Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by the registrant [x]
Filed by a party other than the registrant [ ]
Check the appropriate box:
[x] Preliminary proxy statement
[ ] Definitive proxy statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
FirstBank Corp.
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(Name of Registrant as Specified in Its Charter)
FirstBank Corp.
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(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
[x] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
N/A
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(2) Aggregate number of securities to which transactions applies:
N/A
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(3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11:
N/A
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(4) Proposed maximum aggregate value of transaction:
N/A
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[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11 (a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount previously paid:
N/A
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(2) Form, schedule or registration statement no.:
N/A
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(3) Filing party:
N/A
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(4) Date filed:
N/A
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June 15, 1999
Dear Stockholder:
You are cordially invited to attend the Annual Meeting of Stockholders of
FirstBank Corp. The meeting will be held at the Quality Inn, 700 Port Drive,
Clarkston, Washington, on Wednesday, July 21, 1999, at 2:00 p.m., local time.
Effective July 1, 1997, the Company became the holding company for FirstBank
Northwest.
The Notice of Annual Meeting of Stockholders and Proxy Statement
appearing on the following pages describe the formal business to be transacted
at the meeting. During the meeting, we will also report on the operations of
the Company. Directors and officers of the Company, as well as a
representative of BDO Seidman, LLP, the Company's independent auditors, will
be present to respond to appropriate questions of stockholders.
It is important that your shares be represented at this meeting, whether
or not you attend the meeting in person and regardless of the number of shares
you own. To make sure your shares are represented, we urge you to complete
and mail the enclosed proxy card. If you attend the meeting, you may vote in
person even if you have previously mailed a proxy card.
We look forward to seeing you at the meeting.
Sincerely,
Clyde E. Conklin
President and Chief Executive Officer
FIRSTBANK CORP.
920 MAIN STREET
LEWISTON, IDAHO 83501
(208) 746-9610
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held On July 21, 1999
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NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of
FirstBank Corp. will be held at the Quality Inn, 700 Port Drive, Clarkston,
Washington, on Wednesday, July 21, 1999, at 2:00 p.m., local time, for the
following purposes:
(1) To elect two directors to serve for a term of three years;
(2) To approve a proposal to change the Company's state of incorporation
from Delaware to Washington through a merger of the Company with a
newly formed, wholly owned Washington subsidiary; and
(3) To consider and act upon such other matters as may properly come
before the meeting or any adjournments thereof.
NOTE: The Board of Directors is not aware of any other business to come
before the meeting.
Any action may be taken on the foregoing proposals at the meeting on the
date specified above or on any date or dates to which, by original or later
adjournment, the meeting may be adjourned. Stockholders of record at the
close of business on June 2, 1999 are entitled to notice of and to vote at the
meeting and any adjournments or postponements thereof.
Please complete and sign the enclosed form of proxy, which is solicited
by the Board of Directors, and mail it promptly in the enclosed envelope. The
proxy will not be used if you attend the meeting and vote in person.
BY ORDER OF THE BOARD OF DIRECTORS
LARRY K. MOXLEY
Secretary
Lewiston, Idaho
June 15, 1999
IMPORTANT: The prompt return of proxies will save the company the expense of
further requests for proxies in order to ensure a quorum. A self-addressed
envelope is enclosed for your convenience. No postage is required if mailed
in the United States.
PROXY STATEMENT
OF
FIRSTBANK CORP.
920 MAIN STREET
LEWISTON, IDAHO 83501
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ANNUAL MEETING OF STOCKHOLDERS
JULY 21, 1999
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This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors of FirstBank Corp. ("Company"), the holding
company for FirstBank Northwest ("Bank"), to be used at the Annual Meeting of
Stockholders of the Company. The Annual Meeting will be held at the Quality
Inn, 700 Port Drive, Clarkston, Washington, on Wednesday, July 21, 1999, at
2:00 p.m., local time. This Proxy Statement and the enclosed proxy card are
being first mailed to stockholders on or about June 15, 1999.
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VOTING AND PROXY PROCEDURE
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Stockholders Entitled to Vote. Stockholders of record as of the close of
business on June 2, 1999 are entitled to one vote for each share of common
stock ("Common Stock") of the Company then held. As of June 2, 1999, the
Company had shares of Common Stock issued and outstanding.
---------
Quorum. The presence, in person or by proxy, of at least a majority of
the total number of outstanding shares of Common Stock entitled to vote is
necessary to constitute a quorum at the Annual Meeting. Abstentions will be
counted as shares present and entitled to vote at the Annual Meeting for
purposes of determining the existence of a quorum. Broker non-votes will be
considered shares present and will be included in determining whether a quorum
is present.
Voting. The Board of Directors solicits proxies so that each stockholder
has the opportunity to vote on the proposals to be considered at the Annual
Meeting. When a proxy card is returned properly signed and dated the shares
represented thereby will be voted in accordance with the instructions on the
proxy card. If a stockholder of record attends the Annual Meeting, he or she
may vote by ballot. Where no instructions are indicated, proxies will be
voted in accordance with the recommendations of the Board of Directors. The
Board recommends a vote:
o FOR the election of the nominees for director; and
o FOR approval of changing the Company's state of incorporation from
Delaware to Washington.
The affirmative vote of a plurality of the votes cast at the Annual
Meeting is required for the election of directors. Stockholders are not
permitted to cumulate their votes for the election of directors. With respect
to the election of directors, votes may be cast for or withheld from the
nominee. Votes that are withheld and broker non-votes will have no effect on
the outcome of the election because the nominee receiving the greatest number
of votes will be elected. The approval of the change in the Company's state
of incorporation from Delaware to Washington requires the affirmative vote of
a majority of the outstanding shares of the Company's Common Stock.
Abstentions and broker non-votes are not affirmative votes and, therefore,
will have the same effect as a vote against the proposal.
Revocation of a Proxy. Stockholders who execute proxies retain the right
to revoke them at any time before they are voted. Proxies may be revoked by
written notice delivered in person or mailed to the Secretary of the Company
or by filing a later proxy prior to a vote being taken on a particular
proposal at the Annual Meeting. Attendance at the Annual Meeting will not
automatically revoke a proxy, but a stockholder in attendance may request a
ballot and vote in person, thereby revoking a prior granted proxy.
Participants in the Bank's ESOP or 401(k) Profit Sharing Plan. If you
are a participant in the FirstBank Northwest Employee Stock Ownership Plan
(the "ESOP") or if you hold shares through the Bank's 401(k) Profit Sharing
Plan, the proxy card represents a voting instruction to the trustees as to the
number of shares in your plan account. Each participant in the ESOP and
401(k) Profit Sharing Plan may direct the trustees as to the manner in which
shares of Common Stock allocated to the participant's plan account are to be
voted. Unallocated shares of Common Stock held by the ESOP and allocated
shares for which no voting instructions are received will be voted by the
trustees in the same proportion as shares for which the trustees have received
voting instructions.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
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Persons and groups who beneficially own in excess of 5% of the Company's
Common Stock are required to file certain reports disclosing such ownership
pursuant to the Securities Exchange Act of 1934, as amended ("Exchange Act").
Based on such reports, the following table sets forth, as of May 3, 1999,
certain information as to those persons who were beneficial owners of more
than 5% of the outstanding shares of Common Stock. Management knows of no
persons other than those set forth below who beneficially owned more than 5%
of the outstanding shares of Common Stock at May 3, 1999.
Number of Shares Percent of Shares
Beneficial Owners of More Than 5% Beneficially Owned Outstanding
- --------------------------------- ------------------ -----------
Westport Asset Management, Inc.
253 Riverside Avenue
Westport, Connecticut 06880 173,200(1) 9.60%
FirstBank Northwest 158,700 8.00
Employee Stock Ownership Plan Trust
Ardsley Advisory Partners 100,000(2) 5.04
Philip J. Hempleman
646 Steamboat Road
Greenwich, Connecticut 06836
Acadia Fund I, L.P. 107,762(3) 5.97
Acadia Fund I, L.L.C.
Miller & Jacobs Capital, L.L.C.
One Aldwyn Center
Villanova, Pennsylvania 19085
- ---------------
(1) Information concerning the shares owned by Westport Asset Management, Inc.
was obtained from an amendment to Schedule 13G dated February 16, 1999.
(2) Information concerning the shares owned by Ardsley Advisory Partners and
Mr. Hempleman as of December 31, 1998 was obtained from a Schedule 13G
dated February 5, 1998. According to this filing, Ardsley Advisory
Partners and Mr. Hempleman have shared voting and dispositive power with
respect to these shares.
(3) Information concerning the shares owned by Acadia Fund I, L.P., Acadia
Fund I, L.L.C. and Miller & Jacobs Capital, L.L.C. was obtained from an
amended Schedule 13G dated January 14, 1999. According to this filing,
Acadia Fund I, L.P. and Acadia Fund I, L.L.C. have sole voting and
dispositive power with respect to 31,181 shares and Miller & Jacobs
Capital, L.L.C. has sole voting power with respect to 14,219 shares and
sole dispositive power with respect to 107,762 shares.
2
The following table sets forth, as of May 3, 1999, information as to the
shares of Common Stock beneficially owned by each director, by the executive
officers named in the summary compensation table below and by all executive
officers and directors of the Company as a group.
Number of Shares Percent of Shares
Name Beneficially Owned (1) Outstanding
- ---- ---------------------- -----------
Robert S. Coleman, Sr. 25,500 *
Clyde E. Conklin 44,303 2.46%
Steve R. Cox 29,500 1.64
W. Dean Jurgens 18,000 1.00
William J. Larson 9,820 *
James N. Marker 6,700 *
Larry K. Moxley 53,132 2.95
All Executive Officers and
Directors as a Group (10 persons) 232,678 12.92
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* Less than 1% of shares outstanding.
(1) In accordance with Rule 13d-3 under the Exchange Act, a person is deemed
to be the beneficial owner, for purposes of this table, of any shares of
Common Stock if he or she has voting or investment power with respect to such
security. The table includes shares owned by spouses, other immediate family
members in trust, shares held in retirement accounts or funds for the benefit
of the named individuals, and other forms of ownership, over which shares the
persons named in the table may possess voting and/or investment power. Shares
held in accounts under the Bank's ESOP, as to which the holders have voting
power but not investment power, are included as follows: Mr. Conklin, 1,188
shares; Mr. Moxley, 1,173 shares; all executive officers and directors as a
group, 4,187 shares.
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PROPOSAL 1 -- ELECTION OF DIRECTORS
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The Company's Board of Directors consists of seven members. The Board of
Directors is divided into three classes with three-year staggered terms, with
approximately one-third of the directors elected each year. One director will
be elected at the Annual Meeting to serve for a three-year term, or until his
successor has been elected and qualified. The nominees for election this year
are James N. Marker and Robert S. Coleman, Sr. Messrs. Marker and Coleman are
current members of the Board of Directors of the Company and the Bank.
It is intended that the proxies solicited by the Board of Directors will
be voted for the election of the above named nominees. If a nominee is unable
to serve, the shares represented by all valid proxies will be voted for the
election of such substitute as the Board of Directors may recommend. At this
time the Board of Directors knows of no reason why any nominee might be unable
to serve.
The Board of Directors recommends a vote "FOR" the election of Messrs.
Marker and Coleman.
3
The following table sets forth certain information regarding the nominees
for election at the Annual Meeting, as well as information regarding those
directors continuing in office after the Annual Meeting.
Year First
Elected Term to
Name Age (1) Director (2) Expire
---- ------- ------------ ------
BOARD NOMINEES
James N. Marker 62 1974 2002(3)
Robert S. Coleman, Sr. 72 1978 2002(3)
DIRECTORS CONTINUING IN OFFICE
W. Dean Jurgens 67 1969 2000
Clyde E. Conklin 48 1997 2000
Steve R. Cox 52 1986 2000
William J. Larson 68 1973 2001
Larry K. Moxley 48 1997 2001
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(1) As of March 31, 1999.
(2) Includes prior service on the Board of Directors of the Bank.
(3) Assuming the individual is re-elected.
The present principal occupation and other business experience during the
last five years of the nominee for election and each director continuing in
office is set forth below:
James N. Marker is general manager and part owner of Idaho Truck Sales
Co., Inc., a heavy duty truck dealership.
Robert S. Coleman, Sr., a retired businessman, is the former President
and co-owner of Coleman Oil, Co., a petroleum distributor.
W. Dean Jurgens, a retired certified public accountant, is former
President and co-owner of Jurgens & Co., P.A.
Clyde E. Conklin, who joined the Bank in 1987, has served as the Chief
Executive Officer of the Bank since February 1996 and as President and Chief
Executive Officer of the Company since its formation in 1997. From September
1994 to February 1996, Mr. Conklin served as Senior Vice President - Lending.
In 1993, Mr. Conklin became Vice President - Lending. Prior to that time, Mr.
Conklin served as Agricultural Lending Manager.
Steve R. Cox is the President and a stockholder of Randall, Blake & Cox,
P.A., a law firm in Lewiston, Idaho, and is a non-practicing certified public
accountant.
William J. Larson is a partner in the Quality Inn and Convention Center
in Clarkston, Washington and other various real estate development projects.
Prior to 1993, he was a partner in Houser & Son, Inc., a livestock and farming
operation.
Larry K. Moxley, who joined the Bank in 1973, currently serves as Chief
Financial Officer of the Bank, which position he has held since February 1996.
Mr. Moxley has served as Executive Vice President, Chief Financial Officer
4
and Secretary of the Company since its formation in 1997. Mr. Moxley served
as Senior Vice President - Finance from 1993 to February 1996 and as Vice
President - Finance from 1984 to 1993.
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MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
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The Boards of Directors of the Company and the Bank conduct their
business through meetings of the Boards and through their committees. During
the year ended March 31, 1999, the Board of Directors of the Company held 15
meetings and the Board of Directors of the Bank held 22 meetings. No director
of the Company or the Bank attended fewer than 75% of the total meetings of
the Boards and committees on which such person served during this period.
The Audit Committee, consisting of Directors Cox, Jurgens and Zenner,
meets with the Bank's outside auditor to discuss the results of the annual
audit and to identify and assign audit duties. The Audit Committee met two
times during the fiscal year ended March 31, 1999.
The Executive Committee, consisting of Directors Cox, Jurgens, Coleman,
Conklin and Moxley, is responsible for specific orders of business for
FirstBank Northwest that requires expedient action. The Executive Committee
met two times during the fiscal year ended March 31, 1999.
The Personnel Committee, consisting of the entire Bank Board of
Directors, is responsible for determining compensation for all employees. The
Personnel Committee met one time during the fiscal year ended March 31, 1999.
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DIRECTORS' COMPENSATION
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Non-employee directors currently receive an annual retainer of $10,600.
The Chairman of the Board receives an additional $6,000 annually. Directors
of the Company who are also employees receive an annual retainer of $8,480.
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EXECUTIVE COMPENSATION
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Summary Compensation Table
The following information is furnished for the Chief Executive Officer
and the Chief Financial Officer of the Company. No other executive officer of
the Company or the Bank received salary and bonus in excess of $100,000 during
the year ended March 31, 1999.
Long-Term
Compensation
Annual Compensation Awards
--------------------- ------------------ Other
Restricted Number Annual All
Stock of Compen- Other
Name and Salary Awards Options sation Compen-
Position Year ($) Bonus ($) (1) (2) sation($)
- -------- ---- ------ ----- ------ ------- ------- ---------
Clyde E. Conklin 1999 $93,719 $49,280 249,798 24,000 $8,480 $12,556(3)
President and 1998 89,570 44,000 -- -- 6,360 7,246
Chief Executive 1997 75,500 24,842 -- -- -- 3,011
Officer
Larry K. Moxley 1999 $90,000 $47,600 249,798 24,000 $8,480 $12,556(3)
Executive Vice 1998 87,290 42,500 -- -- 6,360 7,022
President and 1997 72,499 24,842 -- -- -- 2,920
Chief Financial
Officer
5
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(1) Represents the value of restricted stock awards at September 4, 1998, the
date of grant, pursuant to the MRDP. Dividends are paid on such awards if
and when declared and paid by the Company on the Common Stock.
(2) Consists of directors fees. Does not include perquisites which did not
exceed the lesser of $50,000 or 10% of salary and bonus.
(3) Amounts reflect: for Mr. Conklin, ESOP contribution of $12,556; for Mr.
Moxley, ESOP contribution of $12,556.
Option Grants in Last Fiscal Year. The following table sets forth
information concerning the grant of stock options to the named executive
officers during the fiscal year ended March 31, 1999.
Individual Grants
------------------------------------------------------
Percent
Number of of Total
Securities Options
Underlying Granted to Exercise
Options Employees in Price Expiration
Name Granted(1) Fiscal Year ($/sh) Date
---- ---------- ----------- ------ ----
Clyde E. Conklin 24,000 14% $15.81 09/04/08
Larry K. Moxley 24,000 14% 15.81 90/04/08
Option Exercise/Value Table. The following information with respect to
options exercised during the fiscal year ended March 31, 1999, and remaining
unexercised at the end of the fiscal year, is presented for the named
executive officers.
Number of
Securities Under- Value of Unexer-
lying Unexercised cised In-the-
Shares Options at Money Options at
Acquired Fiscal Year End(#) Fiscal Year End($)
on Value ------------------ -------------------
Exercise Realized Exer- Unexer- Exer- Unexer-
Name (#) ($) cisable cisable cisable cisable
---- --- --- ------- ------- ------- -------
Clyde E. Conklin -- -- -- 24,000 -- $ --(1)
Larry K. Moxley -- -- -- 24,000 -- $ --
- ------------------
(1) The exercise price on the option grant date was $15.81.
Employment Agreements
On July 1, 1997, the Company and the Bank (collectively, the "Employers")
entered into three-year employment agreements with Mr. Conklin and Mr. Moxley.
The base salary under the agreement for Messrs. Conklin and Moxley are
currently $93,000 and $90,000 respectively, which amount is paid by the Bank
and may be increased at the discretion of the Board of Directors or an
authorized committee of the Board. On each anniversary of the commencement
date of the agreements, the term of the agreements may be extended for an
additional year. The agreements are terminable by the Employers at any time,
or by the executive if he is assigned duties inconsistent with his initial
position, duties, responsibilities and status, or upon the occurrence of
certain events specified by federal regulations. In the event that an
executive's employment is terminated without cause or upon the executive's
voluntary termination following the occurrence of an event described in the
preceding sentence, the Bank would be required to honor the terms of the
agreement for a period of one year, including payment of current cash
compensation and continuation of employee benefits.
6
The employment agreements provides for severance payments and other
benefits in the event of involuntary termination of employment in connection
with any change in control of the Employers. Severance payments also will be
provided on a similar basis in connection with a voluntary termination of
employment where, subsequent to a change in control, the executive is assigned
duties inconsistent with his position, duties, responsibilities and status
immediately prior to such change in control. The term "change in control" is
defined in the agreement as having occurred when, among other things, (a) a
person other than the Company purchases shares of Common Stock pursuant to a
tender or exchange offer for such shares, (b) any person (as such term is used
in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company's then
outstanding securities, (c) the membership of the Board of Directors changes
as the result of a contested election, or (d) stockholders of the Company
approve a merger, consolidation, sale or disposition of all or substantially
all of the Company's assets, or a plan of partial or complete liquidation.
The severance payment from the Employers will equal three times the
executive's average annual compensation during the five-year period preceding
the change in control. Such amount will be paid in a lump sum within ten
business days following the termination of employment. Assuming that a change
in control had occurred at March 31, 1999, Mr. Conklin and Mr. Moxley would be
entitled to severance payments of approximately $380,798 and $403,731,
respectively. Section 280G of the Internal Revenue Code of 1986, as amended
("Code"), states that severance payments which equal or exceed three times the
base compensation of the individual for the most recently completed five
taxable years are deemed to be "excess parachute payments" if they are
contingent upon a change in control. Individuals receiving excess parachute
payments are subject to a 20% excise tax on the amount of such excess
payments, and the Employers would not be entitled to deduct the amount of such
excess payments.
The agreements restrict the executive's right to compete against the
Employers for a period of one year from the date of termination of the
agreement if he voluntarily terminates employment, except in the event of a
change in control.
Salary Continuation Agreements
The Bank has entered into salary continuation agreements with Mr. Conklin
and Mr. Moxley as an incentive to ensure their continued employment with the
Bank and to provide an additional source of retirement income. Under the
agreements, Messrs. Conklin and Moxley would receive lifetime benefits of
$4,583 and $4,375 per month, respectively, upon retirement at or after
attaining age 60. The monthly benefit would be reduced proportionately in
accordance with a specified vesting schedule in the event of termination of
employment prior to age 60. The agreements also provide for payment of a
reduced benefit in the event of disability and a lump sum death benefit in the
event of death while employed by the Bank. In the event of a change in
control of the Bank, the agreements provide that the executive would be
entitled to a lump sum payment based on his vested benefit when the change in
control occurred. The Bank has purchased life insurance on Messrs. Conklin
and Moxley to informally fund the Bank's obligations under the salary
continuation agreement funded by a single premium annuity in 1995.
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PROPOSAL 2 --
REINCORPORATION IN THE STATE OF WASHINGTON
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For the reasons set forth below, the Board of Directors believes that the
best interests of the Company and its shareholders will be served by changing
the Company's state of incorporation from Delaware to Washington (the
"Reincorporation"). The Board of Directors has approved the Reincorporation,
which would be accomplished by merging the Company with and into its newly
formed Washington subsidiary, formed for the purpose of accomplishing the
Reincorporation ("Washington Corporation"). The shareholders will be asked to
approve the Reincorporation at the Annual Meeting.
7
The sole factor in the Board of Directors' recommendation to
reincorporate in Washington was that the Company's franchise fees will be
substantially less in Washington than in Delaware. The Company expects to
save approximately $27,390 annually on state franchise tax fees by
reincorporating in Washington.
Plan of Merger
The Company will be merged with and into the Washington Corporation
pursuant to the terms of the proposed Agreement and Plan of Merger (the
"Merger Agreement"), a copy of which is attached as Exhibit A to this Proxy
Statement. Upon the completion of the merger, the owner of each outstanding
share of the Company's Common Stock will become stockholders of a company
governed by Washington law. Each outstanding certificate representing a share
or shares of the Company's Common Stock will continue to represent the same
number of shares in the Washington Corporation (i.e., a certificate
representing one share of the Company's common stock will then equal one share
of the Washington corporation common stock). IT WILL NOT BE NECESSARY FOR
SHAREHOLDERS OF THE COMPANY TO EXCHANGE THEIR EXISTING STOCK CERTIFICATES.
The Company's Common Stock will continue to be traded on the Nasdaq National
Market under the symbol "FBNW" subsequent to the merger.
The Washington Corporation's Articles of Incorporation and Bylaws will be
the Articles of Incorporation and Bylaws of the surviving corporation. The
Washington Corporation's Articles of Incorporation are attached hereto as
Exhibit B. The discussion contained in this Proxy Statement is qualified in
its entirety by reference to Exhibits A and B.
Effect of Reincorporation and Merger
The Reincorporation and the merger will effect a change in the legal
domicile of the Company and other changes of a legal nature, the most
significant of which are described in this Proxy Statement. The
Reincorporation and merger will not result in any change in the business,
management, location of the Company's principal executive offices, assets,
liabilities, net worth or accounting practices. Moreover, as noted above, the
shares of Common Stock will continue to be publicly traded and reported on the
Nasdaq National Market. The merger will not give rise to any appraisal or
dissenters' rights.
Principal Differences in Corporate Charters
The Washington Corporation's Articles of Incorporation differ from the
Company's Certificate of Incorporation in certain technical aspects. Specific
articles have been included so as to minimize differences in corporate
governance before and after the Reincorporation. A majority vote requirement
in the case of mergers is provided for (which is the same as the Delaware
General Corporation Law ("DGCL") requirement for mergers). Although the
Washington Corporation's Articles of Incorporation and the Company's
Certificate of Incorporation contain similar language to the effect that a
director will not be liable for monetary damages for conduct as a director to
the full extent that each entity's respective state's law permits, the
Washington Business Corporation Act ("WBCA") and the DGCL have different
director and officer indemnification and director liability provisions.
Various differences also exist between the Washington Corporation's Bylaws and
the Company's Bylaws, but none of these provisions is expected to have a
material effect on the Company's governance.
Certain Differences in Corporate Laws
The DGCL currently governs the rights of the Company's shareholders.
After the merger, the rights of shareholders will be governed by the WBCA.
The following discussion summarizes certain significant differences between
the provisions of the DGCL and the WBCA, as applicable to a public company.
Amendment of Articles/Certificate of Incorporation. The WBCA authorizes
a corporation's board of directors to make various changes of an
administrative nature to its articles of incorporation including changes of
8
corporate name, changes to the number of outstanding shares in order to
effectuate a stock split or stock dividend in the corporation's own shares,
and changes to or elimination of provisions with respect to par value of its
stock. Other amendments to a corporation's articles of incorporation must be
recommended to the shareholders by the board of directors, unless the board
determines that because of a conflict of interest or other special
circumstances, it should make no recommendation, and must be approved by a
majority of all votes entitled to be cast by each voting group which has a
right to vote on the amendment. Under the DGCL, all amendments to a
corporation's certificate of incorporation require the approval of
shareholders holding a majority of the voting power of the corporation unless
a greater proportion is specified in the certificate of incorporation.
Provisions Affecting Acquisitions and Business Combinations. The WBCA
imposes restrictions on certain transactions between a corporation and certain
significant shareholders. Chapter 23B.19 of the WBCA prohibits a "target
corporation," with certain exceptions, from engaging in certain "significant
business transactions" with an "Acquiring Person" who acquires 10% or more of
the voting securities of a target corporation for a period of five years after
such acquisition, unless the transaction or acquisition of shares is approved
by a majority of the members of the target corporation's board of directors
prior to the date of the acquisition. The prohibited transactions include,
among others, merger or consolidation with, disposition of assets to, or
issuance or redemption of stock to or from, the Acquiring Person, termination
of 5% or more of the employees of the target corporation as a result of the
Acquiring Person's acquisition of 10% or more of the shares, or allowing the
Acquiring Person to receive any disproportionate benefit as a shareholder.
After the five-year period during which significant business transactions are
prohibited, a transaction may occur if certain "fair price" criteria are met.
The holders of shares must receive a value per share at least equal to the
higher of (i) within the last five years prior to the announcement of the
significant business transaction, the highest per share price paid by the
Acquiring Person at a time when it owned five percent or more of the target
corporation (or, if higher, within the five-year period before the Acquiring
Person became one) and (ii) the market value of the shares on the date a
significant business transaction is announced, plus annual interest in either
case. Target corporations include all publicly-traded domestic corporations,
as well as foreign corporations that meet certain requirements. A corporation
may not "opt out" of this statute.
Delaware has enacted a business combination statute that is contained in
Section 203 of the DGCL providing that any person who acquires 15% or more of
a corporation's voting stock (thereby becoming an "interested shareholder")
may not engage in certain "business combinations" with the target corporation
for a period of three years following the time the person became an interested
shareholder, unless (i) the board of directors of the corporation has
approved, prior to that acquisition time, either the business combination or
the transaction that resulted in the person becoming an interested
shareholder, (ii) upon consummation of the transaction that resulted in the
person becoming an interested shareholder, that person owns at least 85% of
the corporation's voting stock outstanding at the time the transaction is
commenced (excluding shares owned by persons who are both directors and
officers and shares owned by employee stock plans in which participants do not
have the right to determine confidentially whether shares will be tendered in
a tender or exchange offer), or (iii) the business combination is approved by
the board of directors and authorized by the affirmative vote (at an annual or
special meeting and not by written consent) of at least 66% of the outstanding
voting stock not owned by the interested shareholder.
For purposes of determining whether a person is the "owner" of 15% or
more of a corporation's voting stock for purposes of Section 203, ownership is
defined broadly to include the right, directly or indirectly, to acquire the
stock or to control the voting or disposition of the stock. A business
combination is also defined broadly to include (i) mergers and sales or other
dispositions of 10% or more of the assets of a corporation with or to an
interested shareholder, (ii) certain transactions resulting in the issuance or
transfer to the interested shareholder of any stock of the corporation or its
subsidiaries, (iii) certain transactions which would result in increasing the
proportionate share of the stock of a corporation or its subsidiaries owned by
the interested shareholder, and (iv) receipt by the interested shareholder of
the benefit (except proportionately as a shareholder) of any loans, advances,
guarantees, pledges or other financial benefits.
These restrictions placed on interested shareholders by Section 203 do
not apply under certain circumstances, including, but not limited to, the
following: (i) if the corporation's original certificate of incorporation
contains a
9
provision expressly electing not to be governed by Section 203 or (ii) if the
corporation, by action of its shareholders, adopts an amendment to its bylaws
or certificate of incorporation expressly electing not to be governed by
Section 203, provided that such an amendment is approved by the affirmative
vote of not less than a majority of the outstanding shares entitled to vote
and that such an amendment will not be effective until 12 months after its
adoption (except for limited circumstances where effectiveness will occur
immediately) and will not apply to any business combination with a person who
became an interested shareholder at or prior to such adoption.
Mergers, Acquisitions and Other Transactions. Under the WBCA, a merger,
consolidation, sale of all or substantially all of a corporation's assets
other than in the regular course of business, or dissolution of a public
corporation must be approved by the affirmative vote of a majority of
directors when a quorum is present, and by two-thirds of all votes entitled to
be cast by each voting group entitled to vote as a separate group, unless
another proportion is specified in the articles of incorporation. The
Washington Corporation's Articles of Incorporation provide that the corporate
transactions specified above may be approved by a majority of the outstanding
shares entitled to vote. Under the DGCL, a merger, consolidation, sale of all
or substantially all of a corporation's assets other than in the regular
course of business or dissolution of a corporation must be approved by a
majority of the outstanding shares entitled to vote.
Action Without a Meeting. Under the WBCA, shareholder action may be
taken without a meeting if written consents setting forth such action are
signed by all holders of outstanding shares entitled to vote thereon. The
DGCL authorizes shareholder action without a meeting if consents are received
from holders of a majority of the outstanding shares. The Company's
Certificate of Incorporation, however, provides that shareholders may not take
any action without a meeting. Although the Washington Corporation's Articles
of Incorporation and Bylaws do not restrict the ability of shareholders to act
by written consent, because such a consent must be signed by all holders of
outstanding shares entitled to vote on the action, it is highly unlikely that
any shareholder action would be taken by written consent.
Class Voting. Under the WBCA, the articles of incorporation may
authorize one or more classes of shares that have special, conditional or
limited voting rights, including the right to vote on certain matters as a
group. The articles of incorporation may not limit the rights of holders of a
class to vote as a group with respect to certain amendments to the articles of
incorporation and certain mergers that adversely affect the rights of holders
of that class. The DGCL requires voting by separate classes only with respect
to amendments to the certificate of incorporation that adversely affect the
holders of those classes or that increase or decrease the aggregate number of
authorized shares or the par value of the shares of any of those classes.
Transactions With Officers or Directors. The WBCA sets forth a safe
harbor for transactions between a corporation and one or more of its
directors. A conflicting interest transaction may not be enjoined, set aside
or give rise to damages if: (i) it is approved by a majority of qualified
directors; (ii) it is approved by the affirmative vote of a majority of all
qualified shares; or (iii) at the time of commitment, the transaction was fair
to the corporation. For purposes of this provision, a "qualified director" is
one who does not have (a) a conflicting interest respecting the transaction or
(b) a familial, financial, professional or employment relationship with a
second director who does have such a conflict and which relationship would
reasonably be expected to exert an influence on the first director's judgment
when voting on the transaction. "Qualified Shares" are defined generally as
shares other than those beneficially owned, or the voting of which is
controlled, by a director who has a conflicting interest respecting the
transaction.
The DGCL provides that contracts or transactions between a corporation
and one or more of its officers or directors or an entity in which they have
an interest is not void or voidable solely because of such interest or the
participation of the director or officer in a meeting of the board or a
committee which authorizes the contract or transaction if: (i) the material
facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the board or the committee, and the board or the
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of disinterested directors; (ii) the material
facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the shareholders entitled to vote thereon,
10
and the contract or transaction is specifically approved in good faith by a
vote of the shareholders; or (iii) the contract or transaction is fair as to
the corporation as of the time it is authorized, approved or ratified by the
board of directors, a committee thereof, or the shareholders.
Appraisal or Dissenters' Rights. Under the WBCA a shareholder is
entitled to dissent from and, upon perfection of his or her appraisal right,
to obtain fair value of his or her shares in the event of certain corporate
actions, including certain mergers, consolidations, share exchanges, sales of
substantially all assets of the corporation, and amendments to the
corporation's articles of incorporation that materially and adversely affect
shareholder rights.
Under the DGCL, appraisal rights are available only in connection with
certain mergers or consolidations, unless otherwise provided in the
corporation's certificate of incorporation. Even in the event of those
mergers or consolidations, unless the certificate of incorporation otherwise
provides, the DGCL does not provide appraisal rights (i) if the shares of the
corporation are listed on a national securities exchange, designated as a
national market system security on an inter dealer quotation system by the
National Association of Securities Dealers, Inc. or held of record by more
than 2,000 shareholders (as long as in the merger the shareholders receive
shares of the surviving corporation or any other corporation the shares of
which are listed on a national securities exchange or held of record by more
than 2,000 shareholders) or (ii) if the corporation is the surviving
corporation and no vote of its shareholders is required for the merger.
Because the Company is listed on the Nasdaq National Market, shareholders
currently would not have statutory appraisal rights under the DGCL in such
mergers.
Indemnification of Directors and Officers. Under the WBCA, if authorized
by the articles of incorporation, a bylaw adopted or ratified by shareholders,
or a resolution adopted or ratified, before or after the event, by the
shareholders, a corporation has the power to indemnify a director or officer
made a party to a proceeding, or advance or reimburse expenses incurred in a
proceeding, under any circumstances, except that no such indemnification shall
be allowed on account of: (i) acts or omissions of a director or officer
finally adjudged to be intentional misconduct or a knowing violation of the
law; (ii) conduct of a director or officer finally adjudged to be an unlawful
distribution; or (iii) any transaction with respect to which it was finally
adjudged that such director or officer personally received a benefit in money,
property or services to which the director or officer was not legally
entitled. Unless limited by the corporation's articles of incorporation,
Washington law requires indemnification if the director or officer is wholly
successful on the merits of the action. Any indemnification of a director in
a derivative action must be reported to shareholders in writing. The
Washington Corporation's Articles of Incorporation provide that the Washington
Corporation shall indemnify its directors and officers to the fullest extent
not prohibited by law, including indemnification for payments in settlement of
actions brought against a director or officer in the name of the corporation,
commonly referred to as a derivative action.
Under the DGCL, indemnification of directors and officers is authorized
to cover judgments, amounts paid in settlement, and expenses arising out of
non-derivative actions where the director or officer acted in good faith and
in or not opposed to the best interests of the corporation. Indemnification
is required to the extent of a director's or officer's successful defense.
Additionally, under the DGCL, a corporation may reimburse directors and
officers for expenses incurred in a derivative action.
The Company has included undertakings in various registration statements
filed with the Securities and Exchange Commission that in the event a claim
for indemnification is asserted by a director or officer relating to
liabilities under the Securities Act of 1933, as amended, the Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether indemnification would be against public policy and will be
governed by any final adjudication of such issue.
Filing Fees. Delaware imposes annual franchise tax fees on all
corporations incorporated in Delaware. The annual fee ranges from a nominal
fee to a maximum of $150,000, based on an equation consisting of the number of
shares authorized, the number of shares outstanding and the net assets of the
corporation. The Company is subject to
11
an annual fee of approximately $27,390. Washington charges corporations
incorporated in Washington nominal annual corporate license renewal fees, and
does not impose any franchise tax fee.
Federal Income Tax Consequences
In connection with the Reincorporation, Breyer & Associates PC, counsel
to the Company, will issue an opinion to the effect that, for federal income
tax purposes:
1. The merger of the Company with and into the Washington Corporation will
qualify as a reorganization under section 368(a)(1) of the Internal
Revenue Code of 1986, as amended;
2. The Company will recognize no gain or loss as a result of the merger;
3. A shareholder of the Company will recognize no gain or loss upon the
deemed exchange of shares of Company Common Stock for shares of the
Washington Corporation common stock;
4. The aggregate basis of the shares of the Washington Corporation common
stock deemed received by a shareholder as a result of the merger will
equal the aggregate basis of the shares of Company Common Stock deemed
exchanged therefor; and
5. The holding period of the shares of the Washington Corporation common
stock deemed received by a shareholder in the merger will include the
holding period of the shares of Company Common Stock deemed exchanged
therefor, provided that such Company Common Stock is held as a capital
asset by the shareholder at the Effective Time.
The opinion of Breyer & Associates PC is subject to certain assumptions
and qualifications and will be based upon the accuracy of certain
representations contained in the officers' certificates delivered to Breyer &
Associates PC by the parties to the Reincorporation in connection with the
delivery of the tax opinion by Breyer & Associates PC. No ruling from the IRS
will be applied for with respect to the federal income tax consequences of the
Reincorporation. Thus, there can be no assurance that the IRS will agree with
the conclusions set forth herein regarding the federal income tax consequences
of the Reincorporation.
The federal income tax discussion set forth above is based upon current
law. Although this discussion is intended to cover the material federal
income tax consequences of the Reincorporation, it may not address issues that
are material to a shareholder because of his or her particular tax situation.
It does not address foreign, state or local tax consequences. Shareholders
may wish to consult with a tax advisor concerning the specific tax
consequences of the Reincorporation, including the applicability and effect of
federal, state, local and other tax laws.
Vote Required And Board Recommendation
The affirmative vote of a majority of the outstanding shares of Common
Stock of the Company is required to approve the Reincorporation.
The Board of Directors believes that the Reincorporation of the Company
from Delaware to Washington is in the best interests of the Company and its
shareholders and, consequently, recommends a vote "FOR" approval of the
Reincorporation.
12
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COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
- ------------------------------------------------------------------------------
Section 16(a) of the Exchange Act requires the Company's executive
officers and directors, and persons who own more than 10% of any registered
class of the Company's equity securities, to file reports of ownership and
changes in ownership with the Securities and Exchange Commission. Executive
officers, directors and greater than 10% stockholders are required by
regulation to furnish the Company with copies of all Section 16(a) forms they
file.
Based solely on its review of the copies of such forms provided to the
Company by the above referenced persons, the Company believes that, during the
fiscal year ended March 31, 1999, that the following Forms 4 were properly
filed but were filed after the due date with respect to its reporting
officers, directors and greater than 10% stockholders: William J. Larson, one
late filing; James N. Marker, four late filings; Robert S. Coleman, two late
filings; Steve R. Cox, one late filing; Clyde E. Conklin, one late filing;
Larry K. Moxley, one late filing; Dean W. Jurgens, four late filings; Douglas
R. Ax, three late filings; and Russell H. Zenner, one late filing. All
transactions which were required to be filed during the fiscal year ended
March 31, 1999 were filed, but were filed after the due date.
- ------------------------------------------------------------------------------
TRANSACTIONS WITH MANAGEMENT
- ------------------------------------------------------------------------------
Federal regulations require that all loans or extensions of credit to
executive officers and directors must be made on substantially the same terms,
including interest rates and collateral, as those prevailing at the time for
comparable transactions with other persons, except for loans made pursuant to
programs generally available to all employees, and must not involve more than
the normal risk of repayment or present other unfavorable features. The Bank
is therefore prohibited from making any new loans or extensions of credit to
the Bank's executive officers and directors and at different rates or terms
than those offered to the general public and has adopted a policy to this
effect. The aggregate amount of loans by the Bank to its executive officers
and directors was approximately $846,873 at March 31, 1999. Such loans (i)
were made in the ordinary course of business, (ii) were made on substantially
the same terms and conditions, including interest rates and collateral, as
those prevailing at the time for comparable transactions with the Bank's other
customers, and (iii) did not involve more than the normal risk of
collectibility or present other unfavorable features when made.
- ------------------------------------------------------------------------------
AUDITORS
- ------------------------------------------------------------------------------
The Board of Directors has appointed BDO Seidman, LLP, independent
certified public accountants, to serve as the Company's auditors for the
fiscal year ending March 31, 2000. A representative of BDO Seidman, LLP is
expected to be present at the Annual Meeting to respond to appropriate
questions from stockholders and will have the opportunity to make a statement
if he or she so desires.
- ------------------------------------------------------------------------------
OTHER MATTERS
- ------------------------------------------------------------------------------
The Board of Directors is not aware of any business to come before the
Annual Meeting other than those matters described above in this Proxy
Statement. However, if any other matters should properly come before the
Annual Meeting, it is intended that proxies in the accompanying form will be
voted in respect thereof in accordance with the judgment of the person or
persons voting the proxies.
13
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MISCELLANEOUS
- ------------------------------------------------------------------------------
The cost of solicitation of proxies will be borne by the Company. The
Company will reimburse brokerage firms and other custodians, nominees and
fiduciaries for reasonable expenses incurred by them in sending proxy
materials to the beneficial owners of the Common Stock. In addition to
solicitations by mail, directors, officers and regular employees of the
Company or the Bank may solicit proxies personally or by telecopier or
telephone without additional compensation. The Company has retained Regan &
Associates, Inc., New York, New York, to assist in soliciting proxies at a
cost of $_______ plus expenses up to $_____. [TO BE DISCUSSED]
The Company's 1999 Annual Report to Stockholders, including financial
statements, has been mailed to all stockholders of record as of the close of
business on June 2, 1999. Any stockholder who has not received a copy of such
annual report may obtain a copy by writing to the Company. The Annual Report
is not to be treated as part of the proxy solicitation material or as having
been incorporated herein by reference.
A copy of the Company's Form 10-KSB for the fiscal year ended March 31,
1999, as filed with the Securities and Exchange Commission, will be furnished
without charge to stockholders of record as of June 2, 1999 upon written
request to Larry K. Moxley, Corporate Secretary, FirstBank Corp., 920 Main
Street, Lewiston, Idaho 83501.
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STOCKHOLDER PROPOSALS
- ------------------------------------------------------------------------------
Proposals of stockholders intended to be presented at the Company's
Annual Meeting expected to be held in July 2000 must be received by the
Company no later than March 17, 2000 to be considered for inclusion in the
proxy materials and form of proxy relating to such meeting. Any such
proposals shall be subject to the requirements of the proxy rules adopted
under the Exchange Act.
The Company's Certificate of Incorporation provides that in order for a
stockholder to make nominations for the election of directors or proposals for
business to be brought before the Annual Meeting, a stockholder must deliver
notice in writing of such nominations and/or proposals to the Secretary not
less than 30 nor more than 60 days prior to the date of the Annual Meeting;
provided that if less than 31 days' notice of the Annual Meeting is given to
stockholders, such notice must be delivered not later than the close of the
tenth day following the day on which notice of the Annual Meeting was mailed
to stockholders. As specified in the Certificate of Incorporation, the notice
with respect to nominations for election of directors must set forth certain
information regarding each nominee for election as a director, including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director, if elected, and certain information regarding
the stockholder giving such notice. The notice with respect to business
proposals to be brought before the Annual Meeting must state the stockholder's
name, address and number of shares of Common Stock held, and briefly discuss
the business to be brought before the Annual Meeting, the reasons for
conducting such business at the Annual Meeting and any interest of the
stockholder in the proposal.
BY ORDER OF THE BOARD OF DIRECTORS
LARRY K. MOXLEY
Secretary
Lewiston, Idaho
June 15, 1999
14
AGREEMENT AND PLAN OF MERGER EXHIBIT A
BETWEEN
FIRSTBANK CORP. (a Washington Corporation)
AND
FIRSTBANK CORP. (a Delaware Corporation)
This Agreement and Plan of Merger (this "Agreement") is entered into this
____ day of _________, 1999, by and between FirstBank Corp., a Washington
corporation (the "Surviving Corporation"), and FirstBank Corp., a Delaware
corporation ("FirstBank"). The Surviving Corporation and FirstBank are
sometimes referred to jointly as the "Constituent Corporations."
RECITALS
A. Each of the Constituent Corporations is a corporation organized and
existing under the laws of its respective state as indicated in the first
paragraph of this Agreement.
B. The shareholders and directors of each of the Constituent
Corporations have deemed it advisable for the mutual benefit of the
Constituent Corporations and their respective shareholders that FirstBank be
merged into the Surviving Corporation pursuant to the provisions of the
Washington Business Corporation Act, Title 23B of the Revised Code of
Washington and the Delaware General Corporation Law (the "Merger").
AGREEMENT
NOW, THEREFORE, in accordance with the laws of the states of Washington
and Delaware, the Constituent Corporations agree that, subject to the
following terms and conditions, (i) FirstBank shall be merged into the
Surviving Corporation, (ii) the Surviving Corporation shall continue to be
governed by the laws of the State of Washington, and (iii) the terms of the
Merger, and the mode of carrying them into effect, shall be as follows:
1. ARTICLES OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation as in effect
prior to the Effective Time of the Merger shall constitute the"Articles" of
the Surviving Corporation within the meaning of Section 23B.01.400(1) of the
Washington Business Corporation Act and Section 104 of the Delaware General
Corporation Law.
2. APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the Delaware General Corporation Law, the
Surviving Corporation irrevocably appoints the Delaware Secretary of State to
accept service of process in any proceeding to enforce against the Surviving
Corporation any obligation of any Constituent Corporation as well as for
enforcement of any obligation of the Surviving Corporation arising from the
Merger. The Delaware Secretary of State shall mail a copy of such process to
FirstBank Corp., 920 Main Street, Lewiston, Idaho 83501.
3. CONVERSION OF SHARES
3.1. FIRSTBANK SHARES. At the Effective Time of the Merger each
outstanding share of the common stock of FirstBank shall automatically convert
to one share of the Surviving Corporation. It will not be necessary for
stockholders of FirstBank to exchange their existing stock certificates for
stock certificates of the Surviving Corporation.
3.2. SURVIVING CORPORATION SHARES. At the Effective Time of the
Merger each outstanding share of the common stock of the Surviving Corporation
shall be automatically canceled and returned to the status of authorized but
unissued shares.
4. BYLAWS
The Bylaws of the Surviving Corporation shall be the governing Bylaws.
5. DIRECTORS AND OFFICERS
The directors and officers of FirstBank shall be the directors and
officers of the Surviving Corporation.
6. EFFECT OF THE MERGER
The effect of the Merger shall be as provided by the applicable
provisions of the laws of Washington and Delaware. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time of the
Merger: the separate existence of FirstBank shall cease; the Surviving
Corporation shall possess all assets and property of every description, and
every interest therein, wherever located, and the rights, privileges,
immunities, powers, franchises and authority, of a public as well as a private
nature, of each of the Constituent Corporations; all obligations belonging to
or due either of the Constituent Corporations shall be vested in, and become
the obligations of, the Surviving Corporation without further act or deed;
title to any real estate or any interest therein shall not revert or in any
way be impaired by reason of the Merger; all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired; and the Surviving Corporation shall be liable for all the
obligations of the Constituent Corporations and any claim existing, or action
or proceeding pending, by or against either of the Constituent Corporations
may be prosecuted to judgment with right of appeal, as if the Merger had not
taken place. If at any time after the Effective Time of the Merger the
Surviving Corporation shall consider it to be advisable that any further
conveyances, agreements, documents, instruments and assurances of law or any
other things are necessary or desirable to vest, perfect, confirm or record in
the Surviving Corporation the title to any property, rights, privileges,
powers and franchises of the Constituent Corporations or otherwise to carry
out the provisions of this Agreement, the proper directors and officers of the
Constituent Corporation last in office shall execute and deliver, upon the
Surviving Corporation's request, any and all proper conveyances, agreements,
documents, instruments and assurances of law, and do all things necessary or
proper to vest, perfect or confirm title to such
2
property, rights, privileges, powers and title to such property, rights,
privileges, powers and franchises in the Surviving Corporation, and otherwise
to carry out the provisions of this Agreement.
7. EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time of the Merger" shall mean
the time at which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Certificates or Articles of Merger have
been duly filed by the Constituent Corporations in the office of the
Washington Secretary of State pursuant to Section 23B.11.050 of the Washington
Business Corporation Act and the Office of the Delaware Secretary of State
pursuant to Section 252 of the Delaware General Corporation Law or at such
time thereafter as is provided in such Certificates or Articles of Merger.
8. TERMINATION
This Agreement may be terminated and the Merger abandoned by mutual
consent of the directors of the Constituent Corporations at any time prior to
the Effective Time of the Merger.
9. NO THIRD-PARTY BENEFICIARIES
Except as otherwise specifically provided herein, nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon
or give any person, firm or corporation, other than the Constituent
Corporations and their respective shareholders, any rights or remedies under
or by reason of this Agreement.
3
IN WITNESS WHEREOF, the parties hereto have caused this Plan and
Agreement of Merger to be executed as of the date first above written.
FIRSTBANK CORP. (a Washington Corporation)
By:
---------------------------------------
Clyde E. Conklin, President
ATTEST:
---------------------------
Larry E. Moxley, Secretary
FIRSTBANK CORP. (a Delaware Corporation)
By:
---------------------------------------
Clyde E. Conklin, President
ATTEST:
---------------------------
Larry E. Moxley, Secretary
4
ARTICLES OF INCORPORATION EXHIBIT B
OF
FIRSTBANK CORP.
Pursuant to the provisions of Title 23B of the Revised Code of Washington
("RCW") (the Washington Business Corporation Act), the following shall
constitute the Articles of Incorporation of FirstBank Corp., a Washington
corporation:
ARTICLE I. Name. The name of the corporation is FirstBank Corp. (the
"corporation").
ARTICLE II. Duration. The duration of the corporation is perpetual.
ARTICLE III. Purpose and Powers. The nature of the business and the
objects and purposes to be transacted, promoted or carried on by the
corporation are to engage in the activities of a bank holding company and in
any other lawful act or business for which corporations may be organized under
the Washington Business Corporation Act (as now in existence or as may
hereafter be amended, the "WBCA").
ARTICLE IV. Capital Stock. A. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
5,500,000 consisting of:
1. 500,000 shares of Preferred Stock, par value one cent ($.01)
per share (the "Preferred Stock"); and
2. 5,000,000 shares of Common Stock, par value one cent ($.01)
per share (the "Common Stock").
B. The board of directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of the shares of Preferred
Stock in series, and by filing a certificate pursuant to the applicable law of
the State of Delaware (such certificate being hereinafter referred to as a
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of
the Preferred Stock, or of any series thereof, unless a vote of any such
holders is required pursuant to the terms of any Preferred Stock Designation.
C. 1. Notwithstanding any other provision of this Certificate, in no
event shall any record owner of any outstanding common stock which is
beneficially owned, directly or indirectly, by a person who, as of any record
date for the determination of stockholders entitled to vote on any matter,
beneficially owns in excess of 10% of the then-outstanding shares of common
stock (the "Limit"), be entitled, or permitted to any vote in respect of the
shares held in excess of the Limit, unless a majority of the Whole Board (as
hereinafter defined) shall have by resolution granted in advance such
entitlement or permission. The number of votes which may be cast by any
record owner by virtue of the provisions hereof in respect of common stock
beneficially owned by such person owning shares in excess of the Limit shall
be a number equal to the total number of votes which a single record owner of
all common stock owned by such person would be entitled to cast, multiplied by
a fraction, the numerator of which is the number of shares of such class or
series which are both beneficially owned by such person and owned of record by
such record owner and the denominator of which is the total number of shares
of common stock beneficially owned by such person owning shares in excess of
the Limit.
2. The following definitions shall apply to this Section C of this
Article VII.
(a) "Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on the date of filing of this Certificate.
(b) "Beneficial ownership" shall be determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934 (or any successor rule or statutory provision), or, if said Rule
13d-3 shall be rescinded and there shall be no successor rule or provision
thereto, pursuant to said Rule 13d-3 as in effect on the date of filing of
this Certificate; provided, however, that a person shall, in any event, also
be deemed the "beneficial owner" of any common stock:
(i) which such person or any of its affiliates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its affiliates has (A)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding (but shall not be deemed to be the beneficial owner of any
voting shares solely by reason of an agreement, contract, or other arrangement
with this Corporation to effect any transaction which is described in any one
or more of subparagraphs A(1)(a) through (h) of Article XIV or upon the
exercise of conversion rights, exchange rights, warrants, or options or
otherwise, or (B) sole or shared voting or investment power with respect
thereto pursuant to any agreement, arrangement, understanding, relationship or
otherwise (but shall not be deemed to be the beneficial owner of any voting
shares solely by reason of a revocable proxy granted for a particular meeting
of stockholders, pursuant to a public solicitation of proxies for such
meeting, with respect to shares of which neither such person nor any such
affiliate is otherwise deemed the beneficial owner); or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such first mentioned person or any
of its affiliates acts as a partnership, limited partnership, syndicate or
other group pursuant to any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of capital
stock of this Corporation; and provided further, however, that (i) no director
or officer of this Corporation (or any Affiliate of any such director or
officer) shall, solely by reason of any or all of such directors of officers
acting in their capacities as such, be deemed, for any purposes hereof, to
beneficially own any common stock beneficially owned by any other such
director or officer (or any Affiliate thereof), and (ii) neither any employee
stock ownership or similar plan of this Corporation or any subsidiary of this
Corporation, nor any trustee with respect thereto or any Affiliate of such
trustee (solely by reason of such capacity of such trustee), shall be deemed,
for any purposes hereof, to beneficially own any common stock held under any
such plan. For purposes of computing the percentage beneficial ownership of
common stock of a person, the outstanding common stock shall include shares
deemed owned by such person through application of this subsection but shall
not include any other common stock which may be issuable by this Corporation
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise. For all other purposes, the outstanding common stock
shall include only common stock then outstanding and shall not include any
common stock which may be issuable by this Corporation pursuant to any
agreement, or upon the exercise of conversion rights, warrants or options, or
otherwise.
(c) A "person" shall mean any individual, firm, corporation,
or other entity.
(d) "Whole Board" shall mean the total number of directors
which the Corporation would have if there were no vacancies on the board of
directors.
3. The board of directors shall have the power to construe and
apply the provisions of this Section and to make all determinations necessary
or desirable to implement such provisions, including but not limited to
matters with respect to (i) the number of shares of common stock beneficially
owned by any person, (ii) whether a person is an affiliate of another, (iii)
whether a person has an agreement, arrangement, or understanding with another
as to the matters referred to in the definition of beneficial ownership, (iv)
the application of any other definition or
2
operative provision of this Section to the given facts, or (v) any other
matter relating to the applicability or effect of this Section.
4. The board of directors shall have the right to demand that any
person who is reasonably believed to beneficially own common stock in excess
of the Limit (or holds of record common stock beneficially owned by any person
in excess of the Limit) supply the Corporation with complete information as to
(i) the record owner(s) of all shares beneficially owned by such person who is
reasonably believed to own shares in excess of the Limit, and (ii) any other
factual matter relating to the applicability or effect of this section as may
reasonably be required of such person.
5. Except as otherwise provided by law or expressly provided in
this Section C, the presence, in person or by proxy, of the holders of record
of shares of capital stock of the Corporation entitling the holders thereof to
cast a majority of the votes (after giving effect, if required, to the
provisions of this Section C) entitled to be cast by the holders of shares of
capital stock of the Corporation entitled to vote shall constitute a quorum at
all meetings of the stockholders, and every reference in this Certificate to a
majority or other proportion of capital stock (or the holders thereof) for
purposes of determining any quorum requirement or any requirement for
stockholder consent or approval shall be deemed to refer to such majority or
other proportion of the votes (or the holders thereof) then entitled to be
cast in respect of such capital stock.
6. Any constructions, applications, or determinations made by the
board of directors pursuant to this Section in good faith and on the basis of
such information and assistance as was then reasonably available for such
purpose shall be conclusive and binding upon the Corporation and its
stockholders.
7. In the event any provision (or portion thereof) of this Section
C shall be found to be invalid, prohibited or unenforceable for any reason,
the remaining provisions (or portions thereof) of this Section shall remain in
full force and effect, and shall be construed as if such invalid, prohibited
or unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its stockholders
that each such remaining provision (or portion thereof) of this Section C
remain, to the fullest extent permitted by law, applicable and enforceable as
to all stockholders, including stockholders owning an amount of stock over the
Limit, notwithstanding any such finding.
ARTICLE V. Preemptive Rights. Holders of the capital stock of the
corporation shall not be entitled to preemptive rights with respect to any
shares of the corporation which may be issued.
ARTICLE VI. Merger, Share Exchange, Sale of Assets and Dissolution. A
merger, share exchange, sale of all or substantially all of the corporation's
assets, or dissolution must be approved by the affirmative vote of holders of
a majority of the outstanding shares entitled to vote thereon, or, if separate
voting by voting groups is required, then by not less than the affirmative
vote of the holders of a majority of the outstanding shares entitled to be
cast by that voting group.
ARTICLE VII. Directors.
A. Number. The number of directors of the corporation shall be such
number, not less than 5 nor more than 15 (exclusive of directors, if any, to
be elected by holders of preferred stock of the corporation, voting separately
as a class), as shall be provided from time to time in or in accordance with
the Bylaws; provided, however, that no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director, and
provided further, that no action shall be taken to decrease or increase the
number of directors from time to time unless at least two-thirds of the
directors then in office shall concur in said action.
B. Classified Board. The board of directors shall be divided into
three groups, with each group containing one-third of the total number of
directors, or as near as may be. The terms of the directors in the first
group
3
shall expire at the first annual shareholders' meeting following their
election, the terms of the second group shall expire at the second
shareholders' meeting following their election, and the terms of the third
group shall expire at the third annual shareholders' meeting following their
election. At each annual shareholders' meeting held thereafter, directors
shall be chosen for a term of three years to succeed those whose terms expire.
C. Vacancies. Vacancies in the board of directors of the corporation,
however caused, and newly created directorships shall be filled by a vote of
two-thirds of the directors then in office, whether or not a quorum, and any
director so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which the director has been
chosen expires and when the director's successor is elected and qualified.
ARTICLE VIII. Removal of Directors. Notwithstanding any other
provisions of these Articles of Incorporation or the corporation's Bylaws (and
notwithstanding the fact that some lesser percentage may be specified by law,
these Articles of Incorporation or the corporation's Bylaws), any director or
the entire Board of directors may be removed only for cause and only by the
affirmative vote of the holders of at least 80% of the total votes eligible to
be cast at a legal meeting called expressly for such purpose. Notwithstanding
the foregoing, whenever the holders of any one or more series of preferred
stock of the corporation shall have the right, voting separately as a class,
to elect one or more directors of the corporation, the preceding provisions of
this Article VIII shall not apply with respect to the director or directors
elected by such holders of preferred stock.
ARTICLE IX. Registered Office and Agent. The registered office of the
corporation shall be located at 920 Main Street, Lewiston, Idaho 83501. The
initial registered agent of the corporation at such address shall be Clyde E.
Conklin.
ARTICLE X. Notice for Shareholder Nominations and Proposals.
A. Nominations for the election of directors and proposals for any new
business to be taken up at any annual or special meeting of shareholders may
be made by the board of directors of the corporation or by any shareholder of
the corporation entitled to vote generally in the election of directors. In
order for a shareholder of the corporation to make any such nominations and/or
proposals, he or she shall give notice thereof in writing, delivered or mailed
by first class United States mail, postage prepaid, to the Secretary of the
corporation not less than thirty days nor more than sixty days prior to any
such meeting; provided, however, that if less than thirty-one days' notice of
the meeting is given to shareholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the corporation not later than
the close of the tenth day following the day on which notice of the meeting
was mailed to shareholders. Each such notice given by a shareholder with
respect to nominations for election of directors shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of each
such nominees, (iii) the number of shares of stock of the corporation which
are beneficially owned by each such nominee, (iv) such other information as
would be required to be included in a proxy statement soliciting proxies for
the election of the proposed nominee pursuant to Regulation 14A of the General
Rules and Regulations of the Securities Exchange Act of 1934, including,
without limitation, such person's written consent to being named in the proxy
statement as a nominee and to serving as a director, if elected, and (v) as to
the shareholder giving such notice (a) his name and address as they appear on
the corporation's books and (b) the class and number of shares of the
corporation which are beneficially owned by such shareholder. In addition,
the shareholder making such nomination shall promptly provide any other
information reasonably requested by the corporation.
B. Each such notice given by a shareholder to the Secretary with
respect to business proposals to bring before a meeting shall set forth in
writing as to each matter: (i) a brief description of the business desired to
be brought before the meeting and the reasons for conducting such business at
the meeting, (ii) the name and address, as they appear on the corporation's
books, of the shareholder proposing such business; (iii) the class and number
of shares of the corporation which are beneficially owned by the shareholder;
and (iv) any material interest of the shareholder in such
4
business. Notwithstanding anything in this Certificate to the contrary, no
business shall be conducted at the meeting except in accordance with the
procedures set forth in this Article.
C. The Chairman of the annual or special meeting of shareholders may,
if the facts warrant, determine and declare to the meeting that a nomination
or proposal was not made in accordance with the foregoing procedure, and, if
the Chairman should so determine, the Chairman shall so declare to the meeting
and the defective nomination or proposal shall be disregarded and laid over
for action at the next succeeding adjourned, special or annual meeting of the
shareholders taking place thirty days or more thereafter. This provision
shall not require the holding of any adjourned or special meeting of
shareholders for the purpose of considering such defective nomination or
proposal.
ARTICLE XI. Approval of Certain Business Combinations. The shareholder
vote required to approve Business Combinations (as hereinafter defined) shall
be as set forth in this section.
A. (1) Except as otherwise expressly provided in this Article XI,
the affirmative vote of the holders of (i) at least 80% of the outstanding
shares entitled to vote thereon (and, if any class or series of shares is
entitled to vote thereon separately, the affirmative vote of the holders of at
least 80% of the outstanding shares of each such class or series), and (ii) at
least a majority of the outstanding shares entitled to vote thereon, not
including shares deemed beneficially owned by a Related Person (as hereinafter
defined), shall be required to authorize any of the following:
(a) any merger or consolidation of the corporation with or
into a Related Person;
(b) any sale, lease, exchange, transfer or other
disposition, including without limitation, a mortgage, or any other security
device, of all or any Substantial Part (as hereinafter defined) of the assets
of the corporation (including without limitation any voting securities of a
subsidiary) or of a subsidiary, to a Related Person;
(c) any merger or consolidation of a Related Person with
or into the corporation or a subsidiary of the corporation;
(d) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of a Related Person
to the corporation or a subsidiary of the corporation;
(e) the issuance of any securities of the corporation or a
subsidiary of the corporation to a Related Person;
(f) the acquisition by the corporation or a subsidiary of
the corporation of any securities of a Related Person;
(g) any reclassification of the common stock of the
corporation, or any recapitalization involving the common stock of the
corporation; and
(h) any agreement, contract or other arrangement providing
for any of the transactions described in this Article XI.
(2) Such affirmative vote shall be required notwithstanding
any other provision of these Articles of Incorporation, any provision of law,
or any agreement with any regulatory agency or national securities exchange
which might otherwise permit a lesser vote or no vote.
(3) The term "Business Combination" as used in this Article XI
shall mean any transaction which is referred to in any one or more of
subparagraphs (a) through (i) above.
5
B. The provisions of Part A of this Article XI shall not be
applicable to any particular Business Combination, which shall require only
such affirmative vote as is required by any other provision of these Articles
of Incorporation, any provision of law, or any agreement with any regulatory
agency or national securities exchange, if such particular Business
Combination shall have been approved by two-thirds of the Continuing Directors
(as hereinafter defined); provided, however, that such approval shall only be
effective if obtained at a meeting at which a Continuing Director Quorum (as
hereinafter defined) is present.
C. For the purposes of this Article XI the following definitions
apply:
(1) The term "Related Person" shall mean and include (a) any
individual, corporation, partnership or other person or entity which together
with its "affiliates" (as that term is defined in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934),
"beneficially owns" (as that term is defined in Rule 13d-3 of the General
Rules and Regulations under the Securities Act of 1934) in the aggregate 10%
or more of the outstanding shares of the common stock of the corporation
(excluding tax-qualified benefit plans of the corporation); and (b) any
"affiliate" (as that term is defined in Rule 12b-2 under the Securities
Exchange Act of 1934) of any such individual, corporation, partnership or
other person or entity. Without limitation, any shares of the common stock of
the corporation which any Related Person has the right to acquire pursuant to
any agreement, or upon exercise or conversion rights, warrants or options, or
otherwise, shall be deemed "beneficially owned" by such Related Person.
(2) The term "Substantial Part" shall mean more than 25% of
the total assets of the corporation as of the end of its most recent fiscal
year prior to when the determination is made.
(3) The term "Continuing Director" shall mean any member of
the board of directors of the corporation who is unaffiliated with the Related
Person and was a member of the board of directors prior to the time the
Related Person became a Related Person, and any successor of a Continuing
Director who is unaffiliated with the Related Person and is recommended to
succeed a Continuing Director by a majority of Continuing Directors then on
the board of directors.
(4) The term "Continuing Director Quorum" shall mean
two-thirds of the Continuing Directors capable of exercising the powers
conferred on them.
ARTICLE XII. Evaluation of Business Combinations. In connection with
the exercise of its judgment in determining what is in the best interests of
the corporation and of the shareholders, when evaluating a Business
Combination (as defined in Article XI) or a tender or exchange offer, the
board of directors of the corporation, in addition to considering the adequacy
of the amount to be paid in connection with any such transaction, shall
consider all of the following factors and any other factors which it deems
relevant: (i) the social and economic effects of the transaction on the
corporation and its subsidiaries, employees, depositors, loan and other
customers, creditors and other elements of the communities in which the
corporation and its subsidiaries operate or are located; (ii) the business and
financial condition and earnings prospects of the acquiring person or entity,
including, but not limited to, debt service and other existing financial
obligations, financial obligations to be incurred in connection with the
acquisition and other likely financial obligations of the acquiring person or
entity and the possible effect of such conditions upon the corporation and its
subsidiaries and the other elements of the communities in which the
corporation and its subsidiaries operate or are located; and (iii) the
competence, experience, and integrity of the acquiring person or entity and
its or their management.
ARTICLE XIII. Limitation of Directors' Liability. To the fullest extent
permitted by the WBCA, a director of the corporation shall not be personally
liable to the corporation or its shareholders for monetary damages for conduct
as a director, except for liability of the director for acts or omissions that
involve: (i) intentional misconduct by the director; (ii) a knowing violation
of law by the director; (iii) conduct violating RCW Section 23B.08.310
(relating to unlawful distributions by the corporation); or (iv) any
transaction from which the director will personally receive a benefit in
money, property or services to which the director is not legally entitled. If
the WBCA is amended in the future
6
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the full extent permitted by the WBCA, as so
amended, without any requirement or further action by shareholders. An
amendment or repeal of this Article XIII shall not adversely affect any right
or protection of a director of the corporation existing at the time of such
amendment or repeal.
ARTICLE XIV. Indemnification. The corporation shall indemnify and
advance expenses to its directors, officers, agents and employees as follows:
A. Directors and Officers. In all circumstances and to the full
extent permitted by the WBCA, the corporation shall indemnify any person who
is or was a director, officer or agent of the corporation and 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 and whether formal or informal (including an action by or in
the right of the corporation), by reason of the fact that he is or was an
agent of the corporation, against expenses, judgments, fines, and amounts paid
in settlement and incurred by him in connection with such action, suit or
proceeding. However, such indemnity shall not apply to: (a) acts or omissions
of the director or officer finally adjudged to violate law; (b) conduct of the
director or officer finally adjudged to violate RCW Section 23B.08.310
(relating to unlawful distributions by the corporation), or (c) any
transaction with respect to which it was finally adjudged that such director
and officer personally received a benefit in money, property, or services to
which the director was not legally entitled. The corporation shall advance
expenses incurred in a proceeding for such persons pursuant to the terms set
forth in a separate directors' resolution or contract.
B. Implementation. The board of directors may take such action as
is necessary to carry out these indemnification and expense advancement
provisions. It is expressly empowered to adopt, approve and amend from time
to time such Bylaws, resolutions, contracts or further indemnification and
expense advancement arrangements as may be permitted by law, implementing
these provisions. Such Bylaws, resolutions, contracts, or further
arrangements shall include, but not be limited to, implementing the manner in
which determinations as to any indemnity or advancement of expenses shall be
made.
C. Survival of Indemnification Rights. No amendment or repeal of
this Article XIV shall apply to or have any effect on any right to
indemnification provided hereunder with respect to acts or omissions occurring
prior to such amendment or repeal.
D. Service for Other Entities. The indemnification and
advancement of expenses provided under this Article XIV shall apply to
directors, officers, employees, or agents of the corporation for both (a)
service in such capacities for the corporation, and (b) service at the
corporations's request as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise. A person is considered to
be serving an employee benefit plan at the corporation's request if such
person's duties to the corporation also impose duties on, or otherwise involve
services by, the director to the plan or to participants in or beneficiaries
of the plan.
E. Insurance. The corporation may purchase and maintain insurance
on behalf of any person who 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, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise against liability
asserted against him and incurred by him in such capacity or arising out of
his status as such, whether or not the corporation would have had the power to
indemnify him against such liability under the provisions of this bylaw and
the WBCA.
F. Other Rights. The indemnification provided by this section
shall not be deemed exclusive of any other right to which those indemnified
may be entitled under any other bylaw, agreement, vote of shareholders, or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while
7
holding such an office, and shall continue as to a person who has ceased to be
a director, trustee, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such person.
ARTICLE XV. Special Meeting of Shareholders. Special meetings of the
stockholders of the corporation for any purpose or purposes may be called at
any time by the board of directors of the corporation, or by a committee of
the board of directors which has been duly designated by the board of
directors and whose powers and authorities, as provided in a resolution of the
board of directors or in the Bylaws of the corporation, include the power and
authority to call such meetings, but such special meetings may not be called
by any other person or persons.
ARTICLE XVI. Repurchase of Shares. The corporation may from time to
time, pursuant to authorization by the board of directors of the corporation
and without action by the shareholders, purchase or otherwise acquire shares
of any class, bonds, debentures, notes, scrip, warrants, obligations,
evidences of indebtedness, or other securities of the corporation in such
manner, upon such terms, and in such amounts as the board of directors shall
determine; subject, however, to such limitations or restrictions, if any, as
are contained in the express terms of any class of shares of the corporation
outstanding at the time of the purchase or acquisition in question or as are
imposed by law.
ARTICLE XVII. Amendment of Bylaws. In furtherance and not in limitation
of the powers conferred by statute, the board of directors of the corporation
is expressly authorized to make, repeal, alter, amend and rescind the Bylaws
of the corporation by a majority vote of the board of directors.
Notwithstanding any other provision of these Articles of Incorporation or the
Bylaws of the corporation (and notwithstanding the fact that some lesser
percentage may be specified by law), the Bylaws shall not be adopted,
repealed, altered, amended or rescinded by the shareholders of the corporation
except by the vote of the holders of not less than 80% of the outstanding
shares of capital stock of the corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the shareholders called for that purpose (provided that notice of
such proposed adoption, repeal, alteration, amendment or rescission is
included in the notice of such meeting), or, as set forth above, by the board
of directors.
ARTICLE XVIII. Amendment of Articles of Incorporation. The corporation
reserves the right to repeal, alter, amend or rescind any provision contained
in the Articles of Incorporation in the manner now or hereafter prescribed by
law, and all rights conferred on shareholders herein are granted subject to
this reservation. Notwithstanding the foregoing, the provisions set forth in
Articles VIII, X, XI, XII, XIII, XIV, XV, XVII and this Article XVIII of these
Articles of Incorporation may not be repealed, altered, amended or rescinded
in any respect unless the same is approved by the affirmative vote of the
holders of not less than 80% of the votes entitled to be cast by each separate
voting group entitled to vote thereon, cast at a meeting of the shareholders
called for that purpose (provided that notice of such proposed adoption,
repeal, alteration, amendment or rescission is included in the notice of such
meeting).
ARTICLE XIX. Incorporator. The name and mailing address of the
incorporator are Clyde E. Conklin, 920 Main Street, Lewiston, Idaho 83501.
* * *
8
Executed this day of , 1999.
---------- -------------------
--------------------------------------
Clyde E. Conklin
Incorporator
9
CONSENT TO APPOINTMENT AS REGISTERED AGENT
------------------------------------------
I, Clyde E. Conklin, hereby consent to serve as Registered Agent in the
State of Washington for FirstBank Corp. I understand that as agent for the
corporation, it will be my responsibility to accept Service of Process on
behalf of the corporation; to forward license renewals and other mail to the
corporation; and to immediately notify the Office of the Secretary of State in
the event of my resignation or of any changes in the Registered Office
address.
By: Clyde E. Conklin, Incorporator
----------------------- ------------------------------- --------------
(Signature of Registered (Print Name and Title) (Date)
Agent)
REVOCABLE PROXY
FIRSTBANK CORP.
ANNUAL MEETING OF STOCKHOLDERS
July 21, 1999
The undersigned hereby appoints the entire Board of Directors of
FirstBank Corp. (the "Company") with full powers of substitution to act as
attorneys and proxies for the undersigned, to vote all shares of Common Stock
of the Company which the undersigned is entitled to vote at the Annual Meeting
of Stockholders, to be held at the Quality Inn, 700 Port Drive, Clarkston,
Washington, on Wednesday, July 21, 1999, at 2:00 p.m., local time, and at any
and all adjournments thereof, as follows:
VOTE
FOR WITHHELD
1. The election as directors of the nominees [ ] [ ]
listed below (except as marked to the
contrary below).
James N. Marker
Robert S. Coleman, Sr.
INSTRUCTIONS: To withhold your vote
for any individual nominee, write the
nominee's name on the line below.
-------------------------------------
-------------------------------------
2. To change the Company's state of FOR AGAINST ABSTAIN
incorporation from Delaware to
Washington. [ ] [ ] [ ]
3. In their discretion, upon such other matters
as may properly come before the meeting.
The Board of Directors recommends a vote "FOR" the listed propositions.
This proxy will be voted as directed, but if no instructions are specified
this proxy will be voted for the propositions stated. If any other business
is presented at the Annual Meeting, this proxy will be voted by the Board of
Directors in its best judgment. At the present time, the Board of Directors
knows of no other business to be presented at the Annual Meeting. This proxy
also confers discretionary authority on the Board of Directors to vote with
respect to the election of any person as director where the nominees are
unable to serve or for good cause will not serve and matters incident to the
conduct of the Annual Meeting.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
Should the undersigned be present and elect to vote at the Annual Meeting
or at any adjournment thereof and after notification to the Secretary of the
Company at the Annual Meeting of the stockholder's decision to terminate this
proxy, then the power of said attorneys and proxies shall be deemed terminated
and of no further force and effect.
The undersigned acknowledges receipt from the Company prior to the
execution of this proxy of the Notice of Annual Meeting of Stockholders, a
Proxy Statement dated June 15, 1999 and the 1999 Annual Report to
Stockholders.
Dated: , 1999
----------------------
- --------------------------------- ---------------------------------------
PRINT NAME OF STOCKHOLDER PRINT NAME OF STOCKHOLDER
- --------------------------------- ---------------------------------------
SIGNATURE OF STOCKHOLDER SIGNATURE OF STOCKHOLDER
Please sign exactly as your name appears on the enclosed card. When signing
as attorney, executor, administrator, trustee or guardian, please give your
full title. If shares are held jointly, each holder should sign.
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS PROXY PROMPTLY IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.