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Registration Statement No. 333-______
SECURITIES AND EXCHANGE COMMISSION
THE SECURITIES ACT OF 1933
Pennsylvania | 6720 | 23-2195389 | ||
(State or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer Identification No.) | ||
incorporation or organization) | Classification Code Number) |
Lancaster, Pennsylvania 17602
717-291-2411
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Chairman and Chief Executive Officer
One Penn Square
Lancaster, Pennsylvania 17602
717-291-2411
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Paul G. Mattaini, Esquire | R.W. Smith, Jr. Esquire | |
Kimberly J. Decker, Esquire | Jason C. Harmon, Esquire | |
Barley Snyder LLC | DLA Piper Rudnick Gray Cary US LLP | |
126 East King Street | 6225 Smith Avenue | |
Lancaster, Pennsylvania 17604-2893 | Baltimore, MD 21209-3600 | |
Telephone: (717) 291-5201 | Telephone: (410) 580-3000 |
Title of each class of | Amount | Proposed maximum | Proposed maximum | |||||||||||||||||
securities to be | to be | offering price | aggregate offering | Amount of | ||||||||||||||||
registered | registered (1) | per unit (2) | price (2)(3) | registration fee (4) | ||||||||||||||||
Common Stock, par value $2.50 per share (and associated stock purchase rights)(3) | 14,382,332 | $39.77 | $246,015,192 | $27,641 | ||||||||||||||||
(1) | Based on maximum number of shares of the Registrant’s common stock that may be issued in connection with the proposed merger of Columbia Bancorp with and into the Registrant. In accordance with Rule 416, this Registration Statement shall also register any additional shares of the Registrant’s common stock which may become issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions. | |
(2) | Estimated solely for purposes of calculating the registration fee. Computed in accordance with Rule 457(f)(1), on the basis of the average of the high and low prices reported by NASDAQ for the common stock of Columbia Bancorp on October 5, 2005 of $39.77 and based on 5,550,621 shares of Columbia Bancorp common stock to be exchanged in the merger and unexercised options to purchase 635,328 shares of Columbia Bancorp common stock. | |
(3) | Prior to the occurrence of certain events, the stock purchase rights will not be evidenced separately from the common stock. Value attributable to these rights, if any, is reflected in the market price of the Registrant’s common stock. | |
(4) | Pursuant to Rule 457(p), we are offsetting the filing fee with $1,315 of filing fees which are associated with $11,177,765 of securities which remain unsold and were registered on Registration Statement No. 333-124053, filed by the Registrant on April 13, 2005. |
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FOR SPECIAL MEETING OF STOCKHOLDERS
Nasdaq National Market Symbol: CBMD
14,382,332 SHARES OF FULTON FINANCIAL COMMON STOCK
Nasdaq National Market Symbol: FULT
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George R. Barr, Jr., Secretary | Sibyl S. Malatras, Secretary | |
Fulton Financial Corporation | Columbia Bancorp | |
One Penn Square | 7162 Columbia Gateway Drive | |
Lancaster, PA 17602 | Columbia, MD 21046 | |
717-291-2411 | 410-423-8000 |
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ARTICLES OF INCORPORATION, AS AMENDED AND RESTATED | ||||||||
OPINION OF BARLEY SNYDER LLC REGARDING LEGALITY | ||||||||
OPINION OF BARLEY SNYDER LLC REGARDING TAX MATTERS | ||||||||
CONSENT OF DANIELSON ASSOCIATES, INC. | ||||||||
CONSENT OF KPMG LLP | ||||||||
CONSENT OF KPMG LLP | ||||||||
FORM OF PROXY | ||||||||
LETTER TO STOCKHOLDERS OF COLUMBIA BANCORP | ||||||||
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS OF COLUMBIA BANCORP |
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EXHIBIT A — Agreement and Plan of Merger | A-1 | |||
EXHIBIT B — Amended and Restated Warrant Agreement and Warrant | B-1 | |||
EXHIBIT C — Opinion of Financial Advisor | C-1 | |||
EXHIBIT D — Form of Election Form/Letter of Transmittal | D-1 |
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Q1: | What will I be voting on at the stockholders’ meeting? | |
A: | You will be voting on a merger transaction in which Fulton will acquire Columbia Bancorp. | |
Q2: | What will happen in the merger? | |
A: | In the merger, Columbia Bancorp will merge with and into Fulton, and The Columbia Bank, a subsidiary of Columbia Bancorp, will become a wholly owned subsidiary of Fulton. In the merger, you will receive either cash in the amount of $42.48 per share, Fulton common stock at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock owned or a combination of both. See answer to Q9. | |
Q3: | When and where will the special stockholders’ meeting of Columbia Bancorp be held? | |
A: | The special stockholders’ meeting of Columbia Bancorp is scheduled to take place at [Meeting Place], [Meeting Address] on [Meeting Date] at [Meeting Time]. | |
Q4: | What do I need to do now? | |
A: | After you have carefully read this document, indicate on your proxy card how you want your shares to be voted, then sign and mail the proxy card in the enclosed prepaid return envelope as soon as possible, so that your shares may be represented and voted at the special meeting of the stockholders of Columbia Bancorp to be held on [Meeting Date]. | |
Q5: | If my shares are held in “street name” by my broker, will my broker vote my shares for me? | |
A: | Maybe.Your broker will vote your shares only if you provide instructions on how to vote. You should follow the directions provided by your broker. Without instructions, your shares will not be voted for the approval of the merger agreement. | |
Q6: | If my shares are held in an IRA, who votes those shares? | |
A. | You vote shares held by you in an IRA as though you held those shares directly. | |
Q7. | If my shares are held in our 401(k) plan, who votes those shares? | |
A. | Based on your instructions on how to vote the shares deemed to be held by you in our 401(k) plan, the trustees of the 401(k) plan will cast the actual vote. If you are deemed to hold shares in our 401(k) plan, you will receive a separate proxy card with respect to those shares. | |
Q8: | Can I change my vote after I have mailed my signed proxy card? | |
A: | Yes. There are three ways for you to revoke your proxy and change your vote. First, you may send a written notice to the person to whom you submitted your proxy stating that you would like to revoke your proxy. Second, you may complete and submit a new proxy card with a later date. Third, you may vote in person at the special meeting. If you have instructed a broker to vote your shares, you must follow directions received from your broker to change your vote. | |
Q9: | What will Columbia Bancorp stockholders receive as a result of the merger? | |
A: | As described in the following section entitled “Summary” and elsewhere in this document, if you are a Columbia Bancorp stockholder, in exchange for each share of your Columbia Bancorp common stock, you will be entitled to elect to receive merger consideration in the form of cash, shares of Fulton common stock, |
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or a combination of cash and Fulton common stock as further described in this document. The actual form of merger consideration you receive will depend on your election and, in some circumstances, on the election made by other Columbia Bancorp stockholders. Although the merger agreement permits you to elect the form of consideration you want to receive in exchange for your Columbia Bancorp common stock, your election is subject to proration if the total number of shares for which cash is elected is less than 20% or more than 50% of the total number of Columbia Bancorp shares outstanding. If that occurs, all elections will be modified, on the same percentage basis, so that the total number of shares receiving cash consideration is equal to 20% (if too few elections were made for cash), or 50% (if too many elections were made for cash), as the case may be, of the total number of shares outstanding. If the total number of shares for which all Columbia Bancorp stockholders elect to receive cash is equal to or within the range of 20%-50% of the total number of shares of Columbia Bancorp outstanding, then all stockholders who made valid elections will receive the consideration that they elect. The consideration that you will receive for your shares of Columbia Bancorp common stock, including the exchange ratio for the shares of Fulton common stock, will not change even if the market prices of Columbia Bancorp or Fulton common stock fluctuate. However, if you elect to receive some or all of the merger consideration in the form of shares of Fulton common stock, the value of the shares of Fulton common stock will fluctuate up or down with fluctuations in the market price of Fulton common stock. | ||
Q10. | What is the value of merger consideration if I elect to receive all stock? | |
A. | The value of the consideration you receive in the merger if you properly and timely elect to receive the stock consideration may be more or less than the $42.48 that you would receive if you elect to receive the cash consideration. In addition, the trading price of Fulton common stock on the date you receive your merger consideration in exchange for your shares of Columbia common stock could be more or less than the trading price of Fulton common stock on the date you make your election to receive the merger consideration. This means that the then-current value of the stock consideration that you would receive for each share of Fulton common stock if you properly and timely elect to receive some or all of the merger consideration in Fulton common stock could be more or less than the value of the stock consideration on the date you make your election to receive the merger consideration. The following table illustrates the effect of changes in the value of Fulton common stock on the value of the consideration you may receive: |
Price Per Share of Fulton | ||||||||
Common Stock | Stock Election | Cash Election | ||||||
$ 16.00 | ||||||||
$ 17.00 | $ | 39.53 | $ | 42.48 | ||||
$ 17.50(1) | $ | 40.69 | $ | 42.48 | ||||
$18.271(2) | $ | 42.48 | $ | 42.48 | ||||
$ 20.00 | $ | 46.50 | $ | 42.48 |
(1) | The closing price per share of Fulton common stock on The Nasdaq National Market on October ___, 2005. | |
(2) | The price per share of Fulton common stock at which the value of the stock consideration is equal to the value of the cash consideration. |
Q11: | How do Columbia Bancorp stockholders elect the form of merger consideration they wish to receive? | |
A: | An election form/letter of transmittal will be mailed to you shortly. You should complete the election form/letter of transmittal according to the instructions printed on the form. The form, together with the stock certificates representing your shares of Columbia Bancorp common stock, should be sent to the exchange agent, Fulton Financial Advisors, N.A., before the election deadline, which is [Election Deadline]. | |
Q12: | What if I do not complete and return the election form before the election deadline? |
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A: | If you do not submit a properly completed election form prior to the election deadline, you will receive cash consideration or Fulton stock consideration in exchange for your shares of Columbia Bancorp common stock as follows: |
• | If proration is not required, you will receive cash consideration until 50% (the maximum cash percentage) of Columbia Bancorp’s outstanding shares have been converted into cash. If and when the maximum cash percentage is reached, you will receive Fulton common stock consideration for your remaining shares. | ||
• | If proration is required because the maximum cash percentage of 50% is exceeded, you will receive Fulton stock consideration. | ||
• | If proration is required because less than 20% of Columbia Bancorp’s outstanding shares (the minimum cash percentage) have been converted into cash, you will receive cash consideration. | ||
• | In all other situations, you will receive cash consideration. |
Q13. | Can I change my election? | |
A. | Yes. You can change or revoke your election at any time prior to [Election Deadline] by delivering a written notice of revocation to Columbia Bancorp, attending the special meeting and voting in person or delivering a new properly completed election form/letter of transmittal with Fulton Financial Advisors, N.A., the exchange agent, no later than [Election Deadline]. | |
Q14: | Should I send in my stock certificates now? | |
A: | No. You should send your Columbia Bancorp stock certificates to the exchange agent with the election form/letter of transmittal that will be mailed to you shortly. In order to make a valid election of the consideration you want to receive, you must return your certificates and the election form/letter of transmittal to the exchange agent no later than [Election Deadline]. | |
Q15. | What does the board of directors of Columbia Bancorp recommend? | |
A: | The board of directors of Columbia Bancorp has approved the merger, the merger agreement and the other transactions contemplated by the merger agreement and recommends that you vote FOR the merger and the merger agreement. | |
Q16. | Am I entitled to dissenters’ rights? | |
A. | No. Under Maryland law, holders of Columbia Bancorp common stock are not entitled to dissenters’ rights in connection with the merger. | |
Q17. | Will I recognize gain or loss for federal income tax purposes? | |
A. | Generally, you will not recognize gain or loss for federal income tax purposes of any shares of Fulton common stock that you receive in connection with the merger. You will, however, be taxed on cash you receive in the merger. See the section of this document titled “The Merger – Material Federal Income Tax Consequences” for a summary discussion of material U.S. federal income tax consequences to Columbia Bancorp stockholders in connection with the merger. | |
You should consult your tax advisor about the particular tax consequences of the merger to you. | ||
Q18. | Is Fulton shareholder approval required to complete the merger? | |
A. | No. |
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Q19. | Will I be able to trade any Fulton common stock that I receive in the merger? | |
A. | The Fulton common stock you receive if you properly make a timely election to receive some or all of the merger consideration in shares of Fulton common stock will be freely tradeable, unless you are an affiliate of Fulton or Columbia Bancorp. Fulton’s common stock is traded on the Nasdaq National Market under the symbol “FULT.” | |
Q20: | When do you expect to merge? | |
A: | Fulton and Columbia Bancorp expect to complete the merger during the first quarter of 2006. In addition to the approval of Columbia Bancorp stockholders, Fulton must also obtain regulatory approvals. Fulton and Columbia Bancorp expect to receive all necessary approvals no later than December 31, 2005. | |
Q21: | Who should I contact with questions or to obtain additional copies of this document? | |
A: | You should call either: |
George R. Barr, Jr., Secretary | Sibyl S. Malatras, Secretary | |
Fulton Financial Corporation | Columbia Bancorp | |
One Penn Square | 7162 Columbia Gateway Drive | |
Lancaster, PA 17602 | Columbia, MD 21046 | |
717-291-2411 | 410-423-8000 |
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§ | 90% cash and 10% stock | § | 40% cash and 60% stock | |||
§ | 80% cash and 20% stock | § | 30% cash and 70% stock | |||
§ | 70% cash and 30% stock | § | 20% cash and 80% stock | |||
§ | 60% cash and 40% stock | § | 10% cash and 90% stock | |||
§ | 50% cash and 50% stock |
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Combined Per Share Data (A)
As of or for the six | As of or for the | |||||||
months ended | year ended | |||||||
June 30, 2005 | December 31, 2004 | |||||||
Fulton | ||||||||
Historical Per Common Share: | ||||||||
Average Shares Outstanding (Basic) | 155,922,000 | 149,294,000 | ||||||
Average Shares Outstanding (Diluted) | 157,750,000 | 150,801,000 | ||||||
Book Value | $ | 7.81 | 7.91 | |||||
Cash Dividends | $ | 0.277 | 0.518 | |||||
Net Income (Basic) | $ | 0.53 | 1.02 | |||||
Net Income (Diluted) | $ | 0.53 | 1.01 | |||||
Fulton and Columbia Bancorp Combined | ||||||||
Pro Forma Per Common Share: | ||||||||
Average Shares Outstanding (Basic) | 164,006,025 | 157,603,550 | ||||||
Average Shares Outstanding (Diluted) | 166,130,463 | 159,393,038 | ||||||
Book Value | $ | 8.33 | 8.40 | |||||
Cash Dividends | $ | 0.277 | 0.518 | |||||
Net Income (Basic) | $ | 0.52 | 0.99 | |||||
Net Income (Diluted) | $ | 0.51 | 0.98 |
(A) | The pro forma per share equivalent information is based on average shares outstanding during the periods except that the book value per share which is based on period end shares outstanding. The number of shares in each case has been adjusted for stock dividends and stock splits by each institution through the periods. The equivalent pro forma per common share information is derived by applying the exchange ratio of 2.325 shares of Fulton common stock, for each share of Columbia Bancorp common stock to the Fulton, Columbia Bancorp, combined pro forma per common share information. The combined pro forma financial information assumes that the holders of 50% of Columbia Bancorp’s shares elect to receive the cash consideration of $42.48. It is assumed that the funding for this cash portion of the consideration is obtained at a rate of 6.00%. The pro forma numbers do not reflect operating cost reductions or revenue enhancements that are expected to be realized after the acquisition. The pro forma numbers do not reflect the acquisition, by Fulton, of SVB Financial Services, Inc. that occurred on July 1, 2005 or the impact of the 2004 acquisitions of certain banks for the periods prior to the date on which the business combinations were consummated. |
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Per Share Equivalent Data (A)
As of or for the six | As of or for the | |||||||
months ended | year ended | |||||||
June 30, 2005 | December 31, 2004 | |||||||
Columbia | ||||||||
Historical Per Common Share: | ||||||||
Average Shares Outstanding (Basic) | 6,954 | 7,148 | ||||||
Average Shares Outstanding (Diluted) | 7,209 | 7,391 | ||||||
Book Value | $ | 13.17 | $ | 12.98 | ||||
Cash Dividends (Declared) | .34 | $ | .62 | |||||
Net Income (Basic) | $ | 1.10 | $ | 1.86 | ||||
Net Income (Diluted) | $ | 1.06 | $ | 1.80 | ||||
Equivalent Pro Forma Per Common | ||||||||
Share: | ||||||||
Book Value | $ | 19.37 | 19.53 | |||||
Cash Dividends | $ | 0.644 | 1.204 | |||||
Net Income (Basic) | $ | 1.21 | 2.29 | |||||
Net Income (Diluted) | $ | 1.20 | 2.27 |
(A) | The pro forma per share equivalent information is based on average shares outstanding during the periods except that the book value per share, which is based on period end shares outstanding. The number of shares in each case has been adjusted for stock dividends and stock splits by each institution through the periods. The equivalent pro forma per common share information is derived by applying the exchange ratio of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock to the Fulton, Columbia Bancorp, combined pro forma per common share information. The combined pro forma financial information assumes that 50% of Columbia Bancorp’s shares elect to receive the cash consideration of $42.48. It is assumed that the funding for this cash portion of the consideration is obtained at a rate of 6.00%. The pro forma numbers do not reflect operating cost reductions or revenue enhancements that are expected to be realized after the acquisition. The pro forma numbers do not reflect the acquisition, by Fulton, of SVB Financial Services, Inc. that occurred on July 1, 2005 or the impact of the 2004 acquisitions of certain banks for the periods prior to the date on which the business combinations were consummated. |
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Selected Historical Financial Data
(In thousands, except per share data) (A)
FOR THE SIX MONTHS | June 30 | December 31 | ||||||||||||||||||||||||||
AND YEAR ENDED | 2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | |||||||||||||||||||||
Interest income | $ | 289,421 | $ | 235,960 | $ | 493,643 | $ | 435,531 | $ | 469,288 | $ | 518,680 | $ | 519,661 | ||||||||||||||
Interest expense | 91,248 | 64,287 | 135,994 | 131,094 | 158,219 | 227,962 | 243,874 | |||||||||||||||||||||
Net interest income | 198,173 | 171,673 | 357,649 | 304,437 | 311,069 | 290,718 | 275,787 | |||||||||||||||||||||
Provision for loan losses | 1,525 | 2,540 | 4,717 | 9,705 | 11,900 | 14,585 | 15,024 | |||||||||||||||||||||
Other income | 74,168 | 68,700 | 138,864 | 134,370 | 114,012 | 102,057 | 76,717 | |||||||||||||||||||||
Other expenses | 151,837 | 132,809 | 273,615 | 231,559 | 223,765 | 218,234 | 186,209 | |||||||||||||||||||||
Income before income taxes | 118,979 | 105,024 | 218,181 | 197,543 | 189,416 | 159,956 | 151,271 | |||||||||||||||||||||
Income taxes | 35,868 | 31,314 | 65,264 | 59,363 | 56,468 | 46,367 | 44,437 | |||||||||||||||||||||
Net income | $ | 83,111 | $ | 73,710 | $ | 152,917 | $ | 138,180 | $ | 132,948 | $ | 113,589 | $ | 106,834 | ||||||||||||||
PER SHARE DATA | ||||||||||||||||||||||||||||
Net income (basic) | $ | 0.53 | $ | 0.50 | $ | 1.28 | $ | 1.23 | $ | 1.17 | $ | 1.00 | $ | 0.95 | ||||||||||||||
Net income (diluted) | 0.53 | 0.50 | 1.27 | 1.22 | 1.17 | 0.99 | 0.95 | |||||||||||||||||||||
Cash dividends declared | 0.277 | 0.254 | 0.647 | 0.593 | 0.531 | 0.481 | 0.430 | |||||||||||||||||||||
AT PERIOD END | ||||||||||||||||||||||||||||
Total assets | $ | 11,571,083 | $ | 10,556,421 | $ | 11,158,351 | $ | 9,767,288 | $ | 8,387,778 | $ | 7,770,711 | $ | 7,364,804 | ||||||||||||||
Loans, net of unearned income | 7,861,508 | 7,042,311 | 7,584,547 | 6,159,994 | 5,317,068 | 5,373,020 | 5,374,659 | |||||||||||||||||||||
Deposits | 8,139,667 | 7,430,988 | 7,895,524 | 6,751,783 | 6,245,528 | 5,986,804 | 5,502,703 | |||||||||||||||||||||
Long-term debt | 951,745 | 654,886 | 684,236 | 568,730 | 535,555 | 456,802 | 559,503 | |||||||||||||||||||||
Stockholders’ equity | 1,194,075 | 1,107,482 | 1,242,290 | 946,936 | 863,742 | 811,454 | 731,171 | |||||||||||||||||||||
AVERAGE BALANCES | ||||||||||||||||||||||||||||
Stockholders’ equity | $ | 1,222,511 | $ | 1,025,658 | $ | 1,068,464 | $ | 894,469 | $ | 838,213 | $ | 779,014 | $ | 673,971 | ||||||||||||||
Total assets | 11,314,220 | 10,140,019 | 10,343,328 | 8,802,138 | 7,900,500 | 7,520,071 | 7,019,523 |
(A) | The numbers presented above do not reflect the acquisition, by Fulton, of SVB Financial Services, Inc. that occurred on July 1, 2005 or the impact of the 2004 acquisitions of certain banks for the periods prior to the date on which the business combinations were consummated. |
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Selected Historical Financial Data
(In thousands, except for per share data)
FOR THE SIX MONTHS | June 30 | December 31 | ||||||||||||||||||||||||||
AND YEAR ENDED | 2005 | 2004 | 2004 | 2003 | 2002 | 2001 | 2000 | |||||||||||||||||||||
Interest income | $ | 35,601 | $ | 26,663 | $ | 57,546 | $ | 51,403 | $ | 52,566 | $ | 58,061 | $ | 58,917 | ||||||||||||||
Interest expense | 9,410 | 5,335 | 11,963 | 10,736 | 15,479 | 23,983 | 24,176 | |||||||||||||||||||||
Net interest income | 26,191 | 21,328 | 45,583 | 40,667 | 37,087 | 34,078 | 34,741 | |||||||||||||||||||||
Provision for loan losses | 810 | 500 | 728 | 1,170 | 835 | 1,534 | 3,423 | |||||||||||||||||||||
Other income | 3,408 | 3,653 | 6,798 | 8,963 | 7,945 | 5,930 | 3,960 | |||||||||||||||||||||
Other expenses | 16,802 | 15,077 | 31,045 | 29,970 | 27,166 | 26,192 | 27,209 | |||||||||||||||||||||
Income before income taxes | 11,987 | 9,404 | 20,608 | 18,490 | 17,031 | 12,282 | 8,069 | |||||||||||||||||||||
Income taxes | 4,316 | 3,310 | 7,323 | 6,586 | 6,160 | 4,100 | 2,848 | |||||||||||||||||||||
Net income | $ | 7,671 | $ | 6,094 | $ | 13,285 | $ | 11,904 | $ | 10,871 | $ | 8,182 | $ | 6,796 | ||||||||||||||
PER SHARE DATA | ||||||||||||||||||||||||||||
Net income (basic) | $ | 1.10 | $ | .85 | $ | 1.86 | $ | 1.67 | $ | 1.53 | $ | 1.15 | $ | .73 | ||||||||||||||
Net income (diluted) | 1.06 | .82 | 1.80 | 1.62 | 1.50 | 1.13 | .73 | |||||||||||||||||||||
Cash dividends declared | .34 | .30 | .62 | .53 | .46 | .41 | .37 | |||||||||||||||||||||
AT PERIOD END | ||||||||||||||||||||||||||||
Total assets | $ | 1,284,115 | $ | 1,126,916 | $ | 1,179,006 | $ | 1,029,255 | $ | 982,002 | $ | 849,649 | $ | 812,650 | ||||||||||||||
Loans, net of unearned income | 1,029,568 | 900,320 | 950,170 | 835,484 | 664,826 | 602,087 | 539,051 | |||||||||||||||||||||
Deposits | 976,491 | 891,001 | 912,578 | 787,608 | 730,613 | 638,001 | 630,484 | |||||||||||||||||||||
Long-term debt | 36,496 | 26,186 | 30,310 | 20,000 | 20,000 | 20,000 | 20,000 | |||||||||||||||||||||
Stockholders’ equity | 91,331 | 88,039 | 92,348 | 85,449 | 76,923 | 69,362 | 64,520 | |||||||||||||||||||||
AVERAGE BALANCES | ||||||||||||||||||||||||||||
Stockholders’ equity | $ | 90,402 | $ | 87,960 | $ | 89,261 | $ | 81,377 | $ | 73,622 | $ | 67,557 | $ | 62,421 | ||||||||||||||
Total assets | 1,227,902 | 1,052,448 | 1,100,098 | 977,201 | 907,465 | 812,890 | 733,279 |
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Pro Forma | ||||||||
Historical | Equivalent | |||||||
Price Per Share | Price Per Share (1) | |||||||
Fulton Common Stock | ||||||||
Closing Price on July 26, 2005 | $ | 18.49 | N/A | |||||
Closing Price on [Latest Practicable Date] | $ | N/A | ||||||
Columbia Bancorp Common Stock | ||||||||
Closing Price on July 26, 2005 | $ | 37.25 | $ | 42.99 | ||||
Closing Price on [Latest Practicable Date] | $ | $ |
(1) | Based upon the product of the exchange ratio (2.325) and the closing price of Fulton common stock. |
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§ | Fulton has adopted a Shareholder Rights Plan, which provides Fulton’s shareholders with certain stock-related rights in the event of a hostile takeover but may have the effect of discouraging such a takeover, while Columbia Bancorp has not adopted any such plan. | ||
§ | Fulton’s Amended and Restated Articles of Incorporation provide that holders of not less than 85% of its then outstanding voting power may remove directors without cause, while Columbia Bancorp’s directors may not be removed without cause. | ||
§ | Fulton’s Amended and Restated Articles of Incorporation deny shareholders the right to take action without a shareholder’s meeting, while Columbia Bancorp’s stockholders are permitted to take action without a stockholder’s meeting if a written consent is signed by all of its holders of outstanding stock entitled to vote at such meeting and if a written waiver of any right to dissent signed by each stockholder entitled to notice of the meeting but not entitled to vote at it, are filed with the records of the stockholders’ meetings. | ||
§ | Fulton’s Amended and Restated Articles of Incorporation provides that approval of not less than 85% of the then outstanding voting power of its capital stock is required for a business combination between Fulton and an interested shareholder of Fulton unless approved by Fulton’s board, in which case approval of only 2/3 of the then outstanding voting power is required, while Columbia Bancorp’s charter provides that all business combinations in which Columbia Bancorp is a party with an interested stockholder are subject to the approval of at least 80% of votes entitled to be cast at a shareholders meeting unless the stockholders receive, in any such business combination, a minimum price determined in accordance with the applicable Maryland statute. | ||
§ | Fulton’s Amended and Restated Articles of Incorporation may be amended by either a majority of its Board of Directors and the affirmative vote of holders of a majority of the voting power or by holders of not less than 85% of its then outstanding voting power, except with respect to certain provisions which may only be amended upon the approval of either the affirmative vote of holders of 85% of the voting power or approval of a majority of the directors and continuing directors and affirmative vote of 66-2/3% of holders of voting power, while Columbia Bancorp’s charter may be amended by a the affirmative vote of a majority of all votes entitled to be cast by stockholders following approval by its board of directors, except that certain provisions require the approval of 80% of the votes entitled to be cast. |
One Penn Square
Lancaster, Pennsylvania 17602
717-291-2411
§ | Maryland state-chartered institutions include: Hagerstown Trust Company; and The Peoples Bank of Elkton. |
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§ | Nationally chartered associations include: Swineford National Bank; FNB Bank, National Association; and Delaware National Bank. | ||
§ | New Jersey state-chartered institutions include: The Bank; First Washington State Bank; Skylands Community Bank; and Somerset Valley Bank. | ||
§ | Pennsylvania state-chartered institutions include: Fulton Bank; Lafayette Ambassador Bank; Lebanon Valley Farmers Bank; and Premier Bank. | ||
§ | Virginia state-chartered institutions include: Resource Bank. |
§ | Fulton Financial Realty Company, which owns or leases property to Fulton (its corporate headquarters and primary operation center) as well as three unaffiliated tenants at the corporate headquarters property; | ||
§ | Fulton Reinsurance Company, LTD, which engages in the business of reinsuring credit life, accident and health insurance that is directly related to extensions of credit by Fulton’s bank subsidiaries; | ||
§ | Central Pennsylvania Financial Corp., which owns two inactive non-banking subsidiaries, as well as limited partnership interests in partnerships invested in low and moderate income housing projects for Community Reinvestment Act purposes; | ||
§ | FFC Management, Inc., which owns equity investments in various financial institutions, mostly commercial banks, and corporate-owned life insurance policies; | ||
§ | Fulton Financial Advisors, National Association, a limited purpose national banking association with trust powers; | ||
§ | Fulton Insurance Services Group, Inc., an insurance agency; | ||
§ | FFC Penn Square, Inc., which holds approximately $44 million of trust preferred securities issued by an affiliate; | ||
§ | Premier Capital Trust II, PBI Capital Trust, Resource Capital Trust II, Resource Capital Trust III, SVB Bald Eagle Statutory Trust I and SVB Bald Eagle Statutory Trust II, each of which has issued trust preferred securities; and | ||
§ | Virginia Financial Services, LLC, which provides management consulting services. |
7162 Columbia Gateway Drive
Columbia, MD 21046
908-541-9500
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§ | Columbia Bancorp Statutory Trust I, Columbia Bancorp Statutory Trust II and Columbia Bancorp Statutory Trust III, each of which has issued trust preferred securities. |
§ | McAlpine Enterprises, Inc, Howard I, LLC and Howard II, LLC, all of which are inactive, but have been used primarily to manage properties acquired through foreclosure; and | ||
§ | Columbia Leasing, Inc., which is an inactive commercial leasing company. |
§ | approval of the merger by Columbia Bancorp’s stockholders; | ||
§ | the absence of legal restraints that prevent the completion of the merger; |
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§ | receipt of a legal opinion from Fulton’s legal counsel that the merger will be tax-free to Columbia Bancorp stockholders as to shares of Fulton stock received, but not as to cash received, including cash received in lieu of fractional shares; | ||
§ | the continuing accuracy of the parties’ representations in the merger agreement; | ||
§ | no material adverse change having occurred to Columbia Bancorp or Fulton; | ||
§ | receipt of all required regulatory approvals; and | ||
§ | the continuing effectiveness of the registration statement filed with the SEC with respect to the merger. |
§ | if any condition precedent to a party’s obligations under the merger agreement is unable to be satisfied by June 30, 2006 (which date may be extended if the delay is a result of the failure to obtain necessary regulatory approvals), through no fault of its own; or | ||
§ | if the other party has materially breached a representation, warranty or covenant and has not cured such breach within 30 days of receiving written notice of the breach. |
§ | $14.79; and | ||
§ | 80% of the “starting price” of Fulton stock ($18.49) multiplied by the ratio of the Nasdaq Bank Index over the same ten-day period compared to the Index on July 26, 2005. |
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§ | John M. Bond, Jr., Chairman and Chief Executive Officer of Columbia Bancorp, and John A. Scaldara, Jr., President and Chief Operating Officer of Columbia Bancorp, have each entered into a new employment agreement with The Columbia Bank, Columbia Bancorp and Fulton that will become effective upon completion of the merger. These employment agreements replace existing employment agreements that each of Messrs. Bond and Scaldara has with Columbia Bancorp and The Columbia Bank. Each of Messrs. Bond and Scaldara will receive a portion of certain change of control payments which are triggered by the merger under their existing employment agreements; | ||
§ | Executive officers and directors hold options to purchase Columbia Bancorp common stock that will convert into options to purchase Fulton stock or cash, some of which may accelerate, in terms of vesting, as a result of the merger. As of ___, 2005, the difference between the aggregate exercise price and the market value of the shares underlying the options held by executive officers and directors of Columbia Bancorp, which represents the economic value of the options, was approximately $___; | ||
§ | Following the merger, Fulton will indemnify, and provide liability insurance to, officers and directors of Columbia Bancorp; and |
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§ | Following the merger, the current members of Columbia Bancorp’s board of directors, all of which are also directors of The Columbia Bank, will remain directors of The Columbia Bank, and the compensation for non-employee directors of The Columbia Bank will remain unchanged for three years following the effective time of the merger. |
§ | the effects of changing economic conditions both nationally and in Fulton’s and Columbia Bancorp’s market areas; | ||
§ | credit risks of commercial, real estate, consumer and other lending activities; | ||
§ | significant changes in interest rates; | ||
§ | changes in federal and state banking laws and regulations which could impact operations; | ||
§ | funding costs; | ||
§ | other external developments which could materially affect the business and operations of Fulton and Columbia Bancorp; | ||
§ | the ability of Fulton to integrate Columbia Bancorp after the merger; and | ||
§ | other risks detailed from time to time in Columbia Bancorp’s and Fulton’s SEC filings, including Forms 10-Q and Annual Report on Form 10-K. |
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• | customers may not want or need Fulton’s products or services; | ||
• | borrowers may not be able to repay their loans; | ||
• | the value of the collateral securing Fulton’s loans to borrowers may decline, particularly because 76.3% of our loan portfolio is secured by real estate as of June 30, 2005; and | ||
• | the quality of Fulton’s loan portfolio may decline. |
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• | delivering to the Secretary of Columbia Bancorp prior to the special meeting a written notice of revocation, addressed to Sibyl S. Malatras, Columbia Bancorp, 7162 Columbia Gateway Drive, Columbia, MD 21046; |
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§ | delivering to Columbia Bancorp prior to the special meeting a properly executed proxy with a later date; or | ||
§ | attending the special meeting and voting in person. |
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§ | Columbia Bancorp will merge with and into Fulton, with Fulton surviving; and | ||
§ | If the merger is completed, you, as a stockholder of Columbia Bancorp, will receive, at your election (but subject to proration): (i) 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock owned (subject to adjustment for stock splits, stock dividends and similar events); (ii) $42.48 in cash for each share of Columbia Bancorp Stock owned; or (iii) one of nine permissible combinations of Fulton common stock and cash consideration for your shares of Columbia Bancorp common stock. |
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§ | the financial terms of the transaction, including the fact that the cash merger consideration, which shall represent a minimum of 20% of the total merger consideration based upon a price of $42.48 proposed by Fulton, represented a premium of approximately 14% over $37.25, the closing price per share of Columbia Bancorp common stock as reported on The Nasdaq National Market on July 26, 2005; | ||
§ | the ability of Columbia Bancorp stockholders to elect to receive stock at an exchange ratio of 2.325 shares for a maximum of 80% of the total consideration in shares of Fulton common stock represented the potential for Columbia Bancorp stockholders to receive consideration with a value in excess of $42.48; | ||
§ | the ability of Columbia Bancorp stockholders to elect to receive $42.48 per share in cash for a minimum of 50% of the total consideration represented the potential for Columbia Bancorp stockholders to receive at least a minimum amount of cash consideration; | ||
§ | the ability of Columbia Bancorp’s stockholders to use any cash received in the merger to purchase shares of Fulton common stock on the open market, and, as a result, participate in any future increases in the value of the combined company; | ||
§ | that Fulton, through prior acquisitions, already serves markets in Maryland and several other mid-Atlantic states, and that Columbia Bancorp’s trade area was a natural extension of Fulton’s existing trade area; | ||
§ | the fact that Fulton’s common stock is more regularly traded on the Nasdaq National Market and provides greater liquidity than Columbia Bancorp’s common stock; | ||
§ | that Fulton offers a broader range of products and services and the merger will provide Columbia Bancorp’s customers with access to these products and services; | ||
§ | the availability of Fulton staff with specialized capabilities and experience to deal with regulatory compliance and to support The Columbia Bank’s continuing operations; | ||
§ | the strength of Fulton’s management and the similarity of the commitment to the community and operating philosophies of Columbia Bancorp; |
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§ | that Columbia Bancorp’s board of directors will be entitled to appoint one of its members to Fulton’s board of directors; | ||
§ | that, for at least three years following the merger, Fulton’s intention is to operate The Columbia Bank as a stand-alone subsidiary, thereby providing Columbia Bancorp’s existing customers the opportunity to obtain broader products and services from personnel with whom they are familiar; | ||
§ | the likelihood that potential staff reductions would be minimal as compared to other potential business combinations; | ||
§ | the projected increase in the effective dividend yield for Columbia Bancorp’s stockholders; | ||
§ | the opinion of Columbia Bancorp’s financial advisor, Danielson that as of July 26, 2005, and based upon and subject to the facts and assumptions set forth in the opinion, that the consideration to be received by holders of Columbia Bancorp’s common stock pursuant to the merger agreement was fair from a financial point of view to such holders, as more fully described below under the caption “The Merger-Opinion of Columbia Bancorp’s Financial Advisor;” | ||
§ | the ability of Columbia Bancorp to accept a superior proposal, as defined in the merger agreement, under certain circumstances. | ||
§ | other terms of the merger agreement, including the opportunity for Columbia Bancorp stockholders to receive shares of Fulton common stock in a tax free exchange; and | ||
§ | based upon Fulton’s history of acquisitions and regulatory applications, the likelihood that the merger would be approved by appropriate regulatory authorities. |
§ | the fact that the certain provisions of the merger agreement forbid Columbia Bancorp from soliciting third parties in connection with potential business combinations; | ||
§ | the fact that Columbia Bancorp has to waive certain anti-takeover protections provided by Maryland law; | ||
§ | the fact that the warrant agreement entered into in connection with the merger agreement and certain other provisions of the merger agreement might discourage third parties from seeking to acquire Columbia Bancorp, in light of the fact that Fulton was unwilling to enter into the merger agreement absent such provisions; and | ||
§ | the fact that the exchange ratio is fixed except in extraordinary circumstances, thus rendering Columbia Bancorp stockholders subject to the risk of declines in the market price of Fulton common stock. |
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§ | Reviewed certain business and financial information relating to Columbia Bancorp and Fulton including call report data from January 1, 2000 through March 31, 2005, quarterly earnings releases from January 1, 2000 through June 30, 2005 and Annual Report on Form 10-K for fiscal years ended December 31, 2003 and December 31, 2004. | ||
§ | Discussed with members of Columbia Bancorp’s executive management their assessment of the strategic rationale for, and potential benefits of, the merger described under “The Merger — Recommendation of the Columbia Bancorp Board of Directors and Reasons for the Merger” on page 32. | ||
§ | Discussed the past and current operations, financial condition and future prospects of Columbia Bancorp and Fulton with senior executives of Columbia and Fulton. | ||
§ | Reviewed and compared the financial terms, to the extent publicly-available, with comparable transactions. | ||
§ | Reviewed the Fulton-Columbia Bancorp merger agreement and certain related documents. | ||
§ | Considered such other factors as were deemed appropriate. |
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Short Name of Institution | Assets | Headquarters | |||||||
(in mill.) | |||||||||
Chittenden | $ | 6,202 | Burlington, Vt. | ||||||
F.N.B. | 5,702 | Hermitage, Pa. | |||||||
First Commonwealth | 6,182 | Indiana, Pa. | |||||||
Mercantile | 14,628 | ** | Baltimore, Md. | ||||||
Provident | 6,407 | Baltimore, Md. | |||||||
South Financial | 14,879 | Greenville, S.C. | |||||||
Susquehanna | 7,253 | ** | Lititz, Pa. | ||||||
United | 6,311 | ** | Charleston, W. Va. | ||||||
Valley National | 12,267 | Wayne, N.J. | |||||||
Wilmington Trust | 9,791 | Wilmington, Del. |
*Publicly-traded banks on the East Coast with assets between $5 billion and $20 billion as of June 30, 2005 unless otherwise noted. |
**March 31, 2005 or twelve months ending March 31, 2005. |
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Comparable | ||||||||
Banks | ||||||||
Fulton | Medians | |||||||
Income | ||||||||
Net income/Avg. assets | 1.49 | % | 1.27 | % | ||||
Net oper. income**/Avg. assets | 2.14 | 2.08 | ||||||
Return on average equity | 13.91 | 12.69 | ||||||
Balance Sheet | ||||||||
Equity/Assets | 10.32 | % | 9.86 | % | ||||
Tangible capital/Tangible assets | 7.22 | 6.57 | ||||||
NPAs***/Assets | .27 | .42 | ||||||
Loans/Assets | 69 | 67 | ||||||
Deposits/Assets | 70 | 70 | ||||||
Stock Price**** | ||||||||
Price/Earnings | 17.6 | X | 16.6 | X | ||||
Price/Tangible book | 349 | 321 | ||||||
Dividend yield | 3.15 | 3.05 | ||||||
Payout ratio | 53 | 53 |
* | June 30, 2005 or the twelve months ending June, 2005, or if unavailable, March 31, 2005 or the twelve months ending March 31, 2005. | |
** | Net interest income plus noninterest income less operating expense. | |
*** | NPAs including loans 90 days past due and still accruing. | |
**** | Closing prices as of July 25, 2005 and financial data for March 31, 2005 or the twelve months ending March 31, 2005. | |
Source: | SNL Financial, Charlottesville, Virginia. |
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Median Price | ||||||||||||
Times | Percent | No. in | ||||||||||
Earnings | of Book | Sample | ||||||||||
Acquisition Pricing – 2003-05 | ||||||||||||
National Median* | 22.1 | X | 259 | % | 20 | |||||||
-Over $300 million** | 20.5 | 233 | 12 | |||||||||
Most Applicable | ||||||||||||
Provident-Southern Financial | 23.1 | X | 313 | % | ||||||||
Mercantile-Community N.Va. | 23.0 | 341 | ||||||||||
Mercantile-F&M | 19.7 | 259 |
* | Deal values between $200 and $700 million and seller with a double-digit return on equity. | |
** | Deal value between $300 and $700 million and seller with a double-digit return on equity. |
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§ | 90% cash and 10% stock | ||
§ | 80% cash and 20% stock | ||
§ | 70% cash and 30% stock | ||
§ | 60% cash and 40% stock | ||
§ | 50% cash and 50% stock | ||
§ | 40% cash and 60% stock | ||
§ | 30% cash and 70% stock | ||
§ | 20% cash and 80% stock | ||
§ | 10% cash and 90% stock |
§ | If proration is not required, you will receive cash consideration until 50% (the maximum cash percentage) of Columbia Bancorp’s outstanding shares have been converted into cash. If and when the maximum cash percentage is reached, you will thereafter receive Fulton common stock consideration for your remaining shares. | ||
§ | If proration is required because the maximum cash percentage of 50% is exceeded, you will receive Fulton stock consideration. | ||
§ | If proration is required because less than 20% of Columbia Bancorp’s outstanding shares (the minimum cash percentage) have not been converted into cash, you will receive cash consideration. | ||
§ | In all other situations you will receive cash consideration. |
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• | The number of shares of Fulton common stock issuable upon exercise will equal the number of shares of Columbia Bancorp common stock subject to the option multiplied by the exchange ratio, rounded down to the nearest whole share; | ||
• | The exercise price for a whole share of Fulton common stock will equal the stated exercise price of the option divided by the exchange ratio, rounded up to the nearest whole cent; | ||
• | The duration and other terms of the Fulton stock option will be identical to the duration and other terms of the Columbia Bancorp option, except that all references to Columbia Bancorp will be deemed to be references to Fulton and its affiliates where the context so requires, and will remain exercisable until the stated expiration date of the corresponding Columbia Bancorp option; and | ||
• | Except with respect to vesting requirements, options to acquire Fulton common stock will remain subject to the terms of the plans and grant agreements of Columbia Bancorp under which Columbia Bancorp issued the options. |
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§ | approval of the merger agreement by Columbia Bancorp’s stockholders; | ||
§ | receipt of all required regulatory approvals, including the expiration or termination of any notice and waiting periods; | ||
§ | the absence of any action, suit or proceeding, pending or threatened, which seeks to modify, enjoin or prohibit or otherwise adversely and materially affect the transaction contemplated by the merger agreement; | ||
§ | delivery of a tax opinion by Fulton’s legal counsel to each of Fulton and Columbia Bancorp; | ||
§ | listing of the Fulton stock to be issued as consideration on the Nasdaq National Market; | ||
§ | the registration statement of which this document is a part has been declared effective; | ||
§ | the absence of any material and adverse change in the condition, assets, liabilities, business or operations or future prospects of either party; | ||
§ | the accuracy in all material respects as of the date of the merger agreement and as of the effective date of the merger of the representations and warranties of the other party, except as to any representation or warranty which specifically relates to an earlier date and except as otherwise contemplated by the merger agreement; | ||
§ | the other party’s material performance of all its covenants and obligations; and |
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§ | other conditions customary for similar transactions, such as the receipt of officer certificates and legal opinions. |
§ | the corporate organization of Fulton, Columbia Bancorp, The Columbia Bank and their respective subsidiaries and capital structures; | ||
§ | the approval and enforceability of the merger agreement; | ||
§ | the consistency of financial statements with generally accepted accounting principles; | ||
§ | the filing of tax returns and payment of taxes; | ||
§ | the absence of material adverse changes, since March 31, 2005, in the condition, assets, liabilities, business or operations of either Fulton or Columbia Bancorp, on a consolidated basis; | ||
§ | the absence of undisclosed material pending or threatened litigation; | ||
§ | compliance with applicable laws and regulations; | ||
§ | retirement and other employee plans and matters relating to the Employee Retirement Income Security Act of 1974, as amended; | ||
§ | the quality of title to assets and properties; | ||
§ | the maintenance of adequate insurance; | ||
§ | the performance of material contracts; | ||
§ | the absence of undisclosed brokers’ or finders’ fees; | ||
§ | the absence of material environmental violations, actions or liabilities; |
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§ | the consistency of the allowance for loan losses with generally accepted accounting principles and all applicable regulatory criteria; | ||
§ | the receipt of a fairness opinion as to the fairness of the merger consideration to Columbia Bancorp’s stockholders; and | ||
§ | the accuracy of information supplied by Fulton and Columbia Bancorp in connection with the Registration Statement filed by Fulton with the SEC, this document and all applications filed with regulatory authorities for approval of the merger. |
§ | transactions between Columbia Bancorp and certain related parties; | ||
§ | the filing of all regulatory reports; | ||
§ | the lack of any regulatory agency proceeding or investigation into the business or operations of Columbia Bancorp or any of its subsidiaries; and | ||
§ | the receipt by Columbia Bancorp’s board of directors of a written fairness opinion. |
§ | use all reasonable efforts to carry on their respective businesses in the ordinary course; | ||
§ | use all reasonable efforts to preserve their respective business organizations, to retain the services of substantially all of their present officers and employees and to maintain their relationships with customers, suppliers and others with whom they have business dealings; | ||
§ | maintain all of their real and personal property in good repair, except for ordinary wear and tear and damage by unavoidable casualty; | ||
§ | use all reasonable efforts to preserve or collect all material claims and causes of action; | ||
§ | keep in full force and effect all insurance policies now carried; | ||
§ | perform in all material respects each of their obligations under all material contracts; | ||
§ | maintain their books of account and other records in the ordinary course; | ||
§ | comply in all material respects with all applicable laws, rules and regulations; | ||
§ | not amend any of their charter documents; | ||
§ | not enter into, assume or incur any material contract, liability, obligation or commitment, except in the ordinary course; | ||
§ | not make any material acquisition or disposition of properties or assets (except for acquisitions or dispositions of properties or assets which, in any case, do not exceed $100,000), or subject any of their properties or assets to any material lien, claim, charge, or encumbrance, except for loan and investment activity engaged in the ordinary course consistent with past practice; |
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§ | not knowingly take or permit to be taken any action which would constitute or cause a material breach of any representation, warranty or covenant; | ||
§ | not declare, set aside or pay any dividend or make any other distribution in respect of Columbia Bancorp common stock or preferred stock except as otherwise permitted by the merger agreement; | ||
§ | not authorize, purchase, redeem, issue or sell any shares of Columbia Bancorp common stock or any other equity or debt security of Columbia Bancorp (other than for the exercise of outstanding options, the warrant or the Columbia Bancorp common stock issuable under the warrant); | ||
§ | not increase compensation, or pay a bonus or severance compensation to, establish or amend any Columbia Bancorp benefit plan or enter into or amend any employment obligation other than reasonable salary increases and bonuses in the ordinary course consistent with past practice; | ||
§ | not enter into any related party transaction; | ||
§ | in determining the additions to loan loss reserves and the loan write-offs, writedowns and other adjustments that reasonably should be made by The Columbia Bank in classifying, valuing and retaining its investment portfolio, during the fiscal year ending December 31, 2005 and thereafter, consult with Fulton and act in accordance with generally accepted accounting principles; | ||
§ | file all tax returns and other material reports required to be filed, pay in full or make adequate provisions for the payment of all taxes, interest, penalties, assessments or deficiencies shown to be due and report all information on such returns truthfully, accurately and completely; | ||
§ | not renew any existing contract for services, goods, equipment or the like or enter into, materially amend or terminate any contract involving an amount in excess of $250,000 or for a term of one year or more; | ||
§ | not make any capital expenditures other than in the ordinary course or as necessary to maintain existing assets in good repair; | ||
§ | not make application for the opening or closing of any, or open or close any, branches or automated banking facility; | ||
§ | not make or commit to any equity investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course consistent with customary banking practice; | ||
§ | not take any other action which would cause the merger not to qualify as a tax-free reorganization; and | ||
§ | following receipt of both stockholder and regulatory approval of the merger and upon agreement as to the effective date by Fulton and Columbia Bancorp, conform its practices to the standards used by Fulton, with respect to its investment and loan portfolios and loan loss reserve. |
§ | initiating, encouraging or taking any other action to facilitate any inquiries relating to an acquisition of Columbia Bancorp; and | ||
§ | withdrawing approval or recommendation of the merger agreement or the merger, approving a third party’s proposal to acquire Columbia Bancorp or entering into a letter of intent, acquisition agreement or similar agreement with a third party with respect to an acquisition of Columbia Bancorp by such |
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party, except under limited circumstances where a third party’s proposal to acquire Columbia Bancorp or its subsidiaries is superior to Fulton’s proposal, and Columbia Bancorp’s board of directors determines, in good faith, and with the advice of outside counsel, that failure to do so would be inconsistent with their responsibilities under Maryland law. |
§ | after consultation with its outside legal counsel, the board of directors determines in good faith that failing to take such action would be inconsistent with their responsibilities under Maryland law; | ||
§ | Columbia Bancorp has not breached its obligations under the merger agreement regarding no solicitation of offers from third parties in connection with a business combination with Columbia Bancorp and the board of directors has authorized, subject to complying with the terms of the merger agreement, Columbia Bancorp to enter into a binding written agreement for a transaction that is a superior proposal; | ||
§ | Fulton does not make, within five business days after receipt of Columbia Bancorp’s written notice of its intention to enter into a binding agreement for a superior proposal, any offer that the board of directors of Columbia Bancorp reasonably and in good faith determines, after consultation with its financial and legal advisors, is at least as favorable to the stockholders of Columbia Bancorp as the superior proposal and during such period Columbia Bancorp reasonably considers and discusses in good faith all proposals submitted by Fulton and meets and discusses with Fulton its proposals; and | ||
§ | prior to the termination of the merger agreement, Columbia confirms in writing that such termination allows exercise of the warrant. |
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§ | if Columbia Bancorp breaches any representation or covenant in the merger agreement which would permit Fulton to terminate the merger agreement and which occurs following a third party’s offer (consummated within twelve months) to acquire 25% or more of the voting power of Columbia Bancorp or one of its subsidiaries; | ||
§ | if Columbia Bancorp’s stockholders fail to approve the merger agreement and, at the time of the stockholders’ special meeting, a third party proposal to merge with or acquire or lease all or substantially all of the assets of Columbia Bancorp or one of its subsidiaries, or to acquire 25% or more of the voting power of Columbia Bancorp or a subsidiary, has been announced and Columbia Bancorp’s board fails to either recommend against accepting the third party offer or takes no position; | ||
§ | if a person other than Fulton acquires beneficial ownership of 25% or more of Columbia Bancorp common stock; | ||
§ | if a person other than Fulton makes an offer (and such offer is consummated within twelve months) to acquire 25% or more of the voting power of Columbia Bancorp or one of its subsidiaries; | ||
§ | if a person or group, other than Fulton, enters into any agreement, letter of intent, or other understanding with Columbia Bancorp to merge or consolidate with Columbia Bancorp, to acquire all or substantially all of the assets or liabilities of Columbia Bancorp or one of its subsidiaries, or to acquire beneficial ownership of 25% or more of the voting power of Columbia Bancorp or one of its subsidiaries or to negotiate such a transaction except as specifically permitted by the Merger Agreement; or | ||
§ | if Fulton or Columbia Bancorp terminates the merger agreement because Columbia Bancorp’s board of directors takes certain actions inconsistent with Fulton’s acquisition of Columbia Bancorp. |
§ | a written notice of exercise; |
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§ | payment to Columbia Bancorp of the exercise price for the number of shares specified in the notice of exercise; and | ||
§ | a certificate specifying the events which have occurred which cause the warrant to be exercisable. |
§ | the effective date of the merger; or | ||
§ | valid termination of the merger agreement (other than a termination by Fulton caused by Columbia Bancorp’s board of directors taking action with respect to a third party offer), except that if one of the events described above which causes the warrant to be exercisable occurs prior to termination of the merger agreement, the warrant shall not terminate until twelve months after such event; | ||
§ | if the warrant has not previously been exercised, twelve months after the occurrence of one of the events described above which causes the warrant to be exercisable; or | ||
§ | twelve months after a valid termination by Fulton caused by Columbia Bancorp’s board taking action with respect to a third party offer. |
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§ | amend the merger agreement, except that any amendment relating to the consideration to be received by the Columbia Bancorp stockholders in exchange for their shares must be approved by the Columbia Bancorp stockholders; | ||
§ | extend the time for the performance of any of the obligations or other acts of Fulton and Columbia Bancorp required in the merger agreement; or | ||
§ | waive any term or condition in the merger agreement to the extent permitted by law. |
§ | there has been a material breach by the other party of a material representation, warranty or covenant in the merger agreement and such breach has not been cured within 30 days after written notice of such breach has been given; or | ||
§ | any condition precedent to its obligations under the merger agreement remains unsatisfied as of June 30, 2006 through no fault of its own; or | ||
§ | the board of directors of Columbia Bancorp, acting in good faith and consistent with Maryland law, takes certain actions in connection with an acquisition of Columbia Bancorp by a party other than Fulton, which it believes is more favorable to Columbia Bancorp’s stockholders. |
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§ | $14.79; and | ||
§ | 80% of the ratio of the Nasdaq Bank Index over the same ten-day period compared to the Index on July 26, 2005, times the “starting price” of Fulton stock ($18.49). |
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§ | that would result in a monopoly or that would further a combination or conspiracy to monopolize banking in the United States, or | ||
§ | that could substantially lessen competition in any section of the country, that would tend to create a monopoly in any section of the country, or that would be in restraint of trade, unless the Federal Reserve Board finds that the public interest in meeting the convenience and needs of the community served clearly outweighs the anti-competitive effects of the proposed transaction. |
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• | Fulton and Columbia Bancorp will not recognize gain or loss in the merger; | ||
• | Columbia Bancorp’s stockholders will not recognize any gain or loss upon receipt of Fulton common stock in exchange for Columbia Bancorp common stock, except that (1) stockholders who receive cash proceeds for fractional share interests will recognize gain or loss equal to the difference between such proceeds and the tax basis allocated to their fractional share interests, and such gain or loss will constitute capital gain or loss if the stockholders held their Columbia Bancorp common stock as a capital asset at the effective date of the merger and (2) stockholders who receive cash consideration and Fulton common stock in exchange for Columbia Bancorp common stock will recognize gain, but not loss, realized with respect to any Columbia Bancorp common share but not in excess of the amount of cash received or deemed received for that Columbia Bancorp common share, and such gain will constitute capital gain if the stockholders held their Columbia Bancorp common stock as a capital asset at the effective date of the merger; | ||
• | Columbia Bancorp’s stockholders who elect to receive only cash consideration in exchange for Columbia Bancorp common stock pursuant to the merger will generally recognize gain or loss based on the difference between the cash consideration received and the adjusted basis in the Columbia Bancorp common stock exchanged; | ||
• | the tax basis of shares of Fulton common stock received by Columbia Bancorp’s stockholders in the merger will be the same as the tax basis of their shares of Columbia Bancorp common stock less any basis that would be allocable to a fractional share of Fulton common stock for which cash is received; and | ||
• | the holding period of the Fulton common stock that Columbia Bancorp’s stockholders receive in the merger will include the holding period of their shares of Columbia Bancorp common stock, provided that they hold their Columbia Bancorp common stock as a capital asset at the time of the merger. |
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§ | the further registration under the Securities Act of the Fulton stock to be transferred; | ||
§ | compliance with Rule 145 promulgated under the Securities Act, which permits limited sales under certain circumstances; or | ||
§ | the availability of another exemption from registration. |
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• | One Columbia Bancorp director, John M. Bond, Jr., will serve as director of Fulton; and | ||
• | All directors of The Columbia Bank will continue to serve as directors of The Columbia Bank. |
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Price Range Per Share | Per Share Dividend | |||||||||||
High | Low | |||||||||||
2005 | ||||||||||||
Fourth Quarter (through [Latest Practicable Date]) | ||||||||||||
Third Quarter | $ | 18.90 | $ | 16.20 | $ | 0.145 | ||||||
Second Quarter | 18.00 | 16.46 | 0.145 | |||||||||
First Quarter | 18.82 | 16.80 | 0.132 | |||||||||
2004 | ||||||||||||
Fourth Quarter | 18.88 | 16.84 | 0.132 | |||||||||
Third Quarter | 17.52 | 16.00 | 0.132 | |||||||||
Second Quarter | 17.31 | 15.31 | 0.132 | |||||||||
First Quarter | 17.36 | 15.89 | 0.122 | |||||||||
2003 | ||||||||||||
Fourth Quarter | 16.76 | 15.05 | 0.122 | |||||||||
Third Quarter | 16.38 | 14.66 | 0.122 | |||||||||
Second Quarter | 16.00 | 13.61 | 0.122 | |||||||||
First Quarter | 13.86 | 12.71 | 0.109 |
High: | $ | 18.63 | ||
Low: | $ | 18.40 | ||
Last Sales price: | $ | 18.49 |
High: | $ | |||
Low: | $ | |||
Last Sales price: | $ |
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Pennsylvania State Chartered Banks | Fulton Bank, Lebanon Valley Farmers Bank, Lafayette Ambassador Bank, and Premier Bank | may pay dividends only out of accumulated net earnings and may not declare or pay any dividend requiring a reduction of the statutorily required surplus of the institution | ||
National Banks | Swineford National Bank, FNB Bank, N.A., Delaware National Bank, and Fulton Financial Advisors, N.A. | the approval of the Office of the Comptroller of the Currency is required under federal law if the total of all dividends declared during any calendar year would exceed the net profits (as defined) of the bank for the year, combined with its retained net profits (as defined) for the two preceding calendar years | ||
Maryland Commercial Banks | Hagerstown Trust Company and The Peoples Bank of Elkton | may only declare a cash dividend from their undivided profits or (with the prior approval of the Commissioner of Financial Regulation) from its surplus in excess of 100% of its required capital stock, in each case after providing for due or accrued expenses, losses, interest and taxes. In addition, if Hagerstown’s or Peoples’ surplus becomes less than 100% of its required capital stock, Hagerstown or Peoples may not declare or pay any cash dividends that exceed 90% of its net earnings until its surplus becomes 100% of its required capital stock |
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New Jersey Banks | The Bank, Skylands Community Bank, First Washington State Bank, Somerset Valley Bank | may not declare or pay any dividends which would impair their capital stock or reduce their surplus to a level of less than 50% of their capital stock or if the surplus is currently less than 50% of the capital stock, the payment of such dividends would not reduce the surplus of the bank | ||
Virginia Bank | Resource Bank | may only declare or pay any dividends up to the amount of retained earning |
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�� | § | a provision that provides for substantial amounts of authorized but unissued capital stock, including a class of preferred stock whose rights and privileges may be determined prior to issuance by Fulton’s board of directors; | |
§ | a provision that does not permit shareholders to cumulate their votes for the election of directors; | ||
§ | a provision that requires a greater than majority shareholder vote in order to approve certain business combinations and other extraordinary corporate transactions; | ||
§ | a provision that establishes criteria to be applied by the board of directors in evaluating an acquisition proposal; | ||
§ | a provision that requires a greater than majority shareholder vote in order for the shareholders to remove a director from office without cause; | ||
§ | a provision that prohibits the taking of any action by the shareholders without a meeting and eliminates the right of shareholders to call a special meeting; | ||
§ | a provision that limits the right of the shareholders to amend the Bylaws; and | ||
§ | a provision that requires, under certain circumstances, a greater than majority shareholder vote in order to amend the Amended and Restated Articles of Incorporation. |
§ | a provision that limits the permissible number of directors; | ||
§ | a provision that establishes a board of directors divided into three classes, with members of each class elected for a three-year term that is staggered with the terms of the members of the other two classes; and | ||
§ | a provision that requires advance written notice as a precondition to the nomination of any person for election to the board of directors, other than in the case of nominations made by existing management. |
§ | a provision whereby the directors of the corporation, in determining what is in the best interests of the corporation, may consider factors other than the economic interests of the shareholders, such as the |
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effect of any action upon other constituencies, including employees, suppliers, customers, creditors and the community in which the corporation is located; | |||
§ | a provision that permits shareholders to demand that a controlling person pay to them the fair value of their shares in cash upon a change in control; | ||
§ | a provision that restricts certain business combinations unless there is prior approval by the directors or a supermajority of the shareholders; | ||
§ | a provision permitting a corporation to adopt a shareholders rights plan; | ||
§ | a provision denying the right to vote to a person who acquires a specified percentage of stock ownership unless those voting rights are restored by a vote of disinterested shareholders; and | ||
§ | a provision requiring a person who acquires “control shares”, which are described in the previous sentence, to disgorge to the corporation all profits from the sale of equity securities within eighteen months thereafter. |
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§ | Columbia Bancorp Statutory Trust I, Columbia Bancorp Statutory Trust II and Columbia Bancorp Statutory Trust III, each of which has issued trust preferred securities. |
§ | McAlpine Enterprises, Inc, Howard I, LLC and Howard II, LLC, which are inactive, but have been used primarily to manage properties acquired through foreclosure; and | ||
§ | Columbia Leasing, Inc., which is an inactive commercial leasing company. |
Price Range Per Share | Per Share Dividend | |||||||||||
High | Low | |||||||||||
2005 | ||||||||||||
Fourth Quarter (through [Latest Practicable Date]) | ||||||||||||
Third Quarter | $ | 42.19 | $ | 39.85 | $ | .170 | ||||||
Second Quarter | 36.96 | 30.21 | .170 | |||||||||
First Quarter | 35.49 | 31.30 | .170 | |||||||||
2004 | ||||||||||||
Fourth Quarter | $ | 37.49 | $ | 28.25 | $ | .170 | ||||||
Third Quarter | 30.10 | 26.50 | .150 | |||||||||
Second Quarter | 32.00 | 28.05 | .150 | |||||||||
First Quarter | 32.86 | 29.00 | .150 | |||||||||
2003 | ||||||||||||
Fourth Quarter | $ | 32.49 | $ | 27.21 | $ | .150 | ||||||
Third Quarter | 29.67 | 23.96 | .125 | |||||||||
Second Quarter | 26.00 | 22.41 | .125 | |||||||||
First Quarter | 25.32 | 21.35 | .125 |
High: | $ | 37.47 | ||
Low: | $ | 36.82 | ||
Last Sales Price: | $ | 37.25 |
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High: | $ | |||
Low: | ||||
Last Sales Price: |
COLUMBIA BANCORP | FULTON | |||
Title | Common Stock, $0.01 par value per share | Common Stock, $2.50 par value per share | ||
Shares Authorized | Columbia Bancorp’s charter authorizes issuance of up to 10,000,000 shares of capital stock, $0.01 par value per share, all of which are classified as “Common Stock”. Columbia Bancorp’s charter provides that the board of directors has the power to classify and reclassify any unissued shares of capital stock by setting or changing in any one or more respects the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications or terms or conditions of redemption of such shares of stock. | Fulton’s charter authorizes issuance of up to 600,000,000 shares of common stock, par value $2.50 per share. | ||
Shares Issued & Outstanding | 156,953,150 shares, as of September 30, 2005 | 6,938,276 shares, as of September 30, 2005 | ||
Preemptive Rights | No | No | ||
Classification of board of directors | Columbia Bancorp’s bylaws provide that the board of directors shall be divided into three classes as nearly equal in number as possible, with each class serving a three year term. | Fulton’s bylaws provide that the board of directors shall be divided into three classes as nearly equal as possible with each class serving a three year term. | ||
Voting: Election and Removal of Directors | Columbia Bancorp’s bylaws provide that a plurality of all the votes cast at a meeting of stockholders at which a quorum is present is sufficient to elect a director. There is no cumulative voting. | Fulton’s bylaws provide that a plurality of all the votes cast at a meeting of stockholders at which a quorum is present is sufficient to elect a director. There is no cumulative voting. Fulton’s articles of incorporation provide that, |
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COLUMBIA BANCORP | FULTON | |||
Columbia Bancorp’s charter provides that, subject to the rights of the holders of any class separately entitled to elect one or more directors, any director or the entire board of directors, may be removed from office at any time, but only for cause and then only by the affirmative vote of the holders of at least 80% of the combined voting power of all classes of shares of capital stock entitled to vote in the election of directors. | subject to the rights of the holders of any class separately entitled to elect one or more directors, a director may be removed by shareholder vote: (1) With cause, by a majority of the voting power of the then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class; or (2) Without cause, by not less than 85% of the voting power of the then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class | |||
Voting: Approval of Fundamental Transactions | 2/3 of all votes entitled to be cast at stockholders meeting. | 2/3 of voting power of the then outstanding voting stock | ||
Voting: Amendment of Articles of Incorporation | The affirmative vote of a majority of all votes entitled to be cast by the stockholders of Columbia Bancorp on the matter is required following approval by Columbia Bancorp’s board of directors of such amendment, provided that certain provisions of Columbia Bancorp’s charter require the approval of 80% entitled to be cast thereon. | Amendment of Fulton’s articles with respect to the provisions regarding Fulton’s authorized shares, required votes for fundamental transactions, removal of directors, ability to call (or act without) a special meeting and requirements to amend the articles and bylaws require the approval of either: (i) affirmative vote of holders of 85% of voting power; or (ii) approval of a majority of directors and continuing directors and affirmative vote of 66-2/3 of holders of voting power. All other amendments of Fulton’s articles must be approved by either: (a) majority of directors and the affirmative vote of holders of a majority of voting power or (b) the affirmative vote of holders of 85% of voting power. | ||
Voting: Other Matters | One vote for each share owned of record. | One vote for each share owned of record. | ||
Columbia Bancorp’s bylaws provide that a majority of all the votes cast at a meeting at which a quorum is present is sufficient to approve any matter which properly comes before the meeting. | Fulton’s bylaws provide that a majority of all the votes cast at a meeting at which a quorum is present is sufficient to approve any matter which properly comes before the meeting. | |||
Approval Required for Restricted Transactions with Significant Beneficial Owners | The Maryland Business Combination Act, which is contained in the MGCL, provides that unless exempted, a Maryland corporation may not engage in business combinations, including mergers, dispositions of 10% or more of its assets, issuances of shares of stock or other specified transactions, with an “interested stockholder” or an affiliate of an interested stockholder for five years after the most recent date on which the interested stockholder became an interested stockholder, and thereafter unless certain | Approval of a fundamental transaction with or involving an interested shareholder (generally speaking, a 5% or greater beneficial owner of Fulton’s voting stock) or an affiliate or associate of an interested shareholder requires the affirmative vote of holders of not less than 85% of the voting power of the then outstanding shares of voting stock. If such transaction is approved by a majority of continuing directors, or six economic and procedural conditions are met by the transaction, then the holders of not less than 66-2/3% of the voting power of the then |
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COLUMBIA BANCORP | FULTON | |||
criteria specified in the Maryland Business Combination Act are met. These criteria include approval by an 80% supermajority vote of the stockholders unless the stockholders receive, in any such business combination, a minimum price for the shares, determined in accordance with the provisions of the statute. An interested stockholder is generally a person owning or controlling, directly or indirectly, 10% or more of the voting power of the outstanding stock of a Maryland corporation. | outstanding shares of voting stock is required. | |||
Columbia Bancorp’s board of directors has adopted a resolution exempting the merger with Fulton from the Maryland Business Combination Act. However, Columbia Bancorp’s board of directors could repeal or modify this resolution prior to the closing of the merger, in which case, the provisions of the Maryland Business Combination Act will be applicable to the business combination between Columbia Bancorp and Fulton. | ||||
Dissenters’ Rights | The Maryland General Corporation Law (the “MGCL”) generally provides that a stockholder of a Maryland corporation is not entitled to dissenters’ rights if the stock received in a merger is designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. | The Pennsylvania Business Corporation Law (the “BCL”) generally provides that a shareholder of a Pennsylvania corporation is not entitled to dissenters’ rights if the stock received in a merger is designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. | ||
Dividend Reinvestment Plan | Yes | Yes | ||
Market | Listed for quotation on the Nasdaq National Market | Listed for quotation on Nasdaq National Market | ||
Registered under 1934 Act | Yes | Yes | ||
Limitation of Liability of Directors for Monetary Damages | Columbia Bancorp’s charter provides for the elimination of personal liability for directors and officers to the fullest extent possible under applicable law. | Fulton’s charter provides for the elimination of personal liability for directors and officers to the fullest extent possible under applicable law. | ||
Under applicable law, by virtue of such charter provision, a director or officer of Columbia Bancorp will have no personal liability to Columbia Bancorp or its stockholders for monetary damages except: (i) to the extent that it is proved that the director or officer actually received an improper personal benefit or profit in money, property or services for the amount | Under applicable law, by virtue of such charter provision, a director or officer of Fulton will have no personal liability to Fulton or its stockholders for monetary damages except: (i) to the extent the director has breached or failed to perform the duties of his office under Section 8363 of the Directors’ Liability Act, and (ii) the breach or failure to perform constitutes self-dealing, willful |
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COLUMBIA BANCORP | FULTON | |||
of the improper personal benefit or profit in money, property or services actually received; or (ii) to the extent that a judgment or other adjudication adverse to the director or officer is entered in a proceeding based on a finding in the proceeding that the director’s or officer’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. | misconduct or recklessness. These provisions do not exempt a director from: (a) the responsibility or liability of a director pursuant to any criminal statute; or (b) the liability of a director for the payment of taxes pursuant to local, state or federal law. | |||
Indemnification of Directors, Officers and Employees | Columbia Bancorp’s charter and bylaws provide that Columbia Bancorp will indemnify its directors to the fullest extent permitted by applicable law and will indemnify its officers to such extent as shall be authorized by the board of directors of Columbia Bancorp and permitted by law. The applicable provisions of the MGCL allow corporations to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, partner, trustee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, other enterprise or employee benefit plan unless it is established that: (i) the act or omission was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) the person actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the person had reasonable cause to believe that the act or omission was unlawful. | Fulton’s bylaws provide that Fulton will indemnify its officers and directors to the fullest extent permitted by applicable law. The applicable provisions of the BCL allow corporations to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative, by reason of he fact that he is or was a representative of the corporation, if (i) he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation and, (ii) with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. | ||
Qualification of Directors | Columbia Bancorp’s bylaws prohibit a person standing for election as a director who would be 70 years of age on or before the date of the election (with no age limit in the case of any person who is serving as the Chairman of the board of directors, the chairman of any standing committee of the board of directors, the Chief Executive Officer or the President just prior to his election). | Fulton’s bylaws prohibit a person standing for election as a director who would be 70 years of age on or before the date of the election. |
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COLUMBIA BANCORP | FULTON | |||
Authorized Class of Preferred Stock | Columbia Bancorp currently has no authorized preferred stock. Columbia Bancorp’s charter provides that the board of directors has the power to classify and reclassify any unissued shares of capital stock by setting or changing in any one or more respects the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications or terms or conditions of redemption of such shares of stock. | Fulton’s articles of incorporation authorize 10,000,000 shares of preferred stock, without par value, which can be issued under terms and conditions to be determined by the board of directors. | ||
Right of Stockholders to call an Annual Meeting | No | No | ||
Right of Stockholders to call a Special Meeting | Special meetings of stockholders shall only be called by the secretary upon the written request of the stockholders entitled to cast not less than a majority of all the votes entitled to be cast at such meeting. Such requests shall state the purpose of such meeting and the matters proposed to be acted on at such meeting. At a special meeting of the stockholders, only the business described in the notice of the meeting shall be conducted. | Fulton’s articles of incorporation provide that a special meeting may only be called by (i) the Chief Executive Officer of the corporation, (ii) the Executive Committee of the board of directors, or (iii) the board of directors pursuant to a resolution adopted by the affirmative vote of a majority of the whole board of directors. Special meetings may not be called by shareholders. | ||
Stockholder Inspection Rights | Pursuant to the MGCL, one or more persons who have been stockholders of a Maryland corporation for at least six months and in total hold at least 5% of the outstanding stock of any class may request a statement of the corporation’s current assets and liabilities and may inspect and copy the corporation’s books of account and stock ledger. | Pursuant to the BCL, every shareholder may, upon written demand stating a proper purpose therefor, have a right to examine the share register, books and records of account, and records of the proceedings of the incorporators, shareholders and directors of the company and to make copies or extracts. A proper purpose shall mean a purpose reasonably related to the interest of the person as a shareholder. | ||
Right of Stockholders to act by Written Consent | Under the MGCL, any action required or permitted to be taken at a meeting of stockholders may be taken without a meeting if written consent or consents setting forth the action taken are signed by the holders of all of the outstanding stock entitled to vote on the matter, and if a written waiver of any right to dissent signed by each stockholder entitled to notice of the meeting but not entitled to vote at it, are filed with the records of the stockholders’ meetings. | Fulton’s articles of incorporation prohibit shareholders from consenting in writing to action without a meeting. |
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§ | Annual Report on Form 10-K, filed March 16, 2005, for the year ended December 31, 2004; | ||
§ | Quarterly Reports on Form 10-Q, filed May 10, 2005, for the quarter ended March 31, 2005 and filed August 9, 2005 for the quarter ended June 30, 2005; | ||
§ | Current Reports on Form 8-K filed: January 3, 2005, July 26, 2005, January 18, 2005, March 2, 2005, March 16, 2005, March 22, 2005, March 24, 2005, March 31, 2005, April 13, 2005, May 5, 2005, June 9, 2005, June 15, 2005, June 24, 2005, June 27, 2005, July 1, 2005, July 5, 2005, July 19, 2005, July 26, 2005, July 27, 2005, July 29, 2005 and August 9, 2005; | ||
§ | The description of Fulton common stock contained in Fulton’s registration statement on Form 8-A, dated July 3, 1989, and any amendment or reports filed for purposes of updating such description. |
§ | Annual Report on Form 10-K filed March 15, 2005, for the year ended December 31, 2004; | ||
§ | Quarterly Reports on Form 10-Q filed May 10, 2005 for the quarter ended March 31, 2005 and filed August 8, 2005 for the quarter ended June 30, 2005; | ||
§ | Current Reports on Form 8-K filed: January 3, 2005, February 4, 2005, March 25, 2005, and July 29, 2005. | ||
§ | The description of Columbia Bancorp common stock contained in its Registration Statement on Form 8-A, dated June 9, 1994. |
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EXHIBIT A
Table of Contents
ARTICLE I — THE MERGER | 2 | |||
Section 1.1 Merger | 2 | |||
Section 1.2 Name | 2 | |||
Section 1.3 Articles of Incorporation | 2 | |||
Section 1.4 Bylaws | 2 | |||
Section 1.5 Directors and Officers | 2 | |||
ARTICLE II — CONVERSION OF SHARES AND EXCHANGE OF STOCK CERTIFICATES | 2 | |||
Section 2.1 Conversion of Shares | 2 | |||
Section 2.2 Exchange of Stock Certificates | 4 | |||
Section 2.3 Treatment of Outstanding Columbia Options. | 12 | |||
Section 2.4 Reservation of Shares | 14 | |||
Section 2.5 Taking Necessary Action | 14 | |||
Section 2.6 Press Releases, Etc | 14 | |||
Section 2.7 Fulton Common Stock | 14 | |||
Section 2.8 Dissenters’ Rights | 14 | |||
Section 2.9 Certain Actions | 14 | |||
ARTICLE III — REPRESENTATIONS AND WARRANTIES OF COLUMBIA | 15 | |||
Section 3.1 Authority | 15 | |||
Section 3.2 Organization and Standing | 15 | |||
Section 3.3 Subsidiaries | 16 | |||
Section 3.4 Capitalization | 16 | |||
Section 3.5 Charter, Bylaws and Minute Books | 16 | |||
Section 3.6 Financial Statements | 17 | |||
Section 3.7 Absence of Undisclosed Liabilities | 20 | |||
Section 3.8 Absence of Changes | 20 | |||
Section 3.9 Dividends, Distributions and Stock Purchases | 20 | |||
Section 3.10 Taxes | 20 | |||
Section 3.11 Title to and Condition of Assets | 21 | |||
Section 3.12 Contracts. | 21 | |||
Section 3.13 Litigation and Governmental Directives | 22 | |||
Section 3.14 Compliance with Laws; Governmental Authorizations | 23 | |||
Section 3.15 Insurance | 23 | |||
Section 3.16 Financial Institutions Bonds | 23 | |||
Section 3.17 Labor Relations and Employment Agreements | 24 | |||
Section 3.18 Employee Benefit Plans | 24 | |||
Section 3.19 Related Party Transactions | 25 | |||
Section 3.20 No Finder | 25 | |||
Section 3.21 Complete and Accurate Disclosure | 25 | |||
Section 3.22 Environmental Matters | 26 | |||
Section 3.23 Proxy Statement/Prospectus | 26 |
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Section 3.24 SEC Filings | 27 | |||
Section 3.25 Reports | 27 | |||
Section 3.26 Loan Portfolio of The Columbia Bank. | 27 | |||
Section 3.27 Investment Portfolio | 28 | |||
Section 3.28 Regulatory Examinations. | 28 | |||
Section 3.29 Regulatory Agreements and Matters | 28 | |||
Section 3.30 Beneficial Ownership of Fulton Common Stock | 29 | |||
Section 3.31 Fairness Opinion | 29 | |||
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF FULTON | 29 | |||
Section 4.1 Authority | 29 | |||
Section 4.2 Organization and Standing | 30 | |||
Section 4.3 Capitalization | 30 | |||
Section 4.4 Articles of Incorporation and Bylaws | 30 | |||
Section 4.5 Subsidiaries | 30 | |||
Section 4.6 Financial Statements | 31 | |||
Section 4.7 Absence of Undisclosed Liabilities | 34 | |||
Section 4.8 Absence of Changes; Dividends, Etc. | 34 | |||
Section 4.9 Litigation and Governmental Directives | 34 | |||
Section 4.10 Compliance with Laws; Governmental Authorizations | 34 | |||
Section 4.11 Complete and Accurate Disclosure | 34 | |||
Section 4.12 Labor Relations | 35 | |||
Section 4.13 Employee Benefit Plans | 35 | |||
Section 4.14 Environmental Matters | 35 | |||
Section 4.15 SEC Filings | 36 | |||
Section 4.16 Proxy Statement/Prospectus | 36 | |||
Section 4.17 Regulatory Approvals | 36 | |||
Section 4.18 No Finder | 36 | |||
Section 4.19 Taxes | 36 | |||
Section 4.20 Title to and Condition of Assets | 37 | |||
Section 4.21 Contracts | 37 | |||
Section 4.22 Insurance | 37 | |||
Section 4.23 Reports | 37 | |||
Section 4.24 Regulatory Agreements and Matters | 38 | |||
Section 4.25 Regulatory Examinations | 38 | |||
ARTICLE V — COVENANTS OF COLUMBIA | 39 | |||
Section 5.1 Conduct of Business | 39 | |||
Section 5.2 Best Efforts | 42 | |||
Section 5.3 Access to Properties and Records | 42 | |||
Section 5.4 Subsequent Financial Statements | 42 | |||
Section 5.5 Update Schedules | 42 | |||
Section 5.6 Notice | 42 | |||
Section 5.7 No Solicitation. | 42 |
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Section 5.8 Affiliate Letters | 45 | |||
Section 5.9 No Purchases or Sales of Fulton Common Stock During Price Determination Period | 45 | |||
Section 5.10 Dividends | 46 | |||
Section 5.11 Internal Controls. | 46 | |||
Section 5.12 Certain Matters, Certain Revaluations, Changes and Adjustments. | 46 | |||
Section 5.13 Other Policies | 47 | |||
Section 5.14 Other Transactions | 47 | |||
Section 5.15 Transaction Expenses of Columbia. | 47 | |||
ARTICLE VI — COVENANTS OF FULTON | 48 | |||
Section 6.1 Best Efforts | 48 | |||
Section 6.2 Access to Properties and Records | 49 | |||
Section 6.3 Subsequent Financial Statements | 49 | |||
Section 6.4 Update Schedules | 49 | |||
Section 6.5 Notice | 49 | |||
Section 6.6 No Purchase or Sales of Fulton Common Stock During Price Determination Period | 50 | |||
Section 6.7 Assumption of Columbia Trust Preferred Securities | 50 | |||
Section 6.8 Employment Arrangements. | 50 | |||
Section 6.9 Insurance; Indemnification. | 52 | |||
Section 6.10 Appointment of Fulton Director | 53 | |||
Section 6.11 Continuation of The Columbia Bank’s Structure, Name and Directors. | 53 | |||
ARTICLE VII — CONDITIONS PRECEDENT | 54 | |||
Section 7.1 Common Conditions | 54 | |||
Section 7.2 Conditions Precedent to Obligations of Fulton | 56 | |||
Section 7.3 Conditions Precedent to the Obligations of Columbia | 60 | |||
ARTICLE VIII — TERMINATION, AMENDMENT AND WAIVER | 62 | |||
Section 8.1 Termination | 62 | |||
Section 8.2 Effect of Termination. | 63 | |||
Section 8.3 Amendment | 64 | |||
Section 8.4 Waiver | 64 | |||
ARTICLE IX — CLOSING AND EFFECTIVE TIME | 64 | |||
Section 9.1 Closing | 64 | |||
Section 9.2 Effective Time | 65 | |||
ARTICLE X — NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES | 65 | |||
Section 10.1 No Survival | 65 | |||
ARTICLE XI — GENERAL PROVISIONS | 65 | |||
Section 11.1 Expenses | 65 | |||
Section 11.2 Other Mergers and Acquisitions | 65 | |||
Section 11.3 Notices | 65 |
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Section 11.4 Counterparts | 66 | |||
Section 11.5 Governing Law | 66 | |||
Section 11.6 Parties in Interest | 66 | |||
Section 11.7 Disclosure Schedules. | 67 | |||
Section 11.8 Entire Agreement | 67 | |||
Section 11.9 Definitions | 67 |
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Schedule 2.3 | Columbia Options | |
Schedule 3.3 | Other Columbia Subsidiaries | |
Schedule 3.6 | Financial Statements | |
Schedule 3.7 | Undisclosed Liabilities | |
Schedule 3.8 | Changes | |
Schedule 3.9 | Dividends, Distributions and Stock Purchases | |
Schedule 3.10 | Taxes | |
Schedule 3.11 | Title to and Condition of Assets | |
Schedule 3.12 | Contracts | |
Schedule 3.13 | Litigation and Governmental Directives | |
Schedule 3.14 | Compliance with Laws; Governmental Authorizations | |
Schedule 3.15 | Insurance | |
Schedule 3.16 | Financial Institutions Bonds | |
Schedule 3.17 | Labor Relations and Employment Agreements | |
Schedule 3.18 | Employee Benefit Plans | |
Schedule 3.19 | Related Party Transactions | |
Schedule 3.20 | Finders | |
Schedule 3.22 | Environmental Matters | |
Schedule 3.26 | Loan Portfolio | |
Schedule 3.27 | Investment Portfolio | |
Schedule 3.29 | Regulatory Agreements | |
Schedule 4.5 | Subsidiaries | |
Schedule 4.6 | Financial Statements | |
Schedule 4.7 | Undisclosed Liabilities | |
Schedule 4.8 | Dividends, Distributions and Stock Purchases | |
Schedule 4.9 | Litigation and Governmental Directives | |
Schedule 4.10 | Compliance with Laws; Governmental Authorizations | |
Schedule 4.14 | Environmental Matters | |
Schedule 4.19 | Taxes | |
Schedule 5.1 | Conduct of Business | |
Schedule 5.1(xxi) | Pending and Contemplated Applications |
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Exhibit A | Form of Warrant Agreement | |
Exhibit B | Form of Warrant | |
Exhibit C | Form of Voting Agreement | |
Exhibit D | Form of Employment Agreements | |
Exhibit E | Form of Opinion of Columbia’s Counsel | |
Exhibit F | Form of Opinion of Fulton’s Counsel |
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Fulton Financial Corporation
One Penn Square, P.O. Box 4887
Lancaster, Pennsylvania 17604
Barley Snyder LLC
126 East King Street
Lancaster, Pennsylvania 17602
Chairman and Chief Executive Officer
Columbia Bancorp
7168 Columbia Gateway Drive
Columbia, Maryland 21046
DLA Piper Rudnick Gray Cary US LLP
6225 Smith Avenue
Baltimore, Maryland 21209-3600
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1933 Act | Section 2.2(f)(iii) | |
1934 Act | Section 2.9 | |
Acquisition Proposal | Section 5.7(f)(i) | |
Additional Fulton Financial Statements | Section 6.3 | |
Additional Columbia Financial Statements | Section 5.4 | |
Aggregate Cash Election Percentage | Section 2.2(b)(iii)(C) | |
Aggregate Cash Elections | Section 2.2(b)(iii) | |
Aggregate Stock Election Percentage | Section 2.2(b)(iv)(C) | |
Aggregate Stock Elections | Section 2.2(b)(iii) | |
Articles of Merger | Section 9.2 | |
Bankruptcy and Equity Exceptions | Section 3.1 | |
BCL | Section 1.1 | |
BHC Act | Background | |
Cash Consideration | Section 2.1(b) | |
Cash Election | Section 2.2(a)(i) | |
Cash/Stock Election | Section 2.2(a)(i) | |
Cash Test Amount | Section 2.1(b) | |
Claim | Section 6.9(b) | |
Closing | Section 9.1 | |
Closing Market Price | Section 2.1(e) | |
Code | Section 2.3(b) |
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Columbia | Introduction | |
Columbia Balance Sheet | Section 3.6(a) | |
Columbia Bank Common Stock | Section 3.4 | |
Columbia Bank Continuing Directors | Section 6.11(a) | |
Columbia Benefit Plans | Section 3.18 | |
Columbia Closing Documents | Section 7.2(i) | |
Columbia Common Stock | Background | |
Columbia Material Adverse Effect | Section 3.8 | |
Columbia Options | Section 2.3(a) | |
Columbia Pension Plan | Section 3.18 | |
Columbia SEC Reports | Section 3.6(e) | |
Columbia Share | Section 2.1(a) | |
Columbia Stock Option Plans | Section 2.3(a) | |
Columbia Subsidiaries | Background | |
Columbia Subsidiaries Common Equity | Section 3.4 | |
Columbia Trust Preferred Securities | Background | |
Contract Employees | Section 3.17 | |
Conversion Ratio | Section 2.1(b) | |
Department | Section 3.25 | |
Department of Assessments and Taxation | Section 9.2 | |
Department of State | Section 9.2 | |
EDGAR | Section 3.6(e) | |
Effective Date | Section 9.2 | |
Effective Time | Section 9.2 | |
Employment Agreements | Section 3.17 | |
Employment Obligation | Section 3.17 | |
Election | Section 2.2(a)(i) | |
Election Deadline | Section 2.2(a)(iv) | |
ERISA | Section 3.18 | |
Exchange Agent | Section 2.2(a)(iv) | |
FDI Act | Section 3.2 | |
FDIC | Section 3.25 | |
Filed Fulton SEC Reports | Section 4.6(e) | |
Filed Columbia SEC Reports | Section 3.6(e) | |
Filing Offices | Section 9.2 | |
Floor Price | Section 8.1(c)(i) | |
Form of Election | Section 2.2(a)(ii) | |
FRB | Section 3.25 | |
Fulton | Introduction | |
Fulton Balance Sheet | Section 4.6(a) | |
Fulton Benefit Plan | Section 4.13 | |
Fulton Closing Documents | Section 7.3(h) | |
Fulton Common Stock | Background | |
Fulton Employers | Section 6.8(a) |
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Fulton Material Adverse Effect | Section 4.8 | |
Fulton Material Contracts | Section 4.21 | |
Fulton Pension Plans | Section 4.13 | |
Fulton Preferred Stock | Section 4.3 | |
Fulton Rights | Section 2.1(b) | |
Fulton Rights Agreement | Section 2.1(b) | |
Fulton SEC Reports | Section 4.6(e) | |
Fulton Share Value | Section 2.1(b) | |
Fulton Stock Consideration | Section 2.1(b) | |
Fulton Stock Option | Section 2.3(a) | |
Fulton Subsidiaries | Section 4.5 | |
GAAP | Section 3.6(a) | |
GCL | Section 1.1 | |
Governmental Entity | Section 3.13 | |
Indemnified Liabilities | Section 6.9(b) | |
Indemnified Parties | Section 6.9(b) | |
IRS | Section 3.10 | |
Knowledge of Columbia or The Columbia Bank, Knowledge of Columbia and the Columbia Subsidiaries | Section 3.13 | |
Letter of Transmittal | Section 2.2(e) | |
Material Contracts | Section 3.12(a) | |
Maximum Cash Percentage | Section 2.2(b)(i) | |
Merger | Background | |
Merger Consideration | Section 2.1(a) | |
Minimum Cash Percentage | Section 2.2(b)(i) | |
NASDAQ | Section 2.1(e) | |
Non-Electing Shares | Section 2.2(b)(vi) | |
Offering | Section 7.1(e) | |
Ordinary Course of Business | Section 3.7 | |
Ordinary Course of Business of Fulton | Section 4.7 | |
Outstanding Shares | Section 2.1(b) | |
PBGC | Section 4.13 | |
Pennsylvania Department | Section 4.23 | |
Pre-Announcement Date | Section 8.1(c)(iii) | |
Price Determination Period | Section 2.1(e) | |
Pro-rated Cash Percentage | Section 2.2(b)(iii)(C) | |
Pro-rated Stock Percentage | Section 2.2(b)(iv)(C) | |
Proxy Statement/Prospectus | Section 6.1(b) | |
Registration Statement | Section 6.1(b) | |
Remaining Cash Percentage | Section 2.2(b)(iv)(C) | |
Remaining Stock Percentage | Section 2.2(b)(iii)(C) | |
SEC | Section 2.2(a)(iv) | |
SOX Act | Section 3.6(c) | |
Starting Price | Section 8.1(c)(iii) | |
Stock Election | Section 2.2(a)(i) |
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Stock Test Amount | Section 2.1(b) | |
Superior Proposal | Section 5.7(f)(ii) | |
Surviving Corporation | Section 1.1 | |
The Columbia Bank | Background | |
Unclaimed Shares | Section 2.2(f)(iii) | |
Voting Agreements | Background | |
Warrant | Background | |
Warrant Agreement | Background |
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Fulton Financial Corporation | ||
By: | /s/ RUFUS A. FULTON, JR. | |
Rufus A. Fulton, Jr. Chairman and Chief Executive Officer | ||
Attest: | /s/ GEORGE R. BARR, JR. | |
George R. Barr, Jr. Secretary | ||
Columbia Bancorp | ||
By: | /s/ JOHN M. BOND, JR. | |
John M. Bond, Jr. Chairman and Chief Executive Officer | ||
Attest: | /s/ SIBYL S. MALATRAS | |
Sibyl S. Malatras | ||
Secretary |
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Fulton Financial Corporation | ||||
By: | /s/ R. SCOTT SMITH, JR. | |||
R. Scott Smith, Jr. | ||||
President and Chief Operating Officer | ||||
Attest: | /s/ GEORGE R. BARR | |||
, | ||||
George R. Barr, Secretary | ||||
Columbia Bancorp | ||||
By: | /s/ JOHN A. SCALDARA, JR. | |||
John A. Scaldara, Jr. | ||||
President and Chief Operating Officer | ||||
Attest: | /s/ SIBYL S. MALATRAS | |||
Sibyl S. Malatras | ||||
Secretary |
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COLUMBIA BANCORP | ||||
By: | /s/ JOHN M. BOND, JR. | |||
John M. Bond, Jr. | ||||
President and Chief Executive Officer | ||||
Attest: | /s/ SIBYL S. MALATRAS | |||
Sibyl S. Malatras | ||||
Secretary |
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Columbia, Maryland
FAIRNESS OPINION
As of July 26, 2005
Respectfully submitted, | ||
/s/ Arnold G. Danielson | ||
Arnold G. Danielson | ||
Chairman | ||
Danielson Associates Inc. |
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YOUR PROXY CARD. INSTEAD, PLEASE RETURN THE COMPLETED FORM TO
FULTON FINANCIAL ADVISORS, N.A., THE EXCHANGE AGENT, IN THE ENCLOSED
ENVELOPE BEFORE THE ELECTION DEADLINE, WHICH IS [Election Deadline]
(THE “ELECTION DEADLINE”).
7162 COLUMBIA GATEWAY DRIVE
COLUMBIA, MARYLAND 21046
§ | with respect to all of your shares of Columbia Bancorp common stock, $42.48 in cash for each share of Columbia Bancorp common stock owned, | ||
§ | with respect to all of your shares of Columbia Bancorp common stock, 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock owned; or | ||
§ | with respect to 10%, 20%, 30%, 40%, 50%, 60%, 70%, 80% or 90% of your Columbia Bancorp common stock, $42.48 in cash per share, and with respect to the remainder of your Columbia Bancorp common stock, 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock owned. |
§ | If proration is not required, you will receive cash consideration until 50% (the maximum cash percentage) of Columbia Bancorp’s outstanding shares have been converted into cash. If and when the maximum cash percentage is reached, you will thereafter receive Fulton common stock consideration for your remaining shares. | ||
§ | If proration is required because the maximum cash percentage, or 50%, is exceeded, you will receive Fulton stock consideration. | ||
§ | If proration is required because less than 20% of Columbia Bancorp’s outstanding shares (the minimum cash percentage) have been converted into cash, you will receive cash consideration. | ||
§ | In all other situations you will receive cash consideration. |
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Attn: Marylynn Darmstaetter
ONE PENN SQUARE
LANCASTER, PENNSYLVANIA 17602
§ | Step 1 — complete the Election Form; | ||
§ | Step 2A — locate all of your Columbia Bancorp stock certificates and complete the letter of transmittal or provide a guarantee of delivery using the attached form; | ||
§ | Step 2B — if applicable, verify that your certificates are lost; and | ||
§ | Step 3 — complete the enclosed Form W-9. |
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ELECTION FORM
See Page D-9 and D-10
• | CASH ELECTION. You may choose to make a 100% cash election with respect to your shares of Columbia Bancorp common stock (a “Cash Election”). To make a Cash Election, you should check the appropriate box on the form. | ||
• | STOCK ELECTION. You may choose to make a 100% stock election with respect to your shares of Columbia Bancorp common stock (a “Stock Election”). To make a Stock Election, you should check the appropriate box on the form. | ||
• | CASH/STOCK ELECTION. You may choose to make a partial cash/ partial stock election with respect to your shares of Columbia Bancorp common stock (a “Cash/Stock Election”). To make a Cash/Stock Election, you should check the appropriate box to indicate one of the nine possible cash/stock combinations. |
LETTER OF TRANSMITTAL
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CERTIFY IF CERTIFICATE(S) ARE LOST
Attn: Marylynn Darmstaetter
One Penn Square
Lancaster, PA 17602
Telephone: 800.626.0255
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ELECTION FORM
Name and Address of Registered Holder(s) | ||||
(If blank, please fill in exactly as name(s) | Indicate Certificate | Number of Shares Represented by | ||
appear(s) on certificate(s) or book-entry account) | Number(s) | the Certificate(s) | ||
Total Number of Shares Delivered: |
o | CASH ELECTION — Exchange 100% of your Columbia Bancorp shares for CASH of $42.48 per share of Columbia Bancorp common stock you own. | ||
OR | |||
o | STOCK ELECTION — Exchange 100% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
OR | |||
o | CASH/STOCK ELECTION — Exchange (select ONE): |
o | 90% of your Columbia Bancorp shares for CASH of $42.48 per share and 10% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 80% of your Columbia Bancorp shares for CASH of $42.48 per share and 20% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. |
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o | 70% of your Columbia Bancorp shares for CASH of $42.48 per share and 30% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 60% of your Columbia Bancorp shares for CASH of $42.48 per share and 40% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 50% of your Columbia Bancorp shares for CASH of $42.48 per share and 50% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 40% of your Columbia Bancorp shares for CASH of $42.48 per share and 60% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 30% of your Columbia Bancorp shares for CASH of $42.48 per share and 70% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 20% of your Columbia Bancorp shares for CASH of $42.48 per share and 80% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. | ||
o | 10% of your Columbia Bancorp shares for CASH of $42.48 per share and 90% of your Columbia Bancorp shares for FULTON SHARES at the rate of 2.325 shares of Fulton common stock for each share of Columbia Bancorp common stock you own. |
Signature of Stockholder | Date | Daytime Telephone Number | ||
Signature of Stockholder | Date | Daytime Telephone Number | ||
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o Credit Shares delivered by book-entry transfer and not exchanged through the book-entry transfer facility account. |
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Signature of Stockholder | Signature of Stockholder | |||||
Print Name: | Print Name: | |||||
Social Security or Tax ID Number | Social Security or Tax ID Number | |||||
Address: | Address: | |||||
Date: | Date: |
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SHARES OF COLUMBIA BANCORP STOCK, PAR VALUE $0.01 PER SHARE
Attn: Marylynn Darmstaetter
One Penn Square
Lancaster, PA 17604
Facsimile Transmission Number: (717) 295-2534
For Information or Confirm by Telephone: (800) 626-0255
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A
VALID DELIVERY.
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FormW-9 Request for Taxpayer Give form to the(Rev. January 2005)Identification Number and Certification requester. Do not Department of the Treasurysend to the IRS.Internal Revenue Service Name (as shown on your income tax return)2 pageBusiness name, if different from aboveontypeIndividual/ Exempt from backup Check appropriate box: Sole proprietor Corporation Partnership Other3 withholdingor InstructionsAddress (numb er, street, and apt. or suite no.) Requester’s name and address (optional)Print SpecificCity, state, and ZIP codeSeeList account number(s) here (optional)Part I Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on Line 1 to avoidSocial security numberbackup withholding. For individuals, this is your social security number (SSN). However, for a resident – – alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number (EIN). If you do not have a number, seeHow to get a TINon page 3.or Note.If the account is in more than one name, see the chart on page 4 for guidelines on whose numberEmployer identification numberto enter.–Part II Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a U.S. person (including a U.S. resident alien). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must provide your correct TIN. (See the instructions on page 4.)Sign Signature of Here U.S. person3Date3Purpose of Form A person who is required to file an information return with the 3 Any estate (other than a foreign estate) or trust. See IRS, must obtain your correct taxpayer identification number Regulations sections 301.7701-6(a) and 7(a) for additional (TIN) to report, for example, income paid to you, real estate information. transactions, mortgage interest you paid, acquisition orForeign person.If you are a foreign person, do not use abandonment of secured property, cancellation of debt, or Form W-9. Instead, use the appropriate Form W-8 (see contributions you made to an IRA. Publication 515, Withholding of Tax on Nonresident AliensU.S. person. Use Form W-9 only if you are a U.S. person and Foreign Entities). (including a resident alien), to provide your correct TIN to theNonresident alien who becomes a resident alien.person requesting it (the requester) and, when applicable, to: Generally, only a nonresident alien individual may use the 1. Certify that the TIN you are giving is correct (or you are terms of a tax treaty to reduce or eliminate U.S. tax on waiting for a number to be issued), certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified 2. Certify that you are not subject to backup withholding, in the saving clause may permit an exemption from tax to or continue for certain types of income even after the recipient 3. Claim exemption from backup withholding if you are a has otherwise become a U.S. resident alien for tax purposes. U.S. exempt payee. If you are a U.S. resident alien who is relying on anNote.If a requester gives you a form other than Form W-9 toexception contained in the saving clause of a tax treaty torequest your TIN, you must use the requester’s form if it isclaim an exemption from U.S. tax on certain types of income,substantially similar to this Form W-9.you must attach a statement to Form W-9 that specifies the For federal tax purposes you are considered a person if you following five items: are: 1. The treaty country. Generally, this must be the same 3 An individual who is a citizen or resident of the United treaty under which you claimed exemption from tax as a States, nonresident alien. 3 A partnership, corporation, company, or association 2. The treaty article addressing the income. created or organized in the United States or under the laws 3. The article number (or location) in the tax treaty that of the United States, or contains the saving clause and its exceptions. Cat. No. 10231X FormW-9(Rev. 1-2005) |
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Form W-9 (Rev. 1-2005) | Page2 | |
Limited liability company (LLC).If you are a single-member LLC (including a foreign LLC with a domestic owner) that is disregarded as an entity separate from its owner under Treasury regulations section 301.7701-3, enter the owner’s name on the “Name” line. Enter the LLC’s name on the “Business name” line. Check the appropriate box for your filing status (sole proprietor, corporation, etc.), then check the box for “Other” and enter “LLC” in the space provided.
Other entities.Enter your business name as shown on required Federal tax documents on the “Name” line. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on the “Business name” line.
Note.You are requested to check the appropriate box for your status (individual/sole proprietor, corporation, etc.).
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Form W-9 (Rev. 1-2005) | Page3 |
IF the payment is for . . . | THEN the payment is exempt for . . . | ||
Interest and dividend payments | All exempt recipients except for 9 | ||
Broker transactions | Exempt recipients 1 through 13. Also, a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker | ||
Barter exchange transactions and patronage dividends | Exempt recipients 1 through 5 | ||
Payments over $600 required to be reported and direct sales over $5,0001 | Generally, exempt recipients 1 through 72 | ||
1 | See Form 1099-MISC, Miscellaneous Income, and its instructions. | |
2 | However, the following payments made to a corporation (including gross proceeds paid to an attorney under section 6045(f), even if the attorney is a corporation) and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees; and payments for services paid by a Federal executive agency. |
Number (TIN)
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Form W-9 (Rev. 1-2005) | Page4 |
Requester
For this type of account: | Give name and SSN of: | ||||||
1. | Individual | The individual | |||||
2. | Two or more individuals (joint account) | The actual owner of the account or, if combined funds, the first individual on the account1 | |||||
3. | Custodian account of a minor (Uniform Gift to Minors Act) | The minor2 | |||||
4. | a. | The usual revocable savings trust (grantor is also trustee) | The grantor-trustee1 | ||||
b. | So-called trust account that is not a legal or valid trust under state law | The actual owner1 | |||||
5. | Sole proprietorship or single-owner LLC | The owner3 | |||||
For this type of account: | Give name and EIN of: | ||||||
6. | Sole proprietorship or single-owner LLC | The owner3 | |||||
7. | A valid trust, estate, or pension trust | Legal entity4 | |||||
8. | Corporate or LLC electing corporate status on Form 8832 | The corporation | |||||
9. | Association, club, religious, charitable, educational, or other tax-exempt organization | The organization | |||||
10. | Partnership or multi-member LLC | The partnership | |||||
11. | A broker or registered nominee | The broker or nominee | |||||
12. | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity | |||||
1 | List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. | |
2 | Circle the minor’s name and furnish the minor’s SSN. | |
3 | You must show your individual name and you may also enter your business or “DBA” name on the second name line. You may use either your SSN or EIN (if you have one). If you are a sole proprietor, IRS encourages you to use your SSN. | |
4 | List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) |
Table of Contents
(a) | Exhibits. | ||
See Exhibit Index. | |||
(b) | Financial Statement Schedules. | ||
None required. |
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FULTON FINANCIAL CORPORATION | ||||
By: | /s/ Rufus A. Fulton | |||
Rufus A. Fulton, Jr., Chairman and | ||||
Chief Executive Officer |
SIGNATURE | CAPACITY | DATE | ||||
/s/ Jeffrey G. Albertson | ||||||
Jeffrey G. Albertson | Director | September 20, 2005 | ||||
/s/ Donald M. Bowman, Jr. | ||||||
Donald M. Bowman, Jr. | Director | September 20, 2005 | ||||
/s/ Craig A. Dally | ||||||
Craig A. Dally | Director | September 20, 2005 | ||||
/s/ Clark S. Frame | ||||||
Clark S. Frame | Director | September 20, 2005 | ||||
/s/ Patrick J. Freer | ||||||
Patrick J. Freer | Director | September 20, 2005 |
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SIGNATURE | CAPACITY | DATE | ||||
/s/ Rufus A. Fulton, Jr. | ||||||
Rufus A. Fulton, Jr. | Chairman of the Board, Chief Executive Officer and Director (Principal Executive Officer) | September 20, 2005 | ||||
/s/ Eugene H. Gardner | ||||||
Eugene H. Gardner | Director | September 20, 2005 | ||||
/s/ Carolyn R. Holleran | ||||||
Carolyn R. Holleran | Director | September 20, 2005 | ||||
/s/ Clyde W. Horst | ||||||
Clyde W. Horst | Director | September 20, 2005 | ||||
/s/ Thomas W. Hunt | ||||||
Thomas W. Hunt | Director | September 20, 2005 | ||||
/s/ Willem Kooyker | ||||||
Willem Kooyker | Director | September 20, 2005 | ||||
/s/ Donald W. Lesher, Jr. | ||||||
Donald W. Lesher, Jr. | Director | September 20, 2005 | ||||
/s/ Joseph J. Mowad, M.D. | ||||||
Joseph J. Mowad, M.D. | Director | September 20, 2005 | ||||
/s/ Charles J. Nugent | ||||||
Charles J. Nugent | Senior Executive Vice President and Chief Financial Officer (Principal Financial Officer) | September 20, 2005 | ||||
/s/ Abraham S. Opatut | ||||||
Abraham S. Opatut | Director | September 20, 2005 | ||||
/s/ Mary Ann Russell | ||||||
Mary Ann Russell | Director | September 20, 2005 |
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SIGNATURE | CAPACITY | DATE | ||||
/s/ R. Scott Smith, Jr. | ||||||
R. Scott Smith, Jr. | President, Chief Operating Officer and Director | September 20, 2005 | ||||
/s/ Gary A. Stewart | ||||||
Gary A. Stewart | Director | September 20, 2005 |
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No. | Title | Page | ||
2.1 | Agreement and Plan of Merger, dated July 26, 2005, between Fulton Financial Corporation and Columbia Bancorp (Included as Exhibit A to the document which is included in Part I of the Registration Statement.) | A-1 | ||
3.1 | Articles of Incorporation, as amended and restated, of Fulton Financial Corporation. | |||
3.2 | Bylaws of Fulton Financial Corporation, as amended (incorporated by reference to Exhibit 3.2 of Form S-4, filed April 13, 2005). | |||
4.1 | Rights Agreement, dated April 27, 1999, between Fulton Financial Corporation and Fulton Bank (Incorporated by reference to Fulton Financial Corporation’s Form 8-K, Exhibit 4, filed May 6, 1999.) | |||
5.1 | Opinion of Barley Snyder LLC regarding legality | |||
8.1 | Opinion of Barley Snyder LLC regarding tax matters | |||
10.1 | Amended and Restated Warrant Agreement, dated August 5, 2005, between Fulton Financial Corporation and Columbia Bancorp. (Incorporated by reference to Fulton Financial Corporation’s Form 8-K, Exhibit 99.1, filed July 27, 2005) | |||
10.2 | Warrant, dated July 26, 2005, issued by Columbia Bancorp. to Fulton Financial Corporation (Incorporated by reference to Fulton Financial Corporation’s Form 8-K, Exhibit 99.2, filed July 27, 2005) | |||
13.1 | Annual Report on Form 10-K for Fulton Financial Corporation for the year ending December 31, 2004 (Incorporated by reference to Fulton Financial Corporation’s Annual Report on Form 10-K for the year ended December 31, 2004.) | |||
21.1 | Subsidiaries of Registrant (Incorporated by reference to Fulton Financial Corporation’s Annual Report on Form 10-K for the year ended December 31, 2004.) | |||
23.1 | Consent of Barley Snyder LLC (Included as part of Exhibit 5.1 and Exhibit 8.) | |||
23.2 | Consent of Danielson Associates, Inc. | |||
23.3 | Consent of KPMG LLP | |||
23.4 | Consent of KPMG LLP | |||
24.1 | Power of Attorney (Included in the signature page) | |||
99.1 | Form of Proxy | |||
99.2 | Letter to Stockholders of Columbia Bancorp | |||
99.3 | Notice of Special Meeting of Stockholders of Columbia Bancorp | |||
99.4 | Form of Election Form/Letter of Transmittal (Furnished as Exhibit D to the document which is included in Part I of the Registration Statement) | D-1 |
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