Exhibit 2.1
F.N.B. CORPORATION
and
PARKVALE FINANCIAL CORPORATION
DATED: AS OF JUNE 15, 2011
TABLE OF CONTENTS
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ARTICLE 1 THE MERGER |
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1 |
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1.1 The Merger |
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1.2 Effective Time |
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1 |
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1.3 Effects of the Merger |
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2 |
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1.4 Conversion of PFC Capital Stock |
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2 |
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1.5 FNB Capital Stock |
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4 |
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1.6 PFC Equity and Equity-Based Awards |
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4 |
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1.7 Articles of Incorporation and Bylaws of the Surviving Company |
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5 |
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1.8 Tax Consequences |
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1.9 Dissenting Shares |
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5 |
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1.10 The Bank Merger |
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1.11 Right to Revise Structure |
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ARTICLE 2 EXCHANGE OF SHARES |
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6 |
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2.1 FNB to Make Merger Consideration Available |
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6 |
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2.2 Exchange Shares |
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6 |
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2.3 Adjustments for Dilution and Other Matters |
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8 |
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2.4 Withholding Rights |
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8 |
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PFC |
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9 |
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3.1 Corporate Organization |
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3.2 Capitalization |
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10 |
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3.3 Authority; No Violation |
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11 |
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3.4 Consents and Approvals |
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12 |
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3.5 Reports |
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13 |
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3.6 SEC Reports; Financial Statements |
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13 |
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3.7 Broker’s Fees |
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15 |
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3.8 Absence of Certain Changes or Events |
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15 |
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3.9 Legal Proceedings |
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16 |
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3.10 Taxes and Tax Returns |
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16 |
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3.11 Employee Benefits |
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18 |
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3.12 Compliance with Applicable Law |
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21 |
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3.13 Contracts |
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21 |
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3.14 Agreements with Regulatory Agencies |
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21 |
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3.15 Undisclosed Liabilities |
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22 |
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3.16 Environmental Liability |
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22 |
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3.17 Real Property |
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23 |
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3.18 State Takeover Laws |
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24 |
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3.19 Reorganization |
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3.20 Opinion |
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24 |
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3.21 Insurance |
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24 |
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3.22 Investment Securities |
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24 |
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3.23 Intellectual Property |
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24 |
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3.24 Loans; Nonperforming and Classified Assets |
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25 |
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3.25 Fiduciary Accounts |
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26 |
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ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF FNB |
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26 |
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4.1 Corporate Organization |
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26 |
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4.2 Capitalization |
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27 |
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4.3 Authority; No Violation |
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27 |
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4.4 Consents and Approvals |
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28 |
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4.5 Reports |
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29 |
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4.6 SEC Reports; Financial Statements |
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29 |
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4.7 Broker’s Fees |
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30 |
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4.8 Absence of Certain Changes or Events |
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31 |
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4.9 Legal Proceedings |
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31 |
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4.10 Taxes and Tax Returns |
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31 |
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4.11 Employee Benefits |
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32 |
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4.12 Compliance with Applicable Law |
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35 |
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4.13 Contracts |
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35 |
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4.14 Agreements with Regulatory Agencies |
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36 |
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4.15 Undisclosed Liabilities |
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36 |
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4.16 Environmental Liability |
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36 |
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4.17 Reorganization |
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37 |
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4.18 Loans; Nonperforming and Classified Assets |
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37 |
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4.19 Fiduciary Accounts |
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37 |
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4.20 Allowance for Loan Losses |
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38 |
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4.21 Interested Shareholder Status |
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38 |
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ARTICLE 5 COVENANTS RELATING TO CONDUCT OF BUSINESS |
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38 |
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5.1 Conduct of Businesses Prior to the Effective Time |
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5.2 PFC Forbearances |
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5.3 FNB Forbearances |
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5.4 Voting Agreements |
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44 |
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ARTICLE 6 ADDITIONAL AGREEMENTS |
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6.1 Regulatory Matters |
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6.2 Access to Information |
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46 |
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6.3 PFC Shareholder Approval |
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6.4 Commercially Reasonable Efforts; Cooperation |
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6.5 NYSE Approval |
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47 |
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6.6 Benefit Plans |
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48 |
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6.7 Indemnification; Directors’ and Officers’ Insurance |
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49 |
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6.8 Additional Agreements |
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51 |
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6.9 Advice of Changes |
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51 |
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6.10 Dividends |
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51 |
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6.11 Certain Actions |
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52 |
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6.12 Transition |
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54 |
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6.13 Tax Representation Letters |
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55 |
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6.14 Certain Post-Closing Matters |
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6.15 Preferred Stock Held by U.S. Treasury |
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6.16 Assumption of Certain PNC Indebtedness |
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56 |
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6.17 Phase I Environmental Audit |
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56 |
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ARTICLE 7 CONDITIONS PRECEDENT |
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7.1 Conditions to Each Party’s Obligation to Effect the Merger |
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7.2 Conditions to Obligation of FNB to Effect the Merger |
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7.3 Conditions to Obligation of PFC to Effect the Merger |
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58 |
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ARTICLE 8 TERMINATION AND AMENDMENT |
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58 |
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8.1 Termination |
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8.2 Effect of Termination |
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8.3 Amendment |
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60 |
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8.4 Extension; Waiver |
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60 |
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ARTICLE 9 GENERAL PROVISIONS |
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61 |
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9.1 Closing |
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61 |
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9.2 Nonsurvival of Representations, Warranties and Agreements |
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61 |
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9.3 Expenses |
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61 |
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9.4 Notices |
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9.5 Interpretation |
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62 |
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9.6 Counterparts |
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63 |
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9.7 Entire Agreement |
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9.8 Governing Law; Jurisdiction |
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9.9 Severability |
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9.10 Assignment; Third Party Beneficiaries |
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64 |
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EXHIBITS: |
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Exhibit A Form of Bank Merger Agreement |
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A-1 |
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Exhibit B Form of Voting Agreement |
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B-1 |
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- iii -
INDEX OF DEFINED TERMS
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Section |
Acquisition Proposal |
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6.11(e)(i) |
Agreement |
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Preamble |
Articles of Merger |
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1.2 |
Average Closing Price |
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1.4(f) |
Bank Merger |
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1.10 |
Bank Merger Agreement |
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1.10 |
BHC Act |
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3.4 |
Break-up Fee |
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6.11(f) |
Certificates |
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1.4(d) |
Change in PFC Recommendation |
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6.11(b) |
Claim |
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6.7(a) |
Closing |
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9.1 |
Closing Date |
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9.1 |
Code |
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Preamble |
Common Stock Merger Consideration |
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1.4(a) |
Confidentiality Agreements |
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6.2(b) |
Contamination |
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3.16(b) |
Contracts |
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5.2(j) |
Controlled Group Liability |
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3.11 |
DRSP Plan |
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1.4(e) |
Effective Date |
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1.2 |
Effective Time |
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1.2 |
Environmental Laws |
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3.16(b) |
Environmental Liability |
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3.16(b) |
ERISA |
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3.11 |
ERISA Affiliate |
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3.11 |
ESOP |
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6.6(d) |
Exchange Act |
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3.6(a) |
Exchange Agent |
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2.1 |
Exchange Fund |
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2.1 |
Exchange Ratio |
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1.4(a) |
FBCA |
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1.1 |
FDIC |
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3.4 |
Federal Reserve Board |
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3.4 |
FNB |
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Preamble |
FNB Bank |
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1.10 |
FNB Bank Board |
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1.10 |
FNB Benefit Plans |
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4.11 |
FNB Bylaws |
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4.1(b) |
FNB Capital Stock |
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1.4(d) |
FNB Charter |
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4.1(b) |
FNB Common Stock |
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1.4(a) |
FNB Disclosure Schedule |
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Art. 4 Preamble |
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Section |
FNB Employment Agreement |
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4.11 |
FNB Plan |
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4.11 |
FNB Preferred Stock |
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4.2(a) |
FNB Qualified Plans |
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4.11(d) |
FNB Regulatory Agreement |
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4.14 |
FNB Reports |
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4.6(a) |
FNB Series D Preferred Stock |
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1.4(b) |
FNB Stock Plans |
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4.2(a) |
FNB Subsidiaries |
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3.1(c) |
FNB Warrant |
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1.6(b) |
GAAP |
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3.1(c) |
Governmental Entity |
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3.4 |
Hazardous Substances |
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3.16(b) |
HOLA |
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3.1(b) |
HSR Act |
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3.4 |
Indemnified Parties |
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6.7(a) |
Injunction |
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7.1(e) |
Insurance Amount |
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6.7(c) |
Intellectual Property |
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3.23 |
IRS |
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3.10(a) |
Laws |
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3.12 |
Leased Properties |
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3.17(c) |
Leases |
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3.17(b) |
Liens |
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3.2(b) |
Loan |
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3.24(a) |
Material Adverse Effect |
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3.1(c) |
Materially Burdensome Regulatory Condition |
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6.1(d) |
Merger |
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Preamble |
Merger Consideration |
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1.4(b) |
Multiemployer Plan |
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3.11 |
Multiple Employer Plan |
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3.11(f) |
NASDAQ |
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3.1(c) |
NYSE |
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1.4(f) |
OCC |
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3.4 |
OREO |
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3.24(e) |
Other Regulatory Approvals |
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3.4 |
OTS |
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3.4 |
Owned Properties |
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3.17(a) |
PA DOB |
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3.4 |
Payment Event |
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6.11(g) |
PBCL |
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1.1 |
PBGC |
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3.11(e) |
Person |
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3.9(a) |
PFC |
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Preamble |
PFC Articles |
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3.1(b) |
PFC Bank |
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1.10 |
- v -
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Section |
PFC Bank Designee |
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6.14(b) |
PFC Benefit Plans |
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3.11 |
PFC Bylaws |
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3.1(b) |
PFC Capital Stock |
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1.4(c) |
PFC Common Stock |
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1.4(a) |
PFC Designee |
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1.3(b) |
PFC Disclosure Schedule |
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Art. 3 Preamble |
PFC Employment Agreements |
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3.11 |
PFC Plan |
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3.11 |
PFC Qualified Plans |
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3.11(d) |
PFC Recommendation |
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6.3 |
PFC Regulatory Agreement |
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3.14 |
PFC Reports |
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3.6(a) |
PFC Representatives |
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6.11(a) |
PFC Series A Preferred Stock |
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1.4(b) |
PFC Shareholders Meeting |
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6.3 |
PFC Stock Option |
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1.6(a) |
PFC Stock Plans |
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1.6(a) |
PFC Subsidiaries |
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3.1(c) |
PFC Warrant |
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1.6(b) |
Preferred Stock Merger Consideration |
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1.4(b) |
Proxy Statement |
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3.4 |
Registration Statement |
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3.4 |
Regulatory Agencies |
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3.5 |
Requisite Regulatory Approvals |
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7.1(c) |
Xxxxxxxx-Xxxxx Act |
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3.6(a) |
SEC |
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3.4 |
Securities Act |
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3.6(a) |
SRO |
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3.4 |
Subsidiary |
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3.1(c) |
Superior Proposal |
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6.11(e)(ii) |
Surviving Company |
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Preamble |
Tax Returns |
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3.10(c) |
Taxes |
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3.10(b) |
Third Party |
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3.17(d) |
Third Party Leases |
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3.17(d) |
Treasury Department |
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1.6(b) |
Treasury Shares |
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1.4(c) |
Voting Agreement |
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5.4 |
Withdrawal Liability |
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3.11 |
- vi -
AGREEMENT AND PLAN OF MERGER, dated as of June 15, 2011 (this “Agreement”), between F.N.B.
CORPORATION, a Florida corporation (“FNB”), and PARKVALE FINANCIAL CORPORATION, a
Pennsylvania
corporation (“PFC”).
W I T N E S S E T H:
WHEREAS, the Boards of Directors of PFC and FNB have determined that it is in the best
interests of their respective companies and their shareholders to consummate the strategic business
combination transaction provided for in this Agreement pursuant to which PFC will, on the terms and
subject to the conditions set forth in this Agreement, merge with and into FNB (the “Merger”), so
that FNB is the surviving company in the Merger (sometimes referred to in such capacity as the
“Surviving Company”); and
WHEREAS, for federal income Tax (as defined in Section 3.10(b)) purposes, it is intended that
the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the “Code”); and
WHEREAS, the parties desire to make certain representations, warranties, covenants and
agreements in connection with the Merger and also to prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and
agreements contained in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties
agree as follows:
ARTICLE 1
THE MERGER
1.1 The Merger.
Subject to the terms and conditions of this Agreement, in accordance with the
Pennsylvania
Business Corporation Law (the “PBCL”) and the Florida Business Corporation Act (the “FBCA”), at the
Effective Time (as defined in Section 1.2) PFC shall merge with and into FNB. FNB shall be the
Surviving Company in the Merger, and shall continue its corporate existence under the laws of the
State of Florida. As of the Effective Time, the separate corporate existence of PFC shall cease.
1.2 Effective Time.
The Merger shall become effective as set forth in the articles of merger (the “Articles of
Merger”) that shall be filed with the Secretary of State of the Commonwealth of
Pennsylvania and
the Secretary of State of the State of Florida on or before the Closing Date (as defined in Section
9.1). The term “Effective Time” shall mean the date and time when the Merger becomes
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effective as set forth in the Articles of Merger. “Effective Date” shall mean the date on
which the Effective Time occurs.
1.3 Effects of the Merger.
(a) Effects Under PBCL and FBCA. At and after the Effective Time, the Merger shall
have the effects set forth in Section 1929 of the PBCL and Section 607.1106 of the FBCA.
(b) Directors and Executive Officers of the Surviving Company. The directors of the
Surviving Company immediately after the Merger shall be the (i) directors of FNB immediately prior
to the Merger, and (ii) one (1) current member of PFC’s Board of Directors (the “PFC Designee”),
who shall be Xxxxxx X. XxXxxxxx, Xx. If Xx. XxXxxxxx does not become a director of the Surviving
Company because of death or disability, FNB agrees, after consultation with the members of the
Board of Directors of PFC, to cause a member of the PFC Board of Directors as of the date hereof
who is mutually agreeable to FNB and PFC to be elected or appointed to the Board of Directors of
the Surviving Company as the PFC Designee. The executive officers of the Surviving Company
immediately after the Merger shall be the executive officers of FNB immediately prior to the
Merger.
1.4 Conversion of PFC Capital Stock.
(a) Subject to the provisions of this Agreement, each share of common stock, par value $1.00
per share, of PFC (“PFC Common Stock”) issued and outstanding immediately prior to the Effective
Time, other than Treasury Shares (as defined in Section 1.4(c)) shall, by virtue of the Merger, no
longer be outstanding and shall as of the Effective Time automatically be converted into and shall
thereafter represent the right to receive as merger consideration (the “Common Stock Merger
Consideration”) 2.178 shares (the “Exchange Ratio”) of common stock, $0.01 par value, of FNB (“FNB
Common Stock”).
(b) In the event each issued and outstanding share of the Fixed Rate Cumulative Perpetual
Preferred Stock, Series A, par value $1.00 per share, stated liquidation amount $1,000 per share,
of PFC (the “PFC Series A Preferred Stock”) is not purchased or redeemed prior to or
contemporaneous with the Merger, then each share of the PFC Series A Preferred Stock issued and
outstanding immediately prior to the Effective Time (other than any shares of PFC Series A
Preferred Stock to be cancelled in accordance with Section 1.4(c)) shall no longer be outstanding
and shall as of the Effective Time automatically be converted into and shall thereafter represent
the right to receive, subject to the other provisions of this Article 1, one share (the “Preferred
Stock Merger Consideration” and, together with the Common Stock Merger Consideration, the “Merger
Consideration”) of the FNB Preferred Stock to be designated, prior to the Closing Date, as Fixed
Rate Cumulative Perpetual Preferred Stock, Series D, stated liquidation amount $1,000 per share
(the “FNB Series D Preferred Stock”), and otherwise having rights, preferences, privileges and
voting powers such that the rights, preferences, privileges and voting powers of the PFC Series A
Preferred Stock are not adversely affected by such conversion and having rights, preferences and
privileges and voting powers, and limitations and restrictions that, taken as a whole, are not
materially less favorable than the
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rights, preferences, privileges and voting powers, and limitations and restrictions of the PFC
Series A Preferred Stock immediately prior to such conversion, taken as a whole.
(c) At and after the Effective Time, each Treasury Share shall be cancelled and retired and no
shares of FNB Common Stock or other consideration shall be issued in exchange therefor. “Treasury
Shares” means shares of PFC Common Stock and any outstanding PFC Series A Preferred Stock
(together, the “PFC Capital Stock”) held by PFC or any of the PFC Subsidiaries (as defined in
Section 3.1(c)) or by FNB or any of its Subsidiaries, other than in a fiduciary, including
custodial or agency, capacity or as a result of debts previously contracted in good faith.
(d) At the Effective Time, the stock transfer books of PFC shall be closed as to holders of
PFC Capital Stock immediately prior to the Effective Time and no transfer of PFC Capital Stock by
any such holder shall thereafter be made or recognized. If, after the Effective Time, certificates
representing PFC Capital Stock (“Certificates”) are properly presented in accordance with Section
2.2 of this Agreement to the Exchange Agent (as defined in Section 2.1), such Certificates shall be
cancelled and exchanged for FNB Common Stock or FNB Series D Preferred Stock (together, the “FNB
Capital Stock”), as applicable, held in book entry representing the number of whole shares into
which the PFC Capital Stock represented by the Certificates was converted in the Merger, plus, if
applicable pursuant to Section 1.4(f), any payment for any fractional share of FNB Common Stock
without any interest thereon and any dividends or distributions to which the holder of such
Certificates is entitled pursuant to Section 2.2(b).
(e) Each holder of PFC Common Stock shall have the option of enrolling the whole shares of FNB
Common Stock issuable to such shareholder upon the consummation of the Merger in FNB’s Dividend
Reinvestment and Direct Stock Purchase Plan (the “DRSP Plan”). Each PFC shareholder electing to
enroll in the DRSP Plan shall be issued FNB Common Stock held in book entry representing the number
of whole shares received in the Merger.
(f) Notwithstanding any other provision of this Agreement, each holder of PFC Common Stock who
would otherwise be entitled to receive a fractional share of FNB Common Stock, after taking into
account all Certificates delivered by such holder, shall receive an amount in cash, without
interest, rounded to the nearest cent, equal to the product obtained by multiplying (a) the Average
Closing Price (as defined below) as of the Closing Date by (b) the fraction of a share (calculated
to the nearest ten-thousandth when expressed in decimal form) of FNB Common Stock, to which such
holder would otherwise be entitled. No such holder shall be entitled to dividends or other rights
in respect of any such fractional shares. “Average Closing Price” means, as of any specified date,
the average composite closing price of FNB Common Stock on the New York Stock Exchange, including
any successor exchange (“NYSE”), as reported by the NYSE for the twenty (20) consecutive trading
days ending on and including the fifth such trading day prior to the specified date rounded to the
nearest ten-thousandth.
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1.5 FNB Capital Stock. At and after the Effective Time, each share of FNB capital
stock issued and outstanding immediately prior to the Effective Time shall remain issued and
outstanding and shall not be affected by the Merger.
1.6 PFC Equity and Equity-Based Awards.
(a) PFC Stock Options. Effective as of the Effective Time, each then outstanding
option to purchase shares of PFC Common Stock (each a “PFC Stock Option”), pursuant to the
equity-based compensation plans identified in Section 3.11(a) of the PFC Disclosure Schedule (as
defined in Article 3 hereof) (the “PFC Stock Plans”) and the award agreements evidencing the grants
thereunder, granted to any current or former employee or director of PFC or any of the PFC
Subsidiaries (as defined in Section 3.1(c)) shall at the Effective Time cease to represent a right
to acquire shares of PFC Common Stock and shall be converted automatically into a fully vested and
exercisable option to acquire shares of FNB Common Stock on the terms hereinafter set forth. FNB
shall assume each such PFC Stock Option in accordance with the terms of the relevant PFC Stock Plan
and stock option or other agreement by which it is evidenced, except that from and after the
Effective Time: (i) FNB and the Compensation Committee of its Board of Directors, including, if
applicable, the entire Board of Directors of FNB, shall be substituted for PFC and the compensation
committee of the Board of Directors of PFC, including, if applicable, the entire Board of Directors
of PFC, administering such PFC Stock Plan, (ii) each PFC Stock Option assumed by FNB may be
exercised solely for shares of FNB Common Stock, (iii) the number of shares of FNB Common Stock
subject to such PFC Stock Option shall be equal to the number of shares of PFC Common Stock subject
to such PFC Stock Option immediately prior to the Effective Time multiplied by the Exchange Ratio,
provided that any fractional shares of FNB Common Stock resulting from such multiplication shall be
rounded down to the nearest share, and (iv) the exercise price per share of FNB Common Stock under
each such option shall be the amount (rounded up to the nearest whole cent) equal to the per share
exercise price under each such PFC Stock Option prior to the Effective Time divided by the Exchange
Ratio. Notwithstanding clauses (iii) and (iv) of the preceding sentence, each PFC Stock Option
that is an “incentive stock option” shall be adjusted as required by Section 424 of the Code, and
regulations promulgated thereunder, so as not to constitute a modification, extension or renewal of
the option within the meaning of Section 424(h) of the Code. FNB and PFC agree to take all
reasonable and necessary steps to effect the provisions of this Section 1.6(a). As of the Effective
Time, FNB shall issue to each holder of each outstanding PFC Stock Option that has been assumed by
FNB (the “Assumed Stock Options”) a document evidencing the conversion and assumption of such PFC
Stock Option by FNB pursuant to this Section 1.6(a). Prior to the Effective Time, FNB shall
reserve for issuance the number of shares of FNB Common Stock necessary to satisfy FNB’s
obligations under this Section 1.6(a). As soon as practicable after the Effective Time, FNB shall
file and cause to become effective a registration statement or statements on Form S-8 or Form S-3
(or any successor or other applicable form) with respect to the shares of FNB Common Stock subject
to the Assumed Stock Options, and to maintain the effectiveness of such registration statement for
so long as any PFC Stock Options remain outstanding.
(b) Warrant. The Warrant issued on December 23, 2008 to the U.S. Department of the
Treasury (“Treasury Department”) in connection with the issuance of the PFC Series A Preferred
Stock (the “PFC Warrant”) shall, by virtue of the Merger and without
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any action on the part of any Person, cease to be a warrant to purchase PFC Common Stock and
will be converted automatically into a warrant to purchase FNB Common Stock (the “FNB Warrant”) in
accordance with the terms of the PFC Warrant, and FNB will assume such warrant subject to its
terms; provided, however, that after the Effective Time:
(i) the number of shares of FNB Common Stock purchasable upon exercise of the FNB Warrant
will equal the product of (x) the number of shares of PFC Common Stock that were purchasable
pursuant to the PFC Warrant immediately before the Effective Time and (y) the Exchange
Ratio, rounded to the nearest one-hundredth (1/100th) of a share; and
(ii) the per share exercise price for the PFC Warrant will equal the quotient of (x) the per
share exercise price of the PFC Warrant in effect immediately before the Effective Time and
(y) the Exchange Ratio, rounded to the nearest one-tenth (1/10th) of a cent.
1.7 Articles of Incorporation and Bylaws of the Surviving Company. The FNB Charter
(as defined in Section 4.1(b)) as in effect immediately prior to the Effective Time shall be the
articles of incorporation of the Surviving Company until thereafter amended in accordance with
applicable law. The FNB Bylaws (as defined in Section 4.1(b)) as in effect immediately prior to
the Effective Time shall be the bylaws of the Surviving Company until thereafter amended in
accordance with applicable law.
1.8 Tax Consequences. It is intended that the Merger shall constitute a
“reorganization” within the meaning of Section 368(a) of the Code, and that this Agreement shall
constitute a “plan of reorganization” for purposes of Sections 354 and 361 of the Code.
1.9 Dissenting Shares. No outstanding shares of PFC Common Stock shall have any
dissenters’ rights of appraisal under the PBCL.
1.10
The Bank Merger. As soon as practicable after the execution of this Agreement,
PFC and FNB shall cause Parkvale Savings Bank (“PFC Bank”) and First National Bank of
Pennsylvania
(“FNB Bank”) to enter into a bank merger agreement, the form of which is attached to this Agreement
as Exhibit “A” (the “Bank Merger Agreement”), that provides for the merger of PFC Bank with and
into FNB Bank (the “Bank Merger”), in accordance with applicable laws and regulations and the terms
of the Bank Merger Agreement and as soon as practicable after consummation of the Merger. The Bank
Merger Agreement provides that the directors of FNB Bank (“FNB Bank Board”) upon consummation of
the Bank Merger shall be the directors of FNB Bank immediately prior to the Bank Merger plus the
PFC Bank Designee (as defined in Section 6.14(b)).
1.11 Right to Revise Structure. FNB may at any time change the method of effecting
the combination contemplated by this Agreement if and to the extent it deems such a change to be
desirable; provided, however, that no such change shall (i) alter or change the amount or kind of
the Common Stock Merger Consideration (as defined in Section 1.4(a)) provided for in this
Agreement, (ii) adversely affect the Tax treatment of PFC’s shareholders as a result of receiving
the Merger Consideration or the Tax treatment of either party pursuant to this Agreement, or (iii)
materially impede or delay consummation of the transactions this Agreement contemplates. In
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the event FNB elects to make such a change, the parties agree to execute appropriate documents
to reflect the change.
ARTICLE 2
EXCHANGE OF SHARES
2.1 FNB to Make Merger Consideration Available. As promptly as practicable following
the Effective Time, FNB shall deposit, or shall cause to be deposited, with Registrar and Transfer
Company (“Exchange Agent”), for the benefit of the holders of Certificates, for exchange in
accordance with this Article 2, (a) book entry shares representing the aggregate number of shares
of FNB Capital Stock issuable pursuant to this Agreement in exchange for shares of PFC Capital
Stock outstanding immediately prior to the Effective Time of the Merger, (b) immediately available
funds equal to any dividends or distributions payable in accordance with Section 2.2(b), and (c)
cash in lieu of any fractional shares of FNB Common Stock to be issued pursuant to Section 1.4(f)
and paid pursuant to Section 1.4 in exchange for outstanding shares of PFC Capital Stock (such cash
and book entry shares for shares of FNB Capital Stock, collectively being referred to as the
“Exchange Fund”). The Exchange Fund shall not be used for any purpose other than to fund payments
due pursuant to Section 2.2 except as otherwise provided in this Agreement.
2.2 Exchange Shares.
(a) As soon as practicable after the Effective Time, and in no event more than five business
days thereafter, the Exchange Agent shall mail to each holder of record of PFC Capital Stock a
letter of transmittal in customary form as prepared by FNB and reasonably acceptable to PFC which
shall specify, among other things, that delivery shall be effected, and risk of loss and title to
the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent and
instructions for use in effecting the surrender of the Certificates in exchange for the Merger
Consideration and any cash in lieu of fractional shares into which the shares of PFC Common Stock
represented by such Certificate or Certificates shall have been converted pursuant to this
Agreement and any dividends or distributions to which such holder is entitled pursuant to Section
2.2(b). After the Effective Time of the Merger, each holder of a Certificate formerly representing
PFC Capital Stock, other than Treasury Shares, who surrenders or has surrendered such Certificate
or customary affidavits and indemnification regarding the loss or destruction of such Certificate,
together with duly executed transmittal materials to the Exchange Agent, shall, upon acceptance
thereof, be entitled to book entry shares representing FNB Common Stock or FNB Series D Preferred
Stock, as applicable, into which the shares of PFC Capital Stock shall have been converted pursuant
to Section 1.4, as well as any cash in lieu of any fractional share of FNB Common Stock to which
such holder would otherwise be entitled and any dividends or distributions to which such holder is
entitled pursuant to Section 2.2(b). The Exchange Agent shall accept such Certificate upon
compliance with such reasonable and customary terms and conditions as the Exchange Agent may impose
to effect an orderly exchange thereof in accordance with normal practices. Until surrendered as
contemplated by this Section 2.2, (i) each Certificate representing PFC Common Stock shall be
deemed from and after the Effective Time of the Merger to evidence only the right to receive the
Common Stock Merger Consideration, any cash in lieu of fractional shares into which the
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shares of PFC Common Stock represented by such Certificate or Certificates shall have been
converted pursuant to this Agreement and any dividends or distributions to which such holder is
entitled pursuant to Section 2.2(b), and (ii) any Certificate representing PFC Series A Preferred
Stock shall be deemed from and after the Effective Time of the Merger to evidence only the right to
receive the Preferred Stock Merger Consideration and any dividends or distributions to which such
holder is entitled pursuant to Section 2.2(b). FNB shall not be obligated to deliver the Merger
Consideration or any check representing cash in lieu of fractional shares and/or declared but
unpaid dividends to which any former holder of PFC Capital Stock is entitled as a result of the
Merger until such holder surrenders his Certificate or Certificates for exchange as provided in
Section 2.2. If any shares of FNB Capital Stock, or any check representing cash in lieu of
fractional shares and/or declared but unpaid dividends, is to be issued in a name other than that
in which a Certificate surrendered for exchange is issued, the Certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and the person requesting such exchange
shall affix any requisite stock transfer tax stamps to the Certificate surrendered or provide funds
for their purchase or establish to the satisfaction of the Exchange Agent that such taxes are not
payable. If any Certificate shall have been lost, stolen or destroyed, then upon the making of an
affidavit, in form and substance reasonably acceptable to FNB, of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed and, if required by FNB or the Exchange Agent, the
posting by such Person of a bond in such amount as FNB and the Exchange Agent may determine is
reasonably necessary as indemnity against any claim that may be made against it, FNB or the
Surviving Company with respect to such Certificate, the Exchange Agent will deliver in exchange for
such lost, stolen or destroyed Certificate the Merger Consideration payable in respect thereof
pursuant to this Agreement.
(b) Following surrender of any such Certificate, there shall be paid to the record holder of
the whole shares of FNB Capital Stock issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of any dividends or distributions with a record date prior to
the Effective Time that have been declared by PFC in respect of shares of PFC Capital Stock after
the date of this Agreement in accordance with the terms of this Agreement and which remain unpaid
at the Effective Time, (ii) at the time of such surrender, the amount of any cash payable in lieu
of a fractional share of FNB Common Stock to which such holder is entitled pursuant to Section
1.4(f) and the amount of dividends or other distributions with a record date after the Effective
Time of the Merger and which had become payable with respect to such whole shares of FNB Common
Stock prior to the time of surrender, and (iii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time of the Merger but
prior to surrender and a payment date subsequent to surrender payable with respect to such whole
shares of FNB Capital Stock. After the date of this Agreement, PFC shall coordinate with FNB the
declaration of any dividends in respect of PFC Capital Stock as provided in Sections 5.2(a) and
6.10.
(c) After the Effective Time, there shall be no transfers on the stock transfer books of PFC
of the shares of PFC Capital Stock that were issued and outstanding immediately prior to the
Effective Time other than to settle transfers of PFC Capital Stock that occurred prior to the
Effective Time. If, after the Effective Time, Certificates are presented to FNB for any reason,
they shall be cancelled and exchanged as provided in this Agreement. All shares of FNB Capital
Stock and cash in lieu of fractional shares of FNB Common Stock and/or declared but unpaid
dividends issued upon the surrender for exchange of shares of PFC Capital Stock or the
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provision of customary affidavits and indemnification for lost or mutilated Certificates in
accordance with the terms hereof and the letter of transmittal, shall be deemed to have been issued
in full satisfaction of all rights pertaining to such shares of PFC Capital Stock.
(d) Any portion of the Exchange Fund, including any interest thereon, that remains
undistributed to the shareholders of PFC following the passage of twelve (12) months after the
Effective Time of the Merger shall be delivered to FNB, upon demand, and any shareholders of PFC
who have not theretofore complied with this Section 2.2 shall thereafter look only to FNB for
payment of their claim for FNB Capital Stock, any cash in lieu of fractional shares of FNB Common
Stock and any unpaid dividends or distributions payable in accordance with Section 2.2(b).
(e) Neither PFC nor FNB shall be liable to any holder of shares of PFC Capital Stock or FNB
Capital Stock, as the case may be, for such shares, or dividends or distributions with respect
thereto, or cash from the Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(f) The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with
respect to the shares of FNB Capital Stock held by it from time to time hereunder, except that it
shall receive and hold all dividends or other distributions paid or distributed with respect to
such shares of FNB Capital Stock for the account of the Persons entitled thereto.
2.3 Adjustments for Dilution and Other Matters. If prior to the Effective Time of the
Merger, (a) FNB shall declare a stock dividend or distribution on FNB Capital Stock with a record
date prior to the Effective Time of the Merger, or subdivide, split up, reclassify or combine FNB
Capital Stock, or make a distribution other than a regular quarterly cash dividend, on FNB Capital
Stock in any security convertible into FNB Capital Stock, in each case with a record date prior to
the Effective Time of the Merger, or (b) the outstanding shares of FNB Capital Stock shall have
been increased, decreased, changed into or exchanged for a different number or kind of shares or
securities in each case as a result of a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split or other similar change in FNB’s capitalization other
than a business combination transaction with another bank holding company or financial services
company, then a proportionate adjustment or adjustments will be made to the Exchange Ratio and/or
the Preferred Stock Merger Consideration, which adjustment may include, as appropriate, the
issuance of securities, property or cash on the same basis as that on which any of the foregoing
shall have been issued, distributed or paid to holders of such class of FNB Capital Stock
generally.
2.4 Withholding Rights. The Exchange Agent or, subsequent to the first anniversary of
the Effective Time, FNB, shall be entitled to deduct and withhold from any cash portion of the
Merger Consideration, any cash in lieu of fractional shares of FNB Common Stock, cash dividends or
distributions payable pursuant to Section 2.2(b) and any other cash amounts otherwise payable
pursuant to this Agreement to any holder of PFC Capital Stock such amounts as the Exchange Agent or
FNB, as the case may be, is required to deduct and withhold under the Code, or any provision of
state, local or foreign Tax law, with respect to the making of such payment. To the extent the
amounts are so withheld by the Exchange Agent or FNB, as the case
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may be, such withheld amounts shall be paid to the appropriate Tax authority by the Exchange
Agent or FNB and shall be treated for all purposes of this Agreement as having been paid to the
holder of shares of PFC Capital Stock in respect of whom such deduction and withholding was made by
the Exchange Agent or FNB, as the case may be.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PFC
Except as disclosed in the disclosure schedule delivered by PFC to FNB (the “PFC Disclosure
Schedule”), PFC hereby represents and warrants to FNB as follows:
3.1 Corporate Organization.
(a) PFC is a corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of
Pennsylvania. PFC has the corporate power and authority and has all
licenses, permits and authorizations of applicable Governmental Entities (as defined in Section
3.4) required to own or lease all of its properties and assets and to carry on its business as it
is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in
which the nature of the business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary, except where such
failure to be licensed or qualified would not have a Material Adverse Effect (as defined in Section
3.1(c)) upon PFC.
(b) PFC is duly registered as a savings and loan holding company under the Home Owners’ Loan
Act, as amended (the “HOLA”). True and complete copies of the Articles of Incorporation of PFC
(the “PFC Articles”) and the Bylaws of PFC (the “PFC Bylaws”), as in effect as of the date of this
Agreement, have previously been made available to FNB.
(c) Each of PFC’s Subsidiaries (i) is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, (ii) is duly qualified to do business in all
jurisdictions, whether federal, state, local or foreign, where its ownership or leasing of property
or the conduct of its business requires it to be so qualified, and (iii) has all requisite
corporate power and authority, and has all licenses, permits and authorizations of applicable
Governmental Entities required, to own or lease its properties and assets and to carry on its
business as now conducted, except in each of clauses (i) — (iii) as would not be reasonably likely
to have, either individually or in the aggregate, a Material Adverse Effect on PFC. As used in
this Agreement, (i) the word “Subsidiary” when used with respect to either party, means any
corporation, partnership, joint venture, limited liability company or any other entity (A) of which
such party, or a subsidiary of such party, is a general partner, or (B) at least a majority of the
securities or other interests of which having by their terms ordinary voting power to elect a
majority of the board of directors or persons performing similar functions with respect to such
entity is directly or indirectly owned by such party and/or one or more Subsidiaries thereof, and
the terms “PFC Subsidiaries” and “FNB Subsidiaries” shall mean any direct or indirect Subsidiary of
PFC or FNB, respectively, and (ii) the term “Material Adverse Effect” means, with respect to FNB,
PFC or the Surviving Company, as the case may be, any event, circumstance, development, change or
effect that alone or in the aggregate with other events,
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circumstances, developments, changes or effects (A) is materially adverse to the business,
results of operations or financial condition of such party and its Subsidiaries taken as a whole;
provided, however, that, with respect to this clause (A), Material Adverse Effect shall not be
deemed to include effects to the extent resulting from (1) changes, after the date of this
Agreement, in U.S. generally accepted accounting principles (“GAAP”) or regulatory accounting
requirements applicable to banks or savings associations and their holding companies generally, (2)
changes, after the date of this Agreement, in laws, rules or regulations of general applicability
or interpretations thereof by courts or any Governmental Entity (as defined in Section 3.4), (3)
actions or omissions of (a) FNB or (b) PFC, taken at the request of, or with the prior written
consent of the other or required hereunder, (4) changes, events or developments, after the date of
this Agreement, in the national or world economy or financial or securities markets generally or
changes, events or developments, after the date of this Agreement in general economic conditions or
other changes, events or developments, after the date of this Agreement that affect banks or their
holding companies generally except to the extent that such changes have a materially
disproportionate adverse effect on such party relative to other similarly situated participants in
the markets or industries in which they operate, (5) consummation or public disclosure of the
transactions this Agreement contemplates, including the resignation of employment of employees, the
incurrence of expenses in connection with the negotiation, execution and performance of this
Agreement or any impact on such party’s business, customer relations, condition or results of
operations, in each case as a result therefrom, (6) any outbreak or escalation of war or
hostilities, any occurrence or threats of terrorist acts or any armed hostilities associated
therewith and any national or international calamity, disaster or emergency or any escalation
thereof, (7) any changes in interest rates or foreign currency rates, (8) any claim, suit, action,
audit, arbitration, investigation, inquiry or other proceeding or order which in any manner
challenges, seeks to prevent, enjoin, alter or delay, or seeks damages as a result of or in
connection with, the transactions this Agreement contemplates, (9) any failure by such party to
meet any published, whether by such party or a third party research analyst, or internally prepared
estimates of revenues or earnings, (10) a decline in the price, or a change in the trading volume
of, such party’s common stock on The NASDAQ Global Select Market (including any successor exchange,
“NASDAQ”), or the NYSE, as applicable, and (11) any matter to the extent that (i) it is disclosed
in reasonable detail in the party’s disclosure schedules delivered to the other party pursuant to
this Agreement or in such party’s SEC reports referenced in Section 3.6 or Section 4.6, as
applicable, which are publicly available as of the date hereof, and (ii) such disclosed matter does
not worsen in a materially adverse manner, or (B) materially delays or impairs the ability of such
party to timely consummate the transactions this Agreement contemplates.
3.2 Capitalization.
(a) The authorized capital stock of PFC consists of (i) 10,000,000 shares of PFC Common Stock,
of which, as of June 15, 2011, 5,582,846 shares were issued and outstanding, and (ii) 5,000,000
shares of preferred stock, par value $1.00 per share, of which as of the date hereof 31,762 shares
designated as “Fixed Rate Cumulative Perpetual Preferred Stock, Series A” were issued and
outstanding. As of June 15, 2011, 1,152,048 shares of PFC Common Stock were held in PFC treasury
and no shares of the PFC Series A Preferred Stock were held in the PFC Treasury. As of June 15,
2011, no shares of PFC Common Stock were reserved for issuance except for (i) 297,750 shares of PFC
Common Stock reserved for issuance
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upon the exercise of PFC Stock Options issued pursuant to the PFC Stock Plans, and (ii)
376,327 shares of PFC Common Stock reserved for issuance pursuant to the PFC Warrant. As of June
15, 2011, no restricted stock awards, performance share awards or other equity awards except for
PFC Stock Options were outstanding under the PFC Stock Plans. All of the issued and outstanding
shares of PFC Common Stock have been, and all shares of PFC Common Stock that may be issued upon
the exercise of the PFC Stock Options will be, when issued in accordance with the terms thereof,
duly authorized and validly issued and fully paid, non-assessable and free of preemptive rights,
with no personal liability attaching to the ownership thereof. Except pursuant to this Agreement,
the PFC Warrant and the PFC Stock Plans or as disclosed in Section 3.2 of the PFC Disclosure
Schedule, PFC 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 PFC Common Stock or any other equity securities of PFC or any securities representing the
right to purchase or otherwise receive any shares of PFC Common Stock. Set forth in Section 3.2 of
the PFC Disclosure Schedule is a true, correct and complete list of each PFC Stock Option (such
list to include the PFC Stock Plan or other arrangement under which such options were issued, the
number of shares of PFC Common Stock subject thereto, the vesting schedule thereof and the exercise
prices thereof). Since June 15, 2011, PFC has not issued or awarded, or authorized the issuance or
award of, any options, restricted stock units or other equity-based awards under the PFC Stock
Plans or otherwise. As of the date of this Agreement, no bonds, debentures, notes or other
indebtedness having the right to vote on any matters on which shareholders of PFC may vote are
issued or outstanding.
(b) Except as set forth in Section 3.2(b) of the PFC Disclosure Schedule, all of the issued
and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of
PFC are owned by PFC, directly or indirectly, free and clear of any material liens, pledges,
charges and security interests and similar encumbrances, other than liens for property Taxes not
yet due and payable (“Liens”), and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, non-assessable and free of preemptive rights,
except as provided in Section 1530 of the PBCL or similar laws in the case of depository
institutions. No such 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 Subsidiary or any securities
representing the right to purchase or otherwise receive any shares of capital stock or any other
equity security of such Subsidiary or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity security of such Subsidiary.
3.3 Authority; No Violation.
(a) PFC has full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions this Agreement contemplates, subject to the receipt of necessary PFC
Shareholder and Requisite Regulatory Approvals (as defined in Section 7.1(c)). The execution and
delivery of this Agreement and the consummation of the transactions this Agreement contemplates
have been duly and validly approved by the Board of Directors of PFC. Except for the approval and
adoption of this Agreement and the transactions this Agreement contemplates by the affirmative vote
of a majority of the votes cast by all shareholders of PFC entitled to vote thereon at a
shareholders’ meeting at which a quorum is
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present, no other corporate approvals on the part of PFC are necessary to approve this
Agreement. This Agreement has been duly and validly executed and delivered by PFC and, assuming
due authorization, execution and delivery by FNB, constitutes a valid and binding obligation of
PFC, enforceable against PFC in accordance with its terms, except as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally
and the availability of equitable remedies.
(b) Neither the execution and delivery of this Agreement by PFC nor the consummation by PFC of
the transactions this Agreement contemplates, nor compliance by PFC with any of the terms or
provisions of this Agreement, will (i) violate any provision of the PFC Articles or the PFC Bylaws
or (ii) assuming that the consents, approvals and filings referred to in Section 3.4 are duly
obtained and/or made and are in full force and effect, (A) violate any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or Injunction (as defined in Section 7.1(e))
applicable to PFC, any of the PFC Subsidiaries or any of their respective properties or assets or
(B) except as set forth in Section 3.3(b) of the PFC Disclosure Schedule, violate, conflict with,
result in a breach of any provision of, constitute a 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, or result in the
creation of any Lien upon any of the respective properties or assets of PFC or any of the PFC
Subsidiaries under, 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 PFC
or any of the PFC Subsidiaries is a party, or by which they or any of their respective properties
or assets may be bound or affected, except for such violations, conflicts, breaches or defaults
with respect to clause (ii) that are not reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on PFC.
3.4
Consents and Approvals. Except for (a) the filing by FNB of applications and notices,
as applicable, with the Board of Governors of the Federal Reserve System (the “Federal Reserve
Board”) under the Bank Holding Company Act of 1956, as amended (the “BHC Act”) and the Federal
Reserve Act, as amended, and with the Office of Thrift Supervision (the “OTS”), and approval of
such applications and notices, and, in connection with the merger of PFC Bank with and into FNB
Bank, the filing by FNB Bank of applications and notices, as applicable, with the Federal Deposit
Insurance Corporation (the “FDIC”), the Office of the Comptroller of the Currency (the “OCC”), or
the
Pennsylvania Department of Banking (the “PA DOB”), and approval of such applications and
notices, (b) the filing by FNB of any required applications or notices with any foreign or state
banking, insurance or other regulatory or self-regulatory authorities and approval of such
applications and notices (the “Other Regulatory Approvals”), (c) the filing by PFC with the
Securities and Exchange Commission (the “SEC”) of a proxy statement in definitive form relating to
the meeting of PFC shareholders to be held in connection with this Agreement (the “Proxy
Statement”) and the transactions this Agreement contemplates and of a registration statement by FNB
on Form S-4 that is declared effective (the “Registration Statement”) in which the Proxy Statement
will be included as a prospectus, and declaration of effectiveness of the Registration Statement,
(d) the filing by FNB of the Articles of Merger with and the acceptance for record by the Secretary
of State of the Commonwealth of
Pennsylvania pursuant to the PBCL and the filing of the Articles of
Merger with and the acceptance for record by the Secretary of State of the State of Florida
pursuant to the FBCA, (e) any notices or filings by PFC and FNB required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
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amended (the “HSR Act”), (f) any consents, authorizations, approvals, filings or exemptions by FNB
in connection with compliance with the applicable provisions of federal and state securities laws
and the rules and regulations thereunder and of any applicable industry self-regulatory
organization (“SRO”), and the rules of NASDAQ or the NYSE, or that are required under consumer
finance, insurance mortgage banking and other similar laws, (g) approval of the listing on the NYSE
of such FNB Common Stock issuable in the Merger, (h) the adoption of this Agreement by the
requisite vote of shareholders of PFC, and (i) the consent of the Treasury Department to the
redemption by PFC, or the purchase by FNB or one of its Subsidiaries, of all of the issued and
outstanding shares of the PFC Series A Preferred Stock from the Treasury Department, no consents or
approvals of or filings or registrations by FNB or PFC with any court, administrative agency or
commission or other governmental authority or instrumentality or SRO (including, without
limitation, the Treasury Department) (each a “Governmental Entity”) are necessary in connection
with (A) the execution and delivery by PFC of this Agreement and (B) the consummation by PFC of the
Merger and the other transactions this Agreement contemplates. Nothing in this Section 3.4 is
intended or shall be construed as requiring PFC to take any of the actions described in this
Agreement, or relieving FNB of its obligations to make such filings or obtain approvals or consents
necessary to the consummation of this Agreement and the transactions contemplated in this
Agreement.
3.5 Reports. PFC and each of the PFC Subsidiaries have in all material respects
timely filed all reports, registrations and statements, together with any amendments required to be
made with respect thereto, that they were required to file since July 1, 2008 with (a) the Federal
Reserve Board, (b) the FDIC, (c) the OTS, (d) the PA DOB, (e) any state regulatory authority, (f)
any foreign regulatory authority and (g) any SRO (collectively, “Regulatory Agencies” and
individually, a “Regulatory Agency”) and with each other applicable Governmental Entity, and all
other reports and statements required to be filed by them since July 1, 2008, including any report
or statement required to be filed pursuant to the laws, rules or regulations of the United States,
any state, any foreign entity, or any Regulatory Agency, and have paid all fees and assessments due
and payable in connection therewith. Except for normal examinations conducted by a Regulatory
Agency in the ordinary course of the business of PFC and each of the PFC Subsidiaries, no
Regulatory Agency has initiated or has pending any proceeding or, to the knowledge of PFC,
investigation into the business or operations of PFC or any of the PFC Subsidiaries since July 1,
2008. There (i) is no unresolved material violation, criticism or exception by any Regulatory
Agency with respect to any report or statement relating to any examinations or inspections of PFC
or any of the PFC Subsidiaries and (ii) no Regulatory Agency has provided PFC with written notice
of any, and to the knowledge of PFC there are no, unresolved disagreements or disputes with any
Regulatory Agency with respect to the business, operations, policies or procedures of PFC since
July 1, 2008.
3.6 SEC Reports; Financial Statements.
(a) PFC has filed or furnished on a timely basis with the SEC all material forms, reports,
schedules, statements and other documents required to be filed or furnished by them under the
Securities Act of 1933, as amended (the “Securities Act”), under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or under the securities regulations of the SEC, with the SEC
since July 1, 2008 (all such filed or furnished documents, together with all exhibits and schedules
thereto and all information incorporated therein by reference, the “PFC
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Reports”), except as set forth in Section 3.6(a) of the PFC Disclosure Schedule. As of their
respective filing dates (and, in the case of registration statements and proxy statements, as of
the dates of effectiveness and the dates of mailing, respectively), except to the extent that any
PFC Report has been amended by a subsequently filed PFC Report prior to the date hereof, in which
case, as of the date of such amendment, (i) the PFC Reports complied in all material respects with
the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of
2002 (the “Xxxxxxxx-Xxxxx Act”), as the case may be, and (ii) none of the PFC Reports contained any
untrue statement of a material fact or omitted 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. None of PFC’s Subsidiaries is required to file periodic
reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
(b) The financial statements (including the related notes thereto) included (or incorporated
by reference) in the PFC Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto,
have been prepared in accordance with GAAP (except, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved
(except as may be expressly indicated in the notes thereto) and fairly present in all material
respects the consolidated financial position of PFC and its Subsidiaries as of the dates thereof
and their respective consolidated results of operations, changes in shareholders’ equity and
changes in cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal and recurring year-end audit adjustments that were not, or are not expected to be, material
in amount), all in accordance with GAAP and the applicable rules and regulations promulgated by the
SEC.
(c) As of the date of this Agreement, there are no outstanding comments from or unresolved
issues raised by the SEC staff with respect to the PFC Reports.
(d) The books and records of PFC and its Subsidiaries have been, and are being, maintained in
all material respects in accordance with applicable legal and accounting requirements and reflect
only actual transactions. The records, systems, controls, data and information of PFC and its
Subsidiaries are recorded, stored, maintained and operated under means (including any electronic,
mechanical or photographic process, whether computerized or not) that are under the exclusive
ownership and direct control of PFC or its Subsidiaries or accountants (including all means of
access thereto and therefrom), except for any non-exclusive ownership and non-direct control that
would not reasonably be expected to have a material adverse effect on the system of internal
accounting controls described in the following sentence. PFC and its Subsidiaries have implemented
and maintain a system of internal accounting controls effective to provide reasonable assurances
regarding the reliability of financial reporting and the preparation of financial statements in
accordance with GAAP. PFC (i) has implemented and maintains disclosure controls and procedures (as
defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) effective to ensure that material
information relating to PFC, including its consolidated Subsidiaries, is made known to the Chief
Executive Officer and the Chief Financial Officer of PFC by others within those entities to allow
timely decisions regarding required disclosure and to make the certifications required by the
Exchange Act with respect to the PFC Reports and (ii) has disclosed, based on its most recent
evaluation prior to the date of this Agreement, to PFC’s outside auditors and the audit committee
of the board of directors of PFC
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(A) any significant deficiencies and material weaknesses in the design or operation of
internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that
would be reasonably likely to adversely affect PFC’s ability to accurately record, process,
summarize and report financial information and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role in PFC’s internal controls over
financial reporting.
(e) Since July 1, 2008, (A) neither PFC nor any of its Subsidiaries nor, to the knowledge of
PFC, any director, officer, employee, auditor, accountant or representative of it or any of its
Subsidiaries has received or otherwise had or obtained knowledge of any material complaint,
allegation, assertion or claim, whether written or oral, regarding the accounting or auditing
practices, procedures, methodologies or methods of PFC or any of its Subsidiaries or their
respective internal accounting controls, including any material complaint, allegation, assertion or
claim that PFC or any of its Subsidiaries has engaged in questionable accounting or auditing
practices, and (B) no attorney representing PFC or any of its Subsidiaries, whether or not employed
by PFC or any of its Subsidiaries, has reported evidence of a material violation of securities
laws, breach of fiduciary duty or similar violation by PFC or any of its officers, directors,
employees or agents to the PFC Board or any committee thereof or to any of PFC’s directors or
officers.
(f) No agreement pursuant to which any loans or other assets have been or shall be sold by PFC
or the PFC Subsidiaries entitle the buyer of such loans or other assets, unless there is material
breach of a representation or covenant by PFC or the PFC Subsidiaries, to cause PFC or the PFC
Subsidiaries to repurchase such loan or other asset or the buyer to pursue any other form of
recourse against PFC or the PFC Subsidiaries. Except as set forth in Section 3.6(f) of the PFC
Disclosure Schedule, to the knowledge of PFC, there has been no material breach of a representation
or covenant by PFC or the PFC Subsidiaries in any such agreement since July 1, 2008. Except as set
forth in Section 3.6(f) of the PFC Disclosure Schedule, (i) since December 31, 2010, no cash, stock
or other dividend or any other distribution with respect to the capital stock of PFC or any of the
PFC Subsidiaries has been declared, set aside or paid, (ii) since July 1, 2008, no shares of
capital stock of PFC have been purchased, redeemed or otherwise acquired, directly or indirectly,
by PFC, and (iii) no agreements have been made to do any of the foregoing.
3.7 Broker’s Fees. Except as set forth in Section 3.7 of the PFC Disclosure Schedule,
neither PFC nor any PFC Subsidiary nor any of their respective officers or directors has employed
any broker or finder or incurred any liability for any broker’s fees, commissions or finder’s fees
in connection with the Merger or related transactions this Agreement contemplates.
3.8 Absence of Certain Changes or Events. Since June 30, 2010, except as set forth in
Section 3.8 of the PFC Disclosure Schedule, (i) PFC and the PFC Subsidiaries have, except in
connection with the negotiation and execution and delivery of this Agreement, carried on their
respective businesses in all material respects in the ordinary course consistent with past practice
and (ii) there has not been any Material Adverse Effect with respect to PFC.
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3.9 Legal Proceedings.
(a) There is no pending, or, to PFC’s knowledge, threatened, litigation, action, suit,
proceeding, investigation or arbitration by any individual, partnership, corporation, trust, joint
venture, organization or other entity (each, a “Person”) or Governmental Entity that has had, or is
reasonably likely to have a Material Adverse Effect on PFC.
(b) There is no judgment or regulatory restriction, other than those of general application
that apply to similarly situated financial or savings and loan holding companies or their
Subsidiaries, that has been imposed upon PFC, any of the PFC Subsidiaries or the assets of PFC or
any of the PFC Subsidiaries, that has had, or is reasonably likely to have, a Material Adverse
Effect on PFC.
3.10 Taxes and Tax Returns.
(a) Each of PFC and the PFC Subsidiaries has duly and timely filed, including all applicable
extensions, all Tax Returns (as defined in subsection (c) below) required to be filed by it on or
prior to the date of this Agreement, all such Tax Returns being accurate and complete in all
material respects, has timely paid or withheld and timely remitted all Taxes shown thereon as
arising and has duly and timely paid or withheld and timely remitted all Taxes, whether or not
shown on any Tax Return, that are due and payable or claimed to be due from it by a Governmental
Entity other than Taxes that (i) are being contested in good faith, which have not been finally
determined, and (ii) have been adequately reserved against in accordance with GAAP on PFC’s most
recent consolidated financial statements. All required estimated Tax payments sufficient to avoid
any underpayment penalties or interest have been made by or on behalf of each of PFC and the PFC
Subsidiaries. Neither PFC nor any of the PFC Subsidiaries has granted any extension or waiver of
the limitation period for the assessment or collection of Tax that remains in effect. Except as
set forth in Section 3.10 of the PFC Disclosure Schedule, there are no disputes, audits,
examinations or proceedings in progress or pending, including any notice received of any intent to
conduct an audit or examination, or claims asserted, for Taxes upon PFC or any of the PFC
Subsidiaries. No claim has been made by a Governmental Entity in a jurisdiction where PFC or any
of the PFC Subsidiaries have not filed Tax Returns such that PFC or any of the PFC Subsidiaries is
or may be subject to taxation by that jurisdiction. All deficiencies asserted or assessments made
as a result of any examinations by any Governmental Entity of the Tax Returns of, or including, PFC
or any of the PFC Subsidiaries have been fully paid. No issue has been raised by a Governmental
Entity in any prior examination or audit of each of PFC and the PFC Subsidiaries which, by
application of the same or similar principles, could reasonably be expected to result in a proposed
deficiency in respect of such Governmental Entity for any subsequent taxable period. There are no
Liens for Taxes, other than statutory liens for Taxes not yet due and payable, upon any of the
assets of PFC or any of the PFC Subsidiaries. Neither PFC nor any of the PFC Subsidiaries is a
party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement,
other than such an agreement or arrangement exclusively between or among PFC and the PFC
Subsidiaries. Neither PFC nor any of the PFC Subsidiaries (A) has been a member of an affiliated
group filing a consolidated federal income Tax Return, other than a group the common parent of
which was PFC, or (B) has any liability for the Taxes of any Person, other than PFC or any of the
PFC Subsidiaries, under Treas. Reg. §1.1502-6, or any
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similar provision of state, local or foreign law, or as a transferee or successor, by contract
or otherwise. Neither PFC nor any of the PFC Subsidiaries has been, within the past two years or
otherwise as part of a “plan (or series of related transactions)” within the meaning of Section
355(e) of the Code, of which the Merger is also a part, a “distributing corporation” or a
“controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code, in a distribution
of stock intended to qualify for tax-free treatment under Section 355 of the Code. Except as set
forth in Section 3.10(a) of the PFC Disclosure Schedule, no share of PFC Common Stock is owned by a
Subsidiary of PFC. PFC is not and has not been a “United States real property holding company”
within the meaning of Section 897(c)(2) of the Code during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code. Neither PFC nor any of the PFC Subsidiaries or any other
Person on their behalf has executed or entered into any written agreement with, or obtained or
applied for any written consents or written clearances or any other Tax rulings from, nor has there
been any written agreement executed or entered into on behalf of any of them with any Governmental
Entity, relating to Taxes, including any private letter rulings of the U.S. Internal Revenue
Service (“IRS”) or comparable rulings of any Governmental Entity and closing agreements pursuant to
Section 7121 of the Code or any predecessor provision thereof or any similar provision of any
applicable law, which rulings or agreements would have a continuing effect after the Effective
Time. Neither PFC nor any of the PFC Subsidiaries has engaged in a “reportable transaction”, as
set forth in Treas. Reg. § 1.6011-4(b), or any transaction that is the same as or substantially
similar to one of the types of transactions that the IRS has determined to be a tax avoidance
transaction and identified by notice, regulation or other form of published guidance as a “listed
transaction”, as set forth in Treas. Reg. § 1.6011-4(b)(2). FNB has received complete copies of
(i) all federal, state, local and foreign income or franchise Tax Returns of PFC and the PFC
Subsidiaries relating to the taxable periods beginning January 1, 2008 or later and (ii) any audit
report issued within the last three years relating to any Taxes due from or with respect to PFC or
the PFC Subsidiaries. Neither PFC, any of the PFC Subsidiaries nor FNB, as a successor to PFC,
will be required to include any item of material income in, or exclude any material item of
deduction from, taxable income for any taxable period or portion thereof ending after the Closing
Date as a result of any (i) change in method of accounting for a taxable period ending on or prior
to the Closing Date, (ii) installment sale or open transaction disposition made on or prior to the
Effective Time, (iii) prepaid amount received on or prior to the Closing Date or (iv) deferred
intercompany gain or any excess loss account of PFC or any of the PFC Subsidiaries for periods or
portions of periods described in Treasury Regulations under Section 1502 of the Code, or any
corresponding or similar provision of state, local or foreign law, for periods or portions thereof
ending on or before the Closing Date.
(b) As used in this Agreement, the term “Tax” or “Taxes” means (i) all federal, state, local
and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property,
capital, sales, transfer, use, payroll, bank shares tax, employment, severance, withholding,
duties, intangibles, franchise, backup withholding, inventory, capital stock, license, employment,
social security, unemployment, excise, stamp, occupation and estimated taxes, and other taxes,
charges, levies or like assessments, (ii) all interest, penalties, fines, additions to tax or
additional amounts imposed by any Governmental Entity in connection with any item described in
clause (i), and (iii) any transferee liability in respect of any items described in clauses (i) or
(ii) payable by reason of Contract, assumption, transferee liability,
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operation of Law, Treas. Reg §1.1502-6(a) or any predecessor or successor thereof of any
analogous or similar provision under law or otherwise.
(c) As used in this Agreement, the term “Tax Return” means any return, declaration, report,
claim for refund, or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof, supplied or required to be supplied to a
Governmental Entity and any amendment thereof including, where permitted or required, combined,
consolidated or unitary returns for any group of entities.
3.11 Employee Benefits. For purposes of this Agreement, the following terms shall
have the following meanings:
“Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii)
under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code and (iv) as a result of a
failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and
Section 4980B of the Code other than such liabilities that arise solely out of, or relate solely
to, the PFC Benefit Plans.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the
regulations promulgated thereunder.
“ERISA Affiliate” means, with respect to any entity, trade or business, any other entity,
trade or business that is, or was at the relevant time, a member of a group described in Section
414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included the
first entity, trade or business, or that is, or was at the relevant time, a member of the same
“controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.
“Multiemployer Plan” means any “multiemployer plan” within the meaning of Section 4001(a)(3)
of ERISA.
“PFC Benefit Plans” means any employee benefit plan, program, policy, practice or other
arrangement providing benefits to any current or former employee, officer or director of PFC or any
of the PFC Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by
PFC or any of the PFC Subsidiaries or to which PFC or any of the PFC Subsidiaries contributes or is
obligated to contribute, whether or not written, including without limitation any employee welfare
benefit plan within the meaning of Section 3(1) of ERISA, any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, whether or not such plan is subject to ERISA, and any bonus,
incentive, deferred compensation, vacation, stock purchase, stock option, equity compensation,
severance, employment, change of control or fringe benefit plan, program or policy.
“PFC Employment Agreements” means a contract, offer letter or agreement of PFC or any of the
PFC Subsidiaries with or addressed to any individual who is rendering or has rendered services
thereto as an employee pursuant to which PFC or any of the PFC Subsidiaries has any actual or
contingent liability or obligation to provide compensation and/or benefits in consideration for
past, present or future services.
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“PFC Plan” means any PFC Benefit Plan other than a Multiemployer Plan.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as those terms are defined in Part I of Subtitle E
of Title IV of ERISA.
(a) Section 3.11(a) of the PFC Disclosure Schedule includes a complete list of all PFC Benefit
Plans and all PFC Employment Agreements.
(b) With respect to each PFC Plan, PFC has delivered or made available to FNB a true, correct
and complete copy of: (i) each writing constituting a part of such PFC Plan, including without
limitation all plan documents, current employee communications, benefit schedules, trust
agreements, and insurance contracts and other funding vehicles, (ii) the two most recent Annual
Reports (Form 5500 Series) and accompanying schedules, if any, (iii) the current summary plan
description and any material modifications thereto, if any, in each case, whether or not required
to be furnished under ERISA, (iv) the most recent annual financial report, if any, (v) the most
recent actuarial report, if any and (vi) the most recent determination letter from the IRS, if any.
PFC has delivered or made available to FNB a true, correct and complete copy of each PFC
Employment Agreement.
(c) All contributions required to be made to any PFC Plan by applicable law or regulation or
by any plan document or other contractual undertaking, and all premiums due or payable with respect
to insurance policies funding any PFC Plan, for any period through the date of this Agreement have
been timely made or paid in full or, to the extent not required to be made or paid on or before the
date of this Agreement, have been fully reflected on the financial statements to the extent
required by GAAP. Each PFC Benefit Plan that is an employee welfare benefit plan under Section
3(1) of ERISA either (i) is funded through an insurance company contract and is not a “welfare
benefit fund” within the meaning of Section 419 of the Code or (ii) is unfunded, as noted in
Section 3.11(c) of the PFC Disclosure Schedule.
(d) With respect to each PFC Plan, PFC and the PFC Subsidiaries have complied, and are now in
compliance, in all material respects, with all provisions of ERISA, the Code and all laws and
regulations applicable to such PFC Plans. Each PFC Plan has been administered in all material
respects in accordance with its terms. There is not now, nor do any circumstances exist that would
reasonably be expected to give rise to, any requirement for the posting of security with respect to
any PFC Plan or the imposition of any material lien on the assets of PFC or any of the PFC
Subsidiaries under ERISA or the Code. Section 3.11(d) of the PFC Disclosure Schedule identifies
each PFC Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the
Code (the “PFC Qualified Plans”). The IRS has issued a favorable determination letter with respect
to each PFC Qualified Plan and the related trust which has not been revoked, or PFC is entitled to
rely on a favorable opinion issued by the IRS, and, to the knowledge of PFC, there are no existing
circumstances and no events have occurred that would reasonably be expected to adversely affect the
qualified status of any PFC Qualified Plan or the related trust. No trust funding any PFC Plan is
intended to meet the requirements of Code Section 501(c)(9). None of PFC and the PFC Subsidiaries
nor any other person, including any fiduciary, has engaged in any “prohibited transaction”, as
defined in Section 4975 of the Code or Section 406 of ERISA, which would reasonably be expected to
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subject any of the PFC Plans or their related trusts, PFC, any of the PFC Subsidiaries or any
person that PFC or any of PFC Subsidiaries has an obligation to indemnify, to any material Tax or
penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(e) Except as set forth in Section 3.11(e) of the PFC Disclosure Schedule with respect to each
PFC Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code,
(i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of
the Code or Section 302 of ERISA, whether or not waived, and (ii) (A) the fair market value of the
assets of such PFC Plan equals or exceeds the actuarial present value of all accrued benefits under
such PFC Plan, whether or not vested, on a termination basis, (B) no reportable event within the
meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has
occurred, (C) all premiums, if any, to the Pension Benefit Guaranty Corporation (the “PBGC”) have
been timely paid in full, (D) no liability, other than for premiums to the PBGC, under Title IV of
ERISA has been or would reasonably be expected to be incurred by PFC or any of PFC Subsidiaries and
(E) the PBGC has not instituted proceedings to terminate any such PFC Plan and, to PFC’s knowledge,
no condition exists that makes it reasonably likely that such proceedings will be instituted or
which would reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any such PFC Plan.
(f) (i) No PFC Benefit Plan is a Multiemployer Plan or a plan that has two or more
contributing sponsors at least two of whom are not under common control, within the meaning of
Section 4063 of ERISA (a “Multiple Employer Plan”), (ii) none of PFC and the PFC Subsidiaries nor
any of their respective ERISA Affiliates has, at any time during the last six years, contributed to
or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan and (iii) none
of PFC and the PFC Subsidiaries nor any of their respective ERISA Affiliates has incurred, during
the last six years, any Withdrawal Liability that has not been satisfied in full. There does not
now exist, nor do any circumstances exist that would reasonably be likely to result in, any
Controlled Group Liability that would be a liability of PFC or any of the PFC Subsidiaries
following the Effective Time, other than such liabilities that arise solely out of, or relate
solely to, the PFC Benefit Plans. Without limiting the generality of the foregoing, neither PFC
nor any of the PFC Subsidiaries, nor, to PFC’s knowledge, any of their respective ERISA Affiliates,
has engaged in any transaction described in Sections 4069, 4204 or 4212 of ERISA.
(g) Except as set forth in Section 3.11(g) of the PFC Disclosure Schedule, PFC and the PFC
Subsidiaries have no liability for life, health, medical or other welfare benefits to former
employees or beneficiaries or dependents thereof, except for health continuation coverage as
required by Section 4980B of the Code, Part 6 of Title I of ERISA or applicable law and at no
expense to PFC and the PFC Subsidiaries.
(h) Except as set forth in Section 3.11(h) of the PFC Disclosure Schedule, neither the
execution nor the delivery of this Agreement nor the consummation of the transactions this
Agreement contemplates will, either alone or in conjunction with any other event, whether
contingent or otherwise, (i) result in any payment or benefit becoming due or payable, or required
to be provided, to any director, employee or independent contractor of PFC or any of PFC
Subsidiaries, (ii) increase the amount or value of any benefit or compensation
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otherwise payable or required to be provided to any such director, employee or independent
contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such
benefit or compensation including deferred compensation, or (iv) result in any amount failing to be
deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section
4999 of the Code or additional tax under Section 409A of the Code.
(i) No labor organization or group of employees of PFC or any of PFC Subsidiaries has made a
pending demand for recognition or certification, and there are no representation or certification
proceedings or petitions seeking a representation proceeding presently pending or, to PFC’s
knowledge, threatened to be brought or filed, with the National Labor Relations Board. Each of PFC
and the PFC Subsidiaries is in material compliance with all applicable laws respecting employment
and employment practices, terms and conditions of employment, wages and hours and occupational
safety and health.
3.12 Compliance with Applicable Law. PFC and each of the PFC Subsidiaries are not in
default in any material respect under any applicable law, statute, order, rule, regulation, policy
or guideline of any Governmental Entity applicable to PFC or any of PFC Subsidiaries (collectively,
“Laws”), including the Equal Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorist (USA Patriot) Act of 2001,
the Bank Secrecy Act, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and applicable
limits on loans to one borrower, except where such noncompliance or default is not reasonably
likely to have, either individually or in the aggregate, a Material Adverse Effect on PFC. PFC and
each of the PFC Subsidiaries has been and is in compliance in all material respects with (i) the
applicable provisions of the Xxxxxxxx-Xxxxx Act and (ii) the applicable listing and corporate
governance rules and regulations of the NASDAQ. Section 3.12 of PFC Disclosure Schedule sets
forth, as of June 7, 2011, a schedule of all executive officers and directors of PFC who have
outstanding loans from PFC Bank, and there has been no default on, or forgiveness or waiver of, in
whole or in part, any such loan during the two years immediately preceding the date hereof.
3.13 Contracts. Except for matters that have not had and would not reasonably be
likely to have, individually or in the aggregate, a Material Adverse Effect on PFC, (a) none of PFC
nor any of the PFC Subsidiaries is, with or without the lapse of time or the giving of notice, or
both, in breach or default in any material respect under any material contract, lease, license or
other agreement or instrument, (b) to the knowledge of PFC, none of the other parties to any such
material contract, lease, license or other agreement or instrument is, with or without the lapse of
time or the giving of notice, or both, in breach or default in any material respect thereunder, and
(c) neither PFC nor any of the PFC Subsidiaries has received any written notice of the intention of
any party to terminate or cancel any such material contract, lease, license or other agreement or
instrument whether as a termination or cancellation for convenience or for default of PFC or any of
the PFC Subsidiaries.
3.14 Agreements with Regulatory Agencies. Except to the extent disclosure hereunder
is precluded by applicable law and except as set forth in Section 3.14 of the PFC Disclosure
Schedule, neither PFC nor any of the PFC Subsidiaries is subject to any cease-and-desist or other
order or enforcement action issued by, or is a party to any written agreement, consent agreement
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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 has been ordered to pay any civil
money penalty by, or has been since July 1, 2008, a recipient of any supervisory letter from, or
since July 1, 2008, has adopted any policies, procedures or board resolutions at the request or
suggestion of any Regulatory Agency or other Governmental Entity that currently restricts in any
material respect the conduct of its business or that in any material manner relates to its capital
adequacy, its ability to pay dividends, its credit or risk management policies, or its management
or its business, other than those of general application that apply to similarly situated financial
holding companies or their Subsidiaries (each item in this sentence (including, without limitation,
any item relating to participation of PFC or any of the PFC Subsidiaries in the Capital Purchase
Program of the Treasury Department), whether or not set forth in Section 3.14 of the PFC Disclosure
Schedule, (a “PFC Regulatory Agreement”), nor has PFC or any of the PFC Subsidiaries been advised
since July 1, 2008 by any Regulatory Agency or other Governmental Entity that it is considering
issuing, initiating, ordering or requesting any such PFC Regulatory Agreement.
3.15 Undisclosed Liabilities. Neither PFC nor any of its Subsidiaries has, and since
June 30, 2010, neither PFC nor any of its Subsidiaries has incurred, any liabilities or
obligations, whether accrued, absolute, contingent or otherwise, known or unknown, whether due or
to become due, except (i) those liabilities fully accrued or reserved against in the unaudited
consolidated balance sheet of PFC and its Subsidiaries as of March 31, 2011 included in the PFC
Reports, (ii) for liabilities and obligations incurred in the ordinary course of business
consistent with past practice since Xxxxx 00, 0000, (xxx) for liabilities and obligations that are
not material to PFC and its Subsidiaries, taken as a whole, and (iv) for any liabilities incurred
with respect to the transactions contemplated by this Agreement
3.16 Environmental Liability.
(a) To PFC’s knowledge, (i) PFC and the PFC Subsidiaries are in material compliance with
applicable Environmental Laws, (ii) no Contamination exceeding applicable cleanup standards or
remediation thresholds exists at real property, including buildings or other structures, currently
or formerly owned or operated by PFC or any of PFC Subsidiaries, that reasonably could result in a
material Environmental Liability for PFC or the PFC Subsidiaries, (iii) no Contamination exists at
any real property currently owned by a third party that reasonably could result in a material
Environmental Liability for PFC or the PFC Subsidiaries, (iv) neither PFC nor any of the PFC
Subsidiaries has received any written notice, demand letter, or claim alleging any material
violation of, or liability under, any Environmental Law, (v) neither PFC nor any of the PFC
Subsidiaries is subject to any order, decree, injunction or other agreement with any Governmental
Entity or any third party under any Environmental Law that reasonably could result in a material
Environmental Liability of PFC or the PFC Subsidiaries and (vi) PFC has listed in Section 3.16 of
the PFC Disclosure Schedule (and made available to FNB copies of) all environmental reports or
studies, sampling data, correspondence and filings in its possession relating to PFC, the PFC
Subsidiaries and any currently owned or operated real property of PFC which were prepared in the
last five years.
(b) As used in this Agreement, (i) the term “Environmental Laws” means collectively any and
all laws, ordinances, rules, regulations, directives, orders, authorizations,
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decrees, permits or other mandates of a Governmental Entity relating to any Hazardous
Substance, Contamination, protection of the Environment or protection of human health and safety,
including, without limitation, those relating to emissions, discharges or releases or threatened
emissions, discharges or releases to, on, onto or into the environment of any Hazardous Substance,
(ii) the term “Hazardous Substance” means any element, substance, compound or mixture whether
solid, liquid or gaseous that is subject to regulation by any Governmental Entity under any
Environmental Law, or the presence or existence of which gives rise to any Environmental Liability,
(iii) the term “Contamination” means the emission, discharge or release of any Hazardous Substance
to, on, onto or into the environment and the effects of such emission, discharge or release,
including the presence or existence of any such Hazardous Substance and (iv) the term
“Environmental Liability” means liabilities for response, remedial or investigation costs, and any
other expenses, including reasonable attorney and consultant fees, laboratory costs and litigation
costs, required under, or necessary to attain or maintain compliance with, applicable Environmental
Laws or relating to or arising from Contamination or Hazardous Substances.
3.17 Real Property.
(a) Each of PFC and the PFC Subsidiaries has good and marketable title free and clear of all
Liens to all real property owned by such entity (the “Owned Properties”), except for Liens that do
not materially detract from the present use of such real property.
(b) A true and complete copy of each agreement pursuant to which PFC or any of PFC
Subsidiaries leases any real property (such agreements, together with any amendments, modifications
and other supplements thereto, collectively, the “Leases”), has heretofore been made available to
FNB. Each Lease is valid, binding and enforceable against PFC or the PFC Subsidiary party thereto,
as the case may be, in accordance with its terms and is in full force and effect, except as may be
limited by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights
of creditors generally and the availability of equitable remedies. There is not under any such
Lease any material existing default by PFC or any of the PFC Subsidiaries or, to the knowledge of
PFC, any other party thereto, or any event which with notice or lapse of time or both would
constitute such a default. The consummation of the transactions this Agreement contemplates will
not cause defaults under the Leases, provided necessary consents disclosed in the PFC Disclosure
Schedule have been obtained and are in effect, except for any such default which would not,
individually or in the aggregate, have a Material Adverse Effect on PFC.
(c) The Owned Properties and the properties leased pursuant to the Leases (the “Leased
Properties”) constitute all of the real estate on which PFC and the PFC Subsidiaries maintain their
facilities or conduct their business as of the date of this Agreement, except for locations the
loss of which would not result in a Material Adverse Effect on PFC.
(d) A true and complete copy of each agreement pursuant to which PFC or any of the PFC
Subsidiaries leases real property to a third party (“Third Party”), such agreements, together with
any amendments, modifications and other supplements thereto (collectively, the “Third Party
Leases”), has heretofore been made available to FNB. Each Third Party Lease is valid, binding and
enforceable in accordance with its terms and is in full
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force and effect, except as may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the rights of creditors generally and the availability of
equitable remedies. To the knowledge of PFC, there are no existing defaults by the tenant under
any Third Party Lease, and no event has occurred which with notice or lapse of time or both would
constitute such a default or which individually or in the aggregate would have a Material Adverse
Effect on PFC.
3.18
State Takeover Laws. PFC has previously taken any and all action necessary to
render the provisions of the
Pennsylvania anti-takeover statutes in Sections 2538 through 2588
inclusive of the PBCL that may be applicable to the Merger and the other transactions this
Agreement contemplates inapplicable to FNB and its respective affiliates, and to the Merger, this
Agreement and the transactions this Agreement contemplates. The Board of Directors of PFC has
approved this Agreement and the transactions this Agreement contemplates as required to render
inapplicable to this Agreement and the transactions contemplated by this Agreement any restrictive
provisions in PFC’s Articles or PFC’s Bylaws.
3.19 Reorganization. As of the date of this Agreement, PFC is not aware of any fact
or circumstance that could reasonably be expected to prevent the Merger from qualifying as a
“reorganization” within the meaning of Section 368(a) of the Code.
3.20 Opinion. Prior to the execution of this Agreement, PFC has received an opinion
from Xxxxx, Xxxxxxxx & Xxxxx, Inc. to the effect that as of the date thereof and based upon and
subject to the matters set forth in this Agreement, the Merger Consideration is fair to the
shareholders of PFC from a financial point of view. Such opinion has not been amended or rescinded
as of the date of this Agreement.
3.21 Insurance. PFC and the PFC Subsidiaries are insured with reputable insurers
against such risks and in such amounts as are set forth in Section 3.21 of the PFC Disclosure
Schedule and as their management reasonably have determined to be prudent in accordance with
industry practices.
3.22 Investment Securities. Except where failure to be true would not reasonably be
expected to have a Material Adverse Effect on PFC, (a) each of PFC and the PFC Subsidiaries has
good title to all securities owned by it, except those securities sold under repurchase agreements
securing deposits, borrowings of federal funds or borrowings from the Federal Reserve Banks or the
Federal Home Loan Banks or held in any fiduciary or agency capacity, free and clear of any Liens,
except to the extent such securities are pledged in the ordinary course of business to secure
obligations of PFC or the PFC Subsidiaries, and (b) such securities are valued on the books of PFC
in accordance with GAAP in all material respects.
3.23 Intellectual Property. PFC and each of the PFC Subsidiaries owns, or is licensed
to use, in each case, free and clear of any Liens, all Intellectual Property used in the conduct of
its business as currently conducted that is material to PFC and the PFC Subsidiaries, taken as a
whole. Except as would not reasonably be likely to have a Material Adverse Effect on PFC, (a)
Intellectual Property used in the conduct of the business of PFC or any PFC Subsidiary as currently
conducted that is material to PFC and such PFC Subsidiary does not, to the knowledge of PFC,
infringe on or otherwise violate the rights of any person and is in accordance with any
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applicable license pursuant to which PFC or any such PFC Subsidiary acquired the right to use
any Intellectual Property and (b) neither PFC nor any of the PFC Subsidiaries has received any
written notice of any pending claim with respect to any Intellectual Property used by PFC and the
PFC Subsidiaries. For purposes of this Agreement, “Intellectual Property” means registered
trademarks, service marks, brand names, certification marks, trade dress and other indications of
origin, the goodwill associated with the foregoing and registrations in the United States Patent
and Trademark Office or in any similar office or agency of the United States or any state thereof,
all letters patent of the United States and all reissues and extensions thereof.
3.24 Loans; Nonperforming and Classified Assets.
(a) Each loan or other extension of credit (“Loan”) on the books and records of PFC or any PFC
Subsidiary (i) is evidenced in all material respects by appropriate and sufficient documentation,
(ii) to the extent secured, has been secured by valid liens and security interests which have been
perfected in accordance with all applicable Laws, and (iii) to the knowledge of PFC, is a legal,
valid and binding obligation of the obligor named therein, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(b) Each outstanding Loan (including Loans held for resale) was made and has been serviced,
and the relevant Loan files are being maintained, in all material respects in accordance with the
relevant notes or other credit or security documents, PFC’s written underwriting standards (and, in
the case of Loans held for resale, the underwriting standards, if any, of the applicable investors)
and with all applicable requirements of Laws.
(c) None of the agreements, if any, pursuant to which PFC or PFC Bank has sold Loans or pools
of Loans or participation interests in Loans or pools of Loans contains any obligation to
repurchase such Loans or interests therein solely on account of a payment default by the obligor on
any such Loan.
(d) PFC Bank’s allowance for loan losses is sufficient at the date of this Agreement for its
reasonably anticipated loan losses, is in compliance with the standards established by applicable
Governmental Entities and GAAP and, to the knowledge of PFC, is adequate.
(e) PFC has set forth in Section 3.24 of the PFC Disclosure Schedule as to PFC and each PFC
Subsidiary as of the latest practicable date prior to the date of this Agreement: (i) any written
or, to PFC’s knowledge, oral Loan under the terms of which the obligor is 90 or more days
delinquent in payment of principal or interest, or to PFC’s knowledge, in default of any other
material provision thereof, (ii) each Loan that has been classified as “substandard”, “doubtful”,
“loss” or “special mention” or words of similar import by PFC, a PFC Subsidiary or an applicable
regulatory authority, (iii) a listing of the Other Real Estate Owned (“OREO”) acquired by
foreclosure or by deed-in-lieu thereof, including the book value thereof and (iv) each Loan with
any director, executive officer or five percent or greater shareholder of PFC or a PFC Subsidiary,
or to the knowledge of PFC, any Person controlling, controlled by or under common control with any
of the foregoing. PFC agrees to update such
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list on a monthly basis after the date of this Agreement and until the earlier of the Closing
Date or the date that this Agreement is terminated in accordance with its terms.
(f) Neither PFC nor PFC Bank has been notified by any state or federal bank regulatory agency
that its reserves are inadequate or that the practices and policies of PFC in establishing its
reserves for the year ended June 30, 2010 and the nine months ended March 31, 2011, and in
accounting for delinquent and classified assets generally fail to comply with applicable accounting
or regulatory requirements, or that any Regulatory Agency having jurisdiction or PFC’s independent
auditor believes such reserves to be inadequate or inconsistent with the historical loss experience
of PFC.
3.25 Fiduciary Accounts. PFC and each of the PFC Subsidiaries has properly
administered all accounts for which it acts as a fiduciary, including but not limited to accounts
for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of the governing documents and applicable laws
and regulations. To PFC’s knowledge, neither PFC nor any of the PFC Subsidiaries, nor any of their
respective directors, officers or employees, has committed any breach of trust with respect to any
fiduciary account and the records for each such fiduciary account are true and correct and
accurately reflect the assets of such fiduciary account.
ARTICLE
4
REPRESENTATIONS AND WARRANTIES OF FNB
Except as disclosed in the disclosure schedule delivered by FNB to PFC (the “FNB Disclosure
Schedule”), FNB hereby represents and warrants to PFC as follows:
4.1 Corporate Organization.
(a) FNB is a corporation duly organized, validly existing and in good standing under the laws
of the State of Florida. FNB has the corporate power and authority and has all licenses, permits
and authorizations of applicable Governmental Entities required to own or lease all of its
properties and assets and to carry on its business as it is now being conducted, and is duly
licensed or qualified to do business in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets owned or leased by it
makes such licensing or qualification necessary, except where such failure to be licensed or
qualified does not have a Material Adverse Effect upon FNB.
(b) FNB is duly registered as a bank holding company and is a financial holding company under
the BHC Act. True and complete copies of the Articles of Incorporation (the “FNB Charter”) and
Bylaws of FNB (the “FNB Bylaws”), as in effect as of the date of this Agreement, have previously
been made available to PFC.
(c) Each FNB Subsidiary (i) is duly organized and validly existing under the laws of its
jurisdiction of organization, (ii) is duly qualified to do business and in good standing in all
jurisdictions, whether federal, state, local or foreign, where its ownership or leasing of property
or the conduct of its business requires it to be so qualified and (iii) has all requisite corporate
power and authority, and has all licenses, permits and authorizations of applicable
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Governmental Entities required, to own or lease its properties and assets and to carry on its
business as now conducted, except in each of clauses (i) — (iii) as would not be reasonably likely
to have, either individually or in the aggregate, a Material Adverse Effect on FNB.
4.2 Capitalization.
(a) The authorized capital stock of FNB consists of 500,000,000 shares of FNB Common Stock, of
which, as of May 31, 2011, 126,908,669 shares were issued and outstanding, and 20,000,000 shares of
preferred stock, $0.01 par value (the “FNB Preferred Stock”), of which, as of the date of this
Agreement, no shares were issued and outstanding. As of May 31, 2011, 213,973 shares of FNB Common
Stock were held in FNB’s treasury. As of the date hereof, no shares of FNB Common Stock or FNB
Preferred Stock were reserved for issuance, except for 629,187 shares of FNB Common Stock reserved
for issuance upon exercise of options issued or available for issuance pursuant to employee and
director stock plans of FNB in effect as of the date of this Agreement (the “FNB Stock Plans”) and
651,042 shares of FNB Common Stock reserved for issuance pursuant to warrants issued to the United
States Treasury Department. All of the issued and outstanding shares of FNB Common Stock have been,
and all shares of FNB Common Stock that may be issued pursuant to the FNB Stock Plans will be, when
issued in accordance with the terms thereof, duly authorized and validly issued and fully paid,
non-assessable and free of preemptive rights, with no personal liability attaching to the ownership
thereof. Except pursuant to this Agreement, the FNB Stock Plans and warrants FNB issued to the
United States Treasury Department, FNB 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 FNB Common Stock or any other equity securities of FNB or any securities representing
the right to purchase or otherwise receive any shares of FNB Common Stock. The shares of FNB
Common Stock to be issued pursuant to the Merger have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will have been validly issued, fully
paid, non-assessable and free of preemptive rights.
(b) All of the issued and outstanding shares of capital stock or other equity ownership
interests of each Subsidiary of FNB are owned by FNB, directly or indirectly, free and clear of any
Liens, and all of such shares or equity ownership interests are duly authorized and validly issued
and are fully paid, non-assessable and free of preemptive rights. No such 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 Subsidiary or any securities representing the right to purchase or otherwise
receive any shares of capital stock or any other equity security of such Subsidiary.
4.3 Authority; No Violation.
(a) FNB has full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions this Agreement contemplates. The execution and delivery of this
Agreement and the consummation of the transactions this Agreement contemplates have been duly and
validly approved by the Board of Directors of FNB and no other corporate approvals on the part of
FNB are necessary to approve this Agreement. This
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Agreement has been duly and validly executed and delivered by FNB and, assuming due
authorization, execution and delivery by PFC, constitutes a valid and binding obligation of FNB,
enforceable against FNB in accordance with its terms, except as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally
and the availability of equitable remedies.
(b) Neither the execution and delivery of this Agreement by FNB, nor the consummation by FNB
of the transactions this Agreement contemplates, nor compliance by FNB with any of the terms or
provisions of this Agreement, will (i) violate any provision of the FNB Charter or the FNB Bylaws
or (ii) assuming that the consents, approvals and filings referred to in Section 4.4 are duly
obtained and/or made and are in full force and effect, (A) violate any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or Injunction applicable to FNB, any of its
Subsidiaries or any of their respective properties or assets or (B) violate, conflict with, result
in a breach of any provision of, constitute a 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, or result in the
creation of any Lien upon any of the respective properties or assets of FNB or any of its
Subsidiaries under, 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 FNB
or any of its Subsidiaries is a party, or by which they or any of their respective properties or
assets may be bound or affected, except for such violations, conflicts, breaches or defaults with
respect to clause (ii) that are not reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FNB.
4.4
Consents and Approvals. Except for (i) the filing of applications and notices, as
applicable, with the Federal Reserve Board under the BHC Act and the Federal Reserve Act, as
amended, and approval of such applications and notices, and, in connection with the acquisition of
the Bank by FNB, the filing of applications and notices, as applicable, with the FDIC, the OCC or
the PA DOB and approval of such applications and notices, (ii) the Other Regulatory Approvals,
(iii) the filing with the SEC of the Proxy Statement and the filing and declaration of
effectiveness of the Registration Statement, (iv) the filing of the Articles of Merger with and the
acceptance for record by the Secretary of State of the Commonwealth of
Pennsylvania pursuant to the
PBCL and the filing of the Articles of Merger with and the acceptance for record by the Secretary
of State of the State of Florida pursuant to the FBCA, (v) any notices or filings under the HSR
Act, (vi) any consents, authorizations, approvals, filings or exemptions in connection with
compliance with the applicable provisions of federal and state securities laws and the rules and
regulations thereunder and of any applicable industry SRO, and the rules of NASDAQ or the NYSE, or
that are required under consumer finance, mortgage banking and other similar laws, and (vii) such
filings and approvals as are required to be made or obtained under the securities or “Blue Sky”
laws of various states in connection with the issuance of the shares of FNB Common Stock pursuant
to this Agreement and approval of listing such FNB Common Stock on the NYSE, no consents or
approvals of or filings or registrations with any Governmental Entity are necessary in connection
with (A) the execution and delivery by FNB of this Agreement and (B) the consummation by FNB of the
Merger and the other transactions this Agreement contemplates.
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4.5 Reports. FNB and each of its Subsidiaries have in all material respects timely
filed all reports, registrations and statements, together with any amendments required to be made
with respect thereto, that they were required to file since January 1, 2009 with the Regulatory
Agencies and with each other applicable Governmental Entity, including the SEC, and all other
reports and statements required to be filed by them since January 1, 2009, including any report or
statement required to be filed pursuant to the laws, rules or regulations of the United States, any
state, any foreign entity, or any Regulatory Agency, and have paid all fees and assessments due and
payable in connection therewith. Except for normal examinations conducted by a Regulatory Agency
in the ordinary course of the business of FNB and its Subsidiaries, no Regulatory Agency has
initiated or has pending any proceeding or, to the knowledge of FNB, investigation into the
business or operations of FNB or any of its Subsidiaries since January 1, 2009. There is no
unresolved material violation, criticism or exception by any Regulatory Agency with respect to any
report or statement relating to any examinations or inspections of FNB or any of its Subsidiaries.
4.6 SEC Reports; Financial Statements.
(a) FNB has filed or furnished on a timely basis with the SEC all material forms, reports,
schedules, statements and other documents required to be filed or furnished by them under the
Securities Act, under the Exchange Act, or under the securities regulations of the SEC, with the
SEC since January 1, 2009 (all such filed or furnished documents, together with all exhibits and
schedules thereto and all information incorporated therein by reference, the “FNB Reports”). As of
their respective filing dates (and, in the case of registration statements and proxy statements, as
of the dates of effectiveness and the dates of mailing, respectively), except to the extent that
any FNB Report has been amended by a subsequently filed FNB Report prior to the date hereof, in
which case, as of the date of such amendment, (i) the FNB Reports complied in all material respects
with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act
of 2002, as the case may be, and (ii) none of the FNB Reports contained any untrue statement of a
material fact or omitted 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. None of FNB’s Subsidiaries is required to file periodic reports with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act.
(b) The financial statements (including the related notes thereto) included (or incorporated
by reference) in the FNB Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto,
have been prepared in accordance with GAAP (except, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved
(except as may be expressly indicated in the notes thereto) and fairly present in all material
respects the consolidated financial position of FNB and its Subsidiaries as of the dates thereof
and their respective consolidated results of operations, changes in shareholders’ equity and
changes in cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal and recurring year-end audit adjustments that were not, or are not expected to be, material
in amount), all in accordance with GAAP and the applicable rules and regulations promulgated by the
SEC.
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(c) As of the date of this Agreement, there are no outstanding comments from or unresolved
issues raised by the SEC staff with respect to the FNB Reports.
(d) The books and records of FNB and its Subsidiaries have been, and are being, maintained in
all material respects in accordance with applicable legal and accounting requirements and reflect
only actual transactions. The records, systems, controls, data and information of FNB and its
Subsidiaries are recorded, stored, maintained and operated under means (including any electronic,
mechanical or photographic process, whether computerized or not) that are under the exclusive
ownership and direct control of FNB or its Subsidiaries or accountants (including all means of
access thereto and therefrom), except for any non-exclusive ownership and non-direct control that
would not reasonably be expected to have a material adverse effect on the system of internal
accounting controls described in the following sentence. FNB and its Subsidiaries have implemented
and maintain a system of internal accounting controls effective to provide reasonable assurances
regarding the reliability of financial reporting and the preparation of financial statements in
accordance with GAAP. FNB (i) has implemented and maintains disclosure controls and procedures (as
defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) effective to ensure that material
information relating to PFC, including its consolidated Subsidiaries, is made known to the Chief
Executive Officer and the Chief Financial Officer of FNB by others within those entities to allow
timely decisions regarding required disclosure and to make the certifications required by the
Exchange Act with respect to the FNB Reports and (ii) has disclosed, based on its most recent
evaluation prior to the date of this Agreement, to FNB’s outside auditors and the audit committee
of the board of directors of FNB (A) any significant deficiencies and material weaknesses in the
design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of
the Exchange Act) that would be reasonably likely to adversely affect FNB’s ability to accurately
record, process, summarize and report financial information and (B) any fraud, whether or not
material, that involves management or other employees who have a significant role in FNB’s internal
controls over financial reporting.
(e) Since January 1, 2009, (A) neither FNB nor any of its Subsidiaries nor, to the knowledge
of FNB, any director, officer, employee, auditor, accountant or representative of it or any of its
Subsidiaries has received or otherwise had or obtained knowledge of any material complaint,
allegation, assertion or claim, whether written or oral, regarding the accounting or auditing
practices, procedures, methodologies or methods of FNB or any of its Subsidiaries or their
respective internal accounting controls, including any material complaint, allegation, assertion or
claim that FNB or any of its Subsidiaries has engaged in questionable accounting or auditing
practices, and (B) no attorney representing FNB or any of its Subsidiaries, whether or not employed
by FNB or any of its Subsidiaries, has reported evidence of a material violation of securities
laws, breach of fiduciary duty or similar violation by FNB or any of its officers, directors,
employees or agents to the board of directors of FNB or any committee thereof or to any of FNB’s
directors or officers.
4.7 Broker’s Fees. Except as set forth in Section 4.7 of the FNB Disclosure Schedule,
neither FNB nor any FNB Subsidiary nor any of their respective officers or directors has employed
any broker or finder or incurred any liability for any brokers fees, commissions or finder’s fees
in connection with the Merger or related transactions this Agreement contemplates.
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4.8 Absence of Certain Changes or Events. Since December 31, 2010, except as publicly
disclosed in the Forms 10-K, 10-Q and 8-K comprising the FNB Reports (as defined in Section 4.6(a))
filed prior to the date of this Agreement (i) FNB and the FNB Subsidiaries have, except in
connection with the negotiation and execution and delivery of this Agreement, carried on their
respective businesses in all material respects in the ordinary course consistent with past practice
and (ii) there has not been any Material Adverse Effect with respect to FNB.
4.9 Legal Proceedings.
(a) There is no pending, or, to FNB’s knowledge, threatened, litigation, action, suit,
proceeding, investigation or arbitration by any Person or Governmental Entity that has had, or is
reasonably likely to have, a Material Adverse Effect on FNB.
(b) There is no judgment or regulatory restriction, other than those of general application
that apply to similarly situated financial or bank holding companies or their Subsidiaries, that
has been imposed upon FNB, any of its Subsidiaries or the assets of FNB or any of its Subsidiaries
that has had or is reasonably likely to have, a Material Adverse Effect on FNB.
4.10 Taxes and Tax Returns. Each of FNB and its Subsidiaries has duly and timely
filed, including all applicable extensions, all Tax Returns required to be filed by it on or prior
to the date of this Agreement, all such Tax Returns being accurate and complete in all material
respects, has timely paid or withheld and timely remitted all Taxes shown thereon as arising and
has duly and timely paid or withheld and timely remitted all Taxes, whether or not shown on any Tax
Return, that are due and payable or claimed to be due from it by a Governmental Entity other than
Taxes that (i) are being contested in good faith, which have not been finally determined, and (ii)
have been adequately reserved against in accordance with GAAP on FNB’s most recent consolidated
financial statements. All required estimated Tax payments sufficient to avoid any underpayment
penalties or interest have been made by or on behalf of each of FNB and its Subsidiaries. Neither
FNB nor any of its Subsidiaries has granted any extension or waiver of the limitation period for
the assessment or collection of Tax that remains in effect. There are no disputes, audits,
examinations or proceedings in progress or pending, including any notice received of an intent to
conduct an audit or examination, or claims asserted, for Taxes upon FNB or any of its Subsidiaries.
No claim has been made by a Governmental Entity in a jurisdiction where FNB or any of its
Subsidiaries has not filed Tax Returns such that FNB or any of its Subsidiaries is or may be
subject to taxation by that jurisdiction. All deficiencies asserted or assessments made as a
result of any examinations by any Governmental Entity of the Tax Returns of, or including, FNB or
any of its Subsidiaries have been fully paid. No issue has been raised by a Governmental Entity in
any prior examination or audit of each of FNB and its Subsidiaries which, by application of the
same or similar principles, could reasonably be expected to result in a proposed deficiency in
respect of such Governmental Entity for any subsequent taxable period. There are no Liens for
Taxes, other than statutory liens for Taxes not yet due and payable, upon any of the assets of FNB
or any of its Subsidiaries. Neither FNB nor any of its Subsidiaries is a party to or is bound by
any Tax sharing, allocation or indemnification agreement or arrangement, other than such an
agreement or arrangement exclusively between or
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among FNB and its Subsidiaries. Neither FNB nor any of its Subsidiaries (A) has been a member
of an affiliated group filing a consolidated federal income Tax Return, other than a group the
common parent of which was FNB, or (B) has any liability for the Taxes of any Person, other than
FNB or any of its Subsidiaries, under Treas. Reg. §1.1502-6, or any similar provision of state,
local or foreign law, or as a transferee or successor, by contract or otherwise. Neither FNB nor
any of its Subsidiaries has been, within the past two years or otherwise as part of a “plan (or
series of related transactions)” within the meaning of Section 355(e) of the Code, of which the
Merger is also a part, a “distributing corporation” or a “controlled corporation” within the
meaning of Section 355(a)(1)(A) of the Code), in a distribution of stock intended to qualify for
tax-free treatment under Section 355 of the Code. No share of FNB Common Stock is owned by a
Subsidiary of FNB. FNB is not and has not been a “United States real property holding company”
within the meaning of Section 897(c)(2) of the Code during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code. Neither FNB, its Subsidiaries nor any other Person on their
behalf has executed or entered into any written agreement with, or obtained or applied for any
written consents or written clearances or any other Tax rulings from, nor has there been any
written agreement executed or entered into on behalf of any of them with any Taxing Authority,
relating to Taxes, including any IRS private letter rulings or comparable rulings of any Taxing
Authority and closing agreements pursuant to Section 7121 of the Code or any predecessor provision
thereof or any similar provision of any applicable law, which rulings or agreements would have a
continuing effect after the Effective Time. Neither FNB nor any of its Subsidiaries has engaged in
a “reportable transaction,” as set forth in Treas. Reg. §1.6011-4(b), or any transaction that is
the same as or substantially similar to one of the types of transactions that the IRS has
determined to be a tax avoidance transaction and identified by notice, regulation or other form of
published guidance as a “listed transaction,” as set forth in Treas. Reg. §1.6011-4(b)(2). PFC has
received complete copies of (i) all federal, state, local and foreign income or franchise Tax
Returns of FNB and its Subsidiaries relating to the taxable periods beginning January 1, 2008 or
later and (ii) any audit report issued within the last three years relating to any Taxes due from
or with respect to FNB or its Subsidiaries. Neither FNB, nor any of its Subsidiaries will be
required to include any item of material income in, or exclude any material item of deduction from,
taxable income for any taxable period, or portion thereof, ending after the Closing Date as a
result of any (i) change in method of accounting for a taxable period ending on or prior to the
Closing Date, (ii) installment sale or open transaction disposition made on or prior to the
Effective Time, (iii) prepaid amount received on or prior to the Closing Date or (iv) deferred
intercompany gain or any excess loss account of FNB or any of its Subsidiaries for periods or
portions of periods described in Treasury Regulations under Section 1502 of the Code, or any
corresponding or similar provision of state, local or foreign law, for periods, or portions
thereof, ending on or before the Closing Date.
4.11 Employee Benefits. For purposes of this Agreement, the following terms shall
have the following meaning:
“FNB Benefit Plans” means any employee benefit plan, program, policy, practice or other
arrangement providing benefits to any current or former employee, officer or director of FNB or any
of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by FNB
or any of its Subsidiaries or to which FNB or any of its Subsidiaries contributes or is obligated
to contribute, whether or not written, including without limitation any employee welfare benefit
plan within the meaning of Section 3(1) of ERISA, any employee
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pension benefit plan within the meaning of Section 3(2) of ERISA, whether or not such plan is
subject to ERISA, and any bonus, incentive, deferred compensation, vacation, stock purchase, stock
option, equity compensation, severance, employment, change of control or fringe benefit plan,
program or policy.
“FNB Employment Agreement” means a contract, offer letter or agreement of FNB or any of its
Subsidiaries with or addressed to any individual who is rendering or has rendered services thereto
as an employee pursuant to which FNB or any of its Subsidiaries has any actual or contingent
liability or obligation to provide compensation and/or benefits in consideration for past, present
or future services.
“FNB Plan” means any FNB Benefit Plan other than a Multiemployer Plan.
(a) Section 4.11(a) of the FNB Disclosure Schedule includes a complete list of all FNB Benefit
Plans and all FNB Employment Agreements.
(b) With respect to each FNB Plan, FNB has delivered or made available to PFC a true, correct
and complete copy of: (i) each writing constituting a part of such FNB Plan, including without
limitation all plan documents, employee communications, benefit schedules, trust agreements, and
insurance contracts and other funding vehicles, (ii) the two most recent Annual Reports (Form 5500
Series) and accompanying schedules, if any, (iii) the current summary plan description and any
material modifications thereto, if any (in each case, whether or not required to be furnished under
ERISA), (iv) the most recent annual financial report, if any, (v) the most recent actuarial report,
if any, and (vi) the most recent determination letter from the IRS, if any. FNB has delivered or
made available to PFC a true, correct and complete copy of each FNB Employment Agreement.
(c) All contributions required to be made to any FNB Plan by applicable law or regulation or
by any plan document or other contractual undertaking, and all premiums due or payable with respect
to insurance policies funding any FNB Plan, for any period through the date of this Agreement have
been timely made or paid in full or, to the extent not required to be made or paid on or before the
date of this Agreement, have been fully reflected on the financial statements to the extent
required by GAAP. Each FNB Benefit Plan that is an employee welfare benefit plan under Section
3(1) of ERISA either (i) is funded through an insurance company contract and is not a “welfare
benefit fund” within the meaning of Section 419 of the Code or (ii) is unfunded, as noted in
Section 4.11(c) of the FNB Disclosure Schedule.
(d) With respect to each FNB Plan, FNB and its Subsidiaries have complied, and are now in
compliance, in all material respects, with all provisions of ERISA, the Code and all laws and
regulations applicable to such FNB Plans. Each FNB Plan has been administered in all material
respects in accordance with its terms. There is not now, nor do any circumstances exist that would
reasonably be expected to give rise to, any requirement for the posting of security with respect to
a FNB Plan or the imposition of any material lien on the assets of FNB or any of its Subsidiaries
under ERISA or the Code. Section 4.11(d) of the FNB Disclosure Schedule identifies each FNB Plan
that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code (“FNB
Qualified Plans”). The IRS has issued a favorable determination letter with respect to each FNB
Qualified Plan and the related trust
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which has not been revoked, or FNB is entitled to rely on a favorable opinion issued by the
IRS, and, to the knowledge of FNB, there are no existing circumstances and no events have occurred
that would reasonably be expected to adversely affect the qualified status of any FNB Qualified
Plan or the related trust. No trust funding any FNB Plan is intended to meet the requirements of
Code Section 501(c)(9). To the knowledge of FNB, none of FNB and its Subsidiaries nor any other
person, including any fiduciary, has engaged in any “prohibited transaction”, as defined in Section
4975 of the Code or Section 406 of ERISA, which would reasonably be expected to subject any of the
FNB Plans or their related trusts, FNB, any of its Subsidiaries or any person that FNB or any of
its Subsidiaries has an obligation to indemnify, to any material Tax or penalty imposed under
Section 4975 of the Code or Section 502 of ERISA.
(e) With respect to each FNB Plan that is subject to Title IV or Section 302 of ERISA or
Section 412 or 4971 of the Code, (i) there does not exist any accumulated funding deficiency within
the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, and, (ii)
except as would not have, individually or in the aggregate, a Material Adverse Effect: (A) the
fair market value of the assets of such FNB Plan equals or exceeds the actuarial present value of
all accrued benefits under such FNB Plan, whether or not vested, on a termination basis, (B) no
reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice
requirement has not been waived has occurred, (C) all premiums to the PBGC have been timely paid in
full, (D) no liability, other than for premiums to the PBGC, under Title IV of ERISA has been or
would reasonably be expected to be incurred by FNB or any of its Subsidiaries and (E) the PBGC has
not instituted proceedings to terminate any such FNB Plan and, to FNB’s knowledge, no condition
exists that presents a risk that such proceedings will be instituted or which would reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any such FNB Plan.
(f) (i) No FNB Benefit Plan is a Multiemployer Plan or a Multiple Employer Plan, (ii) none of
FNB and its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the
last six years, contributed to or been obligated to contribute to any Multiemployer Plan or
Multiple Employer Plan and (iii) none of FNB and its Subsidiaries nor any of their respective ERISA
Affiliates has incurred, during the last six years, any Withdrawal Liability that has not been
satisfied in full. There does not now exist, nor do any circumstances exist that would reasonably
be expected to result in, any Controlled Group Liability that would be a liability of FNB or any of
its Subsidiaries following the Effective Time, other than such liabilities that arise solely out
of, or relate solely to, the FNB Benefit Plans. Without limiting the generality of the foregoing,
neither FNB nor any of its Subsidiaries, nor, to FNB’s knowledge, any of their respective ERISA
Affiliates, has engaged in any transaction described in Sections 4069, 4204 or 4212 of ERISA.
(g) Other than a medical retirement plan, FNB and its Subsidiaries have no liability for life,
health, medical or other welfare benefits to former employees or beneficiaries or dependents
thereof, except for health continuation coverage as required by Section 4980B of the Code, Part 6
of Title I of ERISA or applicable law and at no expense to FNB and its Subsidiaries.
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(h) Neither the execution nor the delivery of this Agreement nor the consummation of the
transactions this Agreement contemplates will, either alone or in conjunction with any other event,
whether contingent or otherwise, (i) result in any payment or benefit becoming due or payable, or
required to be provided, to any director, employee or independent contractor of FNB or any of its
Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or
required to be provided to any such director, employee or independent contractor, (iii) result in
the acceleration of the time of payment, vesting or funding of any such benefit or compensation,
including deferred compensation, or (iv) result in any amount failing to be deductible by reason of
Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code or
additional tax under Section 409A of the Code.
(i) No labor organization or group of employees of FNB or any of its Subsidiaries has made a
pending demand for recognition or certification, and there are no representation or certification
proceedings or petitions seeking a representation proceeding presently pending or, to FNB’s
knowledge, threatened to be brought or filed, with the National Labor Relations Board or any other
labor relations tribunal or authority. Each of FNB and its Subsidiaries is in material compliance
with all applicable laws and collective bargaining agreements respecting employment and employment
practices, terms and conditions of employment, wages and hours and occupational safety and health.
4.12 Compliance with Applicable Law. FNB and each of its Subsidiaries are not in
default in any material respect under any applicable law, statute, order, rule, regulation, policy
or guideline of any Governmental Entity applicable to FNB or any of its Subsidiaries, including the
Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act, the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorist (USA Patriot) Act of 2001, the Bank Secrecy Act, the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and applicable limits on loans to one
borrower, except where such noncompliance or default is not reasonably likely to, either
individually or in the aggregate, have a Material Adverse Effect on FNB. FNB and each of the FNB
Subsidiaries has been and is in compliance in all material respects with (i) the applicable
provisions of the Xxxxxxxx-Xxxxx Act and (ii) the applicable listing and corporate governance rules
and regulations of the NYSE.
4.13 Contracts. Except for matters that have not had and would not reasonably be
likely to have, individually or in the aggregate, a Material Adverse Effect on FNB, (i) none of FNB
nor any of its Subsidiaries is, with or without the lapse of time or the giving of notice, or both,
in breach or default in any material respect under any material contract, lease, license or other
agreement or instrument, (ii) to the knowledge of FNB, none of the other parties to any such
material contract, lease, license or other agreement or instrument is, with or without the lapse of
time or the giving of notice, or both, in breach or default in any material respect thereunder and
(iii) neither FNB nor any of its Subsidiaries has received any written notice of the intention of
any party to terminate or cancel any such material contract, lease, license or other agreement or
instrument whether as a termination or cancellation for convenience or for default of FNB or any of
its Subsidiaries.
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4.14 Agreements with Regulatory Agencies. Neither FNB nor any of its Subsidiaries is
subject to any cease-and-desist or other order or enforcement action issued by, or is a party to
any written agreement, consent 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 has been since January
1, 2009, a recipient of any supervisory letter from, or has been ordered to pay any civil money
penalty by, or since January 1, 2009, has adopted any policies, procedures or board resolutions at
the request or suggestion of any Regulatory Agency or other Governmental Entity that currently
restricts in any material respect the conduct of its business or that in any material manner
relates to its capital adequacy, its ability to pay dividends, its credit or risk management
policies, its management or its business, other than those of general application that apply to
similarly situated financial holding companies or their Subsidiaries, each item in this sentence,
whether or not set forth in the FNB Disclosure Schedule (“FNB Regulatory Agreement”), nor has FNB
or any of its Subsidiaries been advised since January 1, 2009 by any Regulatory Agency or other
Governmental Entity that it is considering issuing, initiating, ordering or requesting any such FNB
Regulatory Agreement. Each bank Subsidiary of FNB has at least a “satisfactory” rating under the
U.S. Community Reinvestment Act.
4.15 Undisclosed Liabilities. Neither FNB nor any of its Subsidiaries has, and since
December 31, 2010, neither FNB nor any of its Subsidiaries has incurred, any liabilities or
obligations, whether accrued, absolute, contingent or otherwise, known or unknown, whether due or
to become due, except (i) those liabilities fully accrued or reserved against in the unaudited
consolidated balance sheet of FNB and its Subsidiaries as of March 31, 2011 included in the FNB
Reports, (ii) for liabilities and obligations incurred in the ordinary course of business
consistent with past practice since Xxxxx 00, 0000, (xxx) for liabilities and obligations that are
not material to FNB and its Subsidiaries, taken as a whole, and (iv) for any liabilities incurred
with respect to the transactions contemplated by this Agreement.
4.16 Environmental Liability.
(a) To FNB’s knowledge, (i) FNB and its Subsidiaries are in material compliance with
applicable Environmental Laws, (ii) no Contamination exceeding applicable cleanup standards or
remediation thresholds exists at real property, including buildings or other structures, currently
or formerly owned or operated by FNB or any of its Subsidiaries, that reasonably could result in a
material Environmental Liability for FNB or its Subsidiaries, (iii) no Contamination exists at any
real property currently owned by a third party that reasonably could result in a material
Environmental Liability for FNB or its Subsidiaries, (iv) neither FNB nor any of its Subsidiaries
has received any written notice, demand letter, claim or request for information alleging any
material violation of, or liability under, any Environmental Law, (v) neither FNB nor any of its
Subsidiaries is subject to any order, decree, injunction or other agreement with any Governmental
Entity or any third party under any Environmental Law that reasonably could result in a material
Environmental Liability of FNB or its Subsidiaries and (vi) FNB has listed in Section 4.16 of the
FNB Disclosure Schedule (and made available to PFC copies of) all environmental reports or studies,
sampling data, correspondence and filings in its possession or relating to FNB, its Subsidiaries
and any currently owned or operated property of FNB which were prepared in the last five years.
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(b) There are no legal, administrative, arbitral or other proceedings, claims, actions, causes
of action, private environmental investigations or remediation activities or governmental
investigations of any nature seeking to impose, or that are reasonably likely to result in the
imposition, on FNB of any liability or obligation arising under common law or under any local,
state or federal environmental statute, regulation or ordinance including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, pending or threatened
against FNB, which liability or obligation is reasonably likely to have, either individually or in
the aggregate, a Material Adverse Effect on FNB. To the knowledge of FNB, there is no reasonable
basis for any such proceeding, claim, action or governmental investigation that would impose any
liability or obligation that would be reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on FNB. FNB is not subject to any agreement, order, judgment, decree,
letter or memorandum by or with any Governmental Entity or third party imposing any liability or
obligation with respect to the foregoing that is reasonably likely to have, either individually or
in the aggregate, a Material Adverse Effect on FNB.
4.17 Reorganization. As of the date of this Agreement, FNB is not aware of any fact
or circumstance that could reasonably be expected to prevent the Merger from qualifying as a
“reorganization” within the meaning of Section 368(a) of the Code.
4.18 Loans; Nonperforming and Classified Assets.
(a) Except as set forth in Section 4.18 of the FNB Disclosure Schedule, each Loan on the books
and records of FNB and its Subsidiaries was made and has been serviced in all material respects in
accordance with their customary lending standards in the ordinary course of business, is evidenced
in all material respects by appropriate and sufficient documentation and, to the knowledge of FNB,
constitutes the legal, valid and binding obligation of the obligor named in the Contract evidencing
such Loan, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditor’s rights or by general
equity principles.
(b) FNB has set forth in Section 4.18 of the FNB Disclosure Schedule as to FNB and each FNB
Subsidiary as of the latest practicable date prior to the date of this Agreement: (A) any written
or, to FNB’s knowledge, oral Loan under the terms of which the obligor is 90 or more days
delinquent in payment of principal or interest, or to FNB’s knowledge, in default of any other
material provision thereof, (B) each Loan that has been classified as “substandard,” “doubtful,”
“loss” or “special mention” or words of similar import by FNB, a FNB Subsidiary or an applicable
regulatory authority, (C) a listing of OREO and (D) each Loan with any director, executive officer
or five percent or greater shareholder of FNB or a FNB Subsidiary, or to the knowledge of FNB, any
Person controlling, controlled by or under common control with any of the foregoing.
4.19 Fiduciary Accounts. FNB and each of its Subsidiaries has properly administered
all accounts for which it acts as a fiduciary, including but not limited to accounts for which it
serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents and applicable laws and
regulations. To FNB’s knowledge, neither FNB nor any of its Subsidiaries, nor any of their
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respective directors, officers or employees, has committed any breach of trust with respect to
any fiduciary account, and the records for each such fiduciary account are true and correct and
accurately reflect the assets of such fiduciary account.
4.20 Allowance for Loan Losses. FNB Bank’s allowance for loan losses is sufficient at
the date of this Agreement for its reasonably anticipated loan losses, is in compliance with the
standards established by applicable Governmental Entities and GAAP and, to the knowledge of FNB, is
adequate.
4.21 Interested Shareholder Status. Neither FNB nor any of its Subsidiaries is an
“interested shareholder” of PFC, as such term is defined in Section 2553 of the PBCL.
ARTICLE
5
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Conduct of Businesses Prior to the Effective Time.
(a) During the period from the date of this Agreement to the Effective Time, except as
expressly contemplated or permitted by this Agreement, each of FNB and PFC shall, and shall cause
each of its respective Subsidiaries to, (i) conduct its business in the ordinary course in all
material respects, (ii) use reasonable best efforts to maintain and preserve intact its business
organization, employees and advantageous business relationships and retain the services of its key
officers and key employees and (iii) take no action that would reasonably be expected to prevent or
materially impede or delay the obtaining of, or materially adversely affect the ability of the
parties expeditiously to obtain, any necessary approvals of any Regulatory Agency, Governmental
Entity or any other person or entity required for the transactions this Agreement contemplates or
to perform its covenants and agreements under this Agreement or to consummate the transactions this
Agreement contemplates or thereby.
(b) PFC agrees that between the date of this Agreement and the Effective Time, the materials
presented at the meetings of the Loan Committee of PFC Bank’s Board of Directors shall be provided
to FNB within three business days after each meeting and PFC shall provide the minutes of each
meeting to FNB within five business days after such meeting.
5.2 PFC Forbearances. During the period from the date of this Agreement to the
Effective Time, except as set forth in Section 5.2 of the PFC Disclosure Schedule and except as
expressly contemplated or permitted by this Agreement, PFC shall not, and shall not permit any of
the PFC Subsidiaries to, without the prior written consent of FNB (which consent shall not be
unreasonably withheld):
(a) (i) declare, set aside or pay any dividends on, make any other distributions in respect
of, or enter into any agreement with respect to the voting of, any of its capital stock, other than
(A) dividends and distributions by a direct or indirect Subsidiary of PFC to PFC or any direct or
indirect wholly owned Subsidiary of PFC, (B) regular quarterly cash dividends on the PFC Series A
Preferred Stock in accordance with the terms thereof and (C) regular quarterly cash dividends with
customary record and payment dates which do not exceed $0.02 per share on the PFC Common Stock,
subject to Section 6.10, (ii) split, combine
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or reclassify any of its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of its capital stock, except
upon the exercise of the PFC Warrant or PFC Stock Options that are outstanding or are required by
an existing contract, plan, arrangement or policy, as of the date of this Agreement in accordance
with their present terms, or (iii) purchase, redeem or otherwise acquire any shares of capital
stock or other securities of PFC or any of the PFC Subsidiaries, or any rights, warrants or options
to acquire any such shares or other securities, other than the PFC Series A Preferred Stock as
contemplated by this Agreement;
(b) grant any stock options, restricted stock awards, performance stock awards, restricted
stock units or other equity or equity-based awards with respect to shares of PFC Common Stock under
any of the PFC or the PFC Subsidiaries Stock Plans, or otherwise, except as required by an existing
contract, plan, arrangement or policy, or grant any individual, corporation or other entity any
right to acquire any shares of its capital stock, or issue any additional shares of capital stock
or other securities, other than the issuance of PFC Common Stock upon the exercise of PFC Stock
Options or the PFC Warrant;
(c) amend the PFC Articles, PFC Bylaws or other comparable organizational documents;
(d) (i) acquire or agree to acquire by merging or consolidating with, or by purchasing any
assets or any equity securities of, or by any other manner, any business or any Person, or
otherwise acquire or agree to acquire any assets except inventory or other similar assets and
except upon foreclosures, or the acceptance of a deed in lieu of foreclosure, in each case in the
ordinary course of business consistent with past practice, or (ii) open, acquire, close or sell any
branches;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien, or otherwise
dispose of any of its properties or assets other than securitizations and other transactions in the
ordinary course of business consistent with past practice;
(f) (i) incur any indebtedness for borrowed money or issue any debt securities or assume,
guarantee or endorse, or otherwise become responsible for the obligations of any Person, other than
PFC or any PFC Subsidiary, except for (A) borrowings having a maturity of not more than 30 days (90
days for repurchase agreements) under existing credit facilities, (B) renewals, extensions or
replacements of such existing credit facilities that (i) are incurred in the ordinary course of
business consistent with past practice, (ii) do not increase the aggregate amount available
thereunder, (iii) do not provide for any termination fees or pre-payment penalties, (iv) do not
contain any new provisions limiting or otherwise affecting the ability of PFC or any of the PFC
Subsidiaries or successors from terminating or pre-paying such facilities, and (v) do not contain
financial terms less advantageous than existing credit facilities, and (C) ordinary advances and
reimbursements to employees and endorsements of banking instruments made in the ordinary course of
business consistent with past practice, or (ii) make any capital contributions to, or investments
in, any Person other than its wholly owned Subsidiaries, other than in the ordinary course of
business consistent with past practice;
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(g) change in any material respect its accounting methods, except as may be necessary and
appropriate to conform to changes in tax laws requirements, changes in GAAP or regulatory
accounting principles or as required by PFC’s independent auditors or its Regulatory Agencies;
(h) change in any material respect its underwriting, operating, investment or risk management
or other similar policies of PFC or any of PFC Subsidiaries except as required by applicable law or
regulatory policies or as required by any Regulatory Agency or any Governmental Entity;
(i) make, change or revoke any material Tax election, file any material amended Tax Return,
enter into any closing agreement with respect to a material amount of Taxes, settle any material
Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(j) other than in the ordinary course of business consistent with past practice, terminate or
waive any material provision of any material agreement, contract or obligation (collectively,
“Contracts”) or, except for the Contracts listed in Section 5.2(j) of the PFC Disclosure Schedule,
enter into or renew any agreement or contract or other binding obligation of PFC or any of the PFC
Subsidiaries that involves the payment by PFC and/or the PFC Subsidiaries of more than $100,000
during the term thereof;
(k) incur any capital expenditures in excess of $100,000 individually or $200,000 in the
aggregate;
(l) except as required by agreements or instruments in effect on the date of this Agreement,
alter in any material respect, or enter into any commitment to alter in any material respect, any
material interest in any corporation, association, joint venture, partnership or business entity in
which PFC directly or indirectly holds any equity or ownership interest on the date of this
Agreement, other than any interest arising from any foreclosure, settlement in lieu of foreclosure
or troubled loan or debt restructuring in the ordinary course of business consistent with past
practice;
(m) agree or consent to any material agreement or material modifications of existing
agreements with any Regulatory Authority or Governmental Entity in respect of the operations of its
business, except as required by law or regulation based upon the advice of PFC’s legal advisors;
(n) pay, discharge, settle or compromise any claim, action, litigation, arbitration, suit,
investigation or proceeding, other than any such payment, discharge, settlement or compromise in
the ordinary course of business consistent with past practice that involves solely money damages in
an amount not in excess of $100,000 individually or $200,000 in the aggregate;
(o) issue any broadly distributed communication of a general nature to employees, including
general communications relating to benefits and compensation, or customers without the prior
approval of FNB, which will not be unreasonably delayed or
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withheld, except for communications in the ordinary course of business that do not relate to
the Merger or other transactions this Agreement contemplates;
(p) take any action, or knowingly fail to take any action, which action or failure to act
would be reasonably expected to prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code;
(q) take any action that would be reasonably expected to materially impede or delay the
ability of the parties to obtain any necessary approvals of any Regulatory Agency or other
Governmental Entity required for the transactions this Agreement contemplates;
(r) take any action that is intended or is reasonably likely to result in any of its
representations or warranties set forth in this Agreement being or becoming untrue in any material
respect at any time prior to the Effective Time, or in any of the conditions to the Merger set
forth in Article VII not being satisfied or in a violation of any provision of this Agreement,
except, in every case, as may be required by applicable law;
(s) make, renew or otherwise modify any Loan, loan commitment, letter of credit or other
extension of credit (individually, a “Loan” and collectively, “Loans”) to any Person if the Loan is
an existing credit on the books of PFC and classified as “doubtful” or “loss” or such Loan is in an
amount in excess of $500,000 and classified as “substandard” or “special mention”, or make, renew
or otherwise modify any Loan or Loans if immediately after making an unsecured Loan or Loans, such
Person would be indebted to PFC Bank in an aggregate amount in excess of $250,000 on on unsecured
basis or an under secured basis (i.e., the fair market value of the collateral securing such Loan
and any replacements thereof is less than the principal value of such Loan and any replacements
thereof), or make any fully secured Loan or Loans to any Person, except for any Loan secured by a
first mortgage on single family owner-occupied real estate, if, immediately after making a secured
Loan, such Person would be indebted to PFC Bank in an aggregate amount in excess of $4,000,000 or,
without approval of FNB, shall not make, renew or otherwise modify any Loan or Loans secured by an
owner-occupied 1-4 single-family residence with a principal balance in excess of $750,000 or in any
event if such Loan does not conform with PFC Bank’s Credit Policy Manual if, in the case of any of
the foregoing types of Loan or Loans, FNB shall object thereto within three business days after
receipt of notice of such proposed Loan, and the failure to provide a written objection within
three business days after receipt of notice of such proposed Loan from PFC Bank shall be deemed as
the approval of FNB to make such Loan or Loans. FNB reserves the right to observe the loan approval
process by the Board of Directors of PFC or its Loan Committee;
(t) acquire any new loan participation or loan servicing rights;
(u) originate, participate or purchase any new loan or other credit facility commitment
(including, without limitation, lines of credit and letters of credit) that is (i) serviced by a
third party or (ii) outside of its primary market area in the Allegheny, Beaver, Butler, Fayette,
Washington and Xxxxxxxxxxxx Counties of
Pennsylvania, Belmont, Delaware, Fairfield, Franklin,
Jefferson, Licking, Madison, Pickaway and Union Counties of Ohio and Brooke County of West
Virginia;
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(v) enter into or amend or renew any employment, consulting, severance or similar agreements
or arrangements with any director, officer or employee of PFC or its Subsidiaries or grant any
salary or wage increase or increase any employee benefit, including discretionary or other
incentive or bonus payments or discretionary or matching contributions to any deferred compensation
plan, make any grants of awards to newly hired employees or accelerate the vesting of any unvested
stock options or stock awards, except:
(A) for those non-exempt employees of PFC and its Subsidiaries who would normally be eligible
for a merit or annual increase in July 2011 according to PFC’s customary and normal practices, a
budget pool of 1.25% of their total base salary compensation;
(B) PFC may continue to grant salary increases to those Tellers and Customer Service
Representatives who fulfill the requirements and are progressing from the Teller position to the
Customer Service 1 and Customer Service 2 positions, according to PFC’s customary and normal
practices;
(C) for other changes that are required by applicable law or are advisable in order to comply
with Section 409A of the Code, upon prior written notice to FNB;
(D) to pay the amounts or to provide payments under plans and/or commitments set forth in the
PFC Disclosure Schedule;
(E) for retention bonuses of up to $250,000 in the aggregate (provided that any individual
retention bonus only will be paid when the potential severance opportunity with respect to a key
employee is not deemed to be sufficient to retain the services of such employee through the
transition period following the Merger as mutually agreed to by PFC and FNB);
(F) severance payments pursuant to the severance agreements or employment agreements that are
set forth in Section 5.2 of the PFC Disclosure Schedule; or
(G) for the renewal of the employment, consulting, severance or similar agreements that are
set forth in Section 5.2(v)(G) of the PFC Disclosure Schedule.
(w) Hire any person as an employee of PFC or any of the PFC Subsidiaries or promote any
employee, except (i) to satisfy contractual obligations existing as of the date of this Agreement
and set forth in Section 5.2(w) of the PFC Disclosure Schedule or (ii) to fill any vacancies
existing as of the date of this Agreement and described in Section 5.2(w) of the PFC Disclosure
Schedule or (iii) to fill any vacancies arising after the date of this Agreement at a comparable
level of compensation with persons whose employment is terminable at the will of PFC or a PFC
Subsidiary of PFC, as applicable, provided, however, that such total salary and incentive
compensation for any one employee may not exceed $50,000;
(x) agree to take, make any commitment to take, or adopt any resolutions of its Board of
Directors in support of, any of the actions prohibited by any provision of this Section 5.2;
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(y) engage in any new loan transaction with an officer or director or related party;
(z) purchase any equity securities or purchase any debt securities other than debt securities
with a quality rating of “AAA” by either Standard & Poor’s Ratings Services or Xxxxx’x Investors
Services for corporate bonds;
(aa) convert the data processing and related information and/or accounting systems of PFC
before the earlier of (i) the consummation of the Merger or (ii) the termination of this Agreement
in accordance with its terms; or
(bb) except as otherwise set forth in this Agreement, except for agreements, arrangements or
commitments entered into as a result of the transactions this Agreement contemplates, and except as
provided for in a business plan, budget or similar plan delivered to FNB prior to the date of this
Agreement, PFC shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of any
assets having a book or market value, whichever is greater, in the aggregate in excess of $250,000,
other than (i) pledges of, or liens on, assets to secure government deposits, advances made to PFC
by the Federal Home Loan Bank or the Federal Reserve Board, the payment of taxes, assessments or
similar charges which are not yet due and payable, the payment of deposits, repurchase agreements,
bankers acceptances, “treasury tax and loan” accounts consistent with past practices, or the
collection and/or processing of checks, drafts of letters of credit consistent with customary
banking practices or the exercise of trust powers, (ii) sales of assets received upon foreclosure,
settlement in lieu of foreclosure or in satisfaction of debts previously contracted in the ordinary
course of its banking business, or (iii) issuances of loans, sales of previously purchased
government guaranteed loans, or transactions in the investment securities portfolio by PFC or
repurchase agreements made, in each case, in the ordinary course of banking business.
5.3 FNB Forbearances. During the period from the date of this Agreement to the
Effective Time, except as expressly contemplated or permitted by this Agreement, FNB shall not, and
shall not permit any of its Subsidiaries to, without the prior written consent of PFC:
(a) except for the designation of the FNB Series D Preferred Stock, amend, repeal or otherwise
modify any provision of the FNB Charter or the FNB Bylaws other than those that would not be
adverse to PFC or its shareholders or those that would not impede FNB’s ability to consummate the
transactions this Agreement contemplates;
(b) take any action, or knowingly fail to take any action, which action or failure to act
would be reasonably expected to prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code;
(c) take any action that is intended or is reasonably likely to result in any of its
representations or warranties set forth in this Agreement being or becoming untrue in any material
respect at any time prior to the Effective Time, or in any of the conditions to the Merger set
forth in Article VII not being satisfied or in a violation of any provision of this Agreement,
except, in every case, as may be required by applicable law;
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(d) make any material investment 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, in any case to the extent such action would be reasonably
expected to prevent, or materially impede or delay, the consummation of the transactions this
Agreement contemplates;
(e) take any action that would be reasonably expected to materially impede or delay the
ability of the parties to obtain any necessary approvals of any Regulatory Agency or other
Governmental Entity required for the transactions this Agreement contemplates; or
(f) agree to take, make any commitment to take, or adopt any resolutions of its board of
directors in support of, any of the actions prohibited by this Section 5.3.
5.4 Voting Agreements. PFC shall deliver on the date of this Agreement an
executed Voting Agreement from each member of the PFC Board of Directors, the form of which is
attached to this Agreement as Exhibit “B” (the “Voting Agreement”).
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters.
(a) FNB agrees to prepare and file, as soon as practicable, the Registration Statement
with the SEC in connection with the issuance of FNB Common Stock in the Merger including the Proxy
Statement and prospectus and other proxy solicitation materials of PFC constituting a part thereof
and all related documents. PFC shall prepare and furnish to FNB such information relating to it
and its directors, officers and shareholders as may be reasonably required in connection with the
above referenced documents based on its knowledge of and access to the information required for
said documents, and PFC and its legal, financial and accounting advisors shall have the right to
review in advance and approve, which approval shall not be unreasonably withheld, such Registration
Statement prior to its filing. PFC agrees to cooperate with FNB and FNB’s counsel and accountants
in requesting and obtaining appropriate opinions, consents and letters from its financial advisor
and independent auditor in connection with the Registration Statement and the Proxy Statement. As
long as PFC has cooperated as described above, FNB agrees to file, or cause to be filed, the
Registration Statement and the Proxy Statement with the SEC as promptly as reasonably practicable.
Each of PFC and FNB agrees to use its commercially reasonable efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly as reasonably practicable
after the filing thereof. FNB also agrees to use its reasonable best efforts to obtain all
necessary state securities law or “Blue Sky” permits and approvals required to carry out the
transactions this Agreement contemplates. After the SEC has declared the Registration Statement
effective under the Securities Act, PFC shall promptly mail at its expense the Proxy Statement to
its shareholders.
(b) Each of PFC and FNB agree that none of the respective information supplied or to be
supplied by it for inclusion or incorporation by reference in the Registration
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Statement shall, at the time the Registration Statement and each amendment or supplement
thereto, if any, becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated in this Agreement or
necessary to make the statements in this Agreement not misleading. Each of PFC and FNB agree that
none of the respective information supplied or to be supplied by it for inclusion or incorporation
by reference in the Proxy Statement and any amendment or supplement thereto shall contain any
untrue statement of a material fact or omit to state any material fact required to be stated in
this Agreement or necessary to make the statements in this Agreement not misleading. Each of PFC
and FNB further agree that if such party shall become aware prior to the Effective Time of any
information furnished by such party that would cause any of the statements in the Registration
Statement or the Proxy Statement to be false or misleading with respect to any material fact, or to
omit to state any material fact necessary to make the statements in this Agreement not false or
misleading, to promptly inform the other parties thereof and an appropriate amendment or supplement
describing such information shall be filed promptly with the SEC and, to the extent required by
law, disseminated to the shareholders of PFC and/or FNB.
(c) FNB agrees to advise PFC, promptly after FNB receives notice thereof, of the time when
the Registration Statement has become effective or any supplement or amendment has been filed, of
the issuance of any stop order or the suspension of the qualification of FNB Common Stock for
offering or sale in any jurisdiction, of the initiation or, to the extent FNB is aware thereof,
threat of any proceeding for any such purpose, or of any request by the SEC for an amendment or
supplement of the Registration Statement or for additional information.
(d) The parties shall cooperate with each other and use their respective reasonable best
efforts to promptly prepare and file all necessary documentation, to effect all applications,
notices, petitions and filings, to obtain as promptly as practicable all permits, consents,
approvals and authorizations of all third parties, Regulatory Agencies and Governmental Entities
that are necessary or advisable to consummate the transactions this Agreement contemplates,
including the Merger, and to comply with the terms and conditions of all such permits, consents,
approvals and authorizations of all such Regulatory Agencies and Governmental Entities. FNB agrees
that it will file all appropriate applications or notices with each Regulatory Agency or
Governmental Entity having jurisdiction over the transactions contemplated by this Agreement within
60 days following the date hereof. PFC and FNB shall have the right to review in advance, and, to
the extent practicable, each will consult the other on, in each case subject to applicable laws
relating to the exchange of information, all the information relating to PFC or FNB, as the case
may be, and any of their respective Subsidiaries, which appear in any filing made with, or written
materials submitted to, any third party, Regulatory Agency or any Governmental Entity in connection
with the transactions contemplated by this Agreement. In exercising the foregoing right, each of
the parties shall act reasonably and as promptly as practicable. The parties shall consult with
each other with respect to the obtaining of all permits, consents, approvals and authorizations of
all third parties, Regulatory Agencies and Governmental Entities necessary or advisable to
consummate the transactions this Agreement contemplates and each party will keep the other apprised
of the status of matters relating to completion of the transactions this Agreement contemplates.
Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require FNB to
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take any action, or commit to take any action, or agree to any condition or restriction, in
connection with obtaining the foregoing permits, consents, approvals and authorizations of third
parties, Regulatory Agencies or Governmental Entities, that would reasonably be expected to have a
Material Adverse Effect on FNB, including the Surviving Company after giving effect to the Merger,
after the Effective Time (a “Materially Burdensome Regulatory Condition”). In addition, PFC agrees
to cooperate and use its reasonable best efforts to assist FNB in preparing and filing such
petitions and filings, and in obtaining such permits, consents, approvals and authorizations of
third parties, Regulatory Agencies and Governmental Entities, that may be necessary or advisable to
effect any mergers and/or consolidations of Subsidiaries of PFC and FNB following consummation of
the Merger.
(e) Each of FNB and PFC shall, upon request, furnish to the other all information
concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as
may be reasonably necessary or advisable in connection with the Proxy Statement, the Registration
Statement or any other statement, filing, notice or application made by or on behalf of FNB, PFC or
any of their respective Subsidiaries to any Regulatory Agency or Governmental Entity in connection
with the Merger and the other transactions contemplated by this Agreement (including, without
limitation, any pro forma financial information to be included in the Registration Statement on
Form S-4).
(f) Each of FNB and PFC shall promptly provide each other with any written communications
received from any Regulatory Agency or Governmental Entity with respect to the transactions
contemplated by this Agreement and will promptly advise the other upon receiving any oral
communication with respect to the transactions contemplated by this Agreement from any Regulatory
Agency or Governmental Entity whose consent or approval is required for consummation of the
transactions this Agreement contemplates that causes such party to believe that there is a
reasonable likelihood that any Requisite Regulatory Approval (as defined in Section 7.1(c)) will
not be obtained or that the receipt of any such approval may be materially delayed.
(g) PFC and FNB shall consult with each other before issuing any press release with
respect to the Merger or this Agreement and shall not issue any such press release or make any such
public statements without the prior consent of the other party, which shall not be unreasonably
withheld; provided, however, that a party may, without the prior consent of the other party, but
after such consultation, to the extent practicable under the circumstances, issue such press
release or make such public statements as may upon the advice of outside counsel be required by law
or the rules or regulations of the SEC, the FDIC, the OCC, the NYSE or FINRA. In addition, the
Chief Executive Officers of PFC and FNB shall be permitted to respond to appropriate questions
about the Merger from the press. PFC and FNB shall cooperate to develop all public announcement
materials and make appropriate management available at presentations related to the Merger as
reasonably requested by the other party.
6.2 Access to Information.
(a) Upon reasonable notice and subject to applicable laws relating to the exchange of
information, each of PFC and FNB shall, and shall cause each of its Subsidiaries to, afford to the
officers, employees, accountants, counsel and other representatives of the other,
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reasonable access, during normal business hours during the period prior to the Effective Time,
to all its properties, books, contracts, commitments and records, and, during such period, the
parties shall, and shall cause its Subsidiaries to, make available to the other party all other
information concerning its business, properties and personnel as the other may reasonably request.
PFC shall, and shall cause each of its Subsidiaries to, provide to FNB a copy of each report,
schedule and other document filed or received by it during such period pursuant to the requirements
of federal or state banking laws other than reports or documents that such party is not permitted
to disclose under applicable law. Neither PFC nor FNB nor any of their Subsidiaries shall be
required to provide access to or to disclose information where such access or disclosure would
jeopardize the attorney-client privilege of such party or its Subsidiaries or contravene any law,
rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior
to the date of this Agreement. The parties shall make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding sentence apply to the
extent possible in light of those restrictions.
(b) All information and materials provided pursuant to this Agreement shall be subject to
the provisions of the Confidentiality Agreements entered into between PFC and FNB (the
“Confidentiality Agreements”).
(c) No investigation by either of the parties or their respective representatives shall
affect the representations and warranties of the other set forth in this Agreement.
6.3 PFC Shareholder Approval. PFC shall call a meeting of its shareholders for
the purpose of obtaining the requisite shareholder approval required in connection with this
Agreement and the Merger (the “PFC Shareholders Meeting”), and shall use its reasonable best
efforts to call such meeting as soon as reasonably practicable following the Registration Statement
being declared effective giving reasonable time for printing and mailing and taking into account
the timing of its annual meeting of shareholders. Subject to Section 6.11, the Board of Directors
of PFC shall recommend approval and adoption of this Agreement, the Merger and the other
transactions this Agreement contemplates, by PFC’s shareholders and shall include such
recommendation in the Proxy Statement (the “PFC Recommendation”). Without limiting the generality
of the foregoing, PFC’s obligations pursuant to the first sentence of this Section 6.3 shall not be
affected by the commencement, public proposal, public disclosure or communication to PFC of any
Acquisition Proposal, as defined in Section 6.11(e). Notwithstanding the foregoing, if this
Agreement is terminated pursuant to Section 8.1, PFC’s obligations pursuant to the first sentence
of this Section 6.3 shall terminate.
6.4 Commercially Reasonable Efforts; Cooperation. Each of PFC and FNB agrees to
exercise good faith and use its commercially reasonable best efforts to satisfy the various
covenants and conditions to Closing in this Agreement, and to consummate the transactions this
Agreement contemplates as promptly as possible.
6.5 NYSE Approval. FNB shall cause the shares of FNB Common Stock to be issued in
the Merger to be approved for listing on the NYSE, subject to official notice of issuance, prior to
the Effective Time.
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6.6 Benefit Plans.
(a) Following the Effective Time, FNB shall take all reasonable action so that employees
of PFC and the PFC Subsidiaries shall be entitled to participate, effective as soon as
administratively practicable following the Effective Time, in each employee benefit plan, program
or arrangement of FNB of general applicability with the exception of FNB’s defined benefit pension
plan and any other plans frozen to new participants (the “FNB Plans”) to the same extent as
similarly-situated employees of FNB and its Subsidiaries, it being understood that inclusion of the
employees of PFC and the PFC Subsidiaries in the FNB Plans may occur at different times with
respect to different plans, provided that coverage shall be continued under corresponding Benefit
Plans of PFC and the PFC Subsidiaries until such employees are permitted to participate in the FNB
Plans and provided further, however, that nothing contained in this Agreement shall require FNB or
any of its Subsidiaries to make any grants to any former employee of PFC under any discretionary
equity compensation plan of FNB. FNB shall cause each FNB Plan in which employees of PFC and the
PFC Subsidiaries are eligible to participate to recognize, for purposes of determining eligibility
to participate in, the vesting of benefits under the FNB Plans and the entitlement to benefits
under the FNB Plans (including, but not limited to, severance benefit and vacation plans), the
service of such employees with PFC and the PFC Subsidiaries (or predecessor companies) to the same
extent as such service was credited for such purpose by PFC or the PFC Subsidiaries, provided,
however, that such service shall not be recognized to the extent that such recognition would result
in a duplication of benefits. Except for the commitment to continue those Benefit Plans of PFC and
the PFC Subsidiaries that correspond to FNB Plans until employees of PFC and the PFC Subsidiaries
are included in such FNB Plans, nothing in this Agreement shall limit the ability of FNB to amend
or terminate any of PFC’s Benefit Plans in accordance with and to the extent permitted by their
terms at any time permitted by such terms.
(b) At and following the Effective Time, and except as otherwise provided in Section
6.6(d), FNB shall honor, and, to the extent required by any individual agreement, assume, and the
Surviving Company shall continue to be obligated to perform, in accordance with their terms, all
benefit obligations to, and contractual rights of, current and former employees of PFC and the PFC
Subsidiaries and current and former directors of PFC and the PFC Subsidiaries existing as of the
Effective Date, as well as all employment, executive severance or “change-in-control” or similar
agreements, plans or policies of PFC that are set forth in Section 6.6(b) of the PFC Disclosure
Schedule. The severance or termination payments that are payable pursuant to any such severance
agreements, plans or policies of PFC are described in Section 6.6(b) of the PFC Disclosure
Schedule. Following the consummation of the Merger and for one year thereafter, FNB shall, to the
extent not duplicative of other severance benefits, pay employees of PFC or its Subsidiaries whose
employment is terminated by FNB for reasons other than cause, severance as set forth in Section
6.6(b) of the FNB Disclosure Schedule. Following the expiration of the foregoing severance policy,
any years of service recognized for purposes of this Section 6.6(b) will be taken into account
under the terms of any applicable severance policy of FNB or its Subsidiaries.
(c) At such time as employees of PFC and the PFC Subsidiaries become eligible to
participate in a medical, dental or health plan of FNB or its Subsidiaries, to the extent
reasonably practicable and available from its insurers, cause each such plan to (i) waive any
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preexisting condition limitations to the extent such conditions are covered under the
applicable medical, health or dental plans of PFC and its Subsidiaries, (ii) honor under such plans
any deductibles, co-payments and out-of-pocket expenses incurred by the employees of PFC and its
Subsidiaries and their beneficiaries during the portion of the plan year prior to such
participation, and (iii) waive any waiting period limitation or evidence of insurability
requirement that would otherwise be applicable to such employee or dependent on or after the
Effective Time to the extent such employee or dependent had satisfied any similar limitation or
requirement under an analogous Benefit Plan prior to the Effective Time.
(d) PFC shall permit the PFC Employee Stock Ownership Plan as amended and restated
effective as of January 1, 2008 (the “ESOP”) to terminate in accordance with its terms effective as
of the occurrence of a “change in control” as defined in Section 7.4(e) of the ESOP (the “ESOP CIC
Date”) and the accounts of all participants and beneficiaries in the ESOP as of the ESOP CIC Date
to become fully vested as of the ESOP CIC Date. All shares of PFC Common Stock held in the ESOP
shall be converted into the Common Stock Merger Consideration. As soon as practicable after the
date hereof, PFC shall, after consultation with FNB, file or cause to be filed all necessary
documents with the IRS for a determination letter that the termination of the ESOP as of the ESOP
CIC Date will not adversely affect the ESOP’s qualified status, with a copy to be provided to FNB
and its counsel. Prior to the Effective Time, PFC and, following the Effective Time, FNB shall use
their respective reasonable best efforts to obtain such favorable determination letter (including,
but not limited to, adopting such amendments to the ESOP as may be requested by the IRS as a
condition to its issuance of a favorable determination letter). As soon as practicable following
the later of the Effective Time or the receipt of a favorable determination letter from the IRS
regarding the qualified status of the ESOP upon its termination, the account balances in the ESOP
shall be either distributed to participants and beneficiaries or transferred to an eligible
tax-qualified retirement plan or individual retirement account as a participant or beneficiary may
direct, except that ESOP participants whose employment is terminated by FNB may elect to receive
their ESOP account balance prior to the receipt of the IRS determination letter but following their
termination of employment. FNB agrees to permit ESOP participants who become employees of FNB and
its Subsidiaries to roll over their account balances in the ESOP to the FNB 401(k) Plan.
(e) Immediately prior to the Effective Time, PFC shall, at the written request of FNB,
freeze or terminate such of the PFC Benefit Plans as is requested by FNB, provided that such
request is received from FNB in a timely manner.
(f) In order to assist with a smooth transition of the operations of PFC and its
Subsidiaries and the transactions which this Agreement contemplates, FNB or one of its Subsidiaries
agree to offer employment to certain officers and employees of PFC and its Subsidiaries as
employees of FNB and its Subsidiaries following the Effective Time upon the terms and subject to
the conditions set forth in Section 6.6(f) of the FNB Disclosure Schedule.
6.7 Indemnification; Directors’ and Officers’ Insurance.
(a) In the event of any threatened or actual claim, action, suit, proceeding or
investigation, whether civil, criminal or administrative, including any such claim, action, suit,
proceeding or investigation (each a “Claim”) in which any individual who is now, or has been at
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any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a
director or officer of PFC or any of PFC Subsidiaries or who is or was serving at the request of
PFC or any of PFC Subsidiaries as a director, officer, employee, member or otherwise of another
Person (the “Indemnified Parties”), is, or is threatened to be, made a party based in whole or in
part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a
director or officer of PFC or any of PFC Subsidiaries or was serving at the request of PFC or any
of PFC Subsidiaries as a director or officer of another Person or (ii) this Agreement or any of the
transactions this Agreement contemplates, whether asserted or arising before or after the Effective
Time, the parties shall cooperate and use their best efforts to defend against and respond thereto.
From and after the Effective Time, FNB shall, and shall cause the Surviving Company to, indemnify,
defend and hold harmless, as and to the fullest extent currently provided under applicable law, the
PFC Articles, the PFC Bylaws as in effect on the date hereof and any agreement set forth in Section
6.7 of the PFC Disclosure Schedule, each such Indemnified Party against any losses, claims,
damages, liabilities, costs, expenses, including reimbursement for reasonable fees and expenses,
including fees and expenses of legal counsel, including local counsel, incurred in advance of the
final disposition of any claim, suit, proceeding or investigation upon receipt of any undertaking
required by applicable law, judgments, fines and amounts paid in settlement in connection with any
such threatened or actual claim, action, suit, proceeding or investigation.
(b) FNB and the Surviving Company agree that all rights to indemnification of liabilities,
including advancement of expenses, and all limitations with respect thereto, existing in favor of
any Indemnified Person, as provided in the PFC Articles or the PFC Bylaws, shall survive the Merger
and shall continue in full force and effect, without any amendment thereto; provided, however, that
in the event any Claim is asserted or made, any determination required to be made with respect to
whether an Indemnified Person’s conduct complies with the standards set forth under the PBCL, the
PFC Articles or the PFC Bylaws, as the case may be, shall be made by independent legal counsel,
whose fees and expenses shall be paid by FNB and the Surviving Company, selected by such
Indemnified Person and reasonably acceptable to FNB; and, provided further that nothing in this
Section 6.7 shall impair any rights or obligations of any current or former director or officer of
PFC or its Subsidiaries, including pursuant to the respective organizational documents of PFC, or
their respective Subsidiaries, under the PBCL or otherwise.
(c) Prior to the Effective Time, FNB shall obtain at the expense of PFC, and FNB shall
maintain for a period of six years following the Effective Time, directors’ and officers’ liability
insurance and fiduciary liability insurance policies in respect of acts or omissions occurring at
or prior to the Effective Time, including the transactions this Agreement contemplates, covering
the Indemnified Persons who as of the Effective Time are covered by PFC’s directors’ and officers’
liability insurance or fiduciary liability insurance policies, provided that FNB may substitute
therefor policies of at least the same coverage and amounts containing terms and conditions that
are not less advantageous than such policies of PFC or single premium tail coverage with policy
limits equal to PFC’s existing coverage limits, provided that in no event shall FNB be required to
expend for any one year an amount in excess of 150% of the annual premium currently paid by PFC for
such insurance (the “Insurance Amount”), and further provided that if FNB is unable to maintain or
obtain the insurance called for by this Section 6.7(c) as a result of the preceding provision, FNB
shall use its commercially
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reasonable best efforts to obtain the most advantageous coverage as is available for the
maximum Insurance Amount. The provisions of the immediately preceding sentence shall be deemed to
have been satisfied if prepaid policies have been obtained prior to the Effective Time from an
insurer or insurers selected by FNB that have an insurer financial strength rating by A.M. Best Co.
of at least “A”, which policies provide the Indemnified Persons with coverage, from the Effective
Time to the sixth anniversary of the Effective Time, including in respect of the transactions this
Agreement contemplates, on terms that are no less advantageous to Indemnified Persons than PFC’s
D&O Insurance existing immediately prior to the date of this Agreement. If such prepaid policies
have been obtained prior to the Effective Time, then the FNB shall maintain such policies in full
force and effect and continue the obligations thereunder.
(d) The provisions of this Section 6.7 shall survive the Effective Time and are intended
to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs
and representatives.
6.8 Additional Agreements. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this Agreement, including any
merger between a Subsidiary of FNB, on the one hand, and a Subsidiary of PFC, on the other hand, or
to vest the Surviving Company with full title to all properties, assets, rights, approvals,
immunities and franchises of either party to the Merger, the proper officers and directors of each
party and their respective Subsidiaries shall take all such necessary action as may be reasonably
requested by, and at the sole expense of, FNB.
6.9 Advice of Changes. Each of FNB and PFC shall promptly advise the other of any
change or event (i) having or reasonably likely to have a Material Adverse Effect on it or (ii)
that it believes would or would be reasonably likely to cause or constitute a material breach of
any of its representations, warranties or covenants contained in this Agreement; provided, however,
that no such notification shall affect the representations, warranties, covenants or agreements of
the parties, or remedies with respect thereto, or the conditions to the obligations of the parties
under this Agreement; provided, further, that a failure to comply with this Section 6.9 shall not
constitute the failure of any condition set forth in Article VII to be satisfied unless the
underlying Material Adverse Effect or material breach would independently result in the failure of
a condition set forth in Article VII to be satisfied.
6.10 Dividends. PFC may pay regular quarterly cash dividends on the PFC Common Stock
at a rate not in excess of the regular quarterly cash dividend ($0.02 per share) declared prior to
the date of this Agreement on the PFC Common Stock, provided that, notwithstanding the foregoing
provisions of this Section 6.10, after the date of this Agreement PFC shall coordinate the
declarations of any dividends in respect of the PFC Common Stock and the record dates and payment
dates relating thereto with FNB’s declaration of regular quarterly dividends on the FNB Common
Stock and the record dates and payment dates relating thereto, it being the intention of PFC and
FNB that holders of PFC Common Stock shall not receive two dividends, or fail to receive one
dividend, in any quarter with respect to their shares of PFC Common Stock and any shares of FNB
Common Stock such holders receive in exchange therefor in the Merger.
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6.11 Certain Actions.
(a) From the date of this Agreement through the Effective Time, except as otherwise
permitted by this Section 6.11, PFC will not, and will not authorize or permit any of its
directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors,
agents, affiliates or representatives (collectively, “PFC Representatives”) to, directly or
indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of
furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any
inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate
in any discussions or negotiations with, furnish any information relating to PFC or any of the PFC
Subsidiaries or afford access to the business, properties, assets, books or records of PFC or any
of the PFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate
in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an
Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or
recommend or enter into any letter of intent or similar document or any contract, agreement or
commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PFC and its Board of
Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the
Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PFC
shall not withdraw or modify in a manner adverse to FNB the PFC Recommendation except as set forth
in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any
information to, any third party in response to a Superior Proposal, as defined in Section
6.11(e)(ii), by any such third party, if and only to the extent that (x) PFC’s Board of Directors
concludes in good faith, after consultation with outside counsel, that failure to do so could
reasonably be expected to breach its fiduciary duties under applicable law, (y) prior to providing
any information or data to any third party in connection with a Superior Proposal by any such third
party, PFC’s Board of Directors receives from such third party an executed confidentiality
agreement, which confidentiality terms shall be no less favorable to PFC than those contained in
the Confidentiality Agreements between PFC and FNB, a copy of which executed confidentiality
agreement shall have been provided to FNB for informational purposes and (z) at least 48 hours
prior to providing any information or data to any third party or entering into discussions or
negotiations with any third party, PFC promptly notifies FNB in writing of the name of such third
party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw,
modify, qualify in a manner adverse to FNB, condition or refuse to make the PFC Recommendation (the
“Change in PFC Recommendation”) if PFC’s Board of Directors concludes in good faith, after
consultation with outside counsel and financial advisors, that failure to do so could reasonably be
expected to breach its fiduciary duties under applicable law. Notwithstanding any Change of PFC
Recommendation, this Agreement shall be submitted to the shareholders of PFC at the PFC
Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing
contained herein shall be deemed to relieve PFC of such obligation; provided,
however, that if the Board of Directors of PFC shall have effected a Change of PFC
Recommendation, then the Board of Directors of PFC may submit this Agreement to PFC’s shareholders
without recommendation (although the resolutions adopting this Agreement as of the date hereof may
not be rescinded), in which event the Board of Directors of PFC may communicate the basis for its
lack of a recommendation to
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PFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to
the extent required by applicable law. In addition to the foregoing, PFC shall not submit to the
vote of its shareholders any Acquisition Proposal other than the Merger prior to any termination of
this Agreement.
(c) PFC will promptly, and in any event within 24 hours, notify FNB in writing of the
receipt of any Acquisition Proposal or any information related thereto, which notification shall
describe the Acquisition Proposal and identify the third party making the same.
(d) PFC agrees that it will, and will cause the PFC Representatives to, immediately cease
and cause to be terminated any activities, discussions or negotiations existing as of the date of
this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PFC
or its Representatives shall promptly after the date of this Agreement instruct each Person which
has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for
the benefit of PFC to promptly return or destroy (which destruction shall be certified in writing
by such Person to PFC) all information, documents and materials relating to an Acquisition Proposal
or to PFC or its businesses, operations or affairs heretofore furnished by PFC or any of its
Representatives to such Person or any of such Person’s Representatives in accordance with the terms
of any confidentiality agreement with such Person and to destroy all summaries, analyses or
extracts of or based upon such information in the possession of such Person or any of its
Representatives.
(e) For purposes of this Agreement:
(i) The term “Acquisition Proposal” means any inquiry, proposal or offer, filing of any
regulatory application or notice, whether in draft or final form, or disclosure of an intention to
do any of the foregoing by or from any Person relating to any (w) direct or indirect acquisition or
purchase of a business that constitutes a substantial, i.e., 20% or more, portion of the net
revenues, net income or net assets of PFC and the PFC Subsidiaries, taken as a whole, (x) direct or
indirect acquisition or purchase of PFC Common Stock after the date of this Agreement by a Person
who by reason of such purchase or acquisition first becomes the owner of 15% or more of PFC Common
Stock after the date of this Agreement, (y) tender offer or exchange offer that if consummated
would result in any Person beneficially owning 15% or more of any class of equity securities of PFC
or (z) merger, consolidation, business combination, recapitalization, liquidation, dissolution or
similar transaction involving PFC other than the transactions this Agreement contemplates.
(ii) The term “Superior Proposal” means any bona fide, unsolicited written Acquisition
Proposal made by a Third Party to acquire more than 50% of the combined voting power of the shares
of PFC Common Stock then outstanding or all or substantially all of PFC’s consolidated assets for
consideration consisting of cash and/or securities that is on terms that the Board of Directors of
PFC in good faith concludes, after consultation with its financial advisors and outside counsel,
taking into account, among other things, all legal, financial, regulatory and other aspects of the
proposal and the person making the proposal, including any break-up fees, expense reimbursement
provisions and conditions to consummation, (A) is on terms that the Board of Directors of PFC in
its good faith judgment believes to be more favorable to the holders
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of PFC Common Stock than the Merger, (B) for which financing, to the extent required, is then
fully committed or reasonably determined to be available by the Board of Directors of PFC and (C)
is reasonably capable of being completed.
(iii) For purposes of this Section 6.11, “Third Party” means any person as defined in
Section 13(d) of the Exchange Act other than FNB or its affiliates.
(f) If a Payment Event, as defined in Section 6.11(g), occurs, PFC shall pay to FNB by
wire transfer of immediately available funds, within two business days following such Payment
Event, a fee of $6.0 million (the “Break-up Fee”), provided, however, that if a Payment Event
occurs, PFC shall have no obligation to pay FNB’s expenses under Section 9.3(b).
(g) The term “Payment Event” means any of the following:
(i) the termination of this Agreement by FNB pursuant to Section 8.1(f)(i);
(ii) the termination of this Agreement by PFC pursuant to Section 8.1(g);
(iii) the termination of this Agreement pursuant to any other provision of Section 8.1
following the commencement of a tender offer or exchange offer for 25% or more of the outstanding
shares of PFC Common Stock and PFC shall not have sent to its shareholders, within 10 business days
after the commencement of such tender offer or exchange offer, a statement that the Board of
Directors of PFC recommends rejection of such tender offer or exchange offer;
(iv) the occurrence of any of the following events within 12 months of the termination of
this Agreement pursuant to Section 8.1(f)(i), provided that an Acquisition Proposal shall have been
made by a Third Party after the date of this Agreement and prior to such termination that shall not
have been withdrawn in good faith prior to such termination: (A) PFC enters into an agreement to
merge with or into, or be acquired, directly or indirectly, by merger or otherwise by, such Third
Party, (B) such Third Party, directly or indirectly, acquires substantially all of the total assets
of PFC and the PFC Subsidiaries, taken as a whole or (C) such Third Party, directly or indirectly,
acquires more than 50% of the outstanding shares of PFC Common Stock.
(h) PFC acknowledges that the agreements contained in Section 6.11(f) are an integral part
of the transactions contemplated in this Agreement and that without these agreements FNB would not
enter into this Agreement. Accordingly, in the event PFC fails to pay to FNB the Break-up Fee,
promptly when due, PFC shall, in addition thereto, pay to FNB all costs and expenses, including
attorneys’ fees and disbursements, incurred in collecting such Break-up Fee together with interest
on the amount of the Break-up Fee or any unpaid portion thereof, from the date such payment was due
until the date such payment is received by FNB, accrued at the fluctuating prime rate as quoted in
The Wall Street Journal as in effect from time to time during the period.
6.12 Transition. Commencing following the date of this Agreement, FNB and PFC
shall, and shall cause their respective Subsidiaries to, use their reasonable best efforts to
facilitate
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the integration, from and after the Closing, of PFC and the PFC Subsidiaries with the
businesses of FNB and its Subsidiaries, without taking action that would, in effect, give FNB
control over the management or policies of PFC or any of the PFC Subsidiaries. Without limiting
the generality of the foregoing, from the date of this Agreement through the Closing Date and
consistent with the performance of their day-to-day operations, the continuous operation of PFC and
the PFC Subsidiaries in the ordinary course of business and applicable law, PFC shall cause the
employees and officers of PFC and the PFC Subsidiaries, including PFC Bank, to cooperate with FNB
in performing tasks reasonably required in connection with such integration.
6.13 Tax Representation Letters. Officers of FNB and PFC shall execute and
deliver to Xxxx Xxxxx LLP, tax counsel to FNB, and Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., tax
counsel to PFC, “Tax Representation Letters” substantially in the form agreed to by the parties and
such law firms at such time or times as may be reasonably requested by such law firms, including at
the time the Proxy Statement and Registration Statement are declared effective by the SEC and at
the Effective Time, in connection with such tax counsel’s delivery of opinions pursuant to Section
7.2(c) and Section 7.3(c) of this Agreement.
6.14 Certain Post-Closing Matters.
(a) FNB shall take action necessary to appoint or elect, effective as of the Effective
Time, the PFC Designee as a director of FNB. Such person shall fill a vacancy on the FNB Board of
Directors and shall serve until his successor is elected and qualified.
(b) FNB agrees to take all action necessary to appoint or elect, effective as of the
Effective Time, as a director of FNB Bank one (1) current member of the Board of Directors of PFC
or PFC Bank (the “PFC Bank Designee”) as mutually agreed by FNB and PFC. The PFC Bank Designee
shall serve until the election of his or her successor.
(c) The commitments set forth in this Section 6.14 shall survive the Effective Time as
reflected in a formal resolution of the FNB Board and the FNB Bank Board to be reflected in the
minutes of FNB as the Surviving Company of the Merger and FNB Bank as the Surviving Bank in the
Bank Merger.
6.15 Preferred Stock Held by U.S. Treasury. PFC and FNB each shall use its reasonable
best efforts to cause or facilitate (a) the purchase by FNB or one of its Subsidiaries of, or (b)
the repurchase or redemption by PFC of, all of the issued and outstanding shares of PFC Series A
Preferred Stock and, at the election of FNB, the PFC Warrant from the Treasury Department prior to
or concurrently with the Effective Time of the Merger. FNB will fund the purchase by FNB (or one
of its Subsidiaries), or the redemption by PFC, of all of the PFC Series A Preferred Stock from the
Treasury Department. The method of funding of such purchase or redemption shall be mutually agreed
to by FNB and PFC, subject to any formal or informal Treasury Department requirements. In
furtherance of the foregoing, PFC shall provide, and shall cause its Subsidiaries and the PFC
Representatives to provide, all reasonable cooperation and take all reasonable actions as may be
requested by FNB in connection with such purchase or redemption, including by (i) furnishing all
information concerning PFC and its Subsidiaries that FNB or any applicable Governmental Entity may
request in connection with such purchase or redemption or with respect to the effects of such
purchase on FNB or its pro forma capitalization;
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(ii) assisting with the preparation of any analyses or presentations FNB deems necessary or
advisable in its reasonable judgment in connection with such purchase, repurchase or redemption or
the effects thereof; and (iii) entering into any agreement with such holder (including any letter
agreement among PFC, FNB and such holder) to effect the purchase, repurchase or redemption of such
shares as FNB may reasonably request. In addition, if the PFC Series A Preferred Stock will be
redeemed by PFC, FNB agrees to purchase from PFC, and PFC agrees to issue to FNB, such equity or
debt instruments as the parties mutually agree in good faith.
6.16 Assumption of Certain PNC Indebtedness. PFC and FNB shall use their
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 to obtain the written consent of PNC Bank, National
Association (“Lender”) to the assumption by FNB or an FNB Subsidiary, on terms and conditions that
are reasonably satisfactory to FNB, of that certain Loan Agreement, dated as of December 30, 2008,
between PFC and Lender, under which a $25 million term loan has been extended to PFC.
6.17 Phase I Environmental Audit. PFC shall permit FNB, if FNB elects to do so at its
own cost and expense, to cause a “phase I environmental audit” to be performed at any physical
location owned or occupied by PFC or any PFC Subsidiary. FNB must commence a “phase I
environmental audit” within thirty (30) days of the date of this Agreement or FNB’s right to
perform such an audit shall be waived. The results of any such audit shall be provided to PFC
within five business days of receipt by FNB.
ARTICLE
7
CONDITIONS PRECEDENT
7.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective
obligations of the parties to effect the Merger shall be subject to the satisfaction or waiver,
where permitted by applicable law, at or prior to the Effective Time of the following conditions:
(a) Shareholder Approval. This Agreement and the Merger this Agreement
contemplates shall have been approved and adopted by the requisite affirmative vote of the holders
of PFC Common Stock entitled to vote thereon.
(b) NYSE Listing. The shares of FNB Common Stock to be issued to the holders of
PFC Common Stock upon consummation of the Merger shall have been authorized for listing on the
NYSE, subject to official notice of issuance, provided FNB shall have used its reasonable best
efforts to cause such authorization of listing on the NYSE.
(c) Regulatory Approvals. All regulatory approvals required to be received from
any Governmental Entity, as set forth in Sections 3.4 and 4.4, in order to consummate the
transactions this Agreement contemplates, including the Merger, shall have been obtained and shall
remain in full force and effect and all statutory waiting periods in respect thereof shall have
expired, all such approvals and the expiration of all such waiting periods being referred as the
“Requisite Regulatory Approvals”.
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(d) Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that purpose shall have been
initiated or threatened by the SEC.
(e) No Injunctions or Restraints; Illegality. No order, injunction or decree
issued by any court or agency of competent jurisdiction or other legal restraint or prohibition (an
“Injunction”) preventing the consummation of the Merger or any of the other transactions this
Agreement contemplates shall be in effect, provided FNB shall have used its reasonable best efforts
to have removed, lifted or resolved such legal restraint or prohibition. No statute, rule,
regulation, order, Injunction or decree shall have been enacted, entered, promulgated or enforced
by any Governmental Entity that prohibits or makes illegal consummation of the Merger.
7.2 Conditions to Obligation of FNB to Effect the Merger. The obligation of FNB
to effect the Merger is also subject to the satisfaction or waiver by FNB, where permitted by
applicable law, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of PFC
contained in this Agreement that are qualified by materiality, including Section 3.16, or contained
in Section 3.2 shall be true and correct as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date and the representations and warranties of PFC
contained in this Agreement that are not so qualified shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though made on and as of
the Closing Date, except in each case to the extent any such representation or warranty expressly
speaks as of an earlier specified date, in which case, as of such date, except in each case where
the failure of the representations and warranties, other than the representations and warranties
set forth in Section 3.1, to be so true and correct, without giving effect to any qualification as
to “material,” “materiality,” “material adverse effect” or similar qualifications, are not,
individually or in the aggregate, reasonably likely to result in a Material Adverse Effect on PFC,
and FNB shall have received a certificate signed on behalf of PFC by the Chief Executive Officer or
the Chief Financial Officer of PFC to the foregoing effect.
(b) Performance of Obligations of PFC. PFC shall have performed in all material
respects all obligations required to be performed by it under this Agreement at or prior to the
Closing Date and FNB shall have received a certificate signed on behalf of PFC by the Chief
Executive Officer or the Chief Financial Officer of PFC to such effect.
(c) Federal Tax Opinion. FNB shall have received the opinion of its counsel, Xxxx
Xxxxx LLP, in form and substance reasonably satisfactory to FNB, dated the Closing Date, to the
effect that, on the basis of facts, representations and assumptions set forth in such opinion, the
Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code. In
rendering such opinion, counsel may require and rely upon representations contained in certificates
of officers of PFC and FNB, reasonably satisfactory in form and substance to it.
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(d) No Materially Burdensome Regulatory Condition. None of the Requisite
Regulatory Approvals shall have resulted in the imposition of a Materially Burdensome Regulatory
Condition.
7.3 Conditions to Obligation of PFC to Effect the Merger. The obligation of PFC
to effect the Merger is also subject to the satisfaction or waiver by PFC, where permitted by
applicable law, at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and warranties of FNB
contained in this Agreement that are qualified by materiality shall be true and correct as of the
date of this Agreement and as of the Closing Date as though made on and as of the Closing Date and
the representations and warranties of FNB contained in this Agreement that are not so qualified
shall be true and correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date, except in each case to the extent any
such representation or warranty expressly speaks as of an earlier specified date, in which case, as
of such date, except in each case where the failure of the representations and warranties to be so
true and correct, without giving effect to any qualification as to “material,” “materiality,”
“material adverse effect” or similar qualifications, are not, individually or in the aggregate,
reasonably likely to result in a Material Adverse Effect on FNB, and PFC shall have received a
certificate signed on behalf of FNB by the Chief Executive Officer or the Chief Financial Officer
of FNB to the foregoing effect.
(b) Performance of Obligations of FNB. FNB shall have performed in all material
respects all obligations required to be performed by it under this Agreement at or prior to the
Closing Date, and PFC shall have received a certificate signed on behalf of FNB by the Chief
Executive Officer or the Chief Financial Officer of FNB to such effect.
(c) Federal Tax Opinion. PFC shall have received the opinion of its special tax
counsel, Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., in form and substance reasonably satisfactory to
PFC, dated the Closing Date, to the effect that, on the basis of facts, representations and
assumptions set forth in such opinion, the Merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code. In rendering such opinion, counsel may require and rely
upon representations contained in certificates of officers of PFC and FNB, reasonably satisfactory
in form and substance to it.
ARTICLE
8
TERMINATION AND AMENDMENT
8.1 Termination. This Agreement may be terminated at any time prior to the
Effective Date, and the Merger may be abandoned:
(a) Mutual Consent. By the mutual consent in writing of FNB and PFC if the Board
of Directors of each so determines by vote of a majority of the members of its entire Board.
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(b) Breach.
(i) By FNB, if (A) any of the representations and warranties of PFC contained in this
Agreement shall fail to be true and correct such that the condition set forth in Section 7.2(a)
would not be satisfied or (B) PFC shall have breached or failed to comply with any of its
obligations under this Agreement such that the conditions set forth in Sections 7.1 or 7.2(b) would
not be satisfied, in either case other than as a result of a material breach by FNB of any of its
obligations under this Agreement and such failure or breach with respect to any such
representation, warranty or obligation cannot be cured, or, if curable, shall continue unremedied
for a period of 30 days after PFC has received written notice from FNB of the occurrence of such
failure or breach, but in no event shall such 30-day period extend beyond April 30, 2012.
(ii) By PFC, if (A) any of the representations and warranties of FNB contained in this
Agreement shall fail to be true and correct such that the condition set forth in Section 7.3(a)
would not be satisfied or (B) FNB shall have breached or failed to comply with any of its
obligations under this Agreement such that the conditions set forth in Sections 7.1 or 7.3(b) would
not be satisfied, in either case other than as a result of a material breach by PFC of any of its
obligations under this Agreement and such failure or breach with respect to any such
representation, warranty or obligation cannot be cured, or, if curable, shall continue unremedied
for a period of 30 days after FNB has received written notice from PFC of the occurrence of such
failure or breach, but in no event shall such 30-day period extend beyond April 30, 2012.
(c) Delay. By FNB or PFC, if its Board of Directors so determines by vote of a
majority of the members of its entire Board, in the event that the Merger is not consummated on or
before 5:00 p.m., Eastern Daylight Time on April 30, 2012, except to the extent that the failure of
the Merger then to be consummated by such date shall be due to the failure of the party seeking to
terminate pursuant to this Section 8.1(c) to perform or observe the covenants and agreements of
such party set forth in this Agreement.
(d) No Regulatory Approval. By FNB or PFC, if its Board of Directors so
determines by a vote of a majority of the members of its entire Board, in the event the approval of
any Governmental Entity required for consummation of the Merger this Agreement contemplates shall
have been denied by final nonappealable action of such Governmental Entity or an application
therefor shall have been permanently withdrawn at the request of a Governmental Entity, provided,
however, that no party shall have the right to terminate this Agreement pursuant to this Section
8.1(d) if such denial shall be due to the failure of the party seeking to terminate this Agreement
to perform or observe the covenants of such party set forth in this Agreement.
(e) No PFC Shareholder Approval. By FNB, or by PFC provided that PFC shall not be
in material breach of any of its obligations under Section 6.3, if any approval of the shareholders
of PFC this Agreement contemplates shall not have been obtained by reason of the failure to obtain
the required vote at the PFC Shareholders Meeting or at any adjournment or postponement thereof.
(f) Failure to Recommend. At any time prior to the PFC Shareholders Meeting, by
FNB if (i) PFC shall have breached Section 6.3 in any respect materially adverse to
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FNB, (ii) the PFC Board of Directors shall have failed to make the PFC Recommendation or shall
have effected a Change in PFC Recommendation, (iii) the PFC Board shall have recommended approval
of an Acquisition Proposal or (iv) PFC shall have materially breached its obligations under Section
6.3 by failing to call, give notice of, convene and hold the PFC Shareholder Meeting.
(g) Superior Proposal. At any time prior to the date of mailing of the Proxy
Statement, by PFC in order to enter concurrently into an Acquisition Proposal that has been
received by PFC and the PFC Board of Directors in compliance with Sections 6.11(a) and (b) and that
PFC’s Board of Directors concludes in good faith, in consultation with its financial and legal
advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this
Agreement may be terminated by PFC pursuant to this Section 8.1(g) only after the fifth business
day following PFC’s provision of written notice to FNB advising FNB that the PFC Board of Directors
is prepared to accept a Superior Proposal, it being agreed that the delivery of such notice shall
not entitle FNB to terminate this Agreement pursuant to this Section 8.1(g) and only if (i) during
such five-business day period, PFC has caused its financial and legal advisors to negotiate with
FNB in good faith to make such adjustments in the terms and conditions of this Agreement such that
such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) PFC’s Board of
Directors has considered such adjustments in the terms and conditions of this Agreement resulting
from such negotiations and has concluded in good faith, based upon consultation with its financial
and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving
effect to the adjustments proposed by FNB and further provided that such termination shall not be
effective until PFC has paid the Break-up Fee provided by Section 6.11(f) to FNB.
8.2 Effect of Termination. In the event of termination of this Agreement by
either FNB or PFC as provided in Section 8.1, this Agreement shall forthwith become void and have
no effect except (i) Sections 6.2(b), 6.11(f)-(i), 8.2, 8.3, 9.3 and 9.8 shall survive any
termination of this Agreement and (ii) notwithstanding anything to the contrary contained in this
Agreement (other than the provisions of Section 6.11(i)), no party shall be relieved or released
from any liability or damages arising out of its willful breach of any of the provisions of this
Agreement.
8.3 Amendment. Subject to compliance with applicable law, this Agreement may be
amended by the parties, by action taken or authorized by their respective Boards of Directors at
any time before or after approval of the matters presented in connection with Merger by the
shareholders of PFC; provided, however, that after any approval of the transactions this Agreement
contemplates by the shareholders of PFC, there may not be, without further approval of the PFC
shareholders, any amendment of this Agreement that requires such further approval under applicable
law. This Agreement may not be amended except by an instrument in writing signed on behalf of each
of the parties.
8.4 Extension; Waiver. At any time prior to the Effective Time, the parties, by
action taken or authorized by their respective Board of Directors, may, to the extent legally
allowed, (i) extend the time for the performance of any of the obligations or other acts of the
other party, (ii) waive any inaccuracies in the representations and warranties contained in this
Agreement and (iii) waive compliance with any of the agreements or conditions contained in this
Agreement; provided, however, that after any approval of the transactions this Agreement
contemplates by
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the shareholders of PFC, there may not be, without further approval of the PFC shareholders,
any extension or waiver of this Agreement or any portion of this Agreement that changes the amount
or form of the consideration to be delivered to the holders of PFC Common Stock under this
Agreement, other than as this Agreement contemplates. Any agreement on the part of a party to any
such extension or waiver shall be valid only if set forth in a written instrument signed on behalf
of such party, but such extension or waiver or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
ARTICLE 9
GENERAL PROVISIONS
9.1 Closing. On the terms and subject to the conditions set forth in this
Agreement, the closing of the Merger (the “Closing”) shall take place at a time and on a date and
at a place to be specified by the parties, which date shall be no later than five business days
after the satisfaction or waiver, subject to applicable law, of the latest to occur of the
conditions set forth in Article 7, other than those conditions that by their nature are to be
satisfied or waived at the Closing, unless extended by mutual written agreement of the parties (the
“Closing Date”).
9.2 Nonsurvival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and agreements set forth in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective Time, except for
Articles 1, 2 and 9 and Sections 6.6, 6.7, 6.8 and 6.14.
9.3 Expenses.
(a) Each party to this Agreement will bear all expenses incurred by it in connection with
this Agreement and the transactions this Agreement contemplates, including fees and expenses of its
own financial consultants, accountants and counsel, except that expenses of printing the Proxy
Statement and the registration fee to be paid to the SEC in connection with the Registration
Statement shall be shared equally between PFC and FNB, and provided further that nothing contained
in this Agreement shall limit either party’s rights to recover any liabilities or damages arising
out of the other party’s willful breach of any provision of this Agreement.
(b) In the event that this Agreement is terminated by:
(i) FNB pursuant to Section 8.1(b)(i); or
(ii) PFC pursuant to Section 8.1(b)(ii).
then the non-terminating party shall pay to the terminating party by wire transfer of immediately
available funds, within two business days following delivery of a statement of such expenses, all
out-of-pocket costs and expenses, up to a maximum of $500,000, including without limitation,
professional fees of legal counsel, financial advisors and accountants, and their expenses,
actually incurred by the terminating party in connection with the Merger and this Agreement.
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9.4 Notices. All notices and other communications in connection with this
Agreement shall be in writing and shall be deemed given if delivered personally, sent via
facsimile, with confirmation, mailed by registered or certified mail, return receipt requested, or
delivered by an express courier, with confirmation, to the parties at the following addresses or at
such other address for a party as shall be specified by like notice:
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(a)
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if to PFC, to: |
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Parkvale Financial Corporation |
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0000 Xxxxxxx Xxxx Xxxxxxx |
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Xxxxxxxxxxx, XX 00000 |
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Attention: Xxxxxx X. XxXxxxxx, Xx., President and CEO |
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Facsimile: 000-000-0000 |
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with a copy to: |
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Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. |
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000 00xx Xxxxxx, X.X., 00xx Xxxxx |
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Xxxxxxxxxx, XX 00000 |
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Attention: Xxxxxx X. Xxxxxx, Xx., Esq. |
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Facsimile: 000-000-0000 |
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(b)
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if to FNB, to: |
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F.N.B. Corporation |
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Xxx X.X.X. Xxxxxxxxx |
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Xxxxxxxxx, XX 00000 |
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Attention: Xxxxxxx X. Xxxxxxxxx, Chief Executive Officer |
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Facsimile: (000) 000-0000 |
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with a copy to: |
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Xxxx Xxxxx LLP |
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Xxxx Xxxxx Centre |
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000 Xxxxx Xxxxxx |
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Xxxxxxxxxx, XX 00000 |
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Attention: Xxxx X. Xxxxxx, Esq. |
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Facsimile: (000) 000-0000 |
9.5 Interpretation. When a reference is made in this Agreement to Articles,
Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or
Schedule to this Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by the words “without
limitation.” The PFC Disclosure Schedule and the FNB Disclosure Schedule, as well as all other
schedules and all exhibits to this Agreement, shall be deemed part of this Agreement and included
in any
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reference to this Agreement. This Agreement shall not be interpreted or construed to require
any person to take any action, or fail to take any action, if to do so would violate any applicable
law. In this Agreement, “knowledge” or “Knowledge” means the knowledge as of the date referenced
of executive officers of the applicable party following inquiry of persons within their
organization and its Subsidiaries who would be reasonably expected to be knowledgeable about the
relevant subject matter.
9.6 Counterparts. This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
9.7 Entire Agreement. This Agreement, including the documents and the instruments
referred to in this Agreement, together with the Confidentiality Agreements, constitutes the entire
agreement and supersedes all prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter of this Agreement, other than the Confidentiality
Agreements.
9.8 Governing Law; Jurisdiction.
(a) This Agreement, the Merger and all claims arising hereunder or relating to this
Agreement shall be governed and construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to the principles of conflicts of law thereof.
(b) Each of the parties to this Agreement irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of any Pennsylvania state court or the
United States District Court for the Western District of Pennsylvania, in any action or proceeding
arising out of or relating to this Agreement. Each of the parties to this Agreement agrees that,
subject to rights with respect to post-trial motions and rights of appeal or other avenues of
review, a final judgment in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the
parties to this Agreement irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any
Pennsylvania state court or the United States District Court for the Western District of
Pennsylvania. Each of the parties to this Agreement irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
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CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.8.
9.9 Severability. Except to the extent that application of this Section 9.9 would
have a Material Adverse Effect on PFC or FNB, any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable. In all such cases, the parties shall use their reasonable best efforts to
substitute a valid, legal and enforceable provision that, insofar as practicable, implements the
original purposes and intents of this Agreement.
9.10 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned by either of the parties,
whether by operation of law or otherwise, without the prior written consent of the other party.
Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of
and be enforceable by each of the parties and their respective successors and assigns. Except as
otherwise specifically provided in Section 6.6, 6.7 and 6.14, this Agreement, including the
documents and instruments referred to in this Agreement, is not intended to and does not confer
upon any person other than the parties to this Agreement any rights or remedies under this
Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the duly authorized officers of F.N.B. Corporation and Parkvale Financial
Corporation have executed this Agreement as of the date first above written.
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F.N.B. CORPORATION
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By: |
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, |
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Chief Executive Officer |
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PARKVALE FINANCIAL CORPORATION
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By: |
/s/ Xxxxxx X. XxXxxxxx, Xx.
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Xxxxxx X. XxXxxxxx, Xx. |
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President and Chief Executive Officer |
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EXHIBIT A
AGREEMENT OF MERGER
Agreement of Merger, dated as of _________ ___, 2011, by and between First National Bank of
Pennsylvania (“FNB Bank”) and Parkvale Savings Bank (“PS Bank”). All capitalized terms used herein
but not defined herein shall have the respective meanings assigned to them in the
Agreement and
Plan of Merger (the “Agreement”) dated as of June 15, 2011, between F.N.B. Corporation (“FNB”) and
Parkvale Financial Corporation (“PFC”).
WlTNESSETH:
WHEREAS, PS Bank is a Pennsylvania banking institution and a wholly owned subsidiary of PFC;
and
WHEREAS, FNB Bank is a national association and a wholly owned subsidiary of FNB; and
WHEREAS, FNB and PFC have entered into the Agreement, pursuant to which PFC will merge with
and into FNB (the “FNB Merger”); and
WHEREAS, PS Bank and FNB Bank desire to merge on the terms and conditions herein provided
immediately following the effective time of the FNB Merger.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound hereby, agree as follows:
1. The Merger. Subject to the terms and conditions of the Agreement and this
Agreement of Merger, at the Effective Time (as defined in Section 2), PS Bank shall merge with and
into FNB Bank (the “Bank Merger”) under the laws of the United States and of the Commonwealth of
Pennsylvania. FNB Bank shall be the surviving bank of the Bank Merger (the “Surviving Bank”).
2. Effective Time. The Bank Merger shall become effective on the date, and at the
time, that Articles of Combination are filed with the Office of the Comptroller of the Currency
(the “OCC”) and Articles of Merger are filed with the Pennsylvania Department of State (the
“Department”) unless a later date and time is specified as the Effective Time in such Articles of
Combination and Articles of Merger (the “Effective Time”).
3. Charter; Bylaws. The Charter and Bylaws of FNB Bank in effect immediately prior to
the Effective Time shall be the Charter and Bylaws of the Surviving Bank, until altered, amended or
repealed in accordance with their terms and applicable law.
4. Name; Offices. The name of the Surviving Bank shall be “First National Bank of
Pennsylvania.” The main office of the Surviving Bank shall be the main office of FNB Bank
immediately prior to the Effective Time. All branch offices of PS Bank and FNB Bank that were in
lawful operation immediately prior to the Effective Time shall be the branch offices of the
Surviving Bank upon consummation of the Bank Merger, subject to the opening or closing of any
offices that may be authorized by PS Bank, FNB Bank, the OCC or the Department after the date
hereof. Schedule I hereto contains a list of each of the deposit taking offices of PS Bank and
FNB Bank that
A-1
shall be operated by the Surviving Bank, subject to the opening or closing of any offices that
may be authorized by PS Bank, FNB Bank, the OCC and the Department after the date hereof.
5. Directors and Executive Officers. Upon consummation of the Merger, (i) the
directors of the FNB Bank immediately prior to the Effective Time shall continue as directors of
the Surviving Bank as provided in the Agreement, and (ii) the executive officers of the Surviving
Bank shall be the executive officers of FNB Bank immediately prior to the Effective Time.
6. Effects of the Merger. Upon consummation of the Bank Merger, and in addition to
the effects set forth at 12 U.S.C. § 215a and the Pennsylvania Banking Code and other applicable
law:
(a) all rights, franchises and interests of PS Bank in and to every type of property (real,
personal and mixed), tangible and intangible, and choses in action shall be transferred to and
vested in the Surviving Bank by virtue of the Bank Merger without any deed or other transfer, and
the Surviving Bank, without any order or other action on the part of any court or otherwise, shall
hold and enjoy all rights of property, franchises and interests, including appointments,
designations and nominations, and all other rights and interests as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver and
committee, and in every other fiduciary capacity, in the same manner and to the same extent as such
rights, franchises and interest were held or enjoyed by PS Bank immediately prior to the Effective
Time; and
(b) the Surviving Bank shall be liable for all liabilities of PS Bank, fixed or contingent,
including all deposits, accounts, debts, obligations and contracts thereof, matured or unmatured,
whether accrued, absolute, contingent or otherwise, and whether or not reflected or reserved
against on balance sheets, books of account or records thereof, and all rights of creditors or
obligees and all liens on property of PS Bank shall be preserved unimpaired; after the Effective
Time, the Surviving Bank will continue to issue savings accounts on the same basis as immediately
prior to the Effective Time.
7. Effect on Shares of Stock.
(a) Each share of FNB Bank common stock issued and outstanding immediately prior to the
Effective Time shall be unchanged and shall remain issued and outstanding.
(b) At the Effective Time, each share of PS Bank capital stock issued and outstanding prior to
the Bank Merger shall, by virtue of the Bank Merger and without any action on the part of the
holder thereof, be canceled. Any shares of PS Bank capital stock held in the treasury of PS Bank
immediately prior to the Effective Time shall be retired and canceled.
8. Additional Actions. If, at any time after the Effective Time, the Surviving Bank
shall consider that any further assignments or assurances in law or any other acts are necessary or
desirable to (a) vest, perfect or confirm, of record or otherwise, in the Surviving Bank its
rights, title or interest in, to or under any of the rights, properties or assets of PS Bank
acquired or to be acquired by the Surviving Bank as a result of, or in connection with, the Bank
Merger, or (b) otherwise carry out the purposes of this Agreement of Merger, PS Bank and its proper
officers and directors shall be deemed to have granted to the Surviving Bank an irrevocable power
of attorney to (i) execute and deliver all such proper deeds, assignments and assurances in law and
to do all acts necessary or proper to vest, perfect or confirm title to and possession of such
rights, properties or assets in the Surviving Bank and (ii) otherwise to carry out the purposes of
this Agreement of Merger. The proper officers and directors
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of the Surviving Bank are fully authorized in the name of PS Bank or otherwise to take any and
all such action.
9. Counterparts. This Agreement of Merger may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one agreement.
10. Governing Law. This Agreement of Merger shall be governed in all respects,
including, but not limited to, validity, interpretation, effect and performance, by the laws of the
United States and the Commonwealth of Pennsylvania.
11. Amendment. Subject to applicable law, this Agreement of Merger may be amended,
modified or supplemented only by written agreement of FNB Bank and PS Bank at any time prior to the
Effective Time.
12. Waiver. Any of the terms or conditions of this Agreement of Merger may be waived
at any time by whichever of the parties hereto is, or the shareholders of which are, entitled to
the benefit thereof by action taken by the Board of Directors of such waiving party
13. Assignment. This Agreement of Merger may not be assigned by any party hereto
without the prior written consent of the other party.
14. Termination. This Agreement of Merger shall terminate upon the termination of the
Agreement in accordance with its terms.
15. Procurement of Approvals. This Agreement of Merger shall be subject to the
approval of FNB as the sole shareholder of FNB Bank and PFC as the sole shareholder of PS Bank at
meetings to be called and held or by consent in lieu thereof in accordance with the applicable
provisions of law and their respective organizational documents. FNB Bank and PS Bank shall proceed
expeditiously and cooperate fully in the procurement of any other consents and approvals and in the
taking of any other action, and the satisfaction of all other requirements prescribed by law or
otherwise necessary for consummation of the Merger on the terms provided herein and in the
Agreement, including without limitation the preparation and submission of such applications or
other filings for approval of the Merger to the OCC and the Department as may be required by
applicable laws and regulations.
16. Conditions Precedent. The obligations of the parties under this Agreement of
Merger shall be subject to: (i) the approval of this Agreement of Merger by FNB as the sole
shareholder of FNB Bank and PFC as the sole shareholder of PS Bank at meetings of shareholders duly
called and held or by consent or consents in lieu thereof, in each case without any exercise of
such dissenters’ rights as may be applicable; (ii) receipt of approval of the Merger from all
governmental and banking authorities whose approval is required; (iii) receipt of any necessary
regulatory approval to operate the main office and the branch offices of PS Bank as offices of the
Surviving Bank and (iv) the consummation of the FNB Merger pursuant to the Agreement on or before
the Effective Time.
17. Effectiveness of Agreement. Notwithstanding anything to the contrary contained
herein, the execution and delivery of this Agreement of Merger by the parties hereto shall not be
deemed to be effective unless and until the requirements of 12 C.F.R. § 5.33 are met.
[Signature Page Follows.]
A-3
IN WITNESS WHEREOF, each of FNB Bank and PS Bank has caused this Agreement of Merger to be
executed on its behalf by its duly authorized officers.
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FIRST NATIONAL BANK OF PENNSYLVANIA
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By: |
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Xxxxxxx X. Xxxxxxxxx, |
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Chief Executive Officer |
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PARKVALE SAVINGS BANK
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By: |
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Xxxxxx X. XxXxxxxx, Xx., |
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President and Chief Executive Officer |
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A-4
Exhibit B
FORM OF VOTING AGREEMENT
__________________, 2011
F.N.B. Corporation
Xxx X.X.X. Xxxxxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
F.N.B. Corporation (“FNB”) and Parkvale Financial Corporation (“PFC”) have entered into an
Agreement and Plan of Merger dated as of June ___, 2011 (the “Agreement”) whereby PFC will merge
with and into FNB (the “Merger”) and shareholders of PFC will receive the Merger Consideration as
set forth in the Agreement, subject to the closing of the Merger. All defined terms used but not
defined herein shall have the meanings ascribed thereto in the Agreement.
A condition to FNB’s obligations under the Agreement is that I execute and deliver this Letter
Agreement to FNB.
Intending to be legally bound hereby, I irrevocably agree and represent as follows:
(a) I will vote or cause to be voted for approval and adoption of the Agreement and the
transactions contemplated thereby all shares of PFC common stock over which I have sole voting
power, and will use my best efforts to cause any shares of PFC common stock over which I share
voting power to be voted for approval and adoption of the Agreement and the transactions
contemplated thereby. Beneficial ownership shall have the meaning assigned to it pursuant to Rule
13d-3 under the Securities Exchange Act of 1934, as amended.
(b) On or prior to the record date (the “Record Date”) for the meeting of the PFC shareholders
to vote on approval and adoption of the Agreement and the transactions contemplated thereby, I (i)
will not offer, sell, transfer or otherwise dispose of any shares of PFC common stock over which I
have sole dispositive power, and (ii) shall use my best efforts to not permit the offer, sale,
transfer or other disposition of any shares of PFC common stock over which I have shared
dispositive power, except to the extent that I may be permitted under law to make charitable gifts
or as permitted by paragraph (g) hereof.
(c) I have beneficial ownership over the number of shares of PFC common stock, and hold stock
options for the number of shares of PFC common stock, if any, set forth in Appendix A hereto.
(d) I agree that PFC shall not be bound by any attempted sale of any shares of PFC common
stock over which I have sole voting and dispositive power, and PFC’s transfer agent shall be given
appropriate stop transfer orders and shall not be required to register any such attempted sale,
unless the sale has been effected in compliance with the terms of this Letter Agreement.
F.N.B. Corporation
Page 2
_______________, 2011
(e) I agree that, if I exercise any options to purchase PFC common stock prior to the Record
Date, any of the shares of PFC common stock so acquired by me, except any shares sold as part of a
cashless exercise, shall be subject to clauses (a), (b) and (d) above.
(f) I represent that I have the capacity to enter into this Letter Agreement and that it is a
valid and binding obligation enforceable against me in accordance with its terms, subject to
bankruptcy, insolvency and other laws affecting creditors’ rights and general equitable principles.
(g) Notwithstanding anything herein to the contrary, I may transfer any or all of the shares
of PFC common stock over which I have beneficial ownership to my spouse, ancestors or descendants;
provided, however, that in any such case, prior to and as a condition to the effectiveness of such
transfer, each person to which any of such shares or any interest in any of such shares is or may
be transferred shall have executed and delivered to FNB an agreement to be bound by the terms of
this Letter Agreement. In addition, I may sell, transfer or assign shares of PFC common stock to
the extent and on behalf of trusts or estates of which I am not a beneficiary in order to comply
with fiduciary obligations or legal requirements.
I am signing this Letter Agreement solely in my capacity as a shareholder of PFC and as an
optionholder if I am an optionholder, and not in any other capacity, such as a director or officer
of PFC or as a fiduciary of any trusts in which I am not a beneficiary. Notwithstanding anything
herein to the contrary: (a) I make no agreement or understanding herein in any capacity other than
in my capacity as a beneficial owner of PFC common stock and (b) nothing herein shall be construed
to limit or affect any action or inaction by me or any of my representatives, as applicable, in
serving on PFC’s Board of Directors or as an officer of PFC, in acting in my capacity as a
director, officer or fiduciary of PFC or as fiduciary of any trust of which I am not a beneficiary.
This Letter Agreement shall be effective upon acceptance by FNB.
This Letter Agreement shall terminate and be of no further force and effect concurrently with,
and automatically upon, the earlier to occur of (a) the consummation of the Merger, (b) the written
agreement of the parties to terminate this Letter Agreement, and (c) any termination of the
Agreement in accordance with its terms, except that any such termination shall be without prejudice
to FNB’s rights arising out of my willful breach of any covenant or representation contained
herein.
All notices and other communications in connection with this Letter Agreement shall be in
writing and shall be deemed given if delivered personally, sent via facsimile, with confirmation,
mailed by registered or certified mail, return receipt requested, or delivered by an express
courier, with confirmation, to the parties at their addresses set forth on the signature page
hereto.
This Letter Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties. This Letter Agreement constitutes the entire agreement and
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F.N.B. Corporation
Page 3
_______________, 2011
supersedes all prior agreements and understandings, both written and oral, between the parties with
respect to the subject matter of this Letter Agreement.
This Letter Agreement and all claims arising hereunder or relating hereto, shall be governed
and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without
giving effect to the principles of conflicts of law thereof. I hereby irrevocably and
unconditionally submit to the exclusive jurisdiction of any Pennsylvania state court or the United
States District Court for the Western District of Pennsylvania, in any action or proceeding arising
out of or relating to this letter.
Date:_________________________
Acknowledged and Agreed:
F.N.B. CORPORATION
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By: |
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Xxxxxxx X. Xxxxxxxxx, |
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Chief Executive Officer |
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F.N.B. Corporation
Page 1
______________, 2011
Appendix A
Number of Shares Held (excluding stock options): _________________________
This amount includes:
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shares over which I have sole voting power |
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shares over which I have shared voting power |
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shares over which I have sole dispositive power |
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shares over which I have shared dispositive power |
Number of Stock Options Held: ____________________