fringe
benefit plans, including "employee benefit plans" (as that term is defined in
Section 3(3) of ERISA), currently adopted, maintained by, sponsored in whole or
in part by, or contributed to by West Coast or any of its Subsidiaries for the
benefit of employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
are eligible to participate (collectively, the "West Coast Benefit Plans").
Any of the West Coast Benefit Plans which is an "employee pension benefit plan"
(as that term is defined in Section 3(2) of ERISA) is referred to herein as a
"West Coast ERISA Plan." No West Coast Benefit Plan is or has been a
multi-employer plan within the meaning of Section 3(37) of ERISA.
(b) Except as disclosed in the West Coast Disclosure Memorandum,
all West Coast Benefit Plans are in compliance in all material respects with
the applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws, the breach or violation of which are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on West Coast
and its Subsidiaries on a consolidated basis.
(c) Except as disclosed in the West Coast Disclosure Memorandum,
no West Coast ERISA Plan which is a "defined benefit pension plan" (as defined
in Section 4140 of the Internal Revenue Code) has any "unfunded current
liability" (as that term is defined in Section 302(d)(8)(A) of ERISA) and the
present fair market value of the assets of any such plan exceeds the plan's
"benefit liabilities" (as that term is defined in Section 4001(a)(16) of ERISA)
when determined under actuarial factors that would apply if the plan terminated
in accordance with all applicable legal requirements.
(d) Except as disclosed in the West Coast Disclosure Memorandum or
otherwise provided by this Agreement, neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will (i) result in any payment (including, without limitation, severance,
unemployment compensation, golden parachute, or otherwise) becoming due to any
director or any employee of West Coast or any of its Subsidiaries from West
Coast or any of its Subsidiaries under any West Coast Benefit Plan or
otherwise, (ii) increase any benefits otherwise payable under any West Coast
Benefit Plan or (iii) result in any acceleration of the time of payment or
vesting of any such benefits, where such payment, increase, or acceleration is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on West Coast and its Subsidiaries on a consolidated basis.
5.13 Material Contracts. Except as disclosed in Section 5.13 of the
West Coast Disclosure Memorandum, none of the West Coast Companies is a party
to or subject to the following: (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate payments to any
Person in any calendar year in excess of $100,000, (ii) any Contract relating
to the borrowing of money by any West Coast Company or the guarantee by any
West Coast Company of any such obligation exceeding $100,000 (other than
Contracts evidencing deposit liabilities, purchases of federal funds,
fully-secured repurchase agreements, and Federal Home Loan Bank advances of
depository institution Subsidiaries, trade payables, and Contracts relating to
borrowings or guarantees made in the ordinary course of business), and (iii)
any other Contract or amendment thereto that would be required to be filed as
an exhibit to a Form 10-KSB filed by West Coast with the SEC as of the date of
this Agreement that has not been filed as an exhibit in an West Coast SEC
Report, or in another SEC Document (together with all Contracts referred to in
Sections 5.8 and 5.12(a) of this Agreement, the "West Coast Contracts"). With
respect to each West Coast Contract and except as disclosed in Section 5.13 of
the West Coast Disclosure Memorandum: (i) each West
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Coast Contract is in full force and effect; (ii) no West Coast Company is in
default thereunder, other than defaults which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on West
Coast; (iii) no West Coast Company has repudiated or waived any material
provision of any such West Coast Contract; and (iv) no other party to any such
Contract is, to the Knowledge of West Coast, in default in any material
respect, other than defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on West Coast and
its Subsidiaries taken as a whole, or has repudiated or waived any material
provision thereunder. Except for Federal Home Loan Bank advances, all of the
indebtedness of any West Coast Company for money borrowed is prepayable at any
time by such West Coast Company without penalty or premium.
5.14 Legal Proceedings. Except as disclosed in Section 5.14 of the
West Coast Disclosure Memorandum, there is no Litigation instituted or pending,
or, to the Knowledge of West Coast, threatened (or unasserted but considered
probable of assertion and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against any West Coast Company, or
against any Asset, employee benefit plan, interest, or right of any of them,
that is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on West Coast, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any West Coast Company, that are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on West Coast. Section 5.14 of the
West Coast Disclosure Memorandum includes a summary report of all Litigation as
of the date of this Agreement to which any West Coast Company is a party and
which names a West Coast Company as a defendant or cross-defendant and where
the estimated maximum exposure is $25,000 or more.
5.15 Reports. Since January 1, 1996, each West Coast Company has
timely filed all reports and statements, together with any amendments required
to be made with respect thereto, that it was required to file, which failure to
file or amend is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on West Coast and its Subsidiaries taken as a whole,
with any Regulatory Authorities. As of their respective dates, each of such
reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws
enforced or promulgated by the SEC. As of its respective date, no such report
or document contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on West Coast and its Subsidiaries taken
as a whole.
5.16 Statements True and Correct. None of the information supplied or
to be supplied by any West Coast Company or any Affiliate thereof for inclusion
in the Registration Statement to be filed by FNB with the SEC will, when the
Registration Statement becomes effective, be false or misleading with respect
to any material fact, or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any West Coast Company or any Affiliate thereof for inclusion in
the Proxy Statement to be mailed to West Coast's shareholders in connection
with the Shareholders' Meeting, and any other documents to be filed by a West
Coast Company or any Affiliate thereof with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of West Coast, be false or
misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Shareholders' Meeting, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to correct any statement in
any earlier
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communication with respect to the solicitation of any proxy for the
Shareholders' Meeting. All documents that any West Coast Company or any
Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
5.17 Accounting, Tax and Regulatory Matters. To the Knowledge of West
Coast, neither West Coast nor any Affiliate thereof has taken or agreed to take
any action which would, or has any Knowledge of any fact or circumstance that
is reasonably likely to (i) prevent the transactions contemplated hereby,
including the Merger, from qualifying for pooling-of-interests accounting
treatment or as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay receipt of any
Consents of Regulatory Authorities referred to in Section 9.1(b) of this
Agreement or result in the imposition of a condition or restriction of the type
referred to in the last sentence of such Section.
5.18 State Takeover Laws. Each West Coast Company has taken all
necessary action to exempt the transactions contemplated by this Agreement from
the provisions of Sections 607.0901 through 607.0903, inclusive, of the FBCA
(collectively, "Takeover Laws").
5.19 Articles of Incorporation Provisions. Each West Coast Company
has taken all action so that the entering into this Agreement and the
consummation of the Merger and the other transactions contemplated by this
Agreement do not and will not result in any super-majority voting requirement
or the grant of any rights to any Person under the Articles of Incorporation,
Bylaws, or other governing instruments of any West Coast Company or restrict or
impair the ability of FNB or any of its Subsidiaries to vote, or otherwise to
exercise the rights of a shareholder with respect to, shares of any West Coast
Company that may be directly or indirectly acquired or controlled by it.
5.20 Derivatives Contracts. Except as disclosed in Section 5.20 of
the West Coast Disclosure Memorandum, neither West Coast nor any of its
Subsidiaries is a party to or has agreed to enter into an exchange-traded or
over-the-counter swap, forward, future, option, cap, floor, or collar financial
contract, or any other interest rate or foreign currency protection contract
not included on its balance sheet which is a financial derivative contract
(including various combinations thereof) (each a "Derivatives Contract"),
except for those Derivatives Contracts set forth in Section 5.20 of the West
Coast Disclosure Memorandum.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF FNB AND SOUTHWEST
FNB and Southwest hereby represent and warrant to West Coast as
follows:
6.1 Organization, Standing, and Power.
(a) FNB is a corporation duly organized, validly existing, and in
good standing under the Laws of the Commonwealth of Pennsylvania, and has the
corporate power and authority to carry on its business as now conducted and to
own, lease, and operate its material Assets. FNB is duly qualified or licensed
to transact business as a foreign corporation in good standing in the States of
the United States and foreign jurisdictions where the character of its Assets
or the nature or conduct of its business requires it to be so qualified or
licensed, except for such jurisdictions in which the failure to be so qualified
or licensed is not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on FNB.
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(b) Southwest is a corporation duly organized, validly existing, and
in active status under the Laws of the State of Florida, and has the corporate
power and authority to carry on its business as now conducted and to own,
lease, and operate its material Assets. Southwest is duly qualified or licensed
to transact business as a foreign corporation in good standing in the States of
the United States and foreign jurisdictions where the character of its Assets
or the nature or conduct of its business requires it to be so qualified or
licensed, except for such jurisdictions in which the failure to be so qualified
or licensed is not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Southwest.
6.2 Authority; No Breach By Agreement.
(a) Each of FNB and Southwest has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated herein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of FNB and Southwest. This Agreement represents a legal, valid, and
binding obligation of FNB and Southwest, enforceable against FNB and Southwest
in accordance with its terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by FNB or
Southwest, nor the consummation by FNB or Southwest of the transactions
contemplated hereby, nor compliance by FNB or Southwest with any of the
provisions hereof, will (i) conflict with or result in a breach of any
provision of FNB's Articles of Incorporation or Bylaws, or (ii) constitute or
result in a Default under, or require any Consent pursuant to, or result in the
creation of any Lien on any Asset of any FNB Company or Southwest under, any
Contract or Permit of any FNB Company or Southwest, where such Default or Lien,
or any failure to obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FNB or
Southwest, or, (iii) subject to receipt of the requisite Consents referred to
in Section 9.1(b) of this Agreement, violate any Law or Order applicable to any
FNB Company or Southwest or any of their respective material Assets.
(c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities Laws, and rules of
Nasdaq, and other than Consents required from Regulatory Authorities, and other
than notices to or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit plans, or
under the HSR Act, and other than Consents, filings, or notifications which, if
not obtained or made, are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on FNB and Southwest, no notice to, filing
with, or Consent of, any public body or authority is necessary for the
consummation by FNB and Southwest of the Merger and the other transactions
contemplated in this Agreement.
6.3 Capital Stock. The authorized capital stock of FNB consists of
100,000,000 shares of FNB Common Stock, of which 9,233,377 shares were issued
and outstanding as of the date of this Agreement and (ii) 20,000,000 shares of
FNB Preferred Stock, of which 398,368 shares were issued and outstanding as of
September 30, 1996. All of the issued and outstanding shares of FNB Capital
Stock are, and all of the FNB Common Stock to be issued in exchange for West
Coast Common Shares upon consummation of the Merger will be authorized and
reserved for issuance prior to the Effective Time and, when issued in
accordance with the terms of this Agreement, will be, duly and validly issued
and outstanding and fully paid and nonassessable
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under the PBCL. None of the outstanding shares of FNB Capital Stock has been,
and none of the shares of FNB Common Stock to be issued in exchange for shares
of West Coast Common Shares upon consummation of the Merger will be, issued in
violation of any preemptive rights of the current or past shareholders of FNB.
6.4 FNB Subsidiaries. Except as disclosed in Section 6.4 of the FNB
Disclosure Memorandum, the list of Subsidiaries of FNB filed by FNB with its
most recent FNB Report on Form 10-K is a true and complete list of all of the
FNB Subsidiaries as of the date of this Agreement. Except as disclosed in
Section 6.4 of the FNB Disclosure Memorandum, FNB or one of its Subsidiaries
owns all of the issued and outstanding shares of capital stock of each FNB
Subsidiary. No equity securities of any FNB Subsidiary are or may become
required to be issued (other than to another FNB Company) by reason of any
Rights, and there are no Contracts by which any FNB Subsidiary is bound to issue
(other than to another FNB Company) additional shares of its capital stock or
Rights or by which any FNB Company is or may be bound to transfer any shares of
the capital stock of any FNB Subsidiary (other than to another FNB Company).
There are no Contracts relating to the rights of any FNB Company to vote or to
dispose of any shares of the capital stock of any FNB Subsidiary. All of the
shares of capital stock of each FNB Subsidiary held by a FNB Company are fully
paid and nonassessable under the applicable corporation Law of the jurisdiction
in which such Subsidiary is incorporated or organized (except, in the case of
Subsidiaries that are national banks, for the assessment contemplated by 12
U.S.C. Section 55), and are owned by the FNB Company free and clear of any Lien.
Each FNB Subsidiary is either a bank or a corporation, and is duly organized,
validly existing, and (as to corporations) in good standing under the Laws of
the jurisdiction in which it is incorporated or organized, and has the corporate
power and authority necessary for it to own, lease, and operate its Assets and
to carry on its business as now conducted. Each FNB Subsidiary is duly qualified
or licensed to transact business as a foreign corporation and is in good
standing in each jurisdiction where the character of its Assets or the nature or
conduct of its business requires it to be so qualified or licensed, except for
such jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on FNB and its Subsidiaries taken as a whole. Each FNB Subsidiary that
is a depository institution is an "insured institution" as defined in the
Federal Deposit Insurance Act and applicable regulations thereunder, and the
deposits in which are insured by the Bank Insurance Fund or the Savings
Association Insurance Fund.
6.5 SEC Filings; Financial Statements.
(a) FNB has filed and made available to West Coast all forms, reports,
and documents required to be filed by FNB with the SEC since January 1, 1993,
(collectively, the "FNB SEC Reports"). The FNB SEC Reports (i) at the time
filed, complied in all material respects with the applicable requirements of
the 1933 Act and the 1934 Act, as the case may be, and (ii) did not at the time
they were filed (or if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing) contain any untrue statement
of a material fact or omit to state a material fact required to be stated in
such FNB SEC Reports or necessary in order to make the statements in such FNB
SEC Reports, in light of the circumstances under which they were made, not
misleading. Except for FNB Subsidiaries that are registered as brokers,
dealers, investment advisers, or associated persons thereof, none of the FNB
Subsidiaries is required to file any forms, reports or other documents with the
SEC.
(b) Each of the FNB Financial Statements (including, in each case, any
related notes) contained in the FNB SEC Reports, including any FNB SEC Reports
filed after the date of this Agreement until the Effective Time, complied as to
form in all material respects with the applicable published rules and
regulations of the SEC with respect thereto, was prepared in accordance with
GAAP applied on a consistent basis throughout the periods involved (except as
may be indicated in the notes to such financial statements
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or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC),
and fairly presented the consolidated financial position of FNB and its
Subsidiaries as at the respective dates and the consolidated results of its
operations and cash flows for the periods indicated, except that the unaudited
interim financial statements were or are subject to normal and recurring
year-end adjustments which were not or are not expected to be material in
amount.
6.6 Absence of Certain Changes or Events. Since June 30, 1996, except
as disclosed in the FNB Financial Statements delivered prior to the date of
this Agreement, (i) there have been no events, changes or occurrences which
have had, or are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on FNB, and (ii) the FNB Companies have not taken any
action, or failed to take any action, prior to the date of this Agreement,
which action or failure, if taken after the date of this Agreement, would
represent or result in a material breach or violation of any of the covenants
and agreements of FNB provided in Articles 7 or 8 of this Agreement.
6.7 Tax Matters.
(a) All Tax Returns required to be filed by or on behalf of any of the
FNB Companies have been timely filed or requests for extensions have been
timely filed, granted, and have not expired for periods ended on or before
December 31, 1995, and on or before the date of the most recent fiscal year end
immediately preceding the Effective Time, except to the extent that all such
failures to file, taken together, are not reasonably likely to have a Material
Adverse Effect on FNB, and all Tax Returns filed are complete and accurate in
all material respects. All Taxes shown on filed Tax Returns have been paid.
There is no audit examination, deficiency, or refund Litigation with respect to
any Taxes that is reasonably likely to result in a determination that would
have, individually or in the aggregate, a Material Adverse Effect on FNB,
except as reserved against in the FNB Financial Statements delivered prior to
the date of this Agreement. All Taxes and other liabilities due with respect to
completed and settled examinations or concluded Litigation have been paid.
(b) Adequate provision for any Taxes due or to become due for any of
the FNB Companies for the period or periods through and including the date of
the respective FNB Financial Statements has been made and is reflected on such
FNB Financial Statements.
(c) Deferred Taxes of the FNB Companies have been adequately provided
for in the FNB Financial Statements.
(d) To the Knowledge of FNB, each of the FNB Companies is in
compliance with, and its records contain all information and documents
(including properly completed Internal Revenue Service Forms W-9) necessary to
comply with, all applicable information reporting and Tax withholding
requirements under federal, state, and local Tax Laws, and such records
identify with specificity all accounts subject to backup withholding under
Section 3406 of the Internal Revenue Code, except for such instances of
noncompliance and such omissions as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FNB.
6.8 Compliance With Laws. FNB is duly registered as a bank holding
company under the BHC Act. Each FNB Company has in effect all Permits necessary
for it to own, lease, or operate its material Assets and to carry on its
business as now conducted, except for those Permits the absence of which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on FNB. None of the FNB Companies is presently in Default under
or in violation of any such Permit, other than Defaults which are not
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reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on FNB. No FNB Company:
(a) is in violation of any Laws, Orders, or Permits applicable
to its business or employees conducting its business, except for
violations which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on FNB; and
(b) has received any notification or communication from any
agency or department of federal, state, or local government or any
Regulatory Authority or the staff thereof (i) asserting that any FNB
Company is not in compliance with any of the Laws or Orders which such
governmental authority or Regulatory Authority enforces, where such
noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on FNB, (ii) threatening to
revoke any Permits, the revocation of which is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
FNB, or (iii) requiring any FNB Company to enter into or consent to
the issuance of a cease and desist order, formal agreement, directive,
commitment, or memorandum of understanding, or to adopt any board
resolution or similar undertaking, which restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies, its management or the
payment of dividends.
6.9 Assets. Except as disclosed in Section 6.9 of the FNB
Disclosure Memorandum, the FNB Companies have good and marketable title, free
and clear of all Liens (except for those Liens which are not likely to have a
Material Adverse Effect on FNB or its Subsidiaries taken as a whole), to all of
their respective material Assets, reflected in FNB Financial Statements as
being owned by FNB as of the date hereof. All material tangible properties used
in the businesses of the FNB Companies are in good condition, reasonable wear
and tear excepted, and are usable in the ordinary course of business consistent
with FNB's past practices. All Assets which are material to FNB's business on a
consolidated basis, held under leases or subleases by any of the FNB Companies,
are held under valid Contracts enforceable in accordance with their respective
terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other Laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought), and each
such Contract is in full force and effect. The FNB Companies currently maintain
insurance in amounts, scope, and coverage as disclosed in Section 6.9 of the
FNB Disclosure Memorandum. None of the FNB Companies has received written
notice from any insurance carrier that (i) such insurance will be canceled or
that coverage thereunder will be reduced or eliminated, or (ii) premium costs
with respect to such policies of insurance will be substantially increased.
Except as disclosed in Section 6.9 of the FNB Disclosure Memorandum, to the
Knowledge of FNB there are presently no occurrences giving rise to a claim
under such policies of insurance and no notices have been given by any FNB
Company under such policies.
6.10 Legal Proceedings. Except as disclosed in Section 6.10 of the
FNB Disclosure Memorandum, there is no Litigation instituted or pending, or, to
the Knowledge of FNB, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against any FNB Company, or against any Asset,
interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FNB, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any FNB Company, that are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on FNB.
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6.11 Reports. Since January 1, 1996, or the date of organization if
later, each FNB Company has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required to
file with Regulatory Authorities (except, in the case of state securities
authorities, failures to file which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FNB). As of
their respective dates, each of such reports and documents, including the
financial statements, exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date, each such report
and document did not, in all material respects, 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 made therein, in light of the circumstances
under which they were made, not misleading.
6.12 Statements True and Correct. None of the information supplied or
to be supplied by any FNB Company or any Affiliate thereof for inclusion in the
Registration Statement to be filed by FNB with the SEC, will, when the
Registration Statement becomes effective, be false or misleading with respect
to any material fact, or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any FNB Company or any Affiliate thereof for inclusion in the Proxy
Statement to be mailed to West Coast's shareholders in connection with the
Shareholders' Meeting, and any other documents to be filed by any FNB Company
or any Affiliate thereof with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy Statement, when
first mailed to the shareholders of West Coast, be false or misleading with
respect to any material fact, or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or, in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Shareholders'
Meeting, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for the
Shareholders' Meeting. All documents that any FNB Company or any Affiliate
thereof is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all
material respects with the provisions of applicable Law.
6.13 Accounting, Tax and Regulatory Matters. No FNB Company or any
Affiliate thereof has taken or agreed to take any action or has any Knowledge
of any fact or circumstance that is reasonably likely to (i) prevent the
transactions contemplated hereby, including the Merger, from qualifying as a
reorganization within the meaning of Section 368(a)(2)(D) of the Internal
Revenue Code, or (ii) materially impede or delay receipt of any Consents of
Regulatory Authorities referred to in Section 9.1(b) of this Agreement or
result in the imposition of a condition or restriction of the type referred to
in the last sentence of such Section.
6.14 Environmental Matters.
(a) To the Knowledge of FNB, except as disclosed in Section 6.14 of
the FNB Disclosure Memorandum, each FNB Company, its Participation Facilities,
and its Loan Properties are, and have been, in compliance with all
Environmental Laws, except for violations which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on FNB.
(b) Except as disclosed in Section 6.14 of the FNB Disclosure
Memorandum, there is no Litigation pending, or, to the Knowledge of FNB,
threatened before any court, governmental agency, or authority or other forum
in which any FNB Company or any of its Loan Properties or Participation
Facilities (or any FNB Company in respect of any such Loan Property or
Participation Facility) has been or, with respect to threatened Litigation, may
be named as a defendant or potentially responsible party (i) for alleged
noncompliance (including by any predecessor) with any Environmental Law or (ii)
relating to the release into
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the environment of any Hazardous Material, whether or not occurring at, on,
under, or involving any of its Loan Properties or Participation Facilities,
except for such Litigation pending or threatened that is not reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on FNB.
(c) To the Knowledge of FNB, except as disclosed in Section 6.14 of
the FNB Disclosure Memorandum, there is no reasonable basis for any Litigation
of a type described above in Section 6.14(b), except such as is not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
FNB.
(d) To the Knowledge of FNB, except as disclosed in Section 6.14 of
the FNB Disclosure Memorandum, during the period of (i) FNB's or any of its
Subsidiaries' ownership or operation of any of their respective properties,
(ii) FNB's or any of its Subsidiaries' participation in the management of any
Participation Facility, or (iii) FNB's or any of its Subsidiaries' holding a
security interest in a Loan Property, to the Knowledge of FNB there have been
no releases of Hazardous Material in, on, under, or affecting any Participation
Facility or Loan Property of a FNB Company, except such as are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
FNB.
6.15 Derivatives Contracts. Neither FNB nor any of its Subsidiaries
is a party to or has agreed to enter into a Derivatives Contract, except for
those Derivatives Contracts set forth in Section 6.15 of the FNB Disclosure
Memorandum.
6.16 Outstanding West Coast Shares. As of the date of this Agreement,
FNB beneficially owns for its own account (not including those held in a
fiduciary or trust capacity for, or on behalf of, unaffiliated third parties)
35,000 West Coast Common Shares. During the term of this Agreement, no FNB
Company shall purchase or otherwise acquire beneficial ownership of any
additional West Coast Common Shares except pursuant to the terms of this
Agreement.
6.17 Material Contracts. All material Contracts to which FNB is a
party and which are required to be filed as exhibits to FNB SEC Reports have
been so filed.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of West Coast. Unless the prior written
consent of FNB shall have been obtained, and except as otherwise expressly
contemplated herein, West Coast shall and shall cause each of its Subsidiaries
to (i) operate its business only in the usual, regular, and ordinary course,
(ii) use its reasonable best efforts to preserve intact its business
organization and Assets and maintain its rights and franchises, (iii) use its
reasonable efforts to maintain its current employee relationships, and (iv)
take no action which would adversely affect the ability of any Party to obtain
any Consents of Regulatory Authorities required for the transactions
contemplated hereby without imposition of a condition or restriction of the
type referred to in the last sentence of Section 9.1(b) of this Agreement.
7.2 Negative Covenants of West Coast. Except as described in Section
7.2 of the West Coast Disclosure Memorandum, from the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
West Coast covenants and agrees that it will not do or agree or commit to do,
or permit any of its Subsidiaries to do or agree or commit to do, any of the
following without the prior written
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consent of the chief executive officer, president, chief financial officer, or
any executive vice president of FNB:
(a) amend the Articles of Incorporation, Bylaws, or other
governing instruments of any West Coast Company or, except as
expressly contemplated by this Agreement; or
(b) make any new loan or other extension of credit to any
Person (except those who receive a commitment for a loan or extension
of credit prior to the date of this Agreement) in excess of $100,000
(except for loans secured by a owner occupied real property first
mortgage or single or 1-4 family residential loan properly margined or
secured by liquid assets each of which is less than $500,000);
provided, however, that FNB or its designate shall make every
reasonable effort to respond to West Coast's request for loan approval
in a timely manner and, under normal circumstances, make a decision
within three business days; or
(c) incur any additional debt obligation or other obligation
for borrowed money (other than indebtedness of a West Coast Company to
another West Coast Company) in excess of an aggregate of $100,000 (for
the West Coast Companies on a consolidated basis) except in the
ordinary course of the business of West Coast Subsidiaries consistent
with past practices (it being understood and agreed that the
incurrence of indebtedness in the ordinary course of business shall
include, without limitation, creation of deposit liabilities (except
brokered deposits), purchases of federal funds, sales of certificates
of deposit, advances from the Federal Reserve Bank or Federal Home
Loan Bank, and entry into repurchase agreements fully secured by U.S.
government or agency securities), or impose, or suffer the imposition,
on any Asset of any West Coast Company of any Lien or permit any such
Lien to exist (other than in connection with deposits, repurchase
agreements, bankers acceptances, "treasury tax and loan" accounts
established in the ordinary course of business, the satisfaction of
legal requirements in the exercise of trust powers, and Liens in
effect as of the date hereof that are disclosed in the West Coast
Disclosure Memorandum); or
(d) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit
plans), directly or indirectly, any shares, or any securities
convertible into any shares, of the capital stock of any West Coast
Company, or declare or pay any dividend or make any other distribution
in respect of West Coast's capital stock (except for (i) regular
quarterly dividends paid in accordance with Section 8.6 of this
Agreement, (ii) dividends paid by any West Coast Subsidiary, and (iii)
acquisition of West Coast Common Shares by any West Coast Subsidiary
in a fiduciary or trust capacity in the ordinary course of business;
or
(e) except for this Agreement, or pursuant to the Stock Option
Agreement or pursuant to the exercise of stock options outstanding as
of the date hereof and pursuant to the terms thereof in existence on
the date hereof, or as disclosed in Section 7.2(e) of the West Coast
Disclosure Memorandum, issue, sell, pledge, encumber, authorize the
issuance of, enter into any Contract to issue, sell, pledge, encumber,
or authorize the issuance of, or otherwise permit to become
outstanding, any additional shares of West Coast Common Shares or any
other capital stock of any West Coast Company, or any stock
appreciation rights, or any option, warrant, conversion, or other
right to acquire any such stock, or any security convertible into any
such stock; or
(f) adjust, split, combine, or reclassify any capital stock of
any West Coast Company or issue or authorize the issuance of any other
securities in respect of or in substitution for shares of West Coast
Common Shares, or sell, lease, mortgage, or otherwise dispose of or
otherwise encumber (i)
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any shares of capital stock of any West Coast Subsidiary (unless any
such shares of stock are sold or otherwise transferred to another West
Coast Company) or (ii) any Asset other than in the ordinary course of
business for reasonable and adequate consideration; or
(g) except for purchases of United States Treasury securities
or United States Government agency securities, which in either case
have maturities of five years or less, purchase any securities or make
any material investment, either by purchase of stock or securities,
contributions to capital, Asset transfers, or purchase of any Assets,
in any Person other than a wholly owned West Coast Subsidiary, or
otherwise acquire direct or indirect control over any Person, other
than in connection with (i) foreclosures in the ordinary course of
business, (ii) acquisitions of control by a depository institution
Subsidiary in its fiduciary capacity, or (iii) the creation of new
wholly owned Subsidiaries organized to conduct or continue activities
otherwise permitted by this Agreement; or
(h) grant any increase in compensation or benefits to the
employees or officers of any West Coast Company, except in accordance
with past practice disclosed in Section 7.2(h) of the West Coast
Disclosure Memorandum or as required by Law; pay any severance or
termination pay or any bonus other than pursuant to written policies
or written contracts in effect on the date of this Agreement or as
otherwise disclosed in Section 7.2(h) of the West Coast Disclosure
Memorandum; enter into or amend any severance agreements with officers
of any West Coast Company; grant any material increase in fees or
other increases in compensation or other benefits to directors of any
West Coast Company except in accordance with past practice disclosed
in Section 7.2(h) of the West Coast Disclosure Memorandum; or
voluntarily accelerate the vesting of any stock options or other
stock-based compensation or employee benefits; or
(i) except as described in Section 7.2(i) of the West Coast
Disclosure Memorandum and except for Employment Agreements that may be
entered into pursuant to Section 8.16 of this Agreement, enter into or
amend any employment Contract between any West Coast Company and any
Person (unless such amendment is required by Law) that the West Coast
Company does not have the unconditional right to terminate without
Liability (other than Liability for services already rendered), at any
time on or after the Effective Time; or
(j) except as disclosed in Section 7.2(j) of the West Coast
Disclosure Memorandum, adopt any new employee benefit plan of any West
Coast Company or make any material change in or to any existing
employee benefit plans of any West Coast Company other than any such
change that is required by Law or that, in the opinion of counsel, is
necessary or advisable to maintain the tax qualified status of any
such plan; or
(k) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
(l) except as disclosed in Section 7.2(l) of the West Coast
Disclosure Memorandum, commence any Litigation other than in
accordance with past practice or settle any Litigation involving any
liability of any West Coast Company for material money damages or
restrictions upon the operations of any West Coast Company; or
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(m) except in the ordinary course of business, modify, amend,
or terminate any material Contract other than renewals without a
material adverse change of terms, or waive, release, compromise, or
assign any material rights or claims; or
(n) except for transactions in the ordinary course of business
consistent with past practice, make any investment in excess of
$100,000 either by purchase of stock or securities, contributions to
capital, property transfers, or purchase of any property or assets of
any other individual, corporation or other entity, other than a wholly
owned Subsidiary thereof, except as disclosed in Section 7.2 of the
West Coast Disclosure Memorandum; or
(o) sell, transfer, mortgage, encumber or otherwise dispose of
any of its properties or assets to any individual, corporation or
other entity other than a direct or indirect wholly owned Subsidiary,
or cancel, release or assign any indebtedness to any such Person or
any claims held by any such Person, except in the ordinary course of
business consistent with past practice or pursuant to contracts or
agreements in force at the date of this Agreement; or
(p) agree to, or make any commitment to, take any of the
actions prohibited by this Section 7.2.
7.3 Covenants of FNB. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, FNB
covenants and agrees that it shall (i) continue to conduct its business and the
business of its Subsidiaries in a manner designed in its reasonable judgment,
to enhance the long- term value of the FNB Common Stock and the business
prospects of the FNB Companies, and (ii) take no action which would (a)
materially adversely affect the ability of any Party to obtain any Consents
required for the transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the last sentence of
Section 9.1(b) of this Agreement, or (b) materially adversely affect the
ability of any Party to perform its covenants and agreements under this
Agreement; provided, that the foregoing shall not prevent any FNB Company from
discontinuing or disposing of any of its Assets or business if such action is,
in the judgment of FNB, desirable in the conduct of the business of FNB and its
Subsidiaries. FNB further covenants and agrees that it will not, without the
prior written consent of the Chief Executive Officer of West Coast, which
consent shall not be unreasonably withheld, amend the Articles of Incorporation
or Bylaws of FNB, in each case in any manner adverse to the holders of West
Coast Common Shares.
7.4 Adverse Changes In Condition. Except as disclosed in Section 7.4
of the West Coast Disclosure Schedule, each Party agrees to give written notice
promptly to the other Party upon becoming aware of the occurrence or impending
occurrence of any event or circumstance relating to it or any of its
Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on it or (ii) would cause or constitute a
material breach of any of its representations, warranties, or covenants
contained herein, and to use its reasonable efforts to prevent or promptly to
remedy the same.
7.5 Reports. Each Party and their respective Subsidiaries shall file
all reports required to be filed by each of them with Regulatory Authorities
between the date of this Agreement and the Effective Time and shall deliver to
the other Party copies of all such reports promptly after the same are filed.
If financial statements are contained in any such reports filed with the SEC,
such financial statements will fairly present the consolidated financial
position of the entity filing such statements as of the dates indicated and the
consolidated results of operations, changes in shareholders' equity, and cash
flows for the periods then ended in accordance with GAAP (subject in the case
of interim financial statements to normal recurring year-end adjustments that
are not material and except for the absence of certain footnote information in
the unaudited
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financial statements). As of their respective dates, such reports filed with
the SEC will comply in all material respects with the Securities Laws 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 in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any financial statements contained in any other reports to another
Regulatory Authority shall be prepared in accordance with Laws applicable to
such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Registration Statement; Proxy Statement; Shareholder Approval. As
soon as practicable after execution of this Agreement (in no event, later than
January 31, 1997), FNB shall file the Registration Statement with the SEC, and
shall use its reasonable efforts to cause the Registration Statement to become
effective under the 1933 Act and take any action required to be taken under the
applicable state blue sky or securities Laws in connection with the issuance of
the shares of FNB Common Stock upon consummation of the Merger. West Coast
shall promptly furnish all information concerning it and the holders of its
capital stock as FNB may reasonably request in connection with such action.
West Coast shall call a Shareholders' Meeting, to be held on a date that is
determined by the Parties to be a mutually desirable date, which date shall be
as soon as practicable after the Registration Statement is declared effective
by the SEC, for the purpose of voting upon approval of this Agreement and such
other related matters as it deems appropriate. In connection with the
Shareholders' Meeting, (i) West Coast shall prepare and file with the SEC a
Proxy Statement relating to the Merger and mail such Proxy Statement to its
shareholders, (ii) the Parties shall promptly furnish to each other all
information concerning them that they may reasonably request in connection with
such Proxy Statement, (iii) the Board of Directors of West Coast shall
recommend (subject to compliance with their fiduciary duties under applicable
law as advised by counsel) to its shareholders the approval of this Agreement,
(iv) shall vote all West Coast Common Shares beneficially owned in favor of the
approval of this Agreement, and (v) the Board of Directors and officers of West
Coast shall (subject to compliance with their fiduciary duties as advised by
counsel) use their reasonable best efforts to obtain such shareholders'
approval.
8.2 Applications. FNB shall promptly prepare and file, and West Coast
shall cooperate in the preparation and, where appropriate, filing of,
applications with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement and
thereafter use its reasonable best efforts to cause the Merger to be
consummated as expeditiously as possible.
8.3 Filings With State Offices. Upon the terms and subject to the
conditions of this Agreement, FNB shall execute and file the Florida Articles
of Merger with the Secretary of State of the State of Florida in connection
with the Closing.
8.4 Agreement As To Efforts To Consummate. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
practicable after the date of this Agreement, the transactions contemplated by
this Agreement, including the use of their respective reasonable best efforts
to lift or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement; provided, that nothing
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herein shall preclude either Party from exercising its rights under this
Agreement. Each Party shall use, and shall cause each of its Subsidiaries to
use, its reasonable efforts to obtain all Permits and Consents of all third
parties and Regulatory Authorities necessary or desirable for the consummation
of the transactions contemplated by this Agreement.
8.5 Access to Information; Confidentiality. From the date hereof to
the Effective Time, upon reasonable notice and subject to applicable Laws, FNB
and West Coast shall afford each other, and each other's accountants, counsel,
and other representatives, during normal working hours for the period of time
prior to the Effective Time, reasonable access to all of its and its
Subsidiaries' properties, books, contracts, commitments, and records and,
during such period, each shall furnish promptly to the other party (i) a copy
of each report, schedule, and other document filed or received by it or any of
its Subsidiaries during such period pursuant to the requirements of the
Securities Laws, (ii) a copy of all filings made with any Regulatory
Authorities or other governmental entities in connection with the transactions
contemplated by this Agreement and all written communications received from
such Regulatory Authorities and governmental entities related thereto, and
(iii) all other information concerning its or its Subsidiaries' business,
properties and personnel as such other party may reasonably request, including
reports of condition filed with Regulatory Authorities. In this regard,
without limiting the generality of the foregoing, each of the parties hereto
shall notify the other parties hereto promptly upon the receipt by it of any
comments from the SEC, or its staff, and of any requests by the SEC for
amendments or supplements to the Registration Statement or the Proxy Statement
or for additional information and will supply the other parties hereto with
copies of all correspondence between it and its representatives, on the one
hand, and the SEC or the members of its staff or any other government official,
on the other hand, with respect to the Registration Statement or the Proxy
Statement. Each party hereto shall, and shall cause its advisors and
representatives to (x) conduct its investigation in such a manner which will
not unreasonably interfere with the normal operations, customers or employee
relations of the other and shall be in accordance with procedures established
by the parties having the due regard for the foregoing, and (y) refrain from
using for any purposes other than as set forth in this Agreement, and shall
treat as confidential, all information obtained by each hereunder or in
connection herewith and not otherwise known to them prior to the Effective
Time. Except as otherwise agreed to in writing by West Coast, unless and until
the Florida Articles of Merger are filed with the Secretary of State of the
State of Florida, FNB, and their Subsidiaries and Affiliates will be bound by,
and all information received with respect to West Coast pursuant to this
Section 8.5 shall be subject to, the terms of that certain confidentiality
agreement entered into with West Coast, dated July 15, 1996 (the
"Confidentiality Agreement").
8.6 Divided Equivalency. After the date of this Agreement and until
the Effective Time, West Coast may declare and pay quarterly cash dividends to
its shareholders in an amount equal to the regular quarterly cash dividend paid
by FNB on its Common Stock multiplied by the Exchange Ratio. After the date of
this Agreement, and prior to the Effective Time, West Coast shall make all
applicable payments due to participants under the West Coast Stock Plan and
(the employment agreements of West Coast, and all other applicable benefit
plans, including all payments due on or affected by a change in control of West
Coast under the terms of such plans).
8.7 Current Information. During the period from the date of this
Agreement until the Effective Time or the termination of this Agreement, each
of West Coast and FNB shall, and shall cause its representatives to, confer on
a regular and frequent basis with representatives of the other. Each of West
Coast and FNB shall promptly notify the other of (i) any material change in its
business or operations, (ii) any material complaints, investigations or
hearings (or communications indicating that the same may be contemplated) of
any Regulatory Authority, (iii) the institution or the threats of material
litigation involving such party, or (iv) the
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occurrence, or nonoccurrence, of any event or condition the occurrence, or
nonoccurrence, of which would reasonably be expected to cause any of such
party's representations or warranties set forth herein that are qualified as to
materiality to become untrue or inaccurate in any respect as of the Effective
Time, and in each case shall keep the other fully informed with respect
thereto.
8.8 Other Actions. No Party shall, or shall permit any of its
Subsidiaries to, take any action, except in every case as may be required by
applicable Law, that would or is intended to result in (i) any of its
representations and warranties set forth in this Agreement that are qualified
as to materiality being or becoming untrue, (ii) any of such representations
and warranties that are not so qualified becoming untrue in any material manner
having a Material Adverse Effect, (iii) any of the conditions set forth in this
Agreement not being satisfied or in a violation of any provision of this
Agreement, or (iv) adversely affecting the ability of any of them to obtain any
of the Consents or Permits from the Regulatory Authorities (unless such action
is required by sound banking practice).
8.9 Press Releases. Prior to the Effective Time, West Coast and FNB
shall consult with each other as to the form and substance of any press release
or other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section 8.9
shall be deemed to prohibit any Party from making any disclosure which its
counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
8.10 Certain Actions. Except with respect to this Agreement and the
transactions contemplated hereby, from the date of this Agreement until the
Effective Time or termination pursuant to Article 10 hereof, no West Coast
Company nor any Affiliate thereof nor any Representatives thereof retained by
any West Coast Company shall directly or indirectly solicit any Acquisition
Proposal by any Person. Except to the extent necessary to comply with the
fiduciary duties of West Coast's Board of Directors as determined after
consultation with counsel, no West Coast Company or any Affiliate or
representative thereof shall furnish any nonpublic information that it is not
legally obligated to furnish or negotiate with respect to, any Acquisition
Proposal, but West Coast may communicate information about such an Acquisition
Proposal to its shareholders if and to the extent that it is required to do so
in order to comply with its legal obligations as advised by counsel. West Coast
shall promptly notify FNB orally and in writing in the event that it receives
any inquiry or proposal relating to any such transaction. West Coast shall (i)
immediately cease and cause to be terminated any existing activities,
discussions, or negotiations with any Persons conducted heretofore with respect
to any of the foregoing, and (ii) direct and use its reasonable efforts to
cause of all its Representatives not to engage in any of the foregoing.
8.11 Accounting and Tax Treatment. Each of the Parties undertakes and
agrees to use its reasonable efforts to cause the Merger, and to take no action
which would cause the Merger not, to qualify for treatment as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code for federal income tax purposes. FNB and West Coast undertake and agree
to use their reasonable efforts to cause the Merger, and to take no action that
would cause the Merger not to qualify for pooling-of-interests accounting
treatment.
8.12 Takeover Laws. Each West Coast Company shall take all necessary
steps to exempt the transactions contemplated by this Agreement from, or if
necessary challenge the validity or applicability of, any applicable Takeover
Laws.
8.13 Articles of Incorporation Provisions. Each West Coast Company
shall take all necessary action to ensure that the entering into of this
Agreement and the consummation of the Merger and the other transactions
contemplated hereby do not and will not result in any super-majority voting
requirements or the
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grant of any rights to any Person under the Articles of Incorporation, Bylaws,
or other governing instruments of any West Coast Company or restrict or impair
the ability of FNB or any of its Subsidiaries to vote, or otherwise to exercise
the rights of a shareholder with respect to, shares of any West Coast Company
that may be directly or indirectly acquired or controlled by it.
8.14 Agreement of Affiliates. West Coast has disclosed in Section
8.14 of the West Coast Disclosure Memorandum all Persons whom it reasonably
believes are "affiliates" of West Coast for purposes of Rule 145 under the 1933
Act. West Coast shall use its reasonable efforts to cause each such Person to
deliver to FNB not later than 30 days prior to the Effective Time, a written
agreement, substantially in the form of Exhibit 2 hereto, providing that such
Person will not sell, pledge, transfer, or otherwise dispose of the shares of
West Coast Common Shares held by such Person except as contemplated by such
agreement or by this Agreement and will not sell, pledge, transfer, or
otherwise dispose of the shares of FNB Common Stock to be received by such
Person upon consummation of the Merger except in compliance with applicable
provisions of the 1933 Act and the rules and regulations thereunder and until
such time as financial results covering at least 30 days of combined operations
of FNB and West Coast have been published within the meaning of Section 201.01
of the SEC's Codification of Financial Reporting Policies. Shares of FNB Common
Stock issued to such affiliates of West Coast in exchange for shares of West
Coast Common Shares shall not be transferable until such time as financial
results covering at least 30 days of combined operations of FNB and West Coast
have been published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies, regardless of whether each such
affiliate has provided the written agreement referred to in this Section 8.11
(and FNB shall be entitled to place restrictive legends upon certificates for
shares of FNB Common Stock issued to affiliates of West Coast pursuant to this
Agreement to enforce the provisions of this Section 8.11). FNB shall not be
required to maintain the effectiveness of the Registration Statement under the
1933 Act for the purposes of resale of FNB Common Stock by such affiliates.
8.15 Employee Benefits. Following the Effective Time, FNB shall
provide generally to officers and employees of the West Coast Companies,
employee benefits under employee benefit plans (other than stock option or
other plans involving the potential issuance of FNB Common Stock), on terms and
conditions which when taken as a whole are no less favorable than those
currently provided by West Coast or those currently provided by the FNB
Companies to their similarly situated officers and employees; provided, that,
for a period of 12 months after the Effective Time, FNB shall provide generally
to officers and employees of West Coast Companies severance benefits in
accordance with the policies of Southwest which include a payment to terminated
officers and employees of West Coast equal to one week's pay for each year of
service. For purposes of participation and vesting (but not benefit accrual
under any employee benefit plans of FNB and its subsidiaries other than the
West Coast Benefit Plans) under such employee benefit plans, the service of the
employees of the West Coast Companies prior to the Effective Time shall be
treated as service with a FNB Company participating in such employee benefit
plans.
8.16 Employment Contracts of Certain Officers of West Coast. FNB
shall provide Messrs. Geml, Panicaro and Delmotte new FNB employment contracts
with such terms and conditions as shall be negotiated between the parties, in
exchange for the cancellation by such officers of their existing West Coast
employment contracts and corresponding severance pay agreements. In the event
any of such officers elect not to enter into such proposed new FNB employment
agreements, FNB shall honor the severance pay agreement in the existing West
Coast employment agreement of such officer.
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8.17 Indemnification.
(a) FNB shall, and shall cause the Surviving Corporation (and its
successors and assigns) to, indemnify, defend, and hold harmless each person
who is now, or has at anytime prior to the date hereof, or who becomes prior to
the Effective Time, an officer, director, employee, or agent of West Coast or
its Subsidiaries (each, an "Indemnified Party"), after the Effective Time
against any and all costs or expenses (including reasonable attorneys' fees),
judgments, fines, penalties, losses, claims, damages, liabilities, and amounts
paid in settlement in connection with any claim, action, suit, proceeding, or
investigation, whether civil, criminal, administrative, or investigative,
arising out of or pertaining to any action or omission occurring on or prior to
the Effective Time (including, without limitation, the transactions
contemplated by this Agreement) to the fullest extent then permitted under
Florida law and by the Articles of Incorporation and Bylaws of West Coast as in
effect on the date hereof, including provisions relating to advances of
expenses incurred in the defense of any action or suit. Without limiting the
foregoing, in any case in which approval by the Surviving Corporation is
required to effectuate any indemnification, FNB shall cause the Surviving
Corporation to direct, at the election of the Indemnified Party, that the
determination of any such approval shall be made by independent counsel
selected by the Indemnified Party. FNB shall, and shall cause the Surviving
Corporation, to apply such rights of indemnification in good faith and to the
fullest extent permitted by applicable law.
(b) If FNB or the Surviving Corporation or any of their successors or
assigns shall consolidate with or merge into any other Person and shall not be
the continuing or surviving Person of such consolidation or merger or shall
transfer all or substantially all of its assets to any Person, then and in each
case, proper provision shall be made so that the successors and assigns of FNB
shall assume the obligations set forth in this Section 8.17.
(c) The provisions of this Section 8.17 are intended to be for the
benefit of and shall be enforceable by, each Indemnified Party, his or her
heirs and representatives, and shall survive the consummation of the Merger and
be binding on all successors and assigns of FNB and the Surviving Corporation.
8.18 Listing of Shares on Nasdaq. FNB undertakes, prior to the
Effective Time, to cause the shares of FNB Common Stock to be issued pursuant
to the Merger to be listed on the Nasdaq Small Cap Market, or such other
exchange or Nasdaq market on which the FNB Common Stock trades at the Effective
Time.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions to Obligations of Each Party. The respective
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.7 of this Agreement:
(a) Shareholder Approval. The shareholders of West Coast
shall have approved this Agreement, and the consummation of the
transactions contemplated hereby, including the Merger, as and to the
extent required by Law and the rules and regulations of Nasdaq.
(b) Regulatory Approvals. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or
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made and shall be in full force and effect and all waiting periods
required by Law shall have expired. No Consent obtained from any
Regulatory Authority which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a manner
(including requirements relating to the raising of additional capital
or the disposition of Assets) which in the reasonable judgment of the
Board of Directors of either Party would so materially adversely impact
the economic or business benefits of the transactions contemplated by
this Agreement that, had such condition or requirement been known, such
Party would not, in its reasonable judgment, have entered into this
Agreement.
(c) Consents and Approvals. Other than the filing of the
Florida Articles of Merger, each Party shall have obtained any and all
Consents required for consummation of the Merger (other than those
referred to in Section 9.1(b) of this Agreement or listed in Section
9.1(c) of the West Coast Disclosure Memorandum) or for the preventing
of any default under any Contract of such Party which, if not obtained
or made, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on such Party.
(d) Legal Proceedings. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced, or entered any Law or Order (whether temporary,
preliminary, or permanent) or taken any other action which prohibits,
restricts, or makes illegal consummation of the transactions
contemplated by this Agreement.
(e) Registration Statement. The Registration Statement shall
have been declared effective under the 1933 Act, and no stop orders
suspending the effectiveness of the Registration Statement shall have
been issued, and no action, suit, proceeding, or investigation by the
SEC to suspend the effectiveness thereof shall have been initiated and
be continuing, and all necessary approvals under state securities Laws
or the 1933 Act or 1934 Act relating to the issuance or trading of the
shares of FNB Common Stock issuable pursuant to the Merger shall have
been received.
(f) Pooling of Interests. Ernst & Young, LLP, FNB's
independent public accountants, shall have issued a letter dated as of
the Effective Time to West Coast and FNB, respectively, to the effect
that the Merger shall be accounted for as a pooling-of-interests under
GAAP.
(g) Tax Matters. Each Party shall have received a written
opinion or opinions from Smith, Gambrell and Russell, LLP in a form
reasonably satisfactory to such Parties (the "Tax Opinion"), to the
effect that (i) the Merger will constitute a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code and (ii) the
exchange in the Merger of West Coast Common Shares for FNB Common
Stock will not give rise to gain or loss to the shareholders of West
Coast with respect to such exchange (except to the extent of any cash
received). In rendering such Tax Opinion, such counsel shall be
entitled to rely upon representations of officers of West Coast and
FNB reasonably satisfactory in form and substance to such counsel.
9.2 Conditions to Obligations of FNB. The obligations of FNB to
perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following
conditions, unless waived by FNB pursuant to Section 11.7(a) of this Agreement:
(a) Representations and Warranties. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of
West Coast set forth in this Agreement shall be assessed as of the
date of this Agreement and as of the Effective Time with the same
effect as though all such
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representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are
confined to a specified date shall speak only as of such date). The
representations and warranties of West Coast set forth in Section 5.3
of this Agreement shall be true and correct (except for inaccuracies
which are de minimus in amount). The representations and warranties of
West Coast set forth in Sections 5.17, 5.18, 5.19, and 5.20 of this
Agreement shall be true and correct in all material respects. There
shall not exist inaccuracies in the representations and warranties of
West Coast set forth in this Agreement (including the representations
and warranties set forth in Sections 5.3, 5.17, 5.18, 5.19, and 5.20)
such that the aggregate effect of such inaccuracies has, or is
reasonably likely to have, a Material Adverse Effect on West Coast;
provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to
"material" or "Material Adverse Effect" shall be deemed not to include
such qualifications.
(b) Performance of Agreements and Covenants. Each and all of
the agreements and covenants of West Coast to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been duly
performed and complied with in all material respects.
(c) Certificates. West Coast shall have delivered to FNB (i)
a certificate, dated as of the Effective Time and signed on its behalf
by its chief executive officer and its chief financial officer, to the
effect that the conditions of its obligations set forth in Section
9.2(a) and 9.2(b) of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by West Coast's Board of
Directors and shareholders evidencing the taking of all corporate
action necessary to authorize the execution, delivery, and performance
of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as FNB and its
counsel shall request.
(d) Affiliates Agreements. FNB shall have received from each
affiliate of West Coast the affiliates letter referred to in Section
8.14 of this Agreement, to the extent necessary to assure in the
reasonable judgment of FNB that the transactions contemplated hereby
will qualify for pooling-of- interests accounting treatment.
9.3 Conditions to Obligations of West Coast. The obligations of West
Coast to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by West Coast pursuant to Section 11.7(b)
of this Agreement:
(a) Representations and Warranties. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of
FNB set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties of FNB set forth in Section
6.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimus in amount). The representations and
warranties of FNB set forth in Section 6.11 of this Agreement shall be
true and correct in all material respects. There shall not exist
inaccuracies in the representations and warranties of FNB set forth in
this Agreement (including the representations and warranties set forth
in Sections 6.3 and 6.11) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have, a Material Adverse
Effect on FNB; provided that, for purposes of this sentence only,
those representations and warranties
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which are qualified by references to "material" or "Material Adverse
Effect" shall be deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of
the agreements and covenants of FNB to be performed and complied with
pursuant to this Agreement and the other agreements contemplated
hereby prior to the Effective Time shall have been duly performed and
complied with in all material respects.
(c) Certificates. FNB shall have delivered to West Coast (i)
a certificate, dated as of the Effective Time and signed on its behalf
by its chief executive officer and its chief financial officer, to the
effect that the conditions of its obligations set forth in Section
9.3(a) and 9.3(b) of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by FNB's Board of
Directors evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement,
and the consummation of the transactions contemplated hereby, all in
such reasonable detail as Southwest and its counsel shall request.
(d) Fairness Opinion. West Coast shall have received from
Advest, Inc. a letter, dated not more than five business days prior to
the date of the Proxy Statement, to the effect that, in the opinion of
such firm, the Exchange Ratio plus the payment of the dividends to
West Coast Shareholders pursuant to Section 8.6 hereof is fair, from a
financial point of view, to the holders of West Coast Common Shares.
(e) Payment of Consideration. FNB shall have delivered to
Exchange Agent the consideration to be paid to holders of the West
Coast Common Shares pursuant to Sections 3.1 and 3.4 of this
Agreement.
(f) Price Condition. The Average Market Price of a share of
FNB Common Stock shall not be less than $20.625.
(g) Opinion of Counsel. West Coast shall have received a
written opinion of Smith, Gambrell & Russell, LLP counsel to FNB,
dated as of the Effective Time, with respect to such matters and in
such form as shall be agreed upon between such firm and West Coast.
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other provision of this
Agreement, and notwithstanding the approval of this Agreement by the
shareholders of West Coast, this Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time:
(a) By mutual written consent of the Board of Directors of FNB
and the Board of Directors of West Coast; or
(b) By the Board of Directors of either FNB or West Coast
(provided that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement in
the case of West Coast and Section 9.3(a) in the case of FNB or in
material breach of any covenant or other agreement contained in this
Agreement) in the event of an inaccuracy of any representation or
warranty of the other Party contained
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in this Agreement which cannot be or has not been cured within 30 days
after the giving of written notice to the breaching Party of such
inaccuracy and which inaccuracy would provide the terminating Party
the ability to refuse to consummate the Merger under the applicable
standard set forth in Section 9.2(a) of this Agreement in the case of
West Coast and Section 9.3(a) of this Agreement in the case of FNB; or
(c) By the Board of Directors of either FNB or West Coast in
the event of a material breach by the other Party of any covenant,
agreement or obligation contained in this Agreement 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
(d) By the Board of Directors of either FNB or West Coast in
the event (i) any Consent of any Regulatory Authority required for
consummation of the Merger and the other transactions contemplated
hereby shall have been denied by final nonappealable action of such
authority or if any action taken by such authority is not appealed
within the time limit for appeal, or (ii) the shareholders of West
Coast fail to vote their approval of this Agreement and the
transactions contemplated hereby as required by the FBCA at the
Shareholders' Meeting where the transactions were presented to such
shareholders for approval and voted upon; or
(e) By the Board of Directors of either FNB or West Coast in
the event that the Merger shall not have been consummated by September
30, 1997, if the failure to consummate the transactions contemplated
hereby on or before such date is not caused by any breach of this
Agreement by the Party electing to terminate pursuant to this Section
10.1(e); or
(f) By FNB in the event dissenters' rights are claimed,
pursuant to the applicable provisions of the FBCA, by persons owning
in the aggregate more than 10% of the issued and outstanding West
Coast Common Shares; or
(g) By West Coast, if its Board of Directors determines by a
vote of a majority of the members of its entire Board of Directors,
upon written notice to FNB at least 24 hours prior to the closing, if
the Average Market Price of FNB Common Shares shall be less than
$20.625; or
(h) By the Board of Directors of either FNB or West Coast
(provided that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement in
the case of West Coast and Section 9.3(a) in the case of FNB or in
material breach of any covenant or other agreement contained in this
Agreement) in the event that any of the conditions precedent to the
obligations of such Party to consummate the Merger cannot be satisfied
or fulfilled by the date specified in Section 10.1(e) of this
Agreement; or
(i) By West Coast, if at any time prior to the Effective Time,
the fairness opinion of Advest, Inc. is withdrawn; or
(j) By West Coast if prior to the Effective Time, a
corporation, partnership, person or other entity or group shall have
made a bona fide Acquisition Proposal that the West Coast Board
determines in its good faith judgment and in the exercise of its
fiduciary duties, with respect to legal matters on the written opinion
of legal counsel and as to financial matters on the written opinion of
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an investment banking firm of national reputation, is more favorable
to the West Coast stockholders and that the failure to terminate this
Agreement and accept such alternative Acquisition Proposal would be
inconsistent with the proper exercise of such fiduciary duties.
10.2 Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement shall become void and have no effect, except that (i) the provisions
of this Section 10.2 and 11.1 and Section 8.5 of this Agreement shall survive
any such termination and abandonment, and (ii) a termination pursuant to
Sections 10.1(b), 10.1(c), or 10.1(f) of this Agreement shall not relieve the
breaching Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement giving rise to such
termination; provided, further, that in the event of any termination of this
Agreement following the occurrence of an Initial Triggering Event (as defined
in the Stock Option Agreement) (other than termination due to (A) the failure
of FNB to satisfy a condition to closing, (B) failure to obtain the requisite
approval of West Coast shareholders following a favorable recommendation by the
West Coast Board, or (C) the withdrawal by the West Coast financial advisor of
its fairness opinion), FNB shall be entitled to a cash payment from West Coast
in an amount equal to $500,000 upon the occurrence of any Subsequent Triggering
Event (as defined in the Stock Option Agreement) within twelve months following
the date of such termination (or such longer period as shall exist under the
Stock Option Agreement until the occurrence of an Exercise Termination Date (as
defined in the Stock Option Agreement)). In the event this Agreement is
terminated as a result of FNB's failure to satisfy any of its representations,
warranties or covenants set forth herein, FNB shall reimburse West Coast for
its reasonable out-of-pocket expenses relating to the Merger in an amount not
to exceed $250,000, which amount shall not be deemed an exclusive remedy or
liquidated damages.
10.3 Non-Survival of Representations and Covenants. The respective
representations and warranties of the Parties shall not survive the Effective
Time. All agreements of the Parties to this Agreement which by their terms are
to be performed following the Effective Time shall survive the Effective Time
until performed in accordance with their terms.
ARTICLE 11
MISCELLANEOUS
11.1 Definitions.
(a) Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Acquisition Proposal" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or assets of, or other business
combination involving such Party 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 of, such Party or
any of its Subsidiaries (other than the transactions contemplated or
permitted by this Agreement).
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"Affiliate" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such Person.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated
herein by reference.
"Assets" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature,
character, and description, whether real, personal, or mixed, tangible
or intangible, accrued or contingent, or otherwise relating to or
utilized in such Person's business, directly or indirectly, in whole
or in part, whether or not carried on the books and records of such
Person, and whether or not owned in the name of such Person or any
Affiliate of such Person and wherever located.
"Average Market Price" shall mean the average of the high bid
and low asked prices of such common stock in the over-the-counter
market for the ten consecutive trading days prior to the Determination
Date, as reported by Nasdaq (or, if not reported thereby, any other
authoritative source selected by FNB).
"BHC Act" shall mean the Federal Bank Holding Company Act of
1956, as amended.
"Confidentiality Agreements" shall mean those certain
Confidentiality Agreement referenced to in Section 8.5.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person.
"Contract" shall mean any written agreement, commitment,
contract, note, bond, mortgage, indenture, instrument, lease,
obligation, license, plan, of any kind or character, or other document
to which any Person is a party or that is binding on any Person or its
capital stock or Assets.
"Default" shall mean (i) any breach or violation of or default
under any Contract, or (ii) any occurrence of any event that with the
passage of time or the giving of notice or both would constitute a
breach or violation of or default under any Contract, or (iii) any
occurrence of any event that with or without the passage of time or
the giving of notice would give rise to a right to terminate or
revoke, change the current terms of, or renegotiate, or to accelerate,
increase, or impose any liability under, any Contract, Order, where,
in any such event, such default is reasonably likely to have a
Material Adverse Effect on a Party.
"Derivatives Contract" shall have the meaning set forth in
Section 5.20 hereof.
"Determination Date" shall mean the fifth business day prior
to the Effective Time.
"Effective Time" shall have the meaning set forth in Section
1.3 hereof.
"Environmental Laws" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata)
and which are administered, interpreted, or enforced by the United
States Environmental Protection Agency and state and local agencies
with jurisdiction over, and including
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common law in respect of, pollution or protection of the environment,
including the Comprehensive Environmental Response Compensation and
Liability Act, as amended, 42 U.S.C. 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq., and
other Laws relating to emissions, discharges, releases, or threatened
releases of any Hazardous Material, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA Affiliate" shall have the meaning set forth in Section
5.12(c) hereof.
"Exchange Agent" shall have the meaning set forth in Section
4.1 hereof.
"Exchange Ratio" shall have the meaning set forth in Section
3.1(c) hereof.
"Exhibits" 1 and 2 shall mean the Exhibits so marked, copies
of which are attached to this Agreement. Such Exhibits are hereby
incorporated by reference herein and made a part hereof, and may be
referred to in this Agreement and any other related instrument or
document without being attached hereto.
"FBCA" shall mean the Florida Business Corporation Act.
"FNB" shall have the meaning set forth in the first paragraph
hereof.
"FNB Capital Stock" shall mean, collectively, the FNB Common
Stock, the FNB Preferred Stock, and any other class or series of
capital stock of FNB.
"FNB Common Stock" shall mean the $2 par value common stock of
FNB.
"FNB Companies" shall mean, collectively, FNB and all FNB
Subsidiaries.
"FNB Disclosure Memorandum" shall mean the written information
entitled "FNB Corporation Disclosure Memorandum" delivered prior to
the date of this Agreement to Southwest describing in reasonable
detail the matters contained therein and, with respect to each
disclosure made therein, specifically referencing each Section of this
Agreement under which such disclosure is being made.
"FNB Financial Statements" shall mean (i) the consolidated
statements of condition (including related notes and schedules, if
any) of FNB as of June 30, 1996, and as of December 31, 1995 and
1994, and the related statements of income, changes in shareholders'
equity, and cash flows (including related notes and schedules, if any)
for the six months ended June 30, 1996, and for each of the three
years ended December 31, 1995, 1994, and 1993, as filed by FNB in SEC
Documents, and (ii) the consolidated statements of condition of FNB
(including related notes and schedules, if any) and related statements
of income, changes in shareholders' equity, and cash flows (including
related notes and schedules, if any) included in SEC Documents filed
with respect to periods ended subsequent to June 30, 1995.
"FNB Preferred Stock" shall mean the $10 par value preferred
stock of FNB.
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"FNB SEC Reports" shall have the meaning set forth in Section
6.4(a) hereof.
"FNB Subsidiaries" shall mean the Subsidiaries of FNB, which
shall include any corporation, bank, savings association, or other
organization acquired as a Subsidiary of FNB in the future and owned
by FNB at the Effective Time.
"Florida Articles of Merger" shall mean the Articles of Merger
to be executed by the Parties and filed with the Secretary of State of
the State of Florida relating to the Merger as contemplated by Section
1.3 of this Agreement.
"GAAP" shall mean generally accepted accounting principles in
the United States consistently applied during the periods involved
applicable to banks or bank holding companies, as the case may be.
"Hazardous Material" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"HSR Act" shall mean Section 7A of the Clayton Act, as added
by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated
thereunder.
"Indemnified Party" shall have the meaning set forth in
Section 8.13 hereof.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"Knowledge" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall
mean the personal knowledge of the chairman, president, chief
financial officer, chief accounting officer, chief credit officer,
general counsel, any assistant or deputy general counsel, or any
senior or executive vice president of such Person and the knowledge of
any such persons obtained or which would have been obtained from a
reasonable investigation.
"Law" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a
Person or its Assets, liabilities, or business, including those
promulgated, interpreted, or enforced by any Regulatory Authority.
"Lien" with respect to any Asset shall mean any conditional
sale agreement, default of title, easement, encroachment, encumbrance,
hypothecation, infringement, lien, mortgage, pledge, reservation,
restriction, security interest, title retention, or other security
arrangement, or any adverse right or interest, charge, or claim of any
nature whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for current property Taxes not yet due
and payable,(ii) for depository institution Subsidiaries of a Party,
pledges to secure deposits, and (iii) other Liens incurred in the
ordinary course of the banking business.
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<PAGE> 42
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing, inquiry,
administrative or other proceeding, or notice by any Person alleging
potential liability.
"Loan Property" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries or in
which such Party or its Subsidiary holds a security or other interest
(including an interest in a fiduciary capacity) where required by the
context, includes the owner or operator of such property, but only
with respect to such property.
"Material Adverse Effect" on a Party shall mean an event,
change, or occurrence which, individually or together with any other
event, change, or occurrence, has a material adverse impact on (i) the
financial position, business, or results of operations of such Party
and its Subsidiaries, taken as a whole, or (ii) the ability of such
Party to perform its obligations under this Agreement or to consummate
the Merger or the other transactions contemplated by this Agreement,
provided 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, (b) changes in GAAP or regulatory accounting principles
generally applicable to banks and their holding companies, (c) actions
and omissions of a Party (or any of its Subsidiaries) taken with the
prior informed consent of the other Party in contemplation of the
transactions contemplated hereby, (d) circumstances affecting regional
bank holding companies generally, and (e) the Merger and compliance
with the provisions of this Agreement on the operating performance of
the Parties.
"Merger" shall have the meaning set forth in Section 1.1
hereof.
"Nasdaq" shall mean the Nasdaq Stock Market.
"Order" shall mean any decree, injunction, judgment, order,
decision or award, ruling, or writ of any federal, state, local, or
foreign or other court, arbitrator, mediator, tribunal, administrative
agency, or Regulatory Authority.
"Participation Facility" shall mean any facility or property
in which the Party in question or any of its Subsidiaries participates
in the management and, where required by the context, said term means
the owner or operator of such facility or property, but only with
respect to such facility or property.
"Party" shall mean either West Coast or FNB, and "Parties"
shall mean both West Coast and FNB.
"PBCL" shall mean the Pennsylvania Business Corporation Law.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person.
"Person" shall mean a natural person or any legal, commercial,
or governmental entity, such as, but not limited to, a corporation,
general partnership, joint venture, limited partnership,limited
37
<PAGE> 43
liability company, trust, business association, group acting in
concert, or any person acting in a representative capacity.
"Proxy Statement" shall mean the proxy statement used by West
Coast to solicit the approval of its shareholders of the transactions
contemplated by this Agreement, which shall include the prospectus of
FNB relating to the issuance of the FNB Common Stock to holders of
West Coast Common Shares.
"Registration Statement" shall mean the Registration Statement
on Form S-4, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC
by FNB under the 1933 Act with respect to the shares of FNB Common
Stock to be issued to the shareholders of West Coast in connection
with the transactions contemplated by this Agreement.
"Regulatory Authorities" shall mean, collectively, the Federal
Trade Commission, the United States Department of Justice, the Board
of the Governors of the Federal Reserve System, the Office of the
Comptroller of the Currency, the Federal Deposit Insurance
Corporation, the SEC, NASD, NASDAQ, and all state regulatory agencies
having jurisdiction over the Parties and their respective
Subsidiaries.
"Rights" shall mean all calls, commitments, options, rights to
subscribe to, scrip, understandings, warrants, or other binding
obligations of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, shares of the capital
stock of a Person or by which a Person is or any contracts,
commitments, or other arrangements may be bound to issue additional
shares of its capital stock, or options, warrants, rights to purchase
or acquire any additional shares of the capital stock.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents
filed, or required to be filed, by a Party or any of its Subsidiaries
with any Regulatory Authority pursuant to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors
Act of 1940, as amended, the Trust Indenture Act of 1939, as amended,
and the rules and regulations of any Regulatory Authority promulgated
thereunder.
"Shareholders' Meeting" shall mean the meeting of the
shareholders of West Coast to be held pursuant to Section 8.1 of this
Agreement, including any adjournment or adjournments thereof.
"Southwest" shall have the meaning set forth in the first
paragraph hereof.
"Stock Option Agreement" shall have the meaning set forth in
the Preamble hereof.
"Subsidiaries" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns
or controls 50% or more of the outstanding equity securities either
directly or through an unbroken chain of entities as to each of which
50% or more of the outstanding
38
<PAGE> 44
equity securities is owned directly or indirectly by its parent;
provided, there shall not be included any such entity acquired through
foreclosure or any such entity the equity securities of which are
owned or controlled in a fiduciary capacity.
"Surviving Corporation" shall mean Southwest as the surviving
corporation resulting from the Merger or in the event the
FNB/Southwest Merger has not be consummated prior to the Effective
Time, such other wholly-owned Subsidiary of FNB substituted in place
of Southwest as a Party to this Agreement.
"Takeover Laws" shall have the meaning set forth in Section
5.18 hereof.
"Tax" or "Taxes" shall mean all federal, state, local, and
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated, or other tax or governmental fee of any kind whatsoever,
imposed or required to be withheld by the United States or any state,
local, foreign government or subdivision or agency thereof, including
any interest, penalties or additions thereto.
"Tax Opinion" shall have the meaning set forth in Section
9.1(g) hereof.
"Taxable Period" shall mean any period prescribed by any
governmental authority, including the United States or any state,
local, foreign government or subdivision or agency thereof for which a
Tax Return is required to be filed or Tax is required to be paid.
"Tax Return" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or its
Subsidiaries.
"West Coast" shall have the meaning set forth in the first
paragraph hereof.
"West Coast Benefits Plans" shall have the meaning set forth
in Section 5.12(a) hereof.
"West Coast Common Shares" shall mean the $1.00 par value
common shares of West Coast.
"West Coast Companies" shall mean, collectively, West Coast
and all West Coast Subsidiaries.
"West Coast Contract" shall have the meaning set forth in
Section 5.13.
"West Coast Disclosure Memorandum" shall mean the written
information entitled "West Coast Corporation Disclosure Memorandum"
delivered prior to the date of this Agreement to FNB describing in
reasonable detail the matters contained therein and, with respect to
each disclosure made therein, specifically referencing each Section of
this Agreement under which such disclosure is being made. Information
disclosed with respect to one Section shall not be deemed to be
disclosed for purposes of any other Section not specifically
referenced with respect thereto.
39
<PAGE> 45
"West Coast ERISA Plan" shall have the meaning set forth in
Section 5.12(a) hereof.
"West Coast Financial Statements" shall mean (i) the
consolidated balance sheets (including related notes and schedules, if
any) of West Coast as of June 30, 1996, and as of December 31, 1995
and 1994, and the related statements of income, changes in
shareholders' equity, and cash flows (including related notes and
schedules, if any) for the six months ended June 30, 1996, and for
each of the three fiscal years ended December 31, 1995, 1994, and
1993, as filed by West Coast in SEC Documents, and (ii) the
consolidated balance sheets of West Coast (including related notes and
schedules, if any) and related statements of income, changes in
shareholders' equity, and cash flows (including related notes and
schedules, if any) included in SEC Documents filed with respect to
periods ended subsequent to June 30, 1996.
"West Coast Options" shall have the meaning set forth in
Section 3.5(a) hereof.
"West Coast Pension Plan" shall have the meaning set forth in
Section 5.12(a) hereof.
"West Coast SEC Reports" shall have the meaning set forth in
Section 5.5(a) hereof.
"West Coast Stock Plans" shall mean the existing stock option
and other stock-based compensation plans and warrant instruments of
West Coast set forth in Section 3.5 of the West Coast Disclosure
Memorandum.
"West Coast Subsidiaries" shall mean the Subsidiaries of West
Coast, which shall include the West Coast Subsidiaries described in
Section 5.4 of this Agreement and any corporation, bank, savings
association, or other organization acquired as a Subsidiary of West
Coast in the future and owned by West Coast at the Effective Time.
(b) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes," or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation."
11.2 Expenses.
(a) Except as otherwise provided in this Section 11.2, each of FNB and
West Coast shall bear and pay all direct costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including filing, registration, and application fees, printing fees, and fees
and expenses of its own financial or other consultants, investment bankers,
accountants, and counsel, except that each of FNB and West Coast shall bear and
pay one-half of the printing costs incurred in connection with the printing of
the Registration Statement and the Proxy Statement.
(b) Nothing contained in this Section 11.2 shall constitute or shall
be deemed to constitute liquidated damages for the willful breach by a Party of
the terms of this Agreement or otherwise limit the rights of the nonbreaching
Party.
11.3 Brokers and Finders. Except for Advest, Inc. as to West Coast
and except for The Robinson-Humphrey Company, Inc. as to FNB, each of the
Parties represents and warrants that neither it nor any of its officers,
directors, employees, or Affiliates has employed any broker or finder in
connection with this
40
<PAGE> 46
Agreement or the transactions contemplated hereby. In the event of a claim by
any broker or finder based upon his or its representing or being retained by or
allegedly representing or being retained by West Coast or FNB, each of West
Coast and FNB, as the case may be, agrees to indemnify and hold the other Party
harmless of and from any Liability in respect of any such claim.
11.4 Entire Agreement. Except as otherwise expressly provided herein,
this Agreement constitutes the entire agreement between the Parties with
respect to the transactions contemplated hereunder and supersedes all prior
arrangements or understandings with respect thereto, written or oral (except
for the Confidentiality Agreements). Nothing in this Agreement expressed or
implied, is intended to confer upon any Person, other than the Parties or their
respective successors, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, other than as provided in Sections 8.13 of this
Agreement.
11.5 Amendments. To the extent permitted by Law, this Agreement may
be amended by a subsequent writing signed by each of the Parties upon the
approval of the Boards of Directors of each of the Parties, whether before or
after shareholder approval of this Agreement has been obtained; provided, that
after any such approval by the holders of West Coast Common Shares, there shall
be made no amendment that reduces or modifies in any material respect the
consideration to be received by holders of West Coast Common Shares without the
further approval of such shareholders.
11.6 Obligations of FNB. Whenever this Agreement requires FNB
(including the Surviving Corporation) to take any action, such requirement
shall be deemed to include an undertaking by FNB to cause the FNB Subsidiaries
to take such action.
11.7 Waivers.
(a) Prior to or at the Effective Time, FNB, acting through its Board
of Directors, chief executive officer, president or other authorized officer,
shall have the right to waive any default in the performance of any term of
this Agreement by West Coast, to waive or extend the time for the compliance or
fulfillment by West Coast of any and all of its obligations under this
Agreement, and to waive any or all of the conditions precedent to the
obligations of FNB under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of FNB.
(b) Prior to or at the Effective Time, West Coast, acting through its
Board of Directors, chief executive officer, president or other authorized
officer, shall have the right to waive any default in the performance of any
term of this Agreement by FNB, to waive or extend the time for the compliance
or fulfillment by FNB of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of West
Coast under this Agreement, except any condition which, if not satisfied, would
result in the violation of any Law. No such waiver shall be effective unless in
writing signed by a duly authorized officer of West Coast.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
41
<PAGE> 47
11.8 Assignment. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by the Parties and their respective successors and assigns.
11.9 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre-paid,
or by courier or overnight carrier, to the persons at the addresses set forth
below (or at such other address as may be provided hereunder), and shall be
deemed to have been delivered as of the date so delivered:
West Coast: 2724 Del Prado Boulevard South
Cape Coral, Florida 33904
Telecopy Number: 941-772-2096
Attention: Michael P. Geml, President
Copy to Counsel: Carlton, Fields, Ward, Emanuel, Smith &
Cutler, P.A.
One Harbour Place
777 S. Harbour Island Boulevard
Tampa, Florida 33602-5799
Telecopy Number: 813-229-4133
Attention: Richard A. Denmon
FNB: Hermitage Square
Hermitage, PA 16148
Telecopy Number: 412-983-3515
Attention: Peter Mortensen
Chairman of the Board and
President
copy to: John Waters, Vice President and
Chief Financial Officer
Southwest: 2911 Tamiami Trail North
Naples, Florida 33940
Telecopy Number: 941-435-7658
Attention: Gary L. Tice, Chairman of
the Board, President and
Chief Executive Officer
Copy to Counsel: Smith, Gambrell & Russell, LLP
3343 Peachtree Road, NE
Suite 1800
Atlanta, Georgia 30326
Telecopy Number: 404-264-2652
Attention: Robert C. Schwartz
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<PAGE> 48
11.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the Commonwealth of Pennsylvania,
without regard to any applicable conflicts of Laws, except to the extent that
the Laws of the State of Florida relate to the consummation of the Merger.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.12 Captions. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
11.13 Enforcement of Agreement. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to
be executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
F.N.B. CORPORATION
By: /s/ Peter Mortensen
-------------------------------------
Name: Peter Mortensen
Title: Chairman of the Board and
President
SOUTHWEST BANKS, INC.
By: /s/ Gary L. Tice
-------------------------------------
Name: Gary L. Tice
Title: Chairman of the Board,
President, and Chief
Executive Officer
WEST COAST BANCORP, INC.
By: /s/ Michael P. Geml
-------------------------------------
Name: Michael P. Geml
Title: President
43
<PAGE> 1
EXHIBIT 10.1
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated November 15, 1996, between F.N.B.
Corporation, a Pennsylvania corporation ("FNB") and West Coast Bancorp, Inc., a
Florida corporation ("West Coast").
W I T N E S S E T H :
WHEREAS, FNB and West Coast have entered into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), which agreement has been
executed by the parties hereto prior to this Agreement; and
WHEREAS, as a condition and inducement to FNB's pursuit of the
transactions contemplated by the Merger Agreement and in consideration
therefor, West Coast has agreed to grant FNB the Option (as hereinafter
defined):
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. (a) West Coast hereby grants to FNB an irrevocable option (the
"Option") to purchase, subject to the terms hereof, up to 426,991 authorized
but unissued fully paid and nonassessable Common Shares, $1.00 par value, of
West Coast ("Common Shares"), at a price per Share equal to $15.00 (as adjusted
as set forth herein, the "Option Price"); provided, that in no event shall the
number of Shares for which this Option is exercisable, when combined with the
West Coast Common Shares beneficially owned at such time by FNB, exceed 19.9%
of the issued and outstanding Common Shares. The number of Common Shares that
may be received upon the exercise of the Option and the Option Price are
subject to adjustment as herein set forth.
(b) In the event that any additional Common Shares are issued or
otherwise become outstanding after the date of this Agreement (other than
pursuant to this Agreement), the number of Common Shares subject to the Option
shall be increased so that, after such issuance, it equals 19.9% of the number
of Common Shares then issued and outstanding including Common Shares
beneficially by FNB, but without giving effect to any Shares subject or issued
pursuant to the Option. Nothing contained in this Section 1(b) or elsewhere in
this Agreement shall be deemed to authorize West Coast or FNB to breach any
provision of the Merger Agreement.
2. (a) Subject to compliance with applicable laws and regulations, the
Holder (as hereinafter defined) may exercise the Option, notwithstanding the
provisions of the Confidentiality Agreements (as defined in the Merger
Agreement) in whole or part, if, but only if, both an Initial Triggering Event
(as hereinafter defined) and a Subsequent Triggering Event (as hereinafter
defined) shall have occurred prior to the occurrence of an Exercise Termination
Event (as hereinafter defined). Each of the following shall be an Exercise
Termination Event: (i) the Effective Time (as defined in the Merger Agreement)
of the Merger; (ii) termination of the Merger Agreement in accordance with the
provisions thereof if such termination occurs prior to the occurrence of an
Initial Triggering Event (other than termination due to (A) the failure of FNB
to satisfy a condition to closing, (B) failure to obtain the requisite approval
of West Coast shareholders following a favorable recommendation by the West
Coast Board, or (C) the withdrawal by the West Coast financial advisor of its
fairness opinion); (iii) the passage of 12 months (or such longer period as
provided in Section 10) after termination of the Merger Agreement if such
termination follows the occurrence of an Initial Triggering Event; or (iv) such
other date as to which the Holder and West Coast agree. The term "Holder" shall
mean the holder or holders of the Option. The rights set forth in Sections 7
and 9 shall terminate when the right to exercise the Option terminates (other
than as a result of a complete exercise of the Option) as set forth herein.
(b) The term "Initial Triggering Event" shall mean any of the
following events or transactions occurring after the date hereof:
<PAGE> 2
(i) West Coast or any of its Subsidiaries (as hereinafter
defined) (each a "West Coast Subsidiary"), without having received
FNB's prior written consent, shall have entered into an agreement to
engage in an Acquisition Transaction (as hereinafter defined) with any
person (the term "person" for purposes of this Agreement having the
meaning assigned thereto in Sections 3(a)(9) and 13(d)(3) of the
Securities Exchange Act of 1934 (the "1934 Act"), and the rules and
regulations thereunder) other than FNB or any of its Subsidiaries
(each a "FNB Subsidiary") or the Board of Directors of West Coast
shall have recommended that the shareholders of West Coast approve or
accept any Acquisition Transaction other than as contemplated by the
Merger Agreement or this Agreement. For purposes of this Agreement,
(a) "Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving West Coast or any
Significant Subsidiary (as defined in Rule 1- 02 of Regulation S-X
promulgated by the Securities and Exchange Commission (the "SEC")) of
West Coast, (y) a purchase, lease or other acquisition of all or
substantially all of the assets or deposits of West Coast or any
Significant Subsidiary of West Coast, or (z) a purchase or other
acquisition (including by way of merger, consolidation, share exchange
or otherwise) of securities representing 15% or more of the voting
power of West Coast or any Significant Subsidiary of West Coast, and
(b) "Subsidiary" shall have the meaning set forth in Rule 12b-2 under
the 1934 Act;
(ii) Any person (excluding the officers and directors of West
Coast) other than FNB, any FNB Subsidiary or any West Coast Subsidiary
acting in a fiduciary capacity shall have acquired beneficial
ownership or the right to acquire beneficial ownership of 15% or more
of the outstanding Common Shares (the term "beneficial ownership" for
purposes of this Agreement having the meaning assigned thereto in
Section 13(d) of the 1934 Act, and the rules and regulations
thereunder);
(iii) The shareholders of the West Coast shall not have
approved the transactions contemplated by the Merger Agreement at the
meeting held for that purpose or any adjustment thereof, or such
meeting shall not have been held or shall have been canceled prior to
termination of the Merger Agreement, in either case, after West
Coast's Board of Directors shall have withdrawn or modified (or
publicly announced its intention to withdraw or modify or interest in
withdrawing or modifying) its recommendation that the shareholders of
West Coast approve the transactions contemplated by the Merger
Agreement, or West Coast or any West Coast Subsidiary, without having
received FNB's prior written consent, shall have authorized,
recommended, proposed (or publicly announced its intention to
authorize, recommend or propose or interest in authorizing,
recommending or proposing) an agreement to engage in an Acquisition
Transaction, with any person other than FNB or a FNB Subsidiary;
(iv) Any person other than FNB or any FNB Subsidiary shall
have made a bona fide proposal to West Coast or its shareholders to
engage in an Acquisition Transaction, which proposal has an economic
value equivalent to or in excess of that of FNB.
(v) West Coast shall have willfully and materially breached
any material covenant or obligation contained in the Merger Agreement
in anticipation of engaging in an Acquisition Transaction, and such
breach would entitle FNB to terminate the Merger Agreement; or
(v) Any person other than FNB or any FNB Subsidiary, other
than in connection with a transaction to which FNB has given its prior
written consent, shall have filed an application or notice with the
Federal Reserve Board or other federal or state bank regulatory
authority, which application or notice has been accepted for
processing, for approval to engage in an Acquisition Transaction.
(c) The term "Subsequent Triggering Event" shall mean any of the
following events or transactions occurring after the date hereof:
(i) The acquisition by any person of beneficial ownership of
25% or more of the then outstanding Common Shares; or
- 2 -
<PAGE> 3
(ii) The occurrence of the Initial Triggering Event described
in clause (i) of subsection (b) of this Section 2, except that the
percentage referred to in clause (z) shall be 25%.
(d) West Coast shall notify FNB promptly in writing of the occurrence
of any Initial Triggering Event or Subsequent Triggering Event (together, a
"Triggering Event"), it being understood that the giving of such notice by West
Coast shall not be a condition to the right of the Holder to exercise the
Option.
(e) No shares shall be issued pursuant to the exercise of this Option
if (i) at the time of the Initial Triggering Event and at the time of exercise,
FNB is in material breach under the Merger Agreement, or (ii) a preliminary or
permanent injunction has been issued by a court of proper jurisdiction.
(f) In the event the Holder is entitled to and wishes to exercise the
Option, it shall send to West Coast a written notice prior to an Exercise
Termination Event (the date of which being herein referred to as the "Notice
Date") specifying (i) the total number of shares it will purchase pursuant to
such exercise and (ii) a place and date not earlier than three business days
nor later than 10 business days from the Notice Date for the closing of such
purchase (the "Closing Date"); provided that if prior notification to or
approval of the Federal Reserve Board or any other regulatory agency is
required in connection with such purchase, the Holder shall promptly file the
required notice or application for approval, shall promptly notify the West
Coast of such filing, and shall expeditiously process the same and the period
of time that otherwise would run pursuant to this sentence shall run instead
from the date on which any required notification periods have expired or been
terminated or such approvals have been obtained and any requisite waiting
period or periods shall have passed. Any exercise of the Option shall be deemed
to occur on the Notice Date relating thereto.
(g) At the closing referred to in subsection (e) of this Section 2,
the Holder shall pay to West Coast the aggregate purchase price for the Common
Shares purchased pursuant to the exercise of the Option in immediately
available funds by wire transfer to a bank account designated by West Coast,
provided that failure or refusal of West Coast to designate such a bank account
shall not preclude the Holder from exercising the Option.
(h) At such closing, simultaneously with the delivery of immediately
available funds as provided in subsection (f) of this Section 2, West Coast
shall deliver to the Holder a certificate or certificates representing the
number of Common Shares purchased by the Holder and, if the Option should be
exercised in part only, a new Option evidencing the rights of the Holder
thereof to purchase the balance of the shares purchasable thereunder. In
addition, the Holder shall provide to West Coast a letter agreeing that Holder
will not offer to sell or dispose of such shares in violation of applicable
law or this Agreement
(i) Certificates for Common Shares delivered at a closing hereunder
may be endorsed with a restrictive legend that shall read substantially as
follows:
"The transfer of the shares represented by this certificate is subject
to certain provisions of an agreement between the registered holder
hereof and West Coast and to resale restrictions arising under the
Securities Act of 1933, as amended. A copy of such agreement is on
file at the principal office of West Coast and will be provided to the
holder hereof without charge upon receipt by West Coast of a written
request therefor."
It is understood and agreed that: (1) the reference to the resale restrictions
of the Securities Act of 1933 (the "1933 Act") in the above legend shall be
removed by delivery of substitute certificate(s) without such reference if the
Holder shall have delivered to West Coast a copy of a letter from the staff of
the SEC, or an opinion of counsel, in form and substance satisfactory to West
Coast, to the effect that such legend is not required for purposes of the 1933
Act; (ii) the reference to the provisions of this Agreement in the above legend
shall be removed by delivery of substitute certificate(s) without such
reference if the shares have been sold or transferred in compliance with the
provisions of this Agreement and under circumstances that do not require
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<PAGE> 4
the retention of such reference; and (iii) the legend shall be removed in its
entirety if the conditions in the proceeding clauses (i) and (ii) are both
satisfied. In addition, such certificates shall bear any other legend as may be
required by law.
(j) Upon the giving by the Holder to West Coast of the written notice
of exercise of the Option provided for under subsection (e) of this Section 2
and the tender of the applicable purchase price in immediately available funds
the Holder shall be deemed to be the holder of record of the Common Shares
issuable upon such exercise, notwithstanding that the stock transfer books of
West Coast shall then be closed or that certificates representing such Common
Shares shall not then be actually delivered to the Holder. West Coast shall pay
all expenses, and any and all United States federal, state and local taxes and
other charges that may be payable in connection with the preparation, issue and
delivery of stock certificates under this Section 2 in the name of the Holder
or its assignee, transferee or designee.
3. West Coast agrees: (i) that it shall at all times maintain, free
from preemptive rights, sufficient authorized but unissued or treasury shares
of Common Shares so that the Option may be exercised without additional
authorization of Common Shares after giving effect to all other options,
warrants, convertible securities and other rights to purchase Common Shares;
(ii) that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
West Coast; (iii) promptly to take all action as may from time to time be
required (including (x) complying with all premerger notification, reporting
and waiting period requirements specified in 15 U.S.C. Section 18a and
regulations promulgated thereunder and (y) in the event, under the Bank Holding
Company Act of 1956, as amended, or any state or other federal banking law,
prior approval of or notice to the Federal Reserve Board or to any state or
other federal regulatory authority is necessary before the Option may be
exercised, cooperating fully with the Holder in preparing such applications or
notices and providing such information to the Federal Reserve Board or such
state or other federal regulatory authority as they may require) in order to
permit the Holder to exercise the Option and West Coast duly and effectively to
issue Common Shares pursuant hereto; and (iv) promptly to take all action
provided herein to protect the rights of the Holder against dilution as set
forth in Section 5 hereof.
4. This Agreement (and the Option granted hereby) are exchangeable,
without expense, at the option of the Holder, upon presentation and surrender
of this Agreement at the principal office of West Coast, for other Agreements
providing for Options of different denominations entitling the holder thereof
to purchase, on the same terms and subject to the same conditions as are set
forth herein, in the aggregate the same number of Common Shares purchasable
hereunder. The terms "Agreement" and "Option" as used herein include any
Agreements and related Options for which this Agreement (and the Option granted
hereby) may be exchanged. Upon receipt by West Coast of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, West Coast will execute and deliver a new Agreement of
like tenor and date.
5. The number of Common Shares purchasable upon the exercise of the
Option shall be subject to adjustment from time to time as provided in this
Section 5.
(a) In the event of any change in Common Shares by reason of
stock dividends, splitups, mergers, recapitalizations, combinations,
subdivisions, conversions, exchanges of shares or the like, the type
and number of Common Shares purchasable upon exercise hereof shall be
appropriately adjusted and proper provision shall be made so that, in
the event that any additional Common Shares are to be issued or
otherwise become outstanding as a result of any such change (other
than pursuant to an exercise of the Option), the number of Common
Shares that remain subject to the Option shall be increased so that,
after such issuance and together with Common Shares previously issued
pursuant to the exercise of the Option (together with the number of
Shares previously issued under this Option and the number of Shares
otherwise beneficially owned by FNB) (as adjusted on account of any of
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<PAGE> 5
the foregoing changes in the Common Shares), it equals 19.9% of the
number of Common Shares then issued and outstanding.
(b) Whenever the number of Common Shares purchasable upon
exercise hereof is adjusted as provided in this Section 5, the Option
Price shall be adjusted by multiplying the Option Price by a fraction,
the numerator of which shall be equal to the number of Common Shares
purchasable prior to the adjustment and the denominator of which shall
be equal to the number of Common Shares purchasable after the
adjustment.
6. Upon the occurrence of a Subsequent Triggering Event that occurs
prior to an Exercise Termination Event, West Coast shall, at the request of FNB
delivered prior to an Exercise Termination Event (or such later period as
provided in Section 10) (whether on its own behalf or on behalf of any
subsequent holder of this Option (or part thereof) or any of the Common Shares
issued pursuant hereto), promptly prepare, file and keep current a registration
statement under the 1933 Act covering any shares issued and issuable pursuant
to this Option and shall use its best efforts to cause such registration
statement to become effective and remain current in order to permit the sale or
other disposition of any Common Shares issued upon total or partial exercise of
this Option ("Option Shares") in accordance with any plan of disposition
requested by FNB. West Coast will use its best efforts to cause such
registration statement first to become effective and then to remain effective
for such period not in excess of 120 days from the day such registration
statement first becomes effective or such shorter time as may be reasonably
necessary to effect such sales or other dispositions. FNB shall have the right
to demand two such registrations. The first demand registration effected under
this Section 6 shall be at West Coast's expense except for underwriting
commissions and the fees and expenses of FNB's counsel attributable to the
registration of the Common Shares. The second demand registration shall be at
FNB's expense. In addition, if at any time after the occurrence of a
Subsequent Triggering Event that occurs prior to an Exercise Termination Event,
West Coast proposes to register any of its equity securities under the 1933
Act, whether for sale for its own account or for the account of any other
person, on a form and in a manner which would permit registration of the Common
Shares issued pursuant hereto for sale to the public under the 1933 Act, it
will each such time give prompt written notice to FNB of its intention to do
so, describing such securities and specifying the form and manner and the other
relevant facts involved in such proposed registration, and upon the written
request of FNB delivered to the Company within 10 business days after the
giving of any such notice (which request shall specify the Common Shares
intended to be disposed of and the intended method or methods of disposition
thereof), West Coast will use its best efforts to effect the registration under
the 1933 Act of all Common Shares which West Coast has been so requested to
register by FNB, to the extent requisite to permit the disposition of the
Common Shares in accordance with the intended methods thereof as specified by
FNB. West Coast shall be obligated to effect only one such piggy-back
registration pursuant to this Section 6. FNB shall pay such incremental
expenses incurred by West Coast in connection with registering the Common
Shares requested to be registered by FNB pursuant to its piggy-back
registration rights under this Section 6, which expenses are in addition to the
expenses that West Coast would have otherwise incurred in registering equity
securities under the 1933 Act. The foregoing notwithstanding, if, at the time
of any request by FNB for registration of Option Shares as provided above, West
Coast has initiated discussions with investment bankers concerning, or is in
registration with respect to an underwritten public offering of Common Shares,
and if in the good faith judgment of the managing underwriter or managing
underwriters, or, if none, the sole underwriter or underwriters, of such
offering the inclusion of the Option Shares would interfere with the successful
marketing of the Common Shares offered by West Coast, the number of Option
Shares otherwise to be covered in the registration statement contemplated
hereby may be reduced; provided, however, that after any such required
reduction the number of Option Shares to be included in such offering for the
account of the Holder shall constitute at least 25% of the total number of
shares to be sold by the Holder and West Coast in the aggregate; and provided
further, however, that if such reduction occurs, then the West Coast shall file
a registration statement for the balance as promptly as practical thereafter as
to which no reduction pursuant to this Section 6 shall be permitted or occur
and the Holder shall thereafter be entitled to one additional registration.
Each such Holder shall provide all information reasonably requested by West
Coast for inclusion in any registration statement to be filed hereunder. If
requested by any such Holder in connection with such registration, West Coast
shall become a party to any underwriting agreement relating to the sale of
such shares,
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<PAGE> 6
but only to the extent of obligating itself in respect of representations,
warranties, indemnities and other agreements customarily included in such
underwriting agreements for West Coast. In any such registration, West Coast
and FNB shall agree to indemnify each other on customary terms with regard to
any information provided by such party. Upon receiving any request under this
Section 6 from any Holder, West Coast agrees to send a copy thereof to any
other person known to West Coast to be entitled to registration rights under
this Section 6, in each case by promptly mailing the same, postage prepaid, to
the address of record of the persons entitled to receive such copies.
7. (a) Upon the occurrence of a Repurchase Event (as hereinafter
defined) that occurs prior to an Exercise Termination Event, (i) at the request
of the Holder, delivered prior to an Exercise Termination Event (or such later
period as provided in Section 10), West Coast shall repurchase the Option from
the Holder at a price (the "Option Repurchase Price") equal to the amount by
which (A) the Market/Offer Price (as defined below) exceeds (B) the Option
Price, multiplied by the number of shares for which this Option may then be
exercised and (ii) at the request of the owner of Option Shares from time to
time (the "Owner"), delivered prior to the occurrence of an Exercise
Termination Event (or such later period as provided in Section 10), West Coast
shall repurchase such number of the Option Shares from the Owner as the Owner
shall designate at a price (the "Option Share Repurchase Price") equal to the
Market/Offer Price multiplied by the number of Option Shares so designated. The
term "Repurchase Event" shall occur if (i) any person other than FNB or any of
its Subsidiaries shall have acquired beneficial ownership, or the right to
acquire beneficial ownership, or any "group" (as such term is defined under the
1934 Act) shall have been formed which beneficially owns or has the right to
acquire beneficial ownership of 50% or more of the then-outstanding Common
Shares, or (ii) any of the transactions described in Section 8(a)(i), 8(a)(ii),
or 8(a)(iii) shall be consummated. The term "Market/Offer Price" shall mean the
highest of (i) the price per share of Common Shares at which a tender or
exchange offer therefor has been made, (ii) the price per share of Common
Shares to be paid by any third party pursuant to an agreement with West Coast,
(iii) the highest closing price for Common Shares within the three-month period
immediately preceding the date the Holder gives notice of the required
repurchase of this Option or the Owner gives notice of the required repurchase
of Option Shares, as the case may be, or (iv) in the event of a sale of all or
substantially all of West Coast's assets or deposits, the sum of the net price
paid in such sale for such assets or deposits, the sum of the net price paid in
such sale for such assets or deposits and the current market value of the
remaining net assets of West Coast as determined by a nationally recognized
investment banking firm selected by the Holder or the Owner, as the case may
be, divided by the number of Common Shares of West Coast outstanding at the
time of such sale. In determining the Market/Offer Price, the value of
consideration other than cash shall be determined by a nationally recognized
investment banking firm selected by the Holder or Owner, as the case may be.
(b) The Holder and the Owner, as the case may be, may exercise its
right to require West Coast to repurchase the Option and any Option Shares
pursuant to this Section 7 by surrendering for such purpose to West Coast, at
its principal office, a copy of this Agreement or certificates for Option
Shares, as applicable, accompanied by a written notice or notices stating that
the Holder or the Owner, as the case may be, elects to require West Coast to
repurchase this Option and/or the Option Shares in accordance with the
provisions of this Section 7. As promptly as practicable, and in any event
within ten business days after the surrender of the Option and/or certificates
representing Option Shares and the receipt of such notice or notices relating
thereto, West Coast shall deliver or cause to be delivered to the Holder the
Option Repurchase Price and/or to the Owner the Option Share Repurchase Price
therefor or the portion thereof that West Coast is not then prohibited under
applicable law and regulation from so delivering.
(c) To the extent that West Coast is prohibited under applicable law
or regulation, or as a consequence of administrative policy, from repurchasing
the Option and/or the Option Shares in full, West Coast shall immediately so
notify the Holder and/or the Owner and thereafter deliver or cause to be
delivered, from time to time, to the Holder and/or the Owner, as appropriate,
the portion of the Option Repurchase Price and the Option Share Repurchase
Price, respectively, that it is no longer prohibited from delivering, within
ten business days after the date on which West Coast is no longer so
prohibited; provided, however, that if West Coast at any time after delivery of
a notice of repurchase pursuant to paragraph (b) of this Section 7 is
prohibited under
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<PAGE> 7
applicable law or regulation, or as a consequence of administrative policy,
from delivery to the Holder and/or the Owner, as appropriate, the Option
Repurchase Price and the Option Share Repurchase Price, respectively, in full
(and West Coast hereby undertakes to use its best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish such repurchase), the Holder or
Owner may revoke its notice of repurchase of the Option or the Option Shares
whether in whole or to the extent of the prohibition, whereupon, in the latter
case, West Coast shall promptly (i) deliver to the Holder and/or the Owner, as
appropriate, that portion of the Option Purchase Price or the Option Share
Repurchase Price that West Coast is not prohibited from delivering, and (ii)
deliver, as appropriate, either (A) to the Holder, a new Agreement evidencing
the right of the Holder to purchase that number of Common Shares obtained by
multiplying the number of Common Shares for which the surrendered Agreement was
exercisable at the time of delivery of the notice of repurchase by a fraction,
the numerator of which is the Option Repurchase Price less the portion thereof
theretofore delivered to the Holder and the denominator of which is the Option
Repurchase Price, or (B) to the Owner, a certificate for the Option Shares it
is then so prohibited from repurchasing.
8. (a) In the event that, prior to an Exercise Termination Event, West
Coast shall enter into an agreement (i) to consolidate with or merge into any
person, other than FNB or a FNB Subsidiary, and shall not be the continuing or
surviving corporation of such consolidation or merger, (ii) to permit any
person, other than FNB or a FNB Subsidiary, to merge into West Coast and West
Coast shall be the continuing or surviving corporation, but, in connection with
such merger, the then outstanding Common Shares shall be changed into or
exchanged for stock or other securities of any other person or cash or any
other property or the then outstanding Common Shares shall after such merger
represent less than 50% of the outstanding shares and share equivalents of the
merged company, or (iii) to sell or otherwise transfer all or substantially all
of its or any Significant Subsidiary's assets or deposits to any person, other
than FNB or a FNB Subsidiary, then, and in each such case, the agreement
governing such transaction shall make proper provision so that the Option
shall, upon the consummation of any such transaction and upon the terms and
conditions set forth herein, be converted into, or exchanged for, an option
(the "Substitute Option"), at the election of the Holder, of either (x) the
Acquiring Corporation (as hereinafter defined) or (y) any person that controls
the Acquiring Corporation.
(b) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing or
surviving corporation of a consolidation or merger with West Coast (if
other than West Coast), (ii) West Coast in a merger in which West Coast is
the continuing or surviving person, and (iii) the transferee of all or
substantially all of West Coast's assets or deposits (or the assets or
deposits of a Significant Subsidiary of West Coast).
(ii) "Substitute Common Shares" shall mean the common shares
issued by the issuer of the Substitute Option upon exercise of the
Substitute Option.
(iii) "Assigned Value" shall mean the Market/Offer Price, as
defined in Section 7.
(iv) "Average Price" shall mean the average closing price of the
Substitute Common Share for the one year immediately preceding the
consolidation, merger or sale in question, but in no event higher than
the closing price of the substitute Common Shares on the day preceding
such consolidation, merger or sale; provided that if West Coast is
the issuer of the Substitute Option, the Average Price shall be
computed with respect to common shares issued by the person merging
into West Coast or by any company which controls or is controlled by
such person, as the Holder may elect.
(c) The Substitute Option shall have the same terms as the Option, provided,
that if the terms of the Substitute Option cannot, for legal reasons, be the
same as the Option, such terms shall be as similar as possible and in no event
less advantageous to the Holder. The issuer of the Substitute Option shall also
enter into an agreement with the then Holder or Holders of the Substitute
Option in substantially the same form as this
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<PAGE> 8
Agreement (after giving effect for such purpose to the provisions of Section
9), which agreement shall be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of Substitute
Common Shares as is equal to the Assigned Value multiplied by the number of
Common Shares for which the Option is then exercisable, divided by the Average
Price. The exercise price of the Substitute Option per Substitute Common Share
shall then be equal to the Option Price multiplied by a fraction, the numerator
of which shall be the number of Common Shares for which the Option is then
exercisable and the denominator of which shall be the number of Substitute
Common Shares for which the Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for a number of shares which together with
shares of the Acquiring Corporation then beneficially owned by FNB, constitutes
more than 19.9% of the shares of Substitute Common Shares outstanding prior to
exercise of the Substitute Option.
9. (a) At the request of the holder of the Substitute Option (the
"Substitute Option Holder"), the issuer of the Substitute Option (the
"Substitute Option West Coast") shall repurchase the Substitute Option from the
Substitute Option Holder at a price (the "Substitute Option Repurchase Price")
equal to the amount by which (i) the Highest Closing Price (as hereinafter
defined) exceeds (ii) the exercise price of the Substitute Option, multiplied
by the number of Substitute Common Shares for which the Substitute Option may
then be exercised, and at the request of the owner (the "Substitute Share
Owner") of shares of Substitute Common Shares (the "Substitute Shares"), the
Substitute Option West Coast shall repurchase the Substitute Shares at a price
(the "Substitute Share Repurchase Price") equal to the Highest Closing Price
multiplied by the number of Substitute Shares so designated. The term "Highest
Closing Price" shall mean the highest closing price for shares of Substitute
Common Shares within the three-month period immediately preceding the date the
Substitute Option Holder gives notice of the required repurchase of the
Substitute Option or the Substitute Share Owner gives notice of the required
repurchase of the Substitute Shares, as applicable.
(b) The Substitute Option Holder and the Substitute Share Owner, as
the case may be, may exercise its respective right to require the Substitute
Option West Coast to repurchase the Substitute Option and the Substitute Shares
pursuant to this Section 9 by surrendering for such purpose to the Substitute
Option West Coast, at its principal office, the agreement for such Substitute
Option (or, in the absence of such an agreement, a copy of this Agreement) and
certificates for Substitute Shares accompanied by a written notice or notices
stating that the Substitute Option Holder or the Substitute Share Owner, as the
case may be, elects to require the Substitute Option West Coast to repurchase
the Substitute Option and/or the Substitute Shares in accordance with the
provisions of this Section 9. As promptly as practicable, and in any event
within ten business days after the surrender of the Substitute Option and/or
certificates representing Substitute Shares and the receipt of such notice or
notices relating thereto, the Substitute Option West Coast shall deliver or
cause to be delivered to the Substitute Option Holder the Substitute Option
Repurchase Price and/or to the Substitute Share Owner the Substitute Share
Repurchase Price therefor or the portion thereof which the Substitute Option
West Coast is not then prohibited under applicable law and regulation from so
delivering.
(c) To the extent that the Substitute Option West Coast is prohibited
under applicable law or regulation, or as a consequence of administrative
policy, from repurchasing the Substitute Option and/or the Substitute Shares in
part or in full, the Substitute Option West Coast shall immediately so notify
the Substitute Option Holder and/or the Substitute Share Owner and thereafter
deliver or cause to be delivered, from time to time, to the Substitute Option
Holder and/or the Substitute Share Owner, as appropriate, the portion of the
Substitute Share Repurchase Price, respectively, which it is no longer
prohibited from delivering, within ten business days after the date on which
the Substitute Option West Coast is no longer so prohibited; provided, however,
that if the Substitute Option West Coast is at any time after delivery of a
notice of repurchase pursuant to subsection (b) of this Section 9 prohibited
under applicable law or regulation, or as a consequence of administrative
policy, from delivering to the substitute Option Holder and/or the Substitute
Share Owner, as appropriate, the Substitute Option Repurchase Price and the
Substitute Share Repurchase Price, respectively,
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<PAGE> 9
in full (and the Substitute Option West Coast shall use its best efforts to
receive all required regulatory and legal approvals as promptly as practicable
in order to accomplish such repurchase), the Substitute Option Holder or
Substitute Share Owner may revoke its notice of repurchase of the Substitute
Option or the Substitute Shares either in whole or to the extent of the
prohibition, whereupon, in the latter case, the Substitute Option West Coast
shall promptly (i) deliver to the Substitute Option Holder or Substitute Share
Owner, as appropriate, that portion of the Substitute Option Repurchase Price
or the Substitute Share Repurchase Price that the Substitute Option West Coast
is not prohibited from delivering; and (ii) deliver, as appropriate, either (A)
to the Substitute Option Holder, a new Substitute Option evidencing the right
of the Substitute Option Holder to purchase that number of the Substitute
Common Shares obtained by multiplying the number of Substitute Common Shares
for which the surrendered Substitute Option was exercisable at the time of
delivery of the notice of repurchase by a fraction, the numerator of which is
the Substitute Option Repurchase Price less the portion thereof theretofore
delivered to the Substitute Option Holder and the denominator of which is the
Substitute Option Repurchase Price, or (B) to the Substitute Share Owner, a
certificate for the Substitute Option Shares it is then so prohibited from
repurchasing.
10. The periods for exercise of certain rights under Sections 2, 6, 7,
9 and 12 shall be extended: (i) to the extent necessary to obtain all
regulatory approvals for the exercise of such rights (for so long as the Holder
is using commercially reasonable efforts to obtain such regulatory approvals),
and for the expiration of all statutory waiting periods; and (ii) to the extent
necessary to avoid liability under Section 16(b) of the 1934 Act by reason or
such exercise.
11. West Coast hereby represents and warrants to FNB as follows:
(a) West Coast has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of West Coast and no other corporate proceedings on the part
of West Coast are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by West Coast.
(b) West Coast has taken all necessary corporate action to authorize
and reserve and to permit it to issue, and at all times from the date hereof
through the termination of this Agreement in accordance with its terms will
have reserved for issuance upon the exercise of the Option, that number of
Common Shares equal to the maximum number of Common Shares at any time and from
time to time issuable hereunder, and all such shares, upon issuance pursuant
thereto, will be duly authorized, validly issued, fully paid, nonassessable.
12. Neither of the parties hereto may assign any of its rights or
obligations under this Agreement or the Option created hereunder to any other
person, without the express written consent of the other party, except that in
the event a Subsequent Triggering Event shall have occurred prior to an
Exercise Termination Event, FNB, subject to the express provisions hereof, may
assign in whole or in part its rights and obligations hereunder following such
Subsequent Triggering Event; provided, however that until the date 30 days
following the date on which the Federal Reserve Board has approved applications
by FNB to acquire the Common Shares subject to the Option, FNB may not assign
its rights under the Option except in (i) a widely dispersed public
distribution, (ii) a private placement in which no one party acquires the right
to purchase in excess of 2% of the voting shares of issuer, (iii) an assignment
to a single party (i.e., a broker or investment banker) for the purpose of
conducting a widely disbursed public distribution on FNB's behalf, or (iv) any
other manner approved by the Federal Reserve Board.
13. Each of FNB and West Coast will use its best efforts to make all
filings with, and to obtain consents of, all third parties and governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement, including without limitation applying to the Federal Reserve
Board under the Bank Holding Company Act for approval to acquire the shares
issuable hereunder, but FNB shall not be
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<PAGE> 10
obligated to apply to state banking authorities for approval to acquire the
Common Shares issuable hereunder until such time, if ever, as it deems
appropriate to do so.
14. The parties hereto acknowledge that damages would be an inadequate
remedy for a breach of this Agreement by either party hereto and that the
obligations of the parties hereto shall be enforceable by either party hereto
through injunctive or other equitable relief.
15. If any term, provision, covenant or restriction contained in this
Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this
Agreement shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated. If for any reason such court or regulatory
agency determines that the Holder is not permitted to acquire, or West Coast is
not permitted to repurchase pursuant to Section 7, the full number of Common
Shares provided in Section 1(a) hereof (as adjusted pursuant to Section 5
hereof), it is the express intention of West Coast to allow the Holder to
acquire or to require West Coast to repurchase such lesser number of shares as
may be permissible, without any amendment or modification hereof.
16. All notices, requests, claims, demands and other communications
hereunder shall be deemed to have been duly given when delivered in person, by
fax, telecopy, or by registered or certified mail (postage prepaid, return
receipt requested) at the respective addresses of the parties set forth in the
Merger Agreement.
17. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
18. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, but all of which shall constitute
one and the same agreement.
19. Except as otherwise expressly provided herein, each of the parties
hereto shall bear and pay all costs and expenses incurred by it or on its
behalf in connection with the transactions contemplated hereunder, including
fees and expenses of its own financial consultants, investment bankers,
accountants and counsel.
20. Except as otherwise expressly provided herein or in the Merger
Agreement, this Agreement contains the entire agreement between the parties
with respect to the transactions contemplated hereunder and supersedes all
prior arrangements or understandings with respect thereof, written or oral. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assignees. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party, other than the parties hereto, and their respective
successors except as assignees, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
21. Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned thereto in the Merger Agreement.
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IN WITNESS WHEREOF, each of the parties had caused this Agreement to
be executed on its behalf by their officers thereunto duly authorized, all as
the date first above written.
F.N.B. CORPORATION
By: /s/ Peter Mortensen
------------------------------------
Name: Peter Mortensen
Title: Chairman of the Board and
President
WEST COAST BANCORP, INC.
By: /s/ Michael P. Geml
------------------------------------
Name: Michael P. Geml
Title: President
- 11 -
<PAGE> 1
EXHIBIT 99.1
DATE: November 15, 1996
CONTACT: West Coast Bancorp, Inc. Michael P. Geml
President and Chief
Executive Officer
Cape Coral, Florida
(941) 772-2220
F.N.B. Corporation John D. Waters
V.P. and Chief Financial
Officer
Hermitage, Pennsylvania
(412) 983-3440
FOR IMMEDIATE RELEASE:
WEST COAST BANCORP, INC. AND F.N.B. CORPORATION
ANNOUNCE MERGER
CAPE CORAL, FL -- West Coast Bancorp, Inc. and F.N.B. Corporation today jointly
announced the signing of a definitive agreement to merge the two holding
companies. Under the terms of the agreement, each share of West Coast Bancorp,
Inc. will be exchanged for .794 share of F.N.B. Corporation and the transaction
will be accounted for as a pooling of interests. The actual per share value
will depend upon the price of F.N.B. stock at the closing of the transaction.
F.N.B. Corporation will issue 1.3 million shares in the tax free exchange,
making the total value of the transaction approximately $31 million. The merger
is expected to close in the second quarter of 1997.
West Coast Bancorp, Inc., a bank holding company headquartered in Cape
Coral, Florida, operates First National Bank of Southwest Florida in Lee County
with five banking locations. At September 30, 1996, its assets totaled $155
million.
F.N.B. Corporation is a bank holding company headquartered in Hermitage,
Pennsylvania, with $1.7 billion in assets. It operates five banks and a
consumer finance subsidiary through 94 offices in Pennsylvania, eastern Ohio and
southwest New York. The
<PAGE> 2
company recently announced record earnings for the first nine months of 1996 of
$15.4 million, $1.61 per share primary and $1.53 fully diluted, excluding the
one time SAIF assessment mandated by Congress. This represents a 17% increase
over the same period a year ago.
Michael P. Geml, President and Chief Executive Officer of West Coast
Bancorp, Inc. enthusiastically remarked that "the transaction represents a
substantial premium over current market and book values. F.N.B. provides
affiliates an operating environment which will ensure a continuation of our
commitment to superior customer service." Under the terms of the agreement,
First National Bank of Southwest Florida and Cape Coral National Bank will
merge their operations, resulting in the largest community bank in Cape Coral,
with more than 20% of the deposit market. The Fort Myers offices of West Coast
will operate as a separate banking subsidiary, retaining the name First National
Bank of Southwest Florida. "F.N.B. Corporation represents the caliber of
organization that West Coast Bancorp seeks to align itself, that being the
common goal of expanding its market presence," said Thomas R. Cronin, Chairman
of West Coast. David W. Gomer will head up the Cape Coral operation, and Fort
Myers will be under the leadership of Michael Geml. Geml concluded, "In
addition to realizing a premium on their stock ownership, shareholders will
benefit from higher dividends paid by F.N.B." F.N.B. Corporation's current
regular cash dividend on common stock is $.64 on an annual basis, which
represents a 2.7% yield.
Earlier this year, F.N.B. Corporation announced an affiliation with
Southwest Banks, Inc., a bank holding company operating two banking
subsidiaries, First National Bank of Naples with five locations in Collier
County, and Cape Coral National Bank with two offices
<PAGE> 3
in Lee County. All required approvals have been obtained for this transaction,
which is scheduled to close in January 1997.
On a proforma consolidated basis, F.N.B. Corporation would have total
assets of $2.2 billion and total Shareholders' Equity of $200 million.
Commenting on the proposed transaction, Peter Mortensen, Chairman and
President of F.N.B. Corporation, said, "The merger with West Coast provides an
opportunity to continue to employ our growing capital in this growth area."
Mortensen is one of the founders of Southwest Banks, Inc., as well as its lead
bank, First National Bank of Naples, and has served as a director of both
entities since their formation in 1988. Mortensen added, "The transaction will
result in zero earnings dilution to our shareholders in the first year. We view
this merger as an 'in-market' transaction and therefore will realize substantial
expense savings by combining the operations in Cape Coral. We are committed to
retaining the best people of both organizations. Considering the growth
potential and expansion plans, management's challenge is to reassign employees
into productive jobs."
F.N.B. Corporation's common stock trades on NASDAQ under the symbol FBAN.
West Coast Bancorp, Inc. trades on the NASDAQ National Market System using the
symbol WBAN.
