EXHIBIT 2 - AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement") is made and entered into effective as of the 11th day
of December 2003, by and among First Commonwealth Financial
Corporation, a Pennsylvania corporation ("Purchaser"), First
Commonwealth Bank, a Pennsylvania-chartered banking corporation and
wholly owned subsidiary of Purchaser ("FCB"), GA Financial, Inc., a
Delaware corporation ("Company"), and Great American Federal
Savings and Loan Association, a federal savings association and
wholly owned subsidiary of Company ("Great American").
Recitals
A. The
respective Boards of Directors of Purchaser and Company have
determined that the merger of Company with and into Purchaser (the
"Merger"), upon the terms and subject to the conditions set forth
in this Agreement, is advisable and in the best interests of their
respective stockholders, and have approved and adopted the this
Agreement and the Merger, pursuant to which each outstanding share
of the common stock, $0.01 par value, of Company ("Company Common
Stock"), will be converted, at the election of each Company
stockholder, into cash and/or shares of the common stock, $1.00 par
value, of Purchaser ("Purchaser Common Stock") as provided
herein. Purchaser will be the surviving corporation (the
"Surviving Corporation") following the Merger.
B. After
the Effective Time, Great American will be merged with and into FCB
(the "Bank Merger"), upon the terms and subject to the conditions
set forth in this Agreement. FCB will be the surviving
financial institution following the Bank Merger.
C. Under
Delaware law, this Agreement and the Merger must be approved and
adopted by the stockholders of Company. The Board of
Directors of Company has adopted a resolution recommending that the
stockholders of Company approve this Agreement and the Merger and
the consummation of the transactions contemplated hereby upon the
terms and subject to the conditions set forth herein.
D. Concurrently
with the execution and delivery of this Agreement, and as an
inducement to Purchaser's willingness to enter into this Agreement,
each director and executive officer of Company has entered into a
Voting Agreement with Purchaser pursuant to which, among other
things, he or she agrees to vote in favor of approval of the
transactions contemplated by this Agreement at the Special
Meeting.
E. In
furtherance thereof, the Boards of Directors of Purchaser and
Company have approved this Agreement and the Merger in accordance
with Pennsylvania law and Delaware law, respectively.
F. The
parties intend that that (i) the Merger will qualify as a
reorganization under Section 368 of the Code, (ii) no gain or loss
will be recognized by either Company or Purchaser as a result of
the Merger and (iii) no gain or loss for federal income tax
purposes will be recognized by a Company Stockholder upon the
exchange of Company Common Stock solely for Purchaser Common
Stock.
Agreement
In
consideration of the premises and the mutual covenants set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree, intending to be legally bound, as follows (each capitalized
term used in this Agreement shall have the meaning assigned to such
term in Exhibit A ):
ARTICLE I
BASIC TRANSACTION
1.1
Merger. At the Effective Time, Company
shall be merged with and into Purchaser, pursuant to the terms and
conditions set forth herein and pursuant to the Pennsylvania
Business Corporation Law ("PBCL") and the Delaware General
Corporation Law ("DGCL"). Upon consummation of the Merger, the
separate corporate existence of Company shall cease and Purchaser
shall continue as the Surviving Corporation. The Articles of
Incorporation and Bylaws of Purchaser, as in effect immediately
prior to the Effective Time, shall be the Articles of Incorporation
and Bylaws of the Surviving Corporation. The effects of the Merger
shall be as provided in Section 1929 of the PBCL and Section 259 of
the DGCL.
1.2
Bank Merger. At the time selected by
Purchaser following the Effective Time, Great American shall be
merged with and into FCB, pursuant to the terms and conditions set
forth herein, and in the plan of merger which shall be in form and
substance mutually agreeable to FCB and Great American (the "Bank
Plan of Merger"), and pursuant to the Pennsylvania Banking Code of
1965, as amended ("Banking Code"), and the Home Owners' Loan Act of
1933, as amended ("HOLA") and the regulations of the Office of
Thrift Supervision ("OTS") promulgated thereunder. Upon
consummation of the Bank Merger, the separate corporate existence
of Great American shall cease and FCB shall continue as the
surviving financial institution. The Articles of
Incorporation and Bylaws of FCB, in effect immediately prior to the
consummation of the Bank Merger, shall be the Articles of
Incorporation and Bylaws of the surviving financial institution.
The effects of the Merger shall be as provided in Section 1601
et. seq. of the Banking Code and 12 C.F.R. Section
552.13. By signing this Agreement, Purchaser and Company
consent to and approve the Bank Merger in their capacities as the
sole shareholders of FCB and Great American, subject only to the
consummation of the Merger.
1.3
Effective Time. As soon as practicable
after each of the conditions set forth in Article 6hereof have been
satisfied or waived, Purchaser and Company will file, or cause to
be filed, (a) with the Secretary of State of the Commonwealth of
Pennsylvania Articles of Merger in the form required by and
executed in accordance with the applicable provisions of the PBCL
and (b) with the Secretary of State of the State of Delaware a
Certificate of Merger in the form required by and executed in
accordance with the applicable provisions of the DGCL. The
Merger shall become effective upon filing the Articles of Merger
with the Pennsylvania Secretary of State and the Certificate of
Merger with the Delaware Secretary of State, or at such later time
as Purchaser and Company may agree as specified in the Articles of
Merger and Certificate of Merger (the "Effective Time"). The
Bank Merger will be consummated after the Merger at the time
selected by Purchaser.
2
1.4
Conversion of Company Common Stock. At the
Effective Time:
(a) Subject
to the allocation and proration procedures set forth in Section
1.10,and except as provided in Sections 1.5 and 1.12, each share of
Company Common Stock issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into the
right to receive from Purchaser, at the election of the holder
thereof pursuant to Section 1.10, either:
(i) cash
in an amount equal to $35.00 per share (the "Per Share Cash
Consideration"); or
(ii) a
number of shares of Purchaser Common Stock which is equal to the
Exchange Ratio.
(b) The
holders of certificates representing shares of Company Common Stock
shall cease to have any rights as stockholders of Company, except
such rights, if any, as they may have pursuant to the DGCL.
Except as provided above, until certificates representing shares of
Company Common Stock are surrendered for exchange, each certificate
shall, after the Effective Time, represent for all purposes only
the right to receive the amount and type of consideration into
which the shares of Company Common Stock represented thereby shall
have been converted by the Merger as provided above.
(c) The
stock transfer books of Company shall be closed and no transfer of
shares of Company Common Stock shall be made thereafter.
1.5
Company Treasury Stock; Shares owned by
Purchaser. Notwithstanding any other provision
of this Agreement, any shares of Company Common Stock issued
immediately prior to the Effective Time which are then owned
beneficially or of record (a) by Company or any Company Subsidiary
or (b) by Purchaser or any Purchaser Subsidiary, in each case,
other than shares held in an agency or fiduciary capacity or as a
result of debts previously contracted, shall, by virtue of the
Merger, be canceled at the Effective Time without payment of any
consideration therefor and without any conversion thereof.
1.6
Purchaser Common Stock. The shares of
Purchaser Common Stock issued and outstanding immediately prior to
the Effective Time shall, on and after the Effective Time, remain
issued and outstanding as the same number of shares of Purchaser
Common Stock.
1.7
Fractional Shares. Notwithstanding any
other provision hereof, no fractional shares of Purchaser Common
Stock and no certificates, or scrip therefor, or other evidence of
ownership thereof, will be issued in the Merger. In lieu of
fractional shares, Purchaser shall pay to each Company Stockholder
who would otherwise be entitled to a fractional share an amount of
cash determined by multiplying such fraction by the Per Share Cash
Consideration.
1.8
Anti-Dilution. In the event Purchaser
changes the number of shares of Purchaser Common Stock issued and
outstanding prior to the Effective Time as a result of a stock
split, stock dividend or recapitalization with respect to the
outstanding Purchaser Common Stock and the effective date therefor
shall be prior to the Effective Time, then, for purposes of
computing the Average Closing Price (and, thus, the Exchange
Ratio), the closing prices of the Purchaser
3
Common Stock for all trading days prior to the effective date of
such stock split, stock dividend or recapitalization shall be
proportionately adjusted.
1.9
Company Options.
(a) At
the Effective Time, by virtue of the Merger, and without any action
on the part of any holder of an option to purchase Company Common
Stock granted under the Company Option Plan (a "Company Option"),
each Company Option that is then outstanding and unexercised shall,
at the election of the holder thereof pursuant to Section 1.9(b),
be either:
(i) assumed
by Purchaser and converted into an option to purchase Purchaser
Common Stock (a "Substituted Option") on the same terms and
conditions as are in effect with respect to the Company Option
immediately prior to the Effective Time, except that (A) each
Substituted Option may be exercised solely for shares of Purchaser
Common Stock, (B) the number of shares of Purchaser Common Stock
subject to each Substituted Option shall be equal to the number of
shares of Company Common Stock subject to the assumed Company
Option immediately prior to the Effective Time multiplied by the
Exchange Ratio, the product being rounded, if necessary, up or down
to the nearest whole share, and (C) the per share exercise price
under each Substituted Option shall be equal to the per share
exercise price of the assumed Company Option immediately prior to
the Effective Time divided by the Exchange Ratio, the quotient
being rounded, if necessary, up or down to the nearest cent;
(ii) cancelled
and all rights thereunder be extinguished ("Cancelled Option"), in
consideration for which Company shall make payment immediately
after the Effective Time in an amount determined by multiplying (A)
the number of shares of Company Common Stock underlying such
Company Option immediately prior to the Effective Time by (B) an
amount equal to the excess (if any) of (x) the Per Share Cash
Consideration, over (y) the exercise price per share of such
Company Option; or
(iii) assumed
by Purchaser and converted into an option to purchase Purchaser
Common Stock as provided in Section 1.9(a)(i) with respect to a
number of shares of Company Common Stock subject to such Company
Option designated by the holder thereof and cancelled in
consideration for payment as provided in Section 1.9(a)(ii) with
respect to the remaining shares of Company Common Stock subject
thereto.
(b) In
order for any holder of a Company Option to have his or her Company
Options converted into a Substituted Option as set forth in Section
1.9(a)(i) or to receive cash in exchange for a Cancelled Option as
set forth in Section 1.9(a)(ii) or to receive a Substituted Option
and cash as set forth in Section 1.9(a)(iii), such holder shall
have executed a written election with respect to such conversion or
cancellation no later than three business days prior to the
Effective Time, which written election shall be in such form as
shall be prescribed by Company and reasonably satisfactory to
Purchaser. No payment shall be made to a holder of a
Cancelled Option unless and until such holder has executed and
delivered the foregoing written election. In the event any
holder of a Company Option fails to make an election within the
time frame set forth herein, the Company Option held thereby shall
automatically be converted at the Effective Time into an option to
purchase Purchaser Common Stock in the amount and at the exercise
price as calculated pursuant to Section 1.9(a)(i).
4
(c) As
to any Company Option that is an incentive stock option, it is
intended that the adjustments provided in Section 1.9(a)(i) shall
be effected in a manner which is consistent with the requirements
of Section 424(a) of the Internal Revenue Code. To the extent
that it is not consistent with such requirements, Section 424(a)
shall override anything to the contrary set forth in Section
1.9(a)(i).
(d) No
later than two business days prior to the Effective Time, Company
shall deliver to Purchaser a schedule which sets forth, as of that
date, a complete and accurate list of outstanding Company Options,
indicating (i) the holder thereof, (ii) the number of shares of
Company Common Stock subject thereto, (iii) the exercise price
therefor, and (iv) the number of shares of Company Common Stock
subject to such Company Option with respect to which the holder has
elected to receive a Substituted Option and/or cash as provided in
Section 1.9(a). Prior to the Effective Time, Purchaser shall
reserve for issuance the number of shares of Purchaser Common Stock
necessary to satisfy Purchaser's obligations under Section
1.9(a). As soon as practicable after the Effective Time, but
in no event later than 20 business days thereafter, Purchaser shall
(i) file a registration statement on Form S-8 with the SEC
registering the shares of Purchaser Common Stock subject to the
Substituted Options and shall use commercially reasonable efforts
to maintain the current status of the prospectus or prospectuses
contained therein for so long as such options remain outstanding,
and (ii) take such other actions as are required under applicable
state securities laws for so long as such options remain
outstanding.
1.10
Election and Exchange Procedures.
(a) Purchaser
shall designate The Bank of New York (or another bank selected by
Purchaser and reasonably acceptable to Company) as agent (the
"Exchange Agent") for purposes of conducting the election procedure
and the exchange procedure as described in this Section 1.10.
Company shall promptly provide or cause to be provided to the
Exchange Agent all information reasonably necessary for the
Exchange Agent to perform its obligations as specified
herein.
(b) Company
shall include with the Proxy Statement/Prospectus sent to the
Company Stockholders an election form for use by the Company
Stockholders in making the election described below as to the form
of consideration to be received for their Company Common Stock (the
"Election Form") and other appropriate and customary transmittal
materials for use by the Company Stockholders in transmitting the
certificates representing Company Common Stock to the Exchange
Agent, which shall specify that delivery shall be effected and risk
of loss of Company Common Stock certificates shall pass, only upon
proper delivery of such certificates to the Exchange Agent (the
"Letter of Transmittal). The Election Form and the Letter of
Transmittal shall be in such form and substance as designated by
Purchaser and reasonably acceptable to Company. Purchaser
shall thereafter make available one or more copies of the Election
Form and the Letter of Transmittal as may be reasonably requested
by Persons who become Company Stockholders after the record date
for the Special Meeting and prior to the Election Deadline.
The Election Form shall permit each Company Stockholder (or
beneficial owner through appropriate and customary documentation
and instructions) to elect to receive either (i) Purchaser Common
Stock with respect to all of such holder's shares of Company Common
Stock, (ii) cash with respect to all of such holder's shares of
Company
5
Common Stock, or (iii) Purchaser Common Stock in exchange for a
specified number of shares of Company Common Stock and cash in
exchange for a specified number of shares of Company Common
Stock. Shares of Company Common Stock with respect to which a
Company Stockholder elects to receive Purchaser Common Stock are
referred to as "Stock Election Shares." Shares of Company
Common Stock with respect to which a Company Stockholder elects to
receive cash are referred to as "Cash Election Shares." Any
shares of Company Common Stock (other than Dissenting Shares, which
are dealt with in Section 1.12 and shares which are cancelled
without payment pursuant to Section 1.5) with respect to which the
holder fails to make an effective election to receive Purchaser
Common Stock or cash, together with shares of Company Common Stock
with respect to which a Company Stockholder exercises his or her
rights to appraisal under the DGCL and, as of the Election
Deadline, has failed to perfect or effectively withdrawn or lost
such rights, are referred to as "No-Election Shares." Nominee
record holders who hold Company Common Stock on behalf of multiple
beneficial owners shall indicate how many of the shares held by
them are Stock Election Shares, Cash Election Shares and
No-Election Shares.
(c) Any
election by a Company Stockholder to receive Purchaser Common Stock
or cash shall be effective only if the Exchange Agent shall have
actually received a signed and properly completed Election Form by
5:00 p.m., Eastern Time, on the last business day before the date
of the Special Meeting (the "Election Deadline"); provided, that if
all Regulatory Approvals have not been obtained prior to such date,
Purchaser shall extend the Election deadline until the third
business day following the receipt of the final Regulatory
Approval. If the Election Deadline is so extended, Purchaser
shall promptly issue a press release advising the Company
Stockholders of the extension and, upon receipt of the final
Regulatory Approval, shall issue a press release advising the
Company Stockholders of the revised Election Deadline. An
Election Form will be properly completed only if all information
called for by the Election Form is provided and, (i) in the case of
shares that represented by certificates, only if accompanied by a
certificate or certificates representing all shares of Company
Common Stock covered thereby, and (ii) in the case of shares that
are held in book-entry form ("Book-Entry Shares"), only upon
compliance with the book-entry delivery procedures reasonably
established by Purchaser and the Exchange Agent, in each case,
subject to the provisions of subsection (g) of this Section
1.10. Any Election Form may be revoked or changed by the
Person submitting such Election Form to the Exchange Agent by
written notice to the Exchange Agent only if such notice is
actually received by the Exchange Agent at or prior to the Election
Deadline. All elections shall be revoked automatically if the
Exchange Agent is notified in writing by Purchaser and Company that
this Agreement has been terminated and, in that event, the Exchange
Agent shall promptly return all Company Common Stock certificates
and Book-Entry Shares received by it to the appropriate Company
Stockholders. The Exchange Agent shall have reasonable
discretion to determine when any election, modification or
revocation is received and whether any such election, modification
or revocation has been properly made.
(d) Within
five (5) business days after the Election Deadline, the Exchange
Agent shall effect the allocation among Company Stockholders of
rights to receive Purchaser Common Stock or cash in the Merger as
follows:
(i) If
the number of Cash Election Shares multiplied by the Per Share Cash
Consideration is less than the Aggregate Cash Consideration,
then:
6
(A) No-Election
Shares shall be deemed to be Cash Election Shares to the extent
necessary to cause the total number of Cash Election Shares
multiplied by the Per Share Cash Consideration to equal the
Aggregate Cash Consideration. If less than all of the No-Election
Shares need to be treated as Cash Election Shares in order to
accomplish that result, then the Exchange Agent shall convert on a
pro rata basis (subject to rounding to avoid the conversion of
fractional shares) a sufficient number of No-Election Shares into
Cash Election Shares to cause the total number of Cash Election
Shares after such conversion multiplied by the Per Share Cash
Consideration to equal the Aggregate Cash Consideration, and all
remaining No-Election Shares shall be treated as Stock Election
Shares.
(B) If
all of the No-Election Shares are treated as Cash Election Shares
under the preceding subsection and the total number of Cash
Election Shares multiplied by the Per Share Cash Consideration is
still less than the Aggregate Cash Consideration, then the Exchange
Agent shall convert on a pro rata basis (subject to rounding to
avoid the conversion of fractional shares) a sufficient number of
Stock Election Shares into Cash Election Shares to cause the total
number of Cash Election Shares after such conversion times the Per
Share Cash Consideration to equal the Aggregate Cash
Consideration.
Notwithstanding the foregoing, if the number of Cash Election
Shares multiplied by the Per Share Cash Consideration is less than
the Aggregate Cash Consideration, Purchaser may, in its sole
discretion, elect to reduce the Aggregate Cash Consideration to an
amount not less than the product of the Cash Election Shares
multiplied by the Per Share Cash Consideration and apply the
foregoing allocation procedure (if necessary) using the Aggregate
Cash Consideration as so reduced.
(ii) If
the number of Cash Election Shares multiplied by the Per Share Cash
Consideration is greater than the Aggregate Cash Consideration,
then:
(A) All
No-Election Shares shall be deemed to be Stock Election Shares.
(B) The
Exchange Agent shall convert on a pro rata basis (subject to
rounding to avoid the conversion of fractional shares) a sufficient
number of Cash Election Shares into Stock Election Shares to cause
the number of remaining Cash Election Shares multiplied by the Per
Share Cash Consideration to equal the Aggregate Cash
Consideration.
(e) Following
and giving effect to any reallocation (if necessary) under
subsection (d) of this Section 1.10, all Stock Election Shares and
all No-Election Shares will be converted into the right to receive
Purchaser Common Stock as provided in Section 1.4(a)(ii) and all
Cash Election Shares shall be converted, effective as of the
Effective Time, into the right to receive cash as provided in
Section 1.4(a)(i).
(f) At
or prior to the Effective Time, Purchaser shall authorize the
Exchange Agent to issue the number of shares of Purchaser Common
Stock issuable in the Merger and shall deliver to the Exchange
Agent the amount of cash payable in the Merger. All
7
such shares shall be deemed to have been issued as of the
Effective Time. The Exchange Agent shall not be entitled to
vote or exercise any rights of ownership with respect to such
shares.
(g) After
the Effective Time, each holder of an outstanding certificate or
certificates which prior thereto represented shares of Company
Common Stock who has surrendered or surrenders such certificate or
certificates to the Exchange Agent with a properly completed Letter
of Transmittal, and each Company Stockholder holding Book-Entry
Shares who has complied with the book-entry delivery procedures
established by Purchaser and the Exchange Agent will, upon
acceptance of such certificates and/or Book-Entry Shares by the
Exchange Agent, be entitled to a certificate or certificates
representing the number of full shares of Purchaser Common Stock
and/or the amount of cash into which the aggregate number of shares
of Company Common Stock surrendered or delivered shall have been
converted pursuant to this Agreement and, if such holder's shares
of Company Common Stock have been converted into Purchaser Common
Stock, cash in lieu of fractional shares, and any distribution
previously paid with respect to Purchaser Common Stock issuable in
the Merger for which the record date was on or after the Effective
Date, in each case without interest. Each Company Stockholder
who receives shares of Purchaser Common Stock in the Merger shall
receive a prospectus and enrollment materials for Purchaser's
dividend reinvestment plan together with such Stockholder's
Purchaser Common Stock certificate or certificates. The
Exchange Agent shall accept such certificates and/or Book-Entry
Shares upon compliance with such reasonable terms and conditions as
the Exchange Agent may impose to effect an orderly exchange thereof
in accordance with normal exchange practices. Each
outstanding certificate which prior to the Effective Time
represented Company Common Stock and which is not surrendered to
the Exchange Agent in accordance with the procedures provided for
herein shall, except as otherwise herein provided, until duly
surrendered to the Exchange Agent be deemed to evidence ownership
of the number of shares of Purchaser Common Stock and/or the right
to receive the amount of cash into which such Company Common Stock
shall have been converted. No dividends which have been
declared will be remitted to any Person entitled to receive shares
of Purchaser Common Stock under this Section 1.10 until such Person
surrenders the certificate or certificates representing Company
Common Stock, at which time such dividends shall be remitted to
such Person without interest.
(h) The
Exchange Agent shall use commercially reasonable efforts to
distribute Purchaser Common Stock and cash as provided herein not
later than ten (10) business days after the Effective Time to the
former Company Stockholders who submitted a properly completed
Letter of Transmittal and Company stock certificates prior to the
Election Deadline. The Exchange Agent shall distribute
Purchaser Common Stock and cash as provided herein to other former
Company Stockholders within a reasonable time after its receipt of
a properly completed Letter of Transmittal and Company Common Stock
certificates from such former Company Stockholder.
(i) If
any certificate for Company Common Stock has been lost or
destroyed, the Company Stockholder in whose name that certificate
is registered may submit to the Exchange Agent, in lieu of such
certificate, an appropriate affidavit of loss and indemnity
agreement and/or a bond in such sum as may be required by the
Exchange Agent as indemnity against any claim that may be made
against Purchaser or the Exchange Agent with respect to the
certificates alleged to have been lost, stolen or destroyed.
If any certificates evidencing shares of
8
Purchaser Common Stock are to be issued in a name other than
that in which the certificate evidencing Company Common Stock
surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the certificate so
surrendered shall be properly endorsed or accompanied by an
executed form of assignment separate from the certificate, with all
signatures guaranteed, and otherwise in proper form for transfer
and that the Person requesting such exchange pay to the Exchange
Agent any transfer or other tax required by reason of the issuance
of a certificate for shares of Purchaser Common Stock in any name
other than that of the registered holder of the certificate
surrendered or otherwise establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not payable.
(j) Any
portion of the shares of Purchaser Common Stock and cash delivered
to the Exchange Agent by Purchaser pursuant to Section 1.10(f) that
remains unclaimed by the Company Stockholders for one year (or such
later period as Purchaser and the Exchange Agent may agree) after
the Effective Time (as well as any proceeds from any distributions
on such shares and any investment of any cash held by the Exchange
Agent) shall be delivered by the Exchange Agent to Purchaser. Any
Company Stockholder who has not complied with Section 1.10(g)
before the expiration of such period shall thereafter look only to
Purchaser for the consideration deliverable to such stockholder in
the Merger as determined pursuant to this Agreement, without any
interest thereon. Neither the Exchange Agent nor any party to
this Agreement shall be liable to any holder of shares of Purchaser
Common Stock for any consideration paid to a public official
pursuant to applicable abandoned property, escheat or similar
laws. Purchaser and the Exchange Agent shall be entitled to
rely upon the stock transfer books of Company to establish the
identity of those Persons entitled to receive consideration
specified in this Agreement, which books shall be conclusive with
respect to the identify of such Persons. In the event of a
dispute with respect to ownership of shares of Purchaser Common
Stock, Purchaser and the Exchange Agent shall be entitled to
deposit any consideration represented thereby in escrow with an
independent third party and thereafter be relieved with respect to
any claims thereto.
1.11
Withholding Rights. Purchaser (through the
Exchange Agent, if applicable) shall be entitled to deduct and
withhold from any amounts otherwise payable pursuant to this
Agreement to any Company Stockholder such amounts as Purchaser is
required under the Code or any provision of state, local or foreign
tax law to deduct and withhold with respect to such payment.
Any amounts so withheld shall be treated for all purposes of this
Agreement as having been paid to the Company Stockholder in respect
of which such deduction and withholding was made.
1.12
Dissenting Shares. Notwithstanding
anything in this Agreement to the contrary, shares of Purchaser
Common Stock that are issued and outstanding immediately prior to
the Effective Time and are held by Company Stockholders who did not
vote in favor of the Merger and who have complied with all of the
relevant provisions of Section 262 of the DGCL ("Dissenting Shares"
and "Dissenting Stockholders," respectively), shall not be
converted into the right to receive the consideration provided in
Section 1.4, unless and until such holders shall have failed to
perfect or shall have effectively withdrawn or lost their rights to
appraisal under the DGCL. Company shall give Purchaser
(a) prompt notice of any demands for appraisal of any shares
of Company Common Stock or attempted withdrawals of such demands
and any other instruments served pursuant to the DGCL and received
by Company relating to Company
9
Stockholders' rights of appraisal, and (b) the opportunity
to direct, in its reasonable business judgment, all negotiations
and proceedings with respect to demands for appraisal under the
DGCL. Company shall not, except with the prior written
consent of Purchaser, voluntarily make any payment with respect to,
or settle or offer to settle, any such demand for payment. If
any Dissenting Stockholder shall fail to perfect or shall have
effectively withdrawn or lost the right to dissent at any time
following the Election Deadline, the shares of Company Common Stock
held by such Dissenting Stockholder shall thereupon be converted
into the right to receive the merger consideration provided in
Section 1.4 as if such Dissenting Shares were Stock Election
Shares.
1.13
Closing. Subject to the provisions of
Article 6 hereof, the closing of the transactions contemplated by
this Agreement (the "Closing") shall take place as soon as
practicable after the satisfaction or waiver of all of the
conditions to Closing, and shall be on such date, time and location
as Purchaser and Company shall mutually agree. If all conditions to
the obligations of each of the parties shall have been satisfied or
waived by the party entitled to the benefits thereof, the parties
shall, at the Closing, duly execute the Articles of Merger for
filing with the Pennsylvania Secretary of State and the Certificate
of Merger for filing with the Delaware Secretary of State and
promptly thereafter shall take all steps necessary or desirable to
consummate the Merger in accordance with all applicable Laws.
The date on which the Closing actually occurs is referred to as the
"Closing Date." The Bank Merger will be consummated after the
Merger at a time selected by Purchaser and pursuant to the terms of
this Agreement and the Bank Plan of Merger.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER
AND FCB
To
induce Company and Great American to enter into this Agreement,
Purchaser and FCB represent and warrant as follows:
2.1
Organization.
(a) Purchaser
is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania.
Purchaser is duly registered as a bank holding company with the
Board of Governors of the Federal Reserve System (the "FRB") under
the Bank Holding Company Act of 1956, as amended ("BHCA"), and
engages only in activities (and holds properties only of the types)
permitted by the Commonwealth of Pennsylvania and the FRB and the
rules and regulations promulgated thereby (including but not
limited to the BHCA). Purchaser (i) has the corporate power
and authority to own, operate and lease all of its properties and
assets and to carry on its business as now being conducted and (ii)
is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which such licensing or
qualification is necessary, except where the failure to so qualify
would not be reasonably likely to have a Material Adverse Effect on
Purchaser and the Purchaser Subsidiaries.
(b) Each
Purchaser Subsidiary (other than FCB) is a corporation or other
legal entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation. Each
Purchaser Subsidiary (i) has the corporate power and
10
authority to own, operate and lease all of its properties and
assets and to carry on its business as now being conducted and (ii)
is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which such licensing or
qualification is necessary, except where the failure to so qualify
would not be reasonably likely to have a Material Adverse Effect on
Purchaser and the Purchaser Subsidiaries.
(c) FCB
is a Pennsylvania-chartered banking corporation, duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, and engages only in activities (and
holds properties only of the types) permitted by the Commonwealth
of Pennsylvania, the Pennsylvania Department of Banking (the "PDB")
and the Federal Deposit Insurance Corporation (the "FDIC") and the
rules and regulations promulgated thereby. FCB (i) has the
corporate power and authority to own, operate and lease all of its
properties and assets and to carry on its business as now being
conducted and (ii) is duly licensed or qualified to do business and
is in good standing in each jurisdiction in which such licensing or
qualification is necessary, except where the failure to so qualify
would not be reasonably likely to have a Material Adverse Effect on
Purchaser and the Purchaser Subsidiaries. Deposit accounts of
FCB are insured by the Federal Deposit Insurance Corporation (the
"FDIC") to the fullest extent permitted under applicable Law and
all premiums and assessments required in connection therewith have
been paid by FCB.
2.2
Capitalization.
(a) The
authorized capital stock of Purchaser consists of 100,000,000
shares of Purchaser Common Stock, and 3,000,000 shares of preferred
stock, par value $1.00 per share (the "Purchaser Preferred
Stock"). As of the date hereof, there are (i)
63,715,026 shares of Purchaser Common Stock issued,
60,699,962 shares of Purchaser Common Stock outstanding, and
3,015,064 shares of Purchaser Common Stock held in Purchaser's
treasury, (ii) no shares of Purchaser Preferred Stock issued and
outstanding or held in Purchaser's treasury, and (iii) 2,988,365
shares of Purchaser Common Stock reserved for issuance upon
exercise of outstanding stock options. All of the issued and
outstanding shares of Purchaser Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable,
with no personal liability attaching to the ownership
thereof. None of the issued and outstanding shares of
Purchaser Common Stock were issued in violation of the preemptive
rights of any Person. Upon issuance as provided in this
Agreement, the shares of Purchaser Common Stock issuable in the
Merger will be duly authorized, validly issued, fully paid and
nonassessable and no personal liability will attach to the
ownership thereof. No Person has preemptive rights in respect
of the Purchaser Common Stock to be issued in the Merger. The
shares of Purchaser Common Stock issuable in the Merger will be
registered pursuant to an effective Registration Statement under
the Securities Act.
(b) The
authorized capital stock of FCB consists of 100,000,000 shares of
common stock, par value $1.00 per share ("FCB Common Stock").
As of the date hereof, there are (i) 38,969,900 shares of FCB
Common Stock issued and outstanding and (ii) no shares of FCB
Common Stock are held in FCB's treasury. All of the issued
and outstanding shares of FCB Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable,
with no personal liability attaching to the ownership
thereof. All of the issued and outstanding shares of FCB
Common Stock are held beneficially and of record by
11
Purchaser, free and clear of any Lien. None of the issued
and outstanding shares of FCB Common Stock were issued in violation
of the preemptive rights of any Person. There are no
outstanding securities or other obligations which are convertible
into FCB Common Stock or into any other debt or equity security of
FCB, and there are no outstanding rights, subscriptions, options,
warrants, calls, commitments or agreements of any character calling
for the purchase or issuance of any shares of FCB Common Stock or
any other equity security of FCB or any securities representing the
right to purchase or otherwise receive any shares of FCB Common
Stock, or any other equity security of FCB.
2.3
Authority; No Violation.
(a) Purchaser
and FCB have full corporate power and authority to execute and
deliver this Agreement and, subject to receipt of the required
regulatory approvals set forth in Section 2.5, to consummate the
transactions contemplated hereby and to comply with the terms and
provisions hereof. The execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby have been duly and validly approved by the Boards of
Directors of Purchaser and FCB and no other corporate proceedings
on the part of Purchaser or FCB are necessary to approve this
Agreement or to consummate the Merger or the Bank Merger.
This Agreement has been duly and validly executed and delivered by
Purchaser and FCB and (assuming due authorization, execution and
delivery by Company and Great American of this Agreement) is a
valid and binding obligation of Purchaser and FCB, enforceable
against each of Purchaser and FCB in accordance with its terms,
except as enforcement may be limited by (i) receivership,
conservatorship or supervisory powers of bank regulatory agencies,
(ii) general principles of equity and (iii) bankruptcy, insolvency
and similar laws affecting creditors' rights and remedies
generally.
(b) Neither
the execution and delivery of this Agreement by Purchaser and FCB,
nor the consummation by Purchaser and FCB of the transactions
contemplated hereby, nor compliance by Purchaser or FCB with any of
the terms or provisions hereof, will (either with or without the
giving of notice or the passing of time or both) (i) violate any
provision of the Articles of Incorporation or Bylaws of Purchaser
or the organizational documents of any Purchaser Subsidiary or (ii)
subject to the receipt of the required regulatory approvals set
forth in Section 2.5, (A) violate in any material respect any Law
applicable to Purchaser or any Purchaser Subsidiary, or any of
their respective properties or assets, or (B) violate or conflict
in any material respect with, result in a material breach of any
provision of or the loss of any material benefit under, constitute
a material default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under,
accelerate the performance required by any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation
to which Purchaser or any Purchaser Subsidiary is a party, or by
which they or any of their respective properties or assets may be
bound or affected, (C) violate or conflict with any of the terms,
conditions or provisions of any order, judgment or decree to which
Purchaser or any Purchaser Subsidiary is a party, or by which they
or any of their respective properties or assets may be bound or
affected, or (D) result in the creation of any Lien upon any of the
respective properties or assets of Purchaser or any Purchaser
Subsidiary.
12
2.4
No Legal Bar. Neither Purchaser nor any
Purchaser Subsidiary is a party to, subject to or bound by any
agreement, judgment, order, writ, prohibition, injunction or decree
of any court or other Governmental Entity or any law which would
prevent the execution of this Agreement by Purchaser or FCB, their
delivery thereof to Company and Great American or, subject to
receipt of the required regulatory approvals set forth in Section
2.5, their consummation of the transactions contemplated hereby and
their compliance with the terms and provisions hereof, and no
action or proceeding is pending or, to the Knowledge of Purchaser,
threatened against Purchaser or any Purchaser Subsidiary in which
the validity of this Agreement, any of the transactions
contemplated hereby, or any action which has been taken by any of
the parties to this Agreement in connection herewith or in
connection with any of the transactions contemplated hereby is at
issue.
2.5
Approvals, Consents and Filings. Except
for (i) the approval of the Merger by the FRB and the PDB, (ii) the
approval of the Bank Merger by the FDIC and the PDB, (iii) the
delivery of notice of the Merger and the Bank Merger to the OTS,
(iv) the declaration of effectiveness of the Registration Statement
and approval of the Proxy Statement/Prospectus by the SEC, (v) any
notice or filing required under the HSR Act, (vi) the approval of
Purchaser's additional listing application for the listing of the
Purchaser Common Stock to be issued in the Merger on the NYSE and
(vii) the filing of the Articles of Merger with the Pennsylvania
Secretary of State and the Certificate of Merger with the Delaware
Secretary of State, neither the execution and delivery of this
Agreement by Purchaser nor the consummation of the transactions
contemplated hereby, requires any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental
Entity or other third party.
2.6
Financial Statements; Reports; Books and Records.
(a) Purchaser
has previously delivered or made available to Company true, correct
and complete copies of the consolidated balance sheets of Purchaser
and the Purchaser Subsidiaries as of December 31 for the fiscal
years 2000 through 2002 and the related consolidated statements of
income, changes in shareholders' equity and cash flows for the
fiscal years 2000 through 2002, inclusive, in each case accompanied
by the audit report of Deloitte & Touche LLP, independent
public accountants with respect to Purchaser for such periods, and
the interim unaudited financial statements of Purchaser as of and
for the nine-month periods ended September 30, 2003 and 2002 (all
such financial statements are collectively referred to herein as
the "Purchaser Financial Statements"). The Purchaser Financial
Statements (including the related notes, where applicable) fairly
present, in all material respects, the results of the consolidated
operations and the consolidated financial condition of Purchaser
and the Purchaser Subsidiaries for the respective fiscal periods or
as of the respective dates therein set forth. The Purchaser
Financial Statements (including the related notes, where
applicable) comply with applicable accounting requirements with
respect thereto and have been prepared in accordance with
accounting principles generally accepted in the United States of
America consistently applied during the periods involved ("GAAP"),
except in each case as indicated in such statements or in the notes
thereto.
(b) Since
December 31, 2000, Purchaser and each Purchaser Subsidiary has
timely filed, and subsequent to the date hereof will timely file,
all reports, registrations and statements, together with any
amendments required to be made with respect
13
thereto, that were and are required to be filed with (i) the
SEC, including, but not limited to, Forms 10-K, Forms 10-Q, Forms
8-K, proxy statements and all other communications mailed by
Purchaser to its shareholders (and copies of all such reports,
registrations statements and communications have been furnished or
made available by Purchaser to Company), (ii) the FRB, (iii) the
FDIC, (iv) the PDB, and (v) the NYSE and any other self-regulatory
organization, and (vi) any applicable state securities, insurance
or banking authorities (collectively, as used in this Section
2.6(b), the "Regulatory Agencies") (all such reports, registrations
and statements, together with any amendments thereto, are
collectively referred to herein as the "Purchaser Reports"), and
have paid all fees and assessments due and payable in connection
with any of the foregoing. As of their respective dates, the
Purchaser Reports complied and, with respect to filings made after
the date of this Agreement, will at the date of filing comply in
all material respects with all of the statutes, rules and
regulations enforced or promulgated by the Regulatory Agencies and
did not or will not, as applicable, at the date of filing 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. No Purchaser Subsidiary is
required to file any form, report or other document with the
SEC. Except for normal periodic examinations conducted by a
Regulatory Agency in the regular course of the business of
Purchaser and the Purchaser Subsidiaries, since December 31, 2000,
no Regulatory Agency has initiated any proceeding or, to the
Knowledge of Purchaser, investigation into the business or
operations of Purchaser or any of the Purchaser Subsidiaries.
Purchaser and each Purchaser Subsidiary has resolved all material
violations, criticisms or exceptions by any Regulatory Agency with
respect to any such normal periodic examination. Neither
Purchaser nor any Purchaser Subsidiary has received any written
notice from, or is a party to any written agreement or memorandum
of understanding with, or is a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by,
or is a recipient of any extraordinary supervisory letter from, any
Governmental Entity or any staff thereof (i) asserting that
Purchaser or any Purchaser Subsidiary is not in substantial
compliance with any statute, regulation or ordinance which such
Governmental Entity enforces, or with the internal policies and
procedures of such entity, or (ii) directing, restricting or
limiting in any manner the operations of Purchaser or any Purchaser
Subsidiary, including with respect to such entities' capital
adequacy, its credit policies, its management, or the payment of
dividends.
(c) The
books and records of Purchaser and each Purchaser Subsidiary have
been, and are being, maintained in accordance with GAAP and any
other applicable legal and accounting requirements and reflect only
actual transactions and reasonable accruals.
2.7
Absence of Changes. Since December 31,
2002 there has not been any Material Adverse Change in Purchaser
and the Purchaser Subsidiaries.
2.8
Brokers, Finders and Financial Advisors.
Except for Purchaser's engagement of Sandler O'Neill & Partners
L.P. in connection with the issuance of trust preferred and/or
other debt securities to finance the Merger, neither Purchaser nor
any Purchaser Subsidiary, nor any of their respective officers,
directors, employees or agents, has employed any broker, finder or
financial advisor in connection with the transactions contemplated
by this Agreement or in connection with any transaction other than
the Merger, or incurred any liability or commitment for any fees or
commissions to any such Person in connection with the transactions
contemplated by this Agreement or in connection with any
transaction other than the Merger.
14
2.9
Information to be Supplied. The information to
be supplied by Purchaser or any Purchaser Subsidiary for inclusion
in the Registration Statement and/or any information filed by
Purchaser with the SEC under the Exchange Act which is incorporated
by reference into the Registration Statement will not, at the time
the Registration Statement is declared effective pursuant to the
Securities Act and as of the date the Proxy Statement/Prospectus is
mailed to Company Stockholders and up to and including the date of
the Special Meeting, contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein not misleading. The information
supplied, or to be supplied, by Purchaser for inclusion in the
Regulatory Applications will, at the time such documents are filed
with any Governmental Entity and up to and including the date of
the attainment of any required regulatory approvals, be accurate in
all material respects.
2.10
Compliance with Applicable Laws.
(a) Purchaser
and each Purchaser Subsidiary has complied in all material respects
with all Laws applicable to it or its assets or to the operation of
its business. Neither Purchaser nor any Purchaser Subsidiary has
received any written notice of any alleged or threatened claim,
violation, or liability under any such Laws that has not heretofore
been cured and for which there is any remaining material
liability.
(b) FCB
is an insured depository institution and is "well-capitalized" (as
that term is defined by 12 C.F.R. Section 565.4(b)(1)), and such
institution's examination rating under the Community Reinvestment
Act of 1977 is satisfactory or outstanding.
2.11
Representations and Warranties. The
representations or warranties made by Purchaser and FCB as set
forth in this Agreement, or in any document, statement, certificate
or other writing furnished or to be furnished by Purchaser and FCB
to Company pursuant to the transactions contemplated by this
Agreement, do not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated herein or therein which is necessary to make the statements
and facts contained herein or therein, in light of the
circumstances under which they were or are made, not false or
misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY
AND GREAT AMERICAN
To
induce Purchaser and FCB to enter into this Agreement, Company and
Great American represent and warrant, except as set forth in the
disclosure schedule delivered by Company to Purchaser on the date
hereof (the "Company Disclosure Schedule"), as follows:
3.1
Organization.
(a) Company
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Company is
duly registered as a unitary savings and loan holding company with
the OTS under the HOLA, and engages only in activities (and holds
properties only of the types) permitted by the State of Delaware
and the OTS and the rules and regulations promulgated thereby
(including but not limited to the HOLA). Company (i) has the
corporate power and authority to own or lease all of its properties
and assets and to
15
carry on its business as it is now being conducted, and (ii) is
duly licensed or qualified to do business in each jurisdiction in
which such licensing or qualification is necessary, except where
the failure to so qualify would not be reasonably likely to have a
Material Adverse Effect on Company and the Company
Subsidiaries.
(b) Each
Company Subsidiary (other than Great American) is a corporation or
other legal entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation. Each Company Subsidiary (i) has the corporate
power and authority to own, operate and lease all of its properties
and assets and to carry on its business as now being conducted and
(ii) is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which such licensing or
qualification is necessary, except where the failure to so qualify
would not be reasonably likely to have a Material Adverse Effect on
Company and the Company Subsidiaries.
(c) Great
American is a federal savings association duly chartered under the
laws of the United States, with its main office in the Commonwealth
of Pennsylvania, and engages only in activities (and holds
properties only of the types) permitted by the OTS, the PDB and the
FDIC and the rules and regulations promulgated thereby. Great
American (i) has the power and authority to own or lease all of its
properties and assets and to carry on its business as it is now
being conducted and (ii) is duly licensed or qualified to do
business in each jurisdiction in which such licensing or
qualification is necessary, except where the failure to so qualify
would not be reasonably likely to have a Material Adverse Effect on
Company and the Company Subsidiaries. Deposit accounts of
Great American are insured by the FDIC to the fullest extent
permitted by law, and all premiums and assessments required in
connection therewith have been paid by Great American.
(d) Company
has delivered to Purchaser true, correct and complete copies of the
Certificate of Incorporation and Bylaws, as amended to the date
hereof, of Company and each Company Subsidiary.
3.2
Capitalization, Subsidiaries and Affiliates.
(a) The
authorized capital stock of Company consists 23,000,000 of shares
of Company Common Stock, and 1,000,000 shares of preferred stock,
par value $.01 per share (the "Company Preferred Stock"). As of the
date hereof, there are (i) 8,900,000 shares of Company Common Stock
issued and 3,867,408 shares of Company Common Stock held in
Company's treasury, (ii) no shares of Company Preferred Stock
issued and outstanding or held in Company's treasury, and (iii)
5,032,592 shares of Company Common Stock outstanding for voting
purposes. Section 3.2(a) of the Company Disclosure Schedule
sets forth a complete and accurate list specifying all outstanding
options to purchase Company Common Stock, indicating (i) the holder
thereof, (ii) the number of shares of Company Common Stock subject
thereto, (iii) the exercise price, date of grant, vesting schedule
and expiration date therefor, and (iv) any terms regarding the
acceleration of vesting thereof. The only outstanding options
to purchase shares of Company Common Stock are issued pursuant to
the Company Option Plans and a copy of each Company Option Plan gas
been provided to Purchaser. All such outstanding options to
purchase shares of Company Common Stock pursuant to the Company
Option Plans shall be converted or cancelled as provided herein as
of the Effective Time. All of the issued and outstanding
shares
16
of Company Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable, with no personal
liability attaching to the ownership thereof. None of the
issued and outstanding shares of Company Common Stock were issued
in violation of the preemptive rights of any Person. Except
for the outstanding options to purchase shares of Company Common
Stock under the Company Option Plans, Company does not have and is
not bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of Company Common Stock, Company
Preferred Stock or any other equity security of Company or any
securities representing the right to purchase or otherwise receive
any shares of Company Common Stock, Company Preferred Stock, or any
other equity security of Company.
(b) The
authorized capital stock of Great American consists of 1,000 shares
of common stock, par value $1.00 per share ("Great American Common
Stock"). As of the date hereof, there are (i) 1,000 shares of
Great American Common Stock issued and outstanding and (ii) no
shares of Great American Common Stock held in Great American's
treasury. All of the issued and outstanding shares of Great
American Common Stock have been duly authorized and validly issued
and are fully paid and nonassessable, with no personal liability
attaching to the ownership thereof. None of the issued and
outstanding shares of Great American Common Stock were issued in
violation of the preemptive rights of any Person. Great
American does not have and is not bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the purchase or issuance of any shares
of Great American Common Stock or any other equity security of
Great American or any securities representing the right to purchase
or otherwise receive any shares of Great American Common Stock, or
any other equity security of Great American.
(c) Section
3.2(c) of the Company Disclosure Schedule sets forth a true,
correct and complete list of all direct or indirect subsidiaries of
Company, whether consolidated or unconsolidated (each, a "Company
Subsidiary," and collectively, the "Company Subsidiaries"),
including a description of the capitalization of each Company
Subsidiary, and all investments by Company or any Company
Subsidiary in any corporation, partnership, company, joint venture
or other entity, as of the date of this Agreement. Company
owns, directly or indirectly, all of the issued and outstanding
shares of capital stock or other equity interests of each Company
Subsidiary, free and clear of all Liens. All of the issued
and outstanding shares of capital stock or other interests of each
Company Subsidiary (other than Great American) are duly authorized
and validly issued and are fully paid and nonassessable, with no
personal liability attaching to the ownership thereof, and none of
such shares or other interests were issued in violation of the
preemptive rights of any Person. No Company Subsidiary has or
is bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of capital stock or any other
equity security of such Company Subsidiary or any securities
representing the right to purchase or otherwise receive any shares
of capital stock or any other equity security of such Company
Subsidiary.
(d) Each
director and executive officer of Company and each Person who, to
the Knowledge of Company, holds more than 10% of the outstanding
shares of Company Common Stock is listed at Section 3.2(d) of the
Company Disclosure Schedule.
17
3.3
Authority; No Violation.
(a) Company
and Great American have full corporate power and authority to
execute and deliver this Agreement and, subject to receipt of the
required regulatory and stockholder approvals set forth in Section
3.5, to consummate the transactions contemplated hereby and to
comply with the terms and provisions hereof. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by the
Boards of Directors of Company and Great American. The Board
of Directors of Company has directed that this Agreement and the
transactions contemplated hereby be submitted to the Company
Stockholders for approval at the Special Meeting and, except for
the adoption of this Agreement by the requisite vote of the Company
Stockholders, no other corporate proceedings on the part of Company
or Great American (except for matters related to setting the date,
time, place and record date for the Special Meeting) are necessary
to approve this Agreement or to consummate the Merger or the Bank
Merger. This Agreement has been duly and validly executed and
delivered by Company and Great American and (assuming due
authorization, execution and delivery by Purchaser and FCB of this
Agreement) is a valid and binding obligation of Company and Great
American, enforceable against each of Company and Great American in
accordance with its terms, except as enforcement may be limited by
(i) receivership, conservatorship or supervisory powers of bank
regulatory agencies, (ii) general principles of equity and (iii)
bankruptcy, insolvency and similar Laws affecting creditors' rights
and remedies generally.
(b) Neither
the execution and delivery of this Agreement by Company and Great
American, nor the consummation by Company and Great American of the
transactions contemplated hereby, nor compliance by Company or
Great American with any of the terms or provisions hereof, will
(either with or without the giving of notice of the passing of time
or both) (i) violate any provision of the Certificate of
Incorporation or Bylaws of Company or the organizational documents
of any Company Subsidiary or (ii) subject to the receipt of the
required regulatory and stockholder approvals set forth in Section
3.5 and the third-party consents set forth in Section 3.3(b) of the
Company Disclosure Schedule, (A) violate in any material respect
any Law applicable to Company or any Company Subsidiary, or any of
their respective properties or assets, or (B) violate or conflict
in any material respect with, result in a material breach of any
provision of or the loss of any material benefit under, constitute
a material default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under,
accelerate the performance required by, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or
obligation to which Company or any Company Subsidiary is a party,
or by which they or any of their respective properties or assets
may be bound or affected, (C) violate or conflict with any of the
terms, conditions or provisions of any order, judgment or decree to
which Company or any Company Subsidiary is a party, or by which
they or any of their respective properties or assets may be bound
or affected, or (D) result in the creation of any Lien upon any of
the respective properties or assets of Company or any Company
Subsidiary.
3.4
No Legal Bar. Neither Company nor any
Company Subsidiary is a party to, or subject to, or bound by, any
agreement or judgment, order, letter of understanding, writ,
prohibition, injunction or decree of any court or other
Governmental Entity, or any Law which
18
would prevent the execution of this Agreement by Company or
Great American, the delivery thereof to Purchaser, or (subject to
the receipt of the required regulatory and stockholder approvals
set forth in Section 3.5) their consummation of the transactions
contemplated hereby and their compliance with the terms and
provisions hereof, and no action or proceeding is pending or, to
the Knowledge of Company, threatened against Company or any Company
Subsidiary in which the validity of this Agreement, the
transactions contemplated hereby or any action which has been taken
by any of the parties to this Agreement in connection herewith or
in connection with the transactions contemplated hereby is at
issue.
3.5
Approvals, Consents and Filings. Except
for (i) the approval of the Merger by the FRB and the PDB, (ii) the
approval of the Bank Merger by the FDIC and the PDB, (iii) the
delivery of notice of the Merger and the Bank Merger to the OTS,
(iv) any notice or filing required under the HSR Act, (v) the
approval of the Merger by the Company Stockholders and (vi) the
filing of the Articles of Merger with the Pennsylvania Secretary of
State and the Certificate of Merger with the Delaware Secretary of
State, neither the execution and delivery of this Agreement by
Company or Great American nor the consummation of the transactions
contemplated hereby requires any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental
Entity.
3.6
Financial Statements; Reports; Books and Records.
(a) Company
has previously delivered or made available to Purchaser true,
correct and complete copies of the consolidated statements of
condition of Company and the Company Subsidiaries as of December 31
for the fiscal years 2000 through 2002 and the related consolidated
statements of income and comprehensive income, shareholders' equity
and cash flows for the fiscal years 2000 through 2002, inclusive,
in each case accompanied by the audit report of KPMG LLP,
independent public accountants with respect to Company, and the
interim unaudited financial statements of Company as of and for the
nine-month periods ended September 30, 2003 and 2002 (all such
financial statements are collectively referred to herein as the
"Company Financial Statements"). The Company Financial Statements
(including the related notes, where applicable) fairly present, and
the financial statements referred to in Section 5.7 will fairly
present (subject, in the case of the unaudited statements, to
recurring audit adjustments normal in nature and amount), in all
material respects, the results of the consolidated operations and
consolidated financial condition of Company and the Company
Subsidiaries for the respective fiscal periods or as of the
respective dates therein set forth. The Company Financial
Statements (including the related notes, where applicable) comply,
and the financial statements referred to in Section 5.7 will
comply, with applicable accounting requirements with respect
thereto and have been, and the financial statements referred to in
Section 5.7 will be, prepared in accordance with GAAP, except in
each case as indicated in such statements or in the notes thereto
and except, in the case of unaudited quarterly financial
statements, for the absence of notes thereto and normal year-end
audit adjustments consistent with past practice.
(b) Since
December 31, 2000, Company and each Company Subsidiary has timely
filed, and subsequent to the date hereof will timely file, all
reports, registrations and statements, together with any amendments
required to be made with respect thereto, that were and are
required to be filed with (i) the SEC, including, but not limited
to, Forms 10-K, Forms 10-Q, Forms 8-K, proxy statements and all
other communications mailed by
19
Company to its stockholders (and copies of all such reports,
registrations statements and communications have been furnished or
made available by Company to Purchaser), (ii) the OTS, (iii) the
FDIC, (iv) the PDB, (v) the AMEX and any other self-regulatory
organization, and (vi) any applicable state securities, insurance
or banking authorities (collectively, as used in this Section
3.6(b), the "Regulatory Agencies") (all such reports, registrations
and statements, together with any amendments thereto, are
collectively referred to herein as the "Company Reports"), and have
paid and will pay, as applicable, all fees and assessments due and
payable in connection with any of the foregoing. As of their
respective dates, the Company Reports complied and, with respect to
filings made after the date of this Agreement, will at the date of
filing comply, in all material respects with all of the statutes,
rules and regulations enforced or promulgated by the Regulatory
Agencies and did not or will not, as applicable, at the date of
filing 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. No Company
Subsidiary is required to file any form, report or other document
with the SEC. Except for normal periodic examinations
conducted by a Regulatory Agency in the regular course of the
business of Company and the Company Subsidiaries, since December
31, 2000, no Regulatory Agency has initiated any proceeding or, to
the Knowledge of Company, investigation into the business or
operations of Company or any of the Company Subsidiaries. Company
and each Company Subsidiary has resolved all material violations,
criticisms or exceptions by any Regulatory Agency with respect to
any such normal periodic examination. Neither Company nor any
Company Subsidiary has received any written notice from, or is a
party to any written agreement or memorandum of understanding with,
or is a party to any commitment letter or similar undertaking to,
or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, any Governmental Entity
or any staff thereof (i) asserting that Company or any Company
Subsidiary is not in substantial compliance with any statute,
regulation or ordinance which such Governmental Entity enforces, or
with the internal policies and procedures of such entity, or (ii)
directing, restricting or limiting in any manner the operations of
Company or any Company Subsidiary, including with respect to such
entities' capital adequacy, its credit policies, its management, or
the payment of dividends.
(c) The
books and records of Company and each Company Subsidiary have been,
and are being, maintained in accordance with GAAP and any other
applicable legal and accounting requirements and reflect only
actual transactions and reasonable accruals.
(d) Since
December 31, 2002, there have been no significant changes in the
internal controls utilized by Company and Company Subsidiaries with
respect to their financial records (the "Internal Controls") or in
other factors that could significantly affect the Internal
Controls, including any corrective actions with regard to
significant deficiencies and material weaknesses. There are
no significant deficiencies in the design or operation of the
Internal Controls which could adversely affect the ability of
Company and Company Subsidiaries to record, process, summarize and
report financial data, and there are no material weaknesses in the
Internal Controls. Company is not aware of any fraud or
suspected fraud, whether or not material, that involves management
or other employees who have a significant role in preparing
Company's consolidated financial statements.
20
3.7
Undisclosed Liabilities. Neither Company nor
any Company Subsidiary has any debt, liability or obligation of any
kind, whether accrued, absolute, known, unknown, contingent or
otherwise except (i) those reflected in the most recent audited
balance sheet provided by Company to Purchaser or (ii) those
incurred in the Ordinary Course of Business since December 31,
2002, none of which arises from any breach of contract, tort or
violation of law or has or is reasonably likely to have a Material
Adverse Effect on Company and the Company Subsidiaries.
3.8
Tax Matters.
(a) Company
and each Company Subsidiary has duly filed when due (including
applicable extensions granted without penalty) (i) all material
federal and state tax returns and reports, and (ii) all material
returns and reports of other Governmental Entities having
jurisdiction with respect to taxes imposed upon the income,
properties, revenues, operations or other assets of Company or such
Company Subsidiary. Such returns or reports are true,
complete and correct in all material respects. Company and
each Company Subsidiary has paid all taxes and other governmental
charges including all applicable interest and penalties set forth
in such returns or reports.
(b) There
are no Liens on the assets of Company or any Company Subsidiary
relating to or attributable to any taxes (other than taxes not yet
due and payable). All material federal, state and local taxes
and other material governmental charges payable by Company or any
Company Subsidiary have been paid or have been adequately accrued
or reserved for on such entity's books in accordance with GAAP and
banking regulations applied on a consistent basis. Until the
Effective Time, Company and each Company Subsidiary shall continue
to reserve sufficient funds for the payment of expected tax
liabilities in accordance with generally accepted accounting
principles and banking regulations applied on a consistent
basis. Neither Company nor any Company Subsidiary has
received any written, or, to the Knowledge of Company, unwritten
notice of a tax deficiency or assessment of additional taxes of any
kind and, to the Knowledge of Company, there is no threatened claim
against Company or any Company Subsidiary or any basis for any such
claim, for payment of any additional federal, state or local taxes
for any period prior to the date of this Agreement in excess of the
accruals or reserves provided therefor in the most recent audited
financial statements provided by Company to Purchaser.
(c) Neither
Company nor any Company Subsidiary has constituted a "distributing
corporation" or a "controlled corporation" in a distribution of
stock qualifying for tax-free treatment under Section 355 of the
Code (i) in the two years prior to the date of this Agreement or
(ii) in a distribution which could otherwise constitute part of a
"plan" or "series of related transactions" (within the meaning of
Section 355(e) of the Code) that includes the Merger.
(d) Proper
and accurate amounts have been withheld by Company and each Company
Subsidiary from its employees for all periods in compliance in all
material respects with the tax withholding provisions of applicable
federal, state and local tax laws. All material federal,
state and local tax returns have been filed by Company and each
Company Subsidiary for all periods for which returns were due with
respect to withholding, social security
21
and unemployment taxes and the amounts shown thereon to be due
and payable have been paid in full. Such returns or reports
are true, complete and correct in all material respects.
3.9
Certain Contracts.
(a) Section
3.9(a) of the Company Disclosure Schedule sets forth a complete and
accurate list of all contracts, arrangements and commitments to
which either Company or any Company Subsidiary is a party or by
which either Company or any Company Subsidiary may be bound as of
the date of this Agreement (i) between or among Company, any
Company Subsidiary and/or any Affiliate thereof, (ii) which
materially restricts the conduct of any line of business by Company
or any Company Subsidiary, (iii) that is, whether or not entered
into in the Ordinary Course of Business, not terminable upon notice
of 60 days or less and involves payments to or by Company or a
Company Subsidiary of more than $50,000 in the aggregate per year,
except contracts with customers entered into in the Ordinary Course
of Business, (iv) providing for the indemnification by Company or
any Company Subsidiary of any Person, (v) that is, in Company's
good faith determination, material to the financial condition,
results of operations or business of Company or any Company
Subsidiary, except contracts with customers entered into in the
Ordinary Course of Business. Each contract, arrangement or
commitment of the type described in this Section 3.9(a), whether or
not set forth in Section 3.9(a) of the Company Disclosure Schedule,
is referred to herein as a "Company Contract." Section 3.9(a)
of the Company Disclosure Schedule does not include the Leases,
Employment Agreements or Company Benefit Plans, and the Leases,
Employment Agreements and Company Benefit Plans are not included in
the term "Company Contracts."
(b)
(i) Each Company Contract is valid, binding and in full force and
effect and is enforceable in accordance with its terms, except as
enforcement may be limited by (A) receivership, conservatorship or
supervisory powers of bank regulatory agencies, (B) general
principles of equity and (C) bankruptcy, insolvency and similar
laws affecting creditors' rights and remedies generally; (ii)
Company, each Company Subsidiary and, to the Knowledge of Company,
each other party thereto, has in all material respects performed
all obligations required to be performed by it to date under each
Company Contract; and (iii) no event or condition exists that
constitutes or, after notice or lapse of time or both, would
constitute, a material default or cause for termination on the part
of Company or any Company Subsidiary or, to the Knowledge of
Company, any other party under any such Company Contract.
3.10
Litigation and Proceedings. Except as set
forth on Section 3.10 of the Company Disclosure Schedule, neither
Company nor any Company Subsidiary is a party to any, and there are
no pending or to the Knowledge of Company, threatened, legal,
administrative, arbitration or other proceedings, claims,
counterclaims, actions or governmental or regulatory investigations
of any nature against Company or any Company Subsidiary.
There is no injunction, order, judgment, decree, or regulatory
restriction (other than those of general applicability to savings
and loan holding companies and their subsidiaries) imposed upon
Company, any Company Subsidiary, the officers and directors of
Company or any Company Subsidiary or the assets or business of
Company or any Company Subsidiary. Neither Company nor any
Company Subsidiary has been advised of, or is aware of, the threat
of any such action.
22
3.11
Tangible Properties.
(a) Section
3.11(a) of the Company Disclosure Schedule sets forth a true,
correct and complete list of all real property owned by Company or
any Company Subsidiary.
&n
