SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
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The Wilber Corporation
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(Name of Registrant as Specified in Its Charter)
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(Name of Person(s) Filing Proxy Statement if other than the Registrant)
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The Wilber Corporation
245 Main Street
Oneonta, New York 13820
Notice of Annual Meeting,
Proxy Statement and
2004 Annual Report on Form 10-K
Annual Meeting of Shareholders
To Be Held
April 23, 2005
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The Wilber Corporation
March 24, 2005
Dear Wilber Stockholder:
This year's Annual Meeting of Shareholders will be the first meeting held
following our first year as a fully listed company with the Securities and
Exchange Commission ("SEC") and will be the last meeting before Board Vice
Chairman Robert W. Moyer's retirement from the Board of Directors of The Wilber
Corporation ("Corporation").
Bob has had an active role in the development of the Corporation and the
Bank since 1969 when he was hired and appointed Administrative Vice President
and Trust Officer. At the time, Wilber National Bank ("Bank") had assets of $39
million and consisted of three offices. After our February 2005 acquisition of
the Sidney and Walton HSBC branches, we have 20 offices and assets of
approximately $764 million. During his career he provided the leadership for
growth not only to the Bank but also to the community and to the profession of
banking. Bob and his wife Joan still serve on numerous community boards and Bob
has held leadership positions within the Federal Reserve Bank of New York, the
New York State Bankers Association and the American Bankers Association. Most
recently, Bob used his talents to design and implement an audit committee
charter to meet the needs of our public company status. We wish Bob and Joan
continued health and give them our heartfelt thanks for their years of service.
As we progressed through 2004, becoming acquainted with new rules and
regulations of the SEC and the Sarbanes-Oxley legislation, it became apparent to
the Board that the Bylaws of the Corporation were inadequate and out of date.
For instance, financial services companies such as ours have always been
operated with a Chief Executive Officer ("CEO") as its highest officer, one step
above President, if separate people hold those positions. Our Bylaws did not
provide for a CEO position. Another example is that now that we are covered by
the rules of the SEC and of the American Stock Exchange, we are required to have
our Chief Financial Officer ("CFO"), as well as the CEO, attest to certain
public reports filed with the SEC. Again, our Bylaws did not contain any
provision for the appointment of a CFO. Very simply put, modern corporate
governance requires modern Bylaws, management positions and Board structure.
In recognition of our need to modernize the way we organize ourselves, the
Board has adopted a new set of Bylaws and, after the Annual Meeting of
Shareholders, will be reorganized with three equal classes of directors and
several changes in the committee structure and responsibilities. Since there is
so much more work and oversight required of both the Corporation and the Bank,
the Board felt it appropriate to ask the current bank board members to stand for
election to the Wilber Corporation Board in April 2005. With the additional
people and committees, we expect the Board's governance capabilities to be
significantly enhanced and to be in full compliance with the requirements of our
regulators and the desires of our expanding shareholder constituencies. We hope
you will support the Board in these efforts.
We look forward to seeing you at our Annual Meeting of Shareholders to be
held on April 23, 2005, at 10:30 a.m., at the Morris Conference Center, State
University of New York, Oneonta campus.
Sincerely,
/s/ Brian R. Wright
Brian R. Wright
Chairman of the Board
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THE WILBER CORPORATION
245 Main Street
Oneonta, New York 13820
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To be held April 23, 2005
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of The
Wilber Corporation (the "Company") will be held as follows:
Place: Morris Conference Center
State University of New York at Oneonta
Oneonta, New York 13820
Date: Saturday, April 23, 2005
Time: 10:30 a.m.
The Annual Meeting will be held for the following purposes:
1. To fix the number of Directors of the Company at twelve (12);
2. To elect twelve (12) Directors for a one-year term. If Proposal
III is adopted by the shareholders, the Board will thereafter classify the
elected Directors to staggered terms of one to three years, or until their
successors are elected and qualified;
3. To approve certain amendments to, and a restatement of, the
Company's Certificate of Incorporation to: (i) restate the Company's purpose,
eliminate obsolete statutory references, and designate the New York Secretary of
State as agent for service of process; (ii) provide for a classified Board with
staggered three (3) year terms; (iii) eliminate cumulative voting in the
election of the Company's Directors; (iv) require a supermajority vote of the
outstanding shares of common stock to approve a merger of the Company and other
extraordinary transactions involving the Company; and (v) permit the Board, in
its discretion, to consider a number of factors when evaluating a third party
offer for the Company's securities and to take defensive measures in connection
with unwelcome acquisition offers; and
4. To ratify the appointment of KPMG LLP as our independent auditors
for the fiscal year ending December 31, 2005.
Only shareholders of record at the close of business on March 11, 2005 are
entitled to notice of, and to vote at, the Annual Meeting.
It is important that your shares are represented at the meeting.
Accordingly, please sign, date and mail the enclosed proxy in the enclosed
postage-paid envelope, whether or not you plan to attend the meeting. If you do
attend the Annual Meeting, you may revoke your proxy and vote your shares in
person.
By Order of the Board of Directors
/s/ Douglas C. Gulotty
Douglas C. Gulotty
Secretary
Oneonta, New York
March 24, 2005
THE WILBER CORPORATION
245 Main Street
Oneonta, New York 13820
(607) 432-1700
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PROXY STATEMENT
ANNUAL MEETING OF SHAREHOLDERS
APRIL 23, 2005
Solicitation of Proxies
This Proxy Statement is being furnished to shareholders of The Wilber
Corporation (the "Company") in connection with the solicitation of proxies on
behalf of the Company's Board of Directors (the "Board") to be used at the
Annual Meeting of Shareholders. The meeting will be held on Saturday, April 23,
2005 at Morris Conference Center, State University of New York at Oneonta,
Oneonta, New York 13820 beginning at 10:30 a.m. (local time), and any
adjournments thereof.
At the meeting, we will ask shareholders to: (i) fix the number of
Directors of the Company at twelve (12); (ii) elect twelve (12) Directors for a
one-year term; (iii) approve certain amendments to, and a restatement of, the
Company's Certificate of Incorporation to: (a) restate the Company's purpose,
eliminate obsolete statutory references, and designate the New York Secretary of
State as agent for service of process; (b) provide for a classified Board with
staggered three (3) year terms; (c) eliminate cumulative voting in the election
of the Company's Directors; (d) require a supermajority vote of the outstanding
shares of common stock to approve a merger of the Company and other
extraordinary transactions involving the Company; and (e) permit the Board, in
its discretion, to consider a number of factors when evaluating a third party
offer for the Company's securities and to take defensive measures in connection
with unwelcome acquisition offers; and (iv) ratify the appointment of KPMG LLP
as our independent auditors for the fiscal year ending December 31, 2005.
The Board is soliciting your proxy to vote at the meeting and at any
adjournments of the meeting. Please complete the enclosed proxy sheet and return
it in the enclosed return envelope as soon as possible. Each of our shareholders
has one vote for each share of common stock owned. In the election of Directors,
each shareholder is entitled to cumulative voting, which means that each
shareholder has votes equal to the number of votes the shareholder would be
entitled to cast for the election of Directors multiplied by the number of
Directors to be elected. The shareholder may cast all of such votes for a single
Director or may distribute them among the Directors standing for election, as
the shareholder sees fit. For example, a shareholder who owns 100 shares on the
record date will hold 1,200 votes when twelve Directors are to be elected. The
shareholder may: (i) place 100 votes for each of the Director nominees; (ii)
place 1,200 votes for one of the Director nominees; (iii) place 800 votes for
one Director and 400 votes for another Director; or (iv) any other combination,
so long as the total votes do not exceed 1,200. If our shareholders approve
Proposal III, as described in this Proxy Statement, and cumulative voting is
eliminated, in future annual meetings, each shareholder would have one vote per
share for each Director of the Board who is up for election, meaning that the
Company's Directors would thereby be elected by a plurality of the votes cast.
Please read this Proxy Statement carefully before you decide how to vote.
We encourage you to return the proxy sheet even if you plan to attend the
meeting. This will save us the additional expense in soliciting proxies and will
ensure that your vote is counted. You may still vote in person at the meeting
even if you return the proxy sheet.
Shareholders of record on March 11, 2005 are entitled to receive notice of
the meeting and are entitled to vote at the meeting, or at an adjournment of the
meeting. This is known as the "Record Date." As of the Record Date, there were
11,178,092 shares of the Company's common stock, par value $.01 per share,
issued and outstanding.
In this Proxy Statement, the terms "we," "our," "us," or similar terms
refer to the Company. References in this Proxy Statement to the "Bank" refer to
Wilber National Bank, our wholly owned subsidiary.
OUR BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" FIXING THE NUMBER OF
DIRECTORS OF THE COMPANY AT TWELVE (12); "FOR" THE TWELVE (12) NOMINEES FOR
DIRECTOR DESCRIBED IN THIS PROXY STATEMENT; "FOR" THE AMENDMENTS TO, AND
RESTATEMENT OF, THE CERTIFICATE OF INCORPORATION; AND "FOR" THE RATIFICATION OF
THE APPOINTMENT OF THE INDEPENDENT AUDITORS.
This Proxy Statement and accompanying Notice of Annual Meeting are first
being mailed to shareholders on or about March 24, 2005.
IMPORTANT: THE PROMPT RETURN OF PROXIES WILL SAVE US THE EXPENSE OF FURTHER
REQUESTS FOR PROXIES TO ENSURE A QUORUM AT THE MEETING. WE HAVE ENCLOSED A
SELF-ADDRESSED ENVELOPE WHICH YOU CAN USE TO RETURN YOUR PROXY SHEET. NO POSTAGE
IS REQUIRED IF YOU MAIL THE ENVELOPE IN THE UNITED STATES.
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Voting and Revocability of Proxies
If you sign and return a proxy sheet in the form that the Board is
soliciting so we receive it before the polls close at the meeting, your votes
will be cast as you have marked on the proxy sheet, unless you revoke your proxy
before the polls close. If you properly sign and return your proxy sheet but you
do not mark on it how you want to vote on any matter, then the Board, as your
proxy, will vote your shares in favor of fixing the number of Directors of the
Company at twelve (12), the nominees for Director named in this Proxy Statement,
the amendments to, and restatement of, the Certificate of Incorporation, and the
ratification of the appointment of KPMG LLP as the independent auditors. We do
not know of any other matters that shareholders may present for a vote at the
meeting. If any shareholder properly presents any other matter for a vote,
including a proposal to adjourn the meeting, the Board members indicated on the
proxy sheet, as the holders of your proxy, may vote on those matters based on
their judgment.
If you sign and return the enclosed proxy sheet, you may revoke it at any
time before the polls are closed. If you want to revoke your proxy, you must:
(i) sign and deliver a written notice to the Secretary of the Company, at or
before the meeting, dated after the date of your proxy stating that you want to
revoke the proxy; (ii) sign and deliver to the Secretary of the Company, at or
before the meeting, another proxy sheet relating to the same shares with a later
date; or (iii) attend the meeting and vote in person. Attending the meeting does
not automatically revoke a proxy unless you also take one of the three actions
described in the prior sentence. Any written notice revoking a proxy must be
delivered to Douglas C. Gulotty, Secretary, The Wilber Corporation, 245 Main
Street, P.O. Box 430, Oneonta, New York 13820.
Quorum. If 5,589,047 shares of our common stock are present in person or
represented by proxy at the meeting, there will be a quorum which will allow the
meeting to commence. Once a quorum is present, the meeting can continue even if
some shareholders leave the meeting. If a shareholder is present in person or by
proxy but abstains from voting any shares, or if a broker submits a proxy for
shares but does not vote those shares, then the shares are counted as present
for purposes of determining a quorum. Shareholder votes will be tabulated by the
persons appointed by the Board to act as inspectors of election of the meeting.
Required Vote. A plurality of the votes cast is required to elect
Directors. This means that the nominees for each directorship who receive the
most votes will be elected. Abstentions and broker non-votes will not be counted
for or against any of the nominees and will have no effect on the outcome of
this proposal.
Presently, cumulative voting is permitted in the election of Directors.
Cumulative voting allows each shareholder to cast all of his or her votes (equal
to the number of shares owned, multiplied by the number of Director nominees)
for a single nominee or any two or more nominees, rather than distributing his
or her total votes equally among the twelve (12) nominees. If shareholders
approve Proposal III at the meeting, cumulative voting will be eliminated and
Directors will be elected by a plurality of the votes cast, as more fully
described in Proposal III in this Proxy Statement under the subheading
"Elimination of Cumulative Voting."
Regarding the other three proposals before the meeting, each share is
entitled to one vote. A majority vote of the shares outstanding and entitled to
vote is required to approve the proposals described in this Proxy Statement and
any other matter which may be presented for a vote at the meeting.
Director Nominations by Shareholders. Our Bylaws provide that, at an
annual meeting, a shareholder may nominate a person for election as a Director
only if advance notice of intent to nominate the person and certain additional
information as described in the Bylaws is mailed or delivered to the Secretary
of the Company. The notice must be received by the Company at least 14 but not
more than 50 days before the date of the meeting (or at least 7 days in advance
of the meeting if less than 21 days' notice of the meeting is given). The
notification shall contain the following information to the extent known to the
notifying shareholders: (i) the name and address of each proposed nominee; (ii)
the age of each proposed nominee; (iii) the principal occupation of each
proposed nominee; (iv) the number of shares of the Company owned by
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each proposed nominee; (v) the total number of shares that to the knowledge of
the notifying shareholder will be voted for each proposed nominee; (vi) the name
and residence address of the notifying shareholder; and (vii) the number of
shares of the Company owned by the notifying shareholder.
Important Information for Shareholders Whose Stock Is Held in Street Name
If you hold your stock in street name, which means that your stock is held
for you in a brokerage account and is not registered on our stock records in
your own name, please tell your broker as soon as possible how to vote your
shares to make sure that your broker votes your shares before the polls close at
the meeting. If your stock is held in street name, you do not have the direct
right to vote your shares or revoke a proxy for your shares unless your broker
gives you that right in writing.
Principal Owners Of Our Common Stock
The following table provides you with information, to the best of our
knowledge, about stock ownership by Directors, executive officers, and any
person or group known by us to own beneficially more than 5% of our outstanding
common stock. The information is as of the Record Date.
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Amount and
Nature of Percentage
Beneficial Ownership
Name of Beneficial Owner Ownership (1) (2)
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The AE & AT Farone Foundation, Inc. 837,120 7.49%
620 Michigan Avenue NE, Washington, DC 20064
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Wilber National Bank (3) 882,345 7.89%
245 Main Street, Oneonta, New York 13820
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Directors and Executive Officers
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Brian R. Wright 3,433,600 30.72%
Director and Chairman of the Company and the Bank
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Alfred S. Whittet (4)
President and Chief Executive Officer of the Company and
Vice Chairman and Chief Executive Officer of the Bank 12,000 *
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David F. Wilber, III (5)
Director of the Company and the Bank 383,076 3.43%
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James F. VanDeusen (6)
Director of the Company and the Bank 25,000 *
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Philip J. Devine (7)
Director of the Company and the Bank 78,520 *
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Douglas C. Gulotty
Executive V.P., Secretary and Director Nominee of the Company and 200 *
President and Chief Operating Officer of the Bank
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Joseph E. Sutaris
Chief Financial Officer and Treasurer of the Company and
Senior V.P., Chief Financial Officer and Secretary of the Bank 100 *
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Director Nominees
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Mary C. Albrecht, Director of the Bank 100 *
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Olon T. Archer, Director of the Bank (8) 33,600 *
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Richard E. Keene, Director of the Bank 4,800 *
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Joseph P. Mirabito, Director of the Bank (9) 71,715 *
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James L. Seward, Director of the Bank 1,600 *
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Geoffrey A. Smith, Director of the Bank 2,800 *
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All Company Directors and Executive Officers as a Group (7 persons) 3,932,496 35.18%
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Notes to Principal Owners of Our Common Stock Table:
(1) Under Rule 13d-3 of the Securities Exchange Act of 1934 (the "Exchange
Act"), as amended, a person is considered a beneficial owner of a security
if he/she has or shares voting power or investment power over the security
or has the right to acquire beneficial ownership of the security within 60
days from the date of this filing. "Voting Power" is the power to vote or
direct the voting of shares. "Investment Power" is the power to dispose or
direct the disposition of shares.
(2) There are 11,178, 092 shares of the Company's stock issued and outstanding
as of the Record Date. An asterisk (" * ") means that the percentage held
is less than 1%.
(3) The Bank acts as Trustee for these shares held for certain customers.
(4) Mr. Whittet owns 7,200 shares directly. Mr. Whittet's spouse owns 4,800
shares.
(5) Mr. Wilber owns 95,956 shares personally and 190,000 shares as a
fiduciary. Mr. Wilber's spouse owns 97,120 shares as to which he disclaims
beneficial ownership.
(6) Mr. VanDeusen holds his shares jointly with his spouse.
(7) Mr. Devine owns 70,656 shares personally, 3,864 shares through a trust and
4,000 shares as a guardian.
(8) Mr. Archer owns 10,400 shares directly, and 23,200 shares through a
corporation that he solely owns.
(9) Mr. Mirabito owns 33,675 shares directly, and 38,040 shares jointly with
his spouse.
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PROPOSAL I FIXING THE NUMBER OF DIRECTORS AT TWELVE (12)
The Company's Bylaws provide that the Board shall consist of not less than
five (5) nor more than twenty five (25) members, and that the number of
Directors shall be fixed by the shareholders at the annual meeting. Within the
foregoing limits, the Board may from time to time fix the number of Directors,
but may not raise or lower the number by more than two (2) between any two (2)
successive annual meetings of the shareholders. Vacancies on the Board,
including vacancies resulting from an increase in the number of Directors, may
be filled by a majority vote of the remaining members of the Board. Each person
so appointed shall be a Director until the next annual meeting of shareholders.
Our Board currently has six (6) Directors, all of whom, except for Robert
W. Moyer, also serve as Directors of the Bank. The Bank currently has twelve
(12) Directors, all of whom are nominees for election as Directors of the
Company. We are proposing to expand our Board to twelve (12) Directors so that
all nominees, if elected by our shareholders, will serve as Directors of both
the Company and the Bank.
We believe that the expansion of the Board, coupled with the election of
these nominees as Directors of the Company, will substantially strengthen the
Company. The issues and challenges confronting the Company's Board have become
more complex and sophisticated as the federal banking and securities laws
applicable to the Bank and the Company have expanded, and as a result of our
becoming a public company listed on the American Stock Exchange(R) ("Amex(R)").
Broader experience, new perspectives and additional skills are required to
successfully meet these new demands. The Bank Directors who are nominees for the
additional Company directorships collectively have more than 80 years of
experience managing the affairs of the Bank as Directors and/or officers. See
"Proposal II. Election of Directors - The Nominees". We are confident that their
participation as Directors will increase the resources available to the Company
and fortify its governance.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE IN FAVOR OF FIXING THE
NUMBER OF BOARD MEMBERS AT TWELVE (12).
PROPOSAL II
ELECTION OF DIRECTORS
Our Board presently has six (6) members and under the Company's current
Certificate of Incorporation and Bylaws, each Director is elected for a one year
term and until his successor is elected and qualified. If our shareholders
approve Proposal III at the meeting, we will thereafter classify the Board, as
evenly as possible, into Class I, Class II and Class III. Class I Directors'
terms will expire at the 2006 annual meeting, Class II Directors' terms will
expire at the 2007 meeting and Class III Directors' terms will expire at the
2008 meeting. After the expiration of the initial term of each class, the
nominees elected for the directorships in each class will serve for three (3)
year terms. See "Proposal III - Approval of Restated Certificate of
Incorporation - Classification of the Board."
At this meeting, shareholders will elect twelve (12) Directors, five (5)
of whom are current Directors of the Company. Mr. Moyer will not be seeking
re-election due to his reaching mandatory retirement age of 70 years, under the
Bylaws of the Company. The Board has nominated the persons set forth below for
election at the meeting as Directors. Shareholders elect Directors by a
plurality of the votes cast, which means that the twelve (12) nominees with the
highest vote totals will be elected. Cumulative voting by shareholders is
permitted in the election of Directors, which means that a shareholder may cast
all of his or her votes (equal to the number of shares owned, multiplied by
twelve (12) - the number of Director nominees) in favor of any one (1) nominee
or two (2) or more nominees. If the shareholders approve Proposal III,
cumulative voting will not be utilized in the election of the Company's
Directors. See "Proposal III - Approval of Restated Certificate of Incorporation
- Elimination of Cumulative Voting."
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Each of the nominees named below has consented to being named in this
Proxy Statement and to serve, if elected. If any nominee becomes unavailable for
election for any presently unforeseen reason, the Board, as the holder of your
proxy, will have the right to use its discretion to cast your votes for a
substitute.
The Board recommends that you vote in favor of the twelve (12) nominees.
The Nominees
We are providing the following information regarding the nominees for
election as Directors. There are no arrangements or understandings by which any
Director was selected to serve as such. There are no family relationships among
Directors and executive officers of the Company. Ages are as of the Record Date.
Brian R. Wright, age 60, is Chairman of the Board of the Company and the
Bank. Mr. Wright became a Director of the Bank in 1976 and of the Company in
1982. He was elected Chairman of the Bank in 1981 and of the Company in 1982.
Mr. Wright is Special Counsel to the law firm of Hinman, Howard & Kattell, LLP
in Binghamton, New York, and is a member of the New York and Florida Bar
Associations, as well as the Broome County Bar Association. Mr. Wright served as
an Assistant District Attorney for Broome County, New York from 1971 to 1973. He
is currently a trustee of Hartwick College, Oneonta, New York, and the Oneonta
Family Y.M.C.A. Mr. Wright is a Trustee of the Mayo Trust in White Plains, New
York, and is a past Director of the National Soccer Hall of Fame in Oneonta, New
York, the Lourdes Hospital Foundation in Binghamton, New York, and the Broome
Community College Foundation, Inc. in Binghamton, New York.
David F. Wilber, III, age 61, has been a Director of the Bank since 1970
and of the Company since 1982. Since 1982, Mr. Wilber has been a real estate
investor, and owns several residential and commercial properties within and
outside of the Company's primary market area. Mr. Wilber also served the Town of
Oneonta as a Town Justice and on the Oneonta Town and Otsego County Planning
Boards and is a past commissioner of the New York State Commission on Cable
Television. Mr. Wilber also serves on the Boards of several local charitable
foundations.
James F. VanDeusen, age 68, has been a Director of the Bank since 1977 and
of the Company since 1982. Mr. VanDeusen has served as President of Southern New
York Claim Service in Oneonta, New York, a company providing insurance
adjustment services since 1962. Mr. VanDeusen is a licensed general insurance
adjuster and a current member and past President of the New York State
Association of Independent Adjusters. In addition, Mr. VanDeusen serves as the
Chairman of the Huntington Memorial Library Board of Trustees, Oneonta, New
York.
Philip J. Devine, age 69, has been a Director of the Bank since 1979 and
of the Company since 1982. Mr. Devine has been an attorney in private practice
since 1965 and is a member of the New York Bar Association, as well as the
Otsego County Bar Association. In addition to his service to the Company and the
Bank, Mr. Devine serves as a Director of Seeley's Ceramic Services, Inc., a
small manufacturing company, and Seward Sand and Gravel, Inc. Mr. Devine is also
a Director of OTSAR Corp., the parent company of the local chapter of the
NYSARC, Inc., a private not-for-profit agency providing care services to those
individuals with mental and other developmental disabilities.
Alfred S. Whittet, age 61, has served as President and Chief Executive
Officer of the Company since 1998 and is currently the Chief Executive Officer
of the Bank. Mr. Whittet, who has been with the Bank since 1972, previously held
various positions including President and Chief Executive Officer of the Bank
from 1998 through 2004; President and Chief Operating Officer of the Bank from
1986 to 1998; and Executive Vice President, Secretary and Vice President. He has
been a Director of the Bank since 1986 and of the Company since December 1997.
Mr. Whittet also assumed the role of Vice Chairman of the Bank's Board in
January 2005.
7
Mr. Whittet has served in various capacities with the New York Bankers
Association, including Director and past Chair of the association's group
creditors and employee trusts insurance committee. Mr. Whittet is Chairman of
the New York Business Development Corporation Binghamton Regional Loan and
Advisory Committee. Mr. Whittet is a past Director and Chairman of the A.O. Fox
Memorial Hospital in Oneonta, New York and the Oneonta Family Y.M.C.A. He
currently serves as Chairman of the Oneonta Family Y.M.C.A. Board of Trustees
and is on the Board of the A.O. Fox Memorial Hospital Foundation.
Douglas C. Gulotty, age 42, has been employed at the Bank since 1985 and
currently holds the positions of Executive Vice President and Secretary of the
Company and President and Chief Operating Officer of the Bank. He previously
held the position of Executive Vice President of the Bank from 2000 to 2004.
Prior to that, Mr. Gulotty served as Senior Vice President - Customer Delivery
Division, Vice President - Retail and Commercial Loan Officer. Mr. Gulotty is a
Director of the New York Bankers Association Service Corp. He also serves as a
Trustee for Schenevus Central School, Schenevus, New York and as a Director of
the Oneonta Family Y.M.C.A.
Geoffrey A. Smith, age 57, has been President and Chief Executive Officer
of Medical Coaches, Inc., a company headquartered in Oneonta, New York since
1972. He has also been a Director of the Bank since 1996. Mr. Smith also serves
on the Board of Directors of various companies, including Preferred Mutual
Insurance Company; Wellness Enterprises of Gainesville, Florida (where he is
Chairperson of the Board); Positive Impact Medical Waste System of Odessa, Texas
and Sargent International of Orleans, Massachusetts. Mr. Smith served as a
director of Oneonta Federal Savings & Loan Association, and later on the
Advisory Board of Astoria Federal Savings and Loan. Mr. Smith also serves on the
Boards of several local charitable organizations and foundations.
James L. Seward, age 53, was elected to the New York State Senate, 51st
Senatorial District, in 1986. He has been a Director of the Bank since 1988, and
also serves as a Director for Pathfinder Village, a local agency that provides
residency and care for adults with Down's Syndrome; Glimmerglass Opera and the
Catskill Symphony. He currently serves as Chairman of the Senate Majority Task
Force for Volunteer Emergency Services and Chairman of the Senate Standing
Committee on Insurance. Other committees on which Senator Seward serves include
Finance, Agriculture and Education. He is also a former Milford Town Justice.
Joseph P. Mirabito, age 46, has served as President and Chief Executive
Officer of the Mirabito Fuel Group since 1986. He has been a Director of the
Bank since 1995. Mr. Mirabito serves on the Board of Directors of Empire State
Petroleum Association, since 2002, and Lemoyne College Board of Regents, since
2004. He formerly served as a Director of the Otsego County Chamber of Commerce,
and is currently President of the Greater Sidney Development Corp., a
not-for-profit organization.
Richard E. Keene, age 69, has been the owner of Keeneland Farm, Inc. since
1960. He has been a Director of the Bank since 1982. Mr. Keene is the former
President of Holstein USA, a national association of breeders of registered
Holstein dairy cattle headquartered in Brattleboro, Vermont and is a Vice
Chairman of the Board of Directors of Farm Service Agency of Otsego County and a
director of the Otsego County Farmland Protection.
Olon T. Archer, age 59, has been President of Archer Enterprises, Inc., a
holding company for commercial real estate investments and retail flooring,
since 1995. He has been a Director of the Bank since 1997 and currently serves
as the Chairman of the Bank's audit committee. A certified public accountant,
Mr. Archer also served as a Director and Treasurer of A.O. Fox Memorial Hospital
from 1995 to 2001.
8
Mary C. Albrecht, age 58, has served, since 1985, as Executive Director of
Opportunities for Otsego, Inc., a not-for-profit organization. She has been a
Director of the Bank since 2001. She also provides consultation services to
other not-for-profit organizations, serves as Chairperson of the Oneonta Family
YMCA and is a member of the New York State Community Action Association, where
she formerly served as Vice President.
THE BOARD UNANIMOUSLY RECOMMENDS THAT THE SHAREHOLDERS VOTE IN FAVOR OF
THESE TWELVE (12) NOMINEES.
Executive Officers Who Are Not Directors
The Board elects executive officers for one year terms and they serve at
the pleasure of the Board. Provided below is certain information regarding the
executive officer of the Bank who is not a Director or Director nominee. His age
is as of the Record Date.
Joseph E. Sutaris, age 37, has been employed with the Bank since 1995 and
has been the Chief Financial Officer of the Company and the Bank since 2003 and
Treasurer since 2004, Senior Vice President of the Bank since 2000 and Secretary
of the Bank since 1998. Previously, Mr. Sutaris served as Secretary of the
Company from 1998 to 2004, Vice President of Planning and Finance and as
Planning and Finance Officer of the Bank.
Mr. Sutaris serves as a Director of the National Soccer Hall of Fame,
Oneonta, New York and is the past Chairperson of the Oneonta Family Y.M.C.A. Mr.
Sutaris also serves on the Advisory Board of Meridian Venture Partners II, L.P.,
Radnor, Pennsylvania, a Small Business Investment Company, in which the Bank is
a limited partner.
PROPOSAL III
APPROVAL OF RESTATED CERTIFICATE OF INCORPORATION
On January 21, 2005 and February 25, 2005, the Board adopted resolutions
proposing and recommending that the Company's shareholders approve certain
amendments to, and a restatement of, the Company's Certificate of Incorporation
(as so amended and restated, the "Restated Certificate of Incorporation"), as
described in Proposal III. Proposal III, if adopted, would:
1. Restate the Company's purpose, eliminate obsolete statutory references
and add mandatory statutory references, and designate the New York Secretary of
State as agent for service of process;
2. Provide for a classified Board having staggered three-year terms of
office for each directorship;
3. Eliminate cumulative voting in the election of the Company's Directors;
4. Require a supermajority vote of the outstanding shares of common stock
to approve a merger of the Company and other extraordinary transactions
involving the Company; and
5. Permit the Board, in its discretion, to consider a number of factors
when evaluating an offer to acquire the securities of the Company and to take
defensive measures in connection with unwelcome acquisition offers.
If our shareholders approve Proposal III, we will file the Restated
Certificate of Incorporation with the New York Department of State. The
following detailed descriptions of the amendments to the Company's Certificate
of Incorporation are qualified entirely by reference to the Restated Certificate
of Incorporation, a copy of which is included as Exhibit A to this Proxy
Statement.
9
Restatement of Corporate Purpose, Elimination Of Obsolete Statutory References,
Designation of Secretary of State as Agent for Service of Process
Description of the Amendments: The description of the Company's purposes
would be restated to reflect its current business. References in the Certificate
of Incorporation to the New York Stock Corporation Law will be replaced with
references to the New York Business Corporation Law (the "BCL"). The Certificate
of Incorporation would designate the New York Secretary of State as agent for
the service of process on the Company.
Reasons for the Amendments: The Company's Certificate of Incorporation was
written in 1928, when the Company was organized. Although it has been amended
since 1928, the Certificate of Incorporation still contains outdated language
and statutory references, and lacks a provision required by the BCL. These
proposed amendments would modernize the Certificate of Incorporation so that it
accurately describes the Company's business and conforms to the BCL.
First, the corporate purposes would be restated to reflect that the
Company's business is the ownership of the Bank and to grant to the Company all
of the powers available to it under the BCL. Second, the proposed amendment
would eliminate outdated references to the Stock Corporation Law, which has been
repealed, and replace them with references to the BCL. Third, as required by the
BCL, the Certificate of Incorporation will designate the New York Secretary of
State as the agent for the service of legal process on the Company.
Classification Of The Board
Description of the Amendment: The Company's Certificate of Incorporation
now provides for shareholders to annually elect Directors to hold office until
the next annual meeting of shareholders or until their successors are elected
and qualified. If the shareholders approve Proposal III at the meeting, we will
thereafter classify the Board, as evenly as possible, into Class I, Class II and
Class III. Class I Directors' terms will expire at the 2006 annual meeting,
Class II Directors' terms will expire at the 2007 meeting and Class III
Directors' terms will expire at the 2008 meeting. After the expiration of the
initial term of each class, the nominees elected for the directorships in each
class will serve for three (3) year terms. If any vacancies occur, the Board
will be allowed to fill such vacancies with appointees who will serve for the
remainder of the resigning Director's term.
Reasons for the Amendment: The BCL permits New York business corporations
to classify their Board of Directors and establish staggered terms of office for
the classes of Directors. We believe that classification of the Board could help
ensure continuity and stability of Company management and its business
strategies and policies, which is particularly important for a holding company
of a community based financial institution such as the Bank. By classifying the
Board and staggering the terms of its members, it will generally take at least
two shareholder meetings to effect a change in control of the Board, as a
majority of Directors at any given time will be seated and have prior experience
as Directors of the Company.
Elimination of Cumulative Voting
Description of the Amendment: In the election of Directors, under
cumulative voting, each shareholder may cast a number of votes equal to the
number of shares held by such shareholder, multiplied by the number of Directors
to be elected at the meeting. The shareholder may cast such votes entirely for
one candidate or allocate them among two or more nominees for Director in any
manner desired by the shareholder. The candidates receiving the highest number
of votes, up to the number of Directors to be elected, are elected. Cumulative
voting enables a shareholder, or a group of shareholders, representing a
minority of the votes cast, to elect one or more nominees.
If our shareholders approve Proposal III and cumulative voting is
eliminated, each shareholder would have one vote per share for each Director of
the Board who is up for election. Each of the Company's
10
Directors would thereby be elected by the vote of a plurality of the shares. If
the proposal is adopted by the shareholders, it will be effective for all
elections of Directors that will be held at all future shareholder meetings.
Reasons for the Amendment: The Company believes that every Director of a
publicly held corporation should represent the interests of at least a plurality
of shareholders. As noted above, with cumulative voting in effect, shareholders
holding a minority of the shares, whose interests and goals may not be
consistent with those of the holders of a majority of the shares, could obtain
representation on the Board. We believe that such representation could be
disruptive and could impair the efficient management of the Company for the
benefit of shareholders generally. With cumulative voting eliminated, a nominee
could only be elected with relatively wide support. In the judgment of the
Board, this amendment to the Certificate of Incorporation would be in the best
interests of the Company and its shareholders.
Supermajority Vote For Mergers And Other Extraordinary Transactions
Description of the Amendment: This amendment would require the affirmative
vote of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding
shares of common stock to approve a merger, consolidation, liquidation or
dissolution of the Company or any action that would result in the sale or other
disposition of all or substantially all of the assets of the Company and which
would require such vote to amend this "supermajority" provision.
Reasons for the Amendment: Adoption of this proposed amendment would
conform the Company's Certificate of Incorporation to the BCL, which prescribes
the vote required for the approval of a merger of a New York business
corporation. The Board believes that this proposed amendment, which embraces
business combinations in addition to mergers, as well as sales of a substantial
portion (generally, 10% or more) of the Company's assets, would be in the best
interests of the Company and its shareholders because extraordinary transactions
such as these should be undertaken only pursuant to a clear mandate from the
Company's owners. In the judgment of the Board, a "supermajority" provision
requiring a 66 2/3% vote of our shareholders for approval of a business
combination or asset sale, is an appropriate mechanism for assuring a convincing
shareholder directive. Likewise, we believe that a 66 2/3% vote of our
shareholders should be required to amend the proposed supermajority provision.
Board Consideration Of Factors When Evaluating Takeover Proposals
Description of the Amendment: This proposed amendment would permit the
Board, in its discretion, to consider a number of factors when evaluating an
offer to acquire the securities of the Company. These factors include, but are
not limited to: (i) the fairness of the offered price based on the Company's
financial performance; (ii) whether the Company could obtain a better price in
the future; (iii) the financial and managerial resources, reputation, business
practices and future prospects of the offeror; (iv) the possible impact on the
business of the Company and its subsidiaries and their employees, customers,
suppliers and creditors and the effects on the communities in which the
Company's and its subsidiaries' facilities are located; (v) the value of any
securities which the offeror is offering in exchange for the Company's
securities, based on an analysis of the worth of the Company as compared to the
offeror's securities; and (vi) any antitrust or other legal and regulatory
issues that are raised by the offer.
The proposed amendment would also permit the Board to take defensive
measures in connection with acquisition offers it has rejected, including, but
not limited to: (i) advising shareholders to reject the offer;(ii) litigation
against the offeror; (iii) filing complaints with all governmental and
regulatory authorities; (iv) acquiring the offeror's securities; (v) selling or
otherwise issuing authorized but unissued securities or treasury stock or
granting options with respect thereto; (vi) acquiring a company to create an
antitrust or other regulatory problem for the offeror; (vii) adopting a
shareholder rights or similar plan; (viii) amending the Company's Certificate of
Incorporation; and (ix) soliciting additional offers.
Reasons for the Amendment: The BCL permits the Board of Directors of a New
York business
11
corporation, when considering a possible change in control of the corporation,
to consider the long term and the short term effects of a change in control on
the corporation and its shareholders, as well as other constituencies, including
the corporation's employees, customers and creditors. The proposed amendment
would incorporate this statutory authority into the Company's Certificate of
Incorporation and specifically authorize the Board to take defensive actions
against hostile takeover attempts. The Board believes that the proposed
amendment would be in the Company's and its shareholders' best interests because
it would enable it to make fully informed and balanced decisions regarding
acquisition proposals and to act effectively against offers that it has
rejected.
Required Vote: The approval of Proposal III requires the affirmative vote
of at least the majority of the shares of common stock of the Company issued and
outstanding and entitled to be cast.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE IN FAVOR OF PROPOSAL III,
AMENDING AND RESTATING THE COMPANY'S CERTIFICATE OF INCORPORATION.
ANTI-TAKEOVER EFFECTS OF PROPOSED
CERTIFICATE OF INCORPORATION AMENDMENTS
The amendments to the Company's Certificate of Incorporation described in
Proposal III (except the amendments restating the Company's purpose, eliminating
obsolete statutory references, and designating the New York Secretary of State
as agent for service of process) have potential "anti-takeover" effects. The
proposed amendments, if adopted, could discourage or prevent a business
combination or other transaction supported by a shareholder(s) which the Board
does not support and could have the effect of entrenching the existing
Directors. The following discussion explains some of the potential consequences
of the adoption of these amendments. The discussion is illustrative only and
does not purport to be a complete list of potential anti-takeover effects.
A staggered Board may have an anti-takeover effect because it may create
an impediment, which may frustrate persons seeking to take over or otherwise
gain control of the Company. A possible acquiror may not be able to gain control
of the Company's Board for at least two years, given the staggered term
structure, which assures the seating of a majority of the existing Board for two
years. Generally, approximately one-third of the existing Board would be up for
election at any annual meeting of shareholders.
Elimination of cumulative voting in the election of Directors could, under
certain circumstances, make it more difficult for a shareholder who acquires a
substantial number of shares to obtain representation on the Board. To the
extent that it impedes the ability of a shareholder to obtain representation on
the Board, the proposed amendment might render more difficult any attempt by a
minority holder or group of holders of a significant number, but less than a
majority, of voting shares to monitor, change, or influence the management or
policies of the Company, and might be viewed as perpetuating management and
having an anti-takeover effect.
The supermajority vote requirement for the merger of the Company and other
extraordinary business transactions would have a significant anti-takeover
effect. Since our Directors and executive officers as a group own 35.18% of our
common stock, if they all voted their stock against a merger or other business
combination or asset sale proposal, they, as a group, could block the
transaction. Accordingly, as a practical matter, it would be very difficult for
supporters of a transaction opposed by the Board and the Company's management to
secure a supermajority vote in favor of the transaction.
The proposed amendment authorizing the Board to consider both the long and
short term interests of the Company and specific enumerated factors when
considering an acquisition proposal, and to take defensive measures against an
offeror whose proposal the Board has rejected, is a powerful anti-takeover
device. It means, for example, that in the exercise of its fiduciary duty, the
Board could reject an acquisition
12
proposal that represents a premium per share over the then market price of our
common stock, if the Board concluded that the long term interests of the
Company, its shareholders and the interests of the Company's other
constituencies would be served better by rejecting the offer and remaining
independent. Likewise, the Board's power to authorize litigation, a shareholder
rights plan or other defensive measures against the offeror or the actual
commencement or adoption of these measures could prevent an offeror from
commencing a proxy contest and generally discourage offerors from proceeding
with proposals opposed by the Board.
PROPOSAL IV
RATIFICATION OF THE APPOINTMENT OF INDEPENDENT AUDITORS
The Company's Board appointed KPMG LLP as independent auditors to audit
the books of the Company and the Bank for the fiscal year ending December 31,
2005, subject to ratification by the shareholders at the meeting. KPMG LLP has
been regularly engaged by the Company and the Bank for the last six years.
A representative of KPMG LLP is expected to be present at the meeting and
will have an opportunity to make a statement if he or she wishes to do so. We
also expect that the representative will be available to answer appropriate
questions from shareholders.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" THE RATIFICATION OF
THE APPOINTMENT OF THE INDEPENDENT AUDITORS.
Meetings of the Board and Certain Committees
Our Board held 12 meetings in fiscal 2004. The Company's Board has four
committees - an Executive, Audit, Compensation and Corporate Governance and
Nominating Committee. All of the Directors attended at least 75% of the meetings
of the Board and the committees on which they serve.
Our Executive Committee consists of all the Company's Directors. This
committee's purpose is to consider and evaluate certain confidential matters
which may come before the Board and assist the Board with corporate strategies,
as needed. No meetings of this committee were held in fiscal 2004.
Our Audit Committee, which met four times in fiscal 2004, consists of
Directors Moyer (Chair), Wilber and Devine, along with Olon T. Archer who, as
Chairman of the Bank's Audit Committee, serves as an ex-officio and non-voting
member. All members of the Audit Committee meet the independence requirement of
Amex(R). The committee functions on matters related to the accounting,
bookkeeping and auditing functions of the Company and the Bank and meets
periodically with the Company's independent auditors to arrange for the audit of
the Company's annual financial statements and to review and evaluate
recommendations made during the annual audit. The Audit Committee also reviews,
approves and supervises the internal auditing procedures and reviews the
regulatory examinations of the Bank.
Our Compensation Committee, which met twice in fiscal 2004, consists of
Directors Devine, Moyer, VanDeusen, Wilber and Wright (Chair). The committee
functions on matters relating to salaries, incentive compensation and related
benefits for Messrs. Whittet, Gulotty and Sutaris. The full Board of Directors
of the Bank, which includes all members of the Company's Board except Mr. Moyer,
reviews salary policies and general salary administration for all officers,
employees and Directors of the Bank.
Our Corporate Governance and Nominating Committee. Our Corporate
Governance and Nominating Committee (the "Nominating Committee") was formed in
May 2004 and did not meet in fiscal 2004. Prior to the formation of the
Nominating Committee, our full Board acted as a nominating committee for the
purpose of identifying, nominating and recruiting Directors for election at the
shareholders' meeting. Our Nominating
13
Committee is comprised of Directors Wright (Chair), Devine, Moyer, VanDeusen and
Wilber. All members of the Nominating Committee meet the independence
requirement of Amex(R). This committee identifies, nominates and recruits
Directors for election at the shareholders' meetings. The Nominating Committee
operates under a charter which is posted and available on the Bank's website
(http://www.wilberbank.com) under the link `About Us.'
Director Independence
Our Board has determined that all of the Directors and nominees are
"independent" as defined by the Amex(R) listing standard which is applicable to
the Company, except for Director Whittet and nominee Gulotty by virtue of their
employment relationship with the Company and the Bank.
In accordance with Amex(R) rules, independent members of the Board meet in
executive session without the presence of non-independent directors and
management of the Company at least annually. The Board met three (3) times in
executive session during fiscal 2004.
Shareholder Communication with the Board of Directors
In furtherance of the Company's desire to effectively communicate with our
shareholders, our Board has implemented a process for shareholders to send
communications to the Board. All communications: (i) must be in writing; (ii)
should indicate whether it is to be received by the entire Board or specified
individual Directors; and (iii) should clearly and concisely state the question
or issue. The correspondence should be mailed or delivered to the Secretary of
The Wilber Corporation, Attention: Secretary, 245 Main Street, P.O. Box 430,
Oneonta, New York 13820.
The Nominating Committee will consider persons recommended by shareholders
of record entitled to vote for the election of directors if timely written
notice, in paper form, of the intent to make a nomination at a meeting of
shareholders is received by the Company in accordance with its Bylaws, policies
and applicable law. A copy of the Company's Bylaws is available to all
shareholders of record upon request. Shareholders who wish to suggest qualified
candidates should write to: The Wilber Corporation, Attention: Secretary, at the
address listed above. All recommendations should state, at minimum, the
information set forth in this Proxy Statement under the caption "Director
Nominations by Shareholders." The information submitted should also describe the
nominee and indicate the nominee's willingness to serve, if elected.
The Bank does not have a formal policy regarding Director attendance at
the annual meeting. However, all directors are encouraged to attend. Last year
all but one of our directors attended the annual shareholders' meeting.
Report of the Audit Committee
In fulfillment of the requirements of the Securities and Exchange
Commission ("SEC") for disclosure in proxy materials relating to the functioning
of audit committees, the Company's Audit Committee has prepared the following
report for inclusion in this Proxy Statement.
The Audit Committee is governed by a Charter which specifies, among other
things, the scope of its responsibilities and how those responsibilities are to
be performed. The Charter is reviewed on an annual basis, and may be modified to
reflect recent law changes and regulatory requirements under the Sarbanes-Oxley
Act of 2002 (the "Sarbanes-Oxley Act"). In accordance with the rules of the
Amex(R), the listing standard applicable to the Company, the Audit Committee is
comprised of the requisite number of members who are "independent" as defined by
that listing standard.
In the performance of its obligations required by the SEC, the Audit
Committee has: (i) reviewed and discussed the audited financial statements with
management; (ii) discussed with the independent auditors the matters required to
be discussed by Statement on Auditing Standards No. 61, as may be modified or
14
supplemented; (iii) received from the auditors disclosures regarding the
auditors' independence required by Independence Standard No.1, as may be
modified or supplemented, and has discussed with the auditors the auditors'
independence; and (iv) considered the compatibility of non-audit services
described below with maintaining auditor independence.
Based on the above, the Audit Committee recommended to the Company's Board
that the audited financials be included in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2004 for filing with the SEC.
AUDIT COMMITTEE
Robert W. Moyer (Chair)
Philip J. Devine
David F. Wilber, III
Olon T. Archer (ex-officio)
Audit Committee Financial Expert
Mr. Robert Moyer, who is not seeking re-election, chaired the Audit
Committee in fiscal 2004 and was determined to be an "audit committee financial
expert," as that term is defined in Item 401(h) of Regulation S-K of the
Securities Act of 1933, and was "independent" as defined by the Amex(R), the
listing standard applicable to the Company, and standards under Rule 10A-3 under
the Exchange Act. If nominee Mr. Archer, who serves as an ex-officio and
non-voting member of the Audit Committee, is elected as a Director at the
meeting, the Board has determined that he is an "audit committee financial
expert" and is "independent" as defined by the aforementioned applicable
regulations, and he would serve as Chairman of the Company's Audit Committee. If
Mr. Archer is not elected, the Board does not consider any of the existing
members of the Audit Committee to be a financial expert as the term is defined
in applicable regulations, although it is believed that, with their experience,
they should be able to competently perform the functions required of them as
members of the Audit Committee.
Independent Auditors' Fees
Pre-approval Policies and Procedures. In accordance with rules adopted by
the SEC to implement requirements of the Sarbanes-Oxley Act and the Audit
Committee's Charter, all audit and audit-related services and all permitted
non-audit work performed by the independent auditors, KPMG LLP, must be
pre-approved by the Audit Committee, including the proposed fees for such work.
The Audit Committee has adopted policies and procedures pursuant to which audit,
audit-related and tax services, and all permissible non-audit services, are
pre-approved, and is informed of each service actually rendered that was
approved through its pre-approval process. In addition, the Audit Committee has
considered whether the non-audit services described below, if any, are
compatible with maintaining the independence of the external auditors.
15
Audit and Non-Audit Fees. The table set forth below presents fees for
professional audit and non-audit services provided by the Company's principal
external accounting firm, KPMG LLP, for the last two fiscal years. Other
miscellaneous audit fees paid to other professional audit firms are not
included.
Type of Service Fiscal 2004 Fiscal 2003
--------------------------------------------------------------------------------
Audit Fees (1) $ 115,000 $153,840
Audit Related Fees (2) 2,000 7,900
Tax Fees (3) 30,475 38,965
All Other Fees (4) 0 0
---------------------------------
Total $ 147,475 $ 200,705
=================================
(1) These fees include fees for: (i) the annual audit of the financial
statements of the Company (including out-of-pocket expenses) for the
fiscal years indicated; (ii) quarterly reviews of the Company's unaudited
interim financial statements; and (iii) other miscellaneous audit matters.
In 2003, KPMG LLP provided audit services related to the Company's filing
of its SEC Form 10 registration statement totaling $39,340, and other
miscellaneous audit matters totaling $4,500.
(2) The Company paid these fees to KPMG LLP in connection with the Company's
SEC registration, listing on the Amex(R) and other items.
(3) Tax fees consist of fees billed for services rendered for federal and New
York State tax return preparation, tax advice, tax planning and other tax
compliance services.
(4) All Other Fees consists of fees for services other than services reported
above. There were no Other Fees paid to KPMG LLP during 2004 and 2003.
COMPENSATION
Compensation of Directors
Director Fees. In fiscal 2004, the Company maintained a Board comprised of
six (6) members. If the shareholders elect all nominees, the number of Company
Directors will increase to twelve (12). The Bank maintains a separate Board
comprised of twelve (12) members. All of the Company's current Directors, except
Mr. Moyer, serve on the Board of the Bank and Wilber REIT, Inc. ("REIT"), a
wholly owned subsidiary of the Bank. None of the Company, Bank or REIT Board
members receive an annual retainer but receive fees for each Board or Committee
meeting they attend. Directors who are full time employees do not receive Board
or Committee fees. In fiscal year 2004, non-employee Company Directors received
$800 per meeting. Non-employee Bank Directors currently receive $600 per Board
meeting and $200 for each Committee meeting. Beginning in September 2004, REIT
Directors began receiving a fee of $300 for each meeting they attended. Company
and Bank Directors may defer a portion of their fees under a Deferred
Compensation Plan established in 2001. Total Director fees and other
compensation paid in fiscal 2004 to all Directors of the Company, the Bank and
REIT amounted to $146,149. In addition, each Bank Director receives $25,000 of
term life insurance.
Deferred Fees Plan. A Deferred Fees Plan is available for Directors of
both the Company and the Bank. This plan allows Directors to elect to defer the
receipt of their meeting fees to a future date. Deferred fees are credited,
together with interest accruing thereon, to a separate liability account. The
funds in these accounts are not segregated from the Bank's general assets and
participants have no rights against the Bank for any portion of their accounts
except as general unsecured creditors. Interest is credited annually at a rate
equal to the interest rate for a 5-year $100,000 certificate of deposit in
effect January 1 of each year. The balance of any account is payable to the
Director, or to his designated beneficiaries, in a lump sum or in sixty (60)
monthly installments, at the election of the Director. Payments begin on a date
specified by the Director or upon his termination as a Director of the Bank,
whichever is applicable. Two (2) Directors participated in the deferred fees
plan in fiscal 2004.
16
Executive Officer Compensation
The following table includes information about total compensation and
compensatory awards paid in fiscal years 2004, 2003 and 2002, to Mr. Whittet,
the President and Chief Executive Officer of the Company, and each of the two
other executive officers of the Company (each a "named executive officer") whose
salary and bonus exceeded $100,000 in fiscal year 2004.
Summary Compensation Table:
---------------------------------------------------------------------------------------------------------------------------------
Long-Term Compensation
Annual Compensation Awards Payouts
---------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
---------------------------------------------------------------------------------------------------------------------------------
Name Other Restricted Securities
and Annual Stock Underlying LTIP All Other
Principal Salary Bonus Compen- Awards Options/ Payouts Compen-
Position Year ($) ($) sation ($) ($) SARs (#) ($) sation ($)
---------------------------------------------------------------------------------------------------------------------------------
Alfred S. Whittet 2004 238,897 30,000 -- 0 0 0 157,183
President and Chief -------------------------------------------------------------------------------------------------
Executive Officer of the 2003 232,212 60,000 -- 0 0 0 140,746
Company and Vice Chairman & -------------------------------------------------------------------------------------------------
Chief Executive Officer of 2002 224,721 45,000 -- 0 0 0 125,666
the Bank
---------------------------------------------------------------------------------------------------------------------------------
Douglas C. Gulotty 2004 149,962 18,000 -- 0 0 0 0
Executive V.P., Secretary -------------------------------------------------------------------------------------------------
and Director Nominee of the 2003 144,647 32,900 -- 0 0 0 0
Company and -------------------------------------------------------------------------------------------------
President & Chief Operating 2002 137,164 27,000 -- 0 0 0 0
Officer of the Bank
---------------------------------------------------------------------------------------------------------------------------------
Joseph E. Sutaris 2004 107,782 10,135 -- 0 0 0 0
Treasurer and Chief -------------------------------------------------------------------------------------------------
Financial Officer of the 2003 102,707 13,201 -- 0 0 0 0
Company and Senior V.P., -------------------------------------------------------------------------------------------------
Chief Financial Officer and
Secretary of the Bank 2002 99,444 10,573 -- 0 0 0 0
---------------------------------------------------------------------------------------------------------------------------------
Notes to Summary Compensation Table (note references to columns):
(c) Salary is base salary, including amounts that are deferred under the
Bank's Deferred Compensation Plan and the imputed value of life insurance
benefits over $50,000.
(d) Bonuses include incentive payments made to executive officers for
attaining certain performance measures. In fiscal 2004 the Compensation
Committee set bonuses for all three named executive officers. In fiscal
2003 and 2004 Mr. Whittet's bonus was determined annually by the Company's
Compensation Committee comprised of independent Directors. The remaining
executive officers' bonuses were determined, in fiscal 2003 and 2004 by
the Chief Executive Officer based upon performance measures approved by
the Company's Board. All of the executive officers, at their election, may
defer all or a portion of their annual bonus into the Bank's executive
officer Deferred Compensation Plan. The amounts presented include amounts
deferred.
(e) None of the named executive officers received additional benefits or
perquisites totaling more than 10% of his salary and bonus.
(f), (g), (h) The Company does not provide any long-term incentive plans for
its executive officers.
(i) During 2002 the Bank's Board of Directors granted Mr. Whittet a
Supplemental Executive Retirement Plan ("SERP") benefit. The amount
provided in column (i) represents the amount accrued during 2002, 2003 and
2004 for this benefit. Additional details regarding the SERP are provided
below.
17
Employment Agreements and Change in Control Agreements
The employment of Mr. Whittet is governed by an Employment Agreement with
the Bank, which became effective on January 1, 1998 and is for an indefinite
term. Under the agreement, Mr. Whittet is paid an annual base salary set by the
Compensation Committee of the Company. In addition, Mr. Whittet is entitled to
receive an annual incentive bonus provided that performance objectives
established by the Board of Directors are satisfied. The agreement provides for
certain other benefits, including participation in all executive plans and
arrangements and an automobile allowance.
Mr. Whittet also entered into a Severance Compensation Agreement with the
Company, which became effective on January 1, 1998 and will terminate on April
21, 2005, Mr. Whittet's 62nd birthday. Under the agreement, Mr. Whittet is
entitled to receive a severance amount equal to three (3) times the average of
his aggregate annual compensation in the event his employment is terminated
following a change in control of the Company or the Bank for reasons other than
disability, retirement, or cause. The average annual compensation is determined
by summing Mr. Whittet's federally taxable wages, deferred salary and deferred
bonuses for the three (3) year period prior to the change in control and
dividing the sum by three. Based on this formula, Mr. Whittet would have been
entitled to a severance amount of $806,139 if a change in control event had
occurred on December 31, 2004.
Mr. Gulotty and Mr. Sutaris entered into Retention Bonus Agreements with
the Bank, which became effective on September 15, 1999 and will terminate on
September 30, 2009. The agreements provide Mr. Gulotty and Mr. Sutaris with
one-time lump sum bonus amounts, equal to 150% of their current annual salary,
if they are employed in their current capacity in the event of a change in
control of the Company or the Bank. If a change in control had occurred on
December 31, 2004, Mr. Gulotty would have been entitled to a retention bonus
amount of approximately $224,700 and Mr. Sutaris, $161,513.
In each of the foregoing agreements, "change in control" is generally
defined to mean: (i) a transaction where a consolidation or merger occurs of
either the Company or the Bank and neither is the surviving corporation; (ii) a
transaction where the common shares of either the Company or the Bank are
exchanged for cash, securities or other property; (iii) a transaction involving
the sale, lease or exchange of all, or substantially all, of the assets of the
Company or the Bank; (iv) a transaction where the shareholders of the Company
approve a plan of liquidation; or (v) a transaction where any person other than
the Company becomes the beneficial owner of 50% or more of the Bank's
outstanding stock.
Benefit Plans
Defined Benefit Retirement Plans. The Bank has a non-contributory defined
benefit retirement plan through the New York State Bankers Retirement System.
This plan covers all employees of the Bank who are at least age 21 years, and
less than 65 years, with more than one year of service who complete 1,000 or
more hours of service during the year. Benefits are based on the number of years
of service and salary at retirement. An employee becomes fully vested in the
plan after five years of service.
At fiscal year-end 2004, Mr. Whittet had 31 years of credit service; Mr.
Gulotty, 19 years and Mr. Sutaris, 9 years.
The following table shows the estimated annual benefits payable at the
individual's normal retirement age (65) under the pension plans of the Bank
based on specific compensation and years of service classifications.
18
Pension Plan Table:
Approximate Annual Retirement Benefit
Years of Credited Service (1)
Average Final ---------------------------------------------------------------------------------
Compensation 10 15 20 25 30 35 40
-----------------------------------------------------------------------------------------------------
$ 50,000 $ 7,844 $11,767 15,689 18,361 21,033 23,705 26,205
75,000 $12,844 $19,267 25,689 30,236 34,783 39,330 43,080
100,000 $17,844 $26,767 35,689 42,111 48,533 54,955 59,955
125,000 $22,844 $34,267 45,689 53,986 62,283 70,580 76,830
150,000 $27,844 $41,767 55,689 65,861 76,033 86,205 93,705
175,000 $32,844 $49,267 65,689 77,736 89,783 101,830 110,580
200,000 $37,844 $56,767 75,689 89,611 103,533 117,455 127,455
225,000 $37,844 $56,767 75,689 89,611 103,533 117,455 127,455
250,000 $37,844 $56,767 75,689 89,611 103,533 117,455 127,455
300,000 $37,844 $56,767 75,689 89,611 103,533 117,455 127,455
400,000 $37,844 $56,767 75,689 89,611 103,533 117,455 127,455
Supplemental Executive Retirement Plan ("SERP"). In December 2002, the
Bank entered into Supplemental Executive Retirement Plan Agreement with Mr.
Whittet. The SERP agreement provides Mr. Whittet with supplemental retirement
benefits in addition to defined benefit pension plan benefits.
Mr. Whittet's agreement provides him with a $50,000 annual supplemental
retirement benefit for life if he maintains continuous employment with the Bank
and retires on or after January 1, 2006. The vesting schedule for Mr. Whittet's
SERP benefit is as follows:
SERP Benefit Vesting Table:
---------------------------------------------------------------------------------------------
Annual
Date of Retirement Vested Percentage Retirement Benefit
---------------------------------------------------------------------------------------------
On or prior to December 31, 2003 25% $12,500
---------------------------------------------------------------------------------------------
January 1, 2004 through December 31, 2004 50% $25,000
---------------------------------------------------------------------------------------------
January 1, 2005 through December 31, 2005 75% $37,500
---------------------------------------------------------------------------------------------
On or after January 1, 2006 100% $50,000
---------------------------------------------------------------------------------------------
In the event Mr. Whittet's employment is voluntarily or involuntarily
terminated prior to January 1, 2006 due to a change in control/ownership (as
defined within the SERP agreement), Mr. Whittet will receive $50,000 of benefits
annually. If Mr. Whittet's employment is involuntarily terminated prior to
retirement for reasons other than cause, he will receive 84% of the fully vested
benefit or $42,000 per year. The SERP agreement with Mr. Whittet also provides a
50% survivor benefit for his spouse should he pre-decease her. If Mr. Whittet
dies prior to retirement, a benefit equal to $21,000 multiplied by the vested
percentage at the time of death will be paid to his spouse annually until her
death.
Executive Officer Deferred Compensation Plan. The executive officers of
the Company may elect to defer a portion of their annual bonus under a Deferred
Compensation Plan established in 1985 and amended in 1999. Mr. Whittet may also
defer a portion of his incentive bonus under the plan. Under the plan, the
deferred funds earn a return based upon the performance of the classes of
eligible securities that the participating officer designates. The eligible
securities under the plan include: (i) U.S. Government debt obligations or (ii)
equities and debt instruments, including mutual funds, used as investments by
the Trust Department of the Bank. Additionally, participants may elect to index
their deferred amounts to the financial performance of the Company's common
stock ("phantom stock"). The benefit provided to the participants is the ability
to defer payment of the elected salary and bonus amounts for federal and state
income taxes purposes, as well as the ability to defer payment of taxes on
capital appreciation and income earned on
19
the "phantom stock" or underlying investments purchased for their account until
time of withdrawal. The plan vests immediately and is not tied to long-term
performance goals. The Company does not provide a matching benefit for
participants. The participant's account is not held by the Company in trust,
escrow or similar fiduciary capacity. Accordingly, neither the participant nor
the participant's legal representative shall have any right against the Company
with respect to any portion of the account, except as a general unsecured
creditor. With notice to the Company, as required by law, the participants may
withdraw funds upon the termination of their employment, retirement or in the
event of financial hardship. The participants may make withdrawals from their
deferred compensation upon retirement or termination in (i) a lump sum not later
than 90-days after termination, (ii) monthly installments for a designated
number of months not to exceed 60 months, or (iii) any other method permitted by
law.
Split-Dollar Life Insurance Plan. The Company provides a split-dollar life
insurance plan for its senior officers. Currently, 15 senior officers of the
Company and the Bank participate in the split-dollar life insurance plan,
including all of the executive officers listed in the Summary Compensation Table
above. Mr. Moyer, retired Chief Executive Officer and current Vice Chairman of
the Company, also participates in the plan due to his previous employment with
the Company. The plan provides each participant a life insurance benefit during
his or her employment with the Bank, a post-retirement benefit, as well as other
benefits in the event of disability, change of control, resignation and
termination. Eligibility is determined at the sole discretion of the Company's
Compensation Committee. The vested benefits are different for participants with
less than five years of continuous service as a senior officer, as compared to
participants with five or more years of continuous service as a senior officer.
All of the executive officers listed in the Summary Compensation Table above
have five or more years of continuous service as a senior officer of the
Company.
During employment, the split-dollar life insurance plan provides each
participant's named beneficiary with a fully-vested death benefit equaling four
(4) times the participant's most recent base salary (the same benefit as
provided to the Bank's eligible full-time employees under the group term life
insurance plan). Mr. Whittet's and Mr. Moyer's agreements are subject to a
maximum death benefit of $700,000. The remaining participants are subject to a
maximum death benefit of $500,000.
Compensation Committee Report on Executive Compensation
Overview and Philosophy. The Board of the Company has established a
Compensation Committee, which determines the annual compensation of the Chief
Executive Officer, the Chief Operating Officer and the Chief Financial Officer.
The Compensation Committee also structures and monitors all contracts with
executive officers, which include employment-related agreements with Messrs.
Whittet, Gulotty and Sutaris.
The Compensation Committee gathers comparative compensation data from
independent sources, including the SNL Bank Officer Compensation Survey and
other banking industry information sources, and has attempted to develop a
strategy which links pay to performance. The objectives of the Company's
executive compensation program are to:
o Support the achievement of desired goals of the Company.
o Provide compensation that will attract and retain superior talent
and reward performance.
o Align the Chief Executive Officer's interests with those of
shareholders.
Compensation Matters in 2004. During 2004, the Compensation Committee
increased the level of base salary of the Chief Executive Officer and the other
two named executive officers. The increase in base salary was based upon an
analysis of compensation levels for management performing similar functions at
other banking companies of similar size and operations.
An annual cash bonus was paid to the Chief Executive Officer for the year
2004, based upon the Compensation Committee's qualitative assessment of each
individual's performance and that of the Company, rather than any discrete
performance measures.
20
Chief Executive Officer Compensation Program. The Company's Chief
Executive Officer compensation program is comprised of base salary, annual cash
incentive compensation, and various benefits, such as the SERP and his
employment-related agreements. The base salary level for the Company's Chief
Executive Officer is set relative to companies in the banking industry of
similar size and complexity of operations, as described above. In determining
the base salary, the Compensation Committee also takes into account individual
experience and performance, the Company's performance and specific issues
particular to the Company. The Company also provides direct financial incentives
to achieve the Company's annual goals in the form of an annual cash bonus.
THE COMPENSATION COMMITTEE
Brian R. Wright (Chair)
David F. Wilber III
James F. VanDeusen
Robert W. Moyer
Philip J. Devine
Compensation Committee Interlocks and Insider Participation in
Compensation Decisions. The Compensation Committee of the Company consists of
Directors Wright (Chair), Wilber, VanDeusen, Devine and Moyer. None of these
individuals is or has been an officer of the Company or the Bank, except for Mr.
Moyer, who retired in 1997.
Transactions with Directors and Executive Officers
Directors and executive officers of the Company and their associates were
customers of, or had transactions with, the Company or the Bank or other
subsidiaries in the ordinary course of business during 2004. Additional
transactions may be expected to take place in the future. All outstanding loans
to Directors and executive officers and their associates, commitments and sales,
purchases and placements of investment securities and other financial
instruments included in such transactions were made in the ordinary course of
business, on substantially the same terms, including interest rates and
collateral where applicable, as those prevailing at the time for comparable
transactions with other persons, and did not involve more than normal risk of
collectability or present other unfavorable features.
Each of these transactions and relationships was entered into on an arm's
length basis. Management of the Company believes that all amounts paid by the
Company or the Bank in those transactions have been at competitive rates or
prices.
Brian R. Wright, who is the Chairman of the Board, is serving as Special
Counsel to the law firm of Hinman, Howard & Kattell, LLP. During fiscal 2004,
the Bank and the Company made payments to this firm for legal services in the
amount of $114,633.
SHAREHOLDER RETURN PERFORMANCE GRAPH
Shareholder Return Performance Graph. The following line graph
presentation compares the five-year cumulative total shareholder return on the
Company's common stock against the cumulative total return on the Standard &
Poor's 500 Index and the Standard and Poor's Financial Index. The graph assumes
that $100 was invested on January 1, 1999 and includes both price change and
reinvestment of cash dividends. Graph points are as of December 31 of each year.
From December 31, 1999 until February 11, 2004, the common stock of The Wilber
Corporation was inactively traded on Nasdaq's Over-the-Counter Bulletin Board
market. On February 12, 2004, the Company's common stock began trading on the
Amex(R) under the symbol "GIW". The cumulative return provided for The Wilber
Corporation common stock was calculated using the December 31st closing prices
for the common stock as reported on the Over-the-Counter Bulletin Board Market.
21
Stock Performance Chart
5-Year Cumulative Total Return
Comparison - S&P 500, S&P Financial, Wilber Corp.
[LINE GRAPH OMITTED]
1999 2000 2001 2002 2003 2004
S&P 500 $100 $91 $79 $57 $86 $96
S&P Financial $100 $126 $126 $101 $132 $143
Wilber Corp. $100 $90 $90 $126 $159 $151
Section 16(a) Beneficial Ownership Reporting Compliance
The Company became a reporting company with the SEC in February 2004.
Section 16(a) of the Exchange Act requires the Company's Directors, executive
officers (and one executive officer of the Bank), and persons who beneficially
own more than 10% of any class of the Company's equity securities to file with
the SEC, initial reports of ownership within ten days after the reporting event,
and reports of changes in ownership of the Company's common stock generally by
the second business day following the transaction. To the Company's knowledge,
based upon a review of all reports furnished to the Company during fiscal year
2004 all Section 16(a) filing requirements applicable to its officers, Directors
and greater than 10% beneficial owners were complied with by such persons,
except for Director David F. Wilber III who filed a required Form 4 and Form 144
late twice in fiscal 2004.
OTHER BUSINESS
As of the date of this Proxy Statement, the Board does not know of any
matter other than as indicated above that will come before the meeting. In the
event that any other matter properly comes before the meeting, the persons named
in the enclosed proxy sheet will have discretionary authority to vote all
proxies in accordance with their best judgment on such matters.
22
GENERAL
We are distributing our Annual Report for fiscal year 2004 with this Proxy
Statement to shareholders of record on the Record Date. The Annual Report is not
part of the proxy solicitation material.
If you submit a properly completed proxy sheet to the Company on the form
distributed with this Proxy Statement, it will be voted if received before the
voting is closed at the meeting. The proxy will be voted in the manner directed
on the proxy sheet. If the proxy sheet is signed and returned but no directions
are given, the proxy will be voted "FOR" fixing the number of Directors at
twelve (12), all of the Director nominees, the amendments to, and restatement
of, the Company's Certificate of Incorporation and the ratification of the
appointment of the independent auditors.
The cost of this Proxy Statement and the related proxy solicitation will
be borne by the Company. In addition, Directors, officers and regular employees
of the Company may solicit proxies personally, by telephone or by other means
without additional compensation. The Company will, upon the request of brokers,
dealers, banks and voting trustees, and their nominees, who were holders of
record of shares of the Company's capital stock or participants in depositories
on the Record Date, bear their reasonable expenses for mailing copies of this
Proxy Statement and accompanying Notice of Annual Meeting and the form of proxy
sheet to the beneficial owners of such shares.
SHAREHOLDER PROPOSALS AT THE ANNUAL MEETING IN THE YEAR 2006
The Company's Board will establish the date for the 2006 Annual Meeting of
Shareholders. In order for a shareholder to be entitled, under the regulations
of the SEC, to have a shareholder proposal included in the Company's Proxy
Statement for the 2006 meeting, the proposal must be received by the Company at
its principal executive offices, 245 Main Street, P.O. Box 430, Oneonta, New
York, Attention: Douglas C. Gulotty, Secretary, at least 120 days in advance of
the date in the year 2006 which corresponds to the date in the year 2005 when we
first release this Proxy Statement to shareholders. The shareholder must also
satisfy the other requirements of SEC Rule 14a-8. Note that this filing
requirement is separate from the notice requirements described in this Proxy
Statement regarding the advance notice that is required before a shareholder is
permitted to offer a proposal for a vote at any shareholders' meeting.
If additional copies of the 2005 Proxy Statement and 2004 Annual Report on Form
10-K are needed, please send a written request to Douglas C. Gulotty, Secretary,
at our address stated above. It may also be obtained through the Bank's website
at www.wilberbank.com. The Form 10-K report is not a part of the proxy
solicitation materials.
PLEASE SIGN, DATE AND MAIL YOUR PROXY NOW.
By Order of the Board of Directors
/s/ Douglas C. Gulotty
Douglas C. Gulotty
Secretary
Oneonta, New York
March 24, 2005
23
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24
Exhibit A
Restated Certificate of Incorporation
of
The Wilber Corporation
Under Section 807 of the Business Corporation Law
It is hereby certified that:
FIRST: The name of the corporation is The Wilber Corporation.
SECOND: The certificate of incorporation of the corporation was
filed by the Department of State on July 30, 1928.
THIRD: The certificate of incorporation is hereby amended to: i)
change the statement of the corporation's purpose; (ii) provide for a classified
board of directors with staggered three (3) year terms; (iii) eliminate
cumulative voting in the election of the corporation's directors; (iv) require a
supermajority vote of the outstanding shares of common stock to approve a merger
of the corporation and other extraordinary transactions involving the
corporation; (v) permit the board of directors, in its discretion, to consider a
number of factors when evaluating a third party offer for the corporation's
securities and to take defensive measures in connection with unwelcome
acquisition offers; vi) appoint the Secretary of State as agent for the service
of process upon the corporation; and the text of the certificate of
incorporation is hereby restated as amended or changed to read as follows:
"1. The name of the corporation shall be The Wilber Corporation.
2. The purposes for which the corporation is formed are as follows:
(a) To hold the stock of Wilber National Bank, Oneonta, New
York;
(b) To engage in any lawful act or activity for which a
corporation may be organized under the Business Corporation Law, provided that
it is not formed to engage in any act or activity requiring the consent or
approval of any
A-1
governmental official, department, board, agency or other body, unless such
approval is obtained; and
(c) To do everything necessary, proper, advisable or
convenient for the accomplishment of the purposes set forth herein and to do all
other things incidental thereto or connected therewith, which are not forbidden
by applicable law or this certificate of incorporation.
3. The corporation may issue sixteen million (16,000,000) shares of
its stock, all of which shall be common stock with a par value of $.01. The
capital of the corporation shall be at least equal to the sum of the aggregate
par value of all issued shares having par value, plus the aggregate amount of
consideration received by the corporation for the issuance of shares without par
value, plus such amounts as, from time to time, by resolution of the board of
directors, may be transferred thereto.
4. The shares shall be classified as common stock only.
5. The office of the corporation shall be located in the City of
Oneonta, County of Otsego, State of New York .
6. The duration of the corporation shall be perpetual.
7. The board of directors shall be divided into three classes and
the directors in each class shall be as nearly equal in number as possible. The
classification shall be such that the term of one class shall expire each
succeeding year. At each annual meeting of stockholders, the successors to the
class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held in the
third year following the year of their election and until their successors have
been duly elected and qualified or until any such director's earlier death,
resignation or removal, or until there is a decrease in the number of directors
and his or her position is eliminated. When the number of directors is changed,
the board of directors shall determine the class or classes to which the
increased or decreased number of directors shall be apportioned, provided that
no decrease in the number of directors shall shorten the term of any incumbent
director.
8. The meetings of the board of directors shall be held only within
the state of New York.
A-2
9. The following provisions shall apply to the regulation of the
business and conduct of the affairs of the corporation:
(a) No transaction of this corporation with any person, firm,
association or corporation shall be affected by the fact that any director of
this corporation is interested in such transaction or in any way connected with
such person, firm, association, or corporation; and every director of this
corporation is hereby relieved from any disability that might otherwise prevent
his contracting with the corporation for the benefit of any firm, association or
corporation in which he may in any wise be interested, and from any liability
that might otherwise exist on account of such contracting; and
(b) The board of directors shall have absolute discretion in
the declaration of dividends out of the surplus profits of the corporation and
they may accumulate such profits to such extent as they may deem advisable,
instead of distributing them among stockholders, and may invest and reinvest the
same in such manner as, in their absolute discretion, they may deem advisable.
10. a) No merger, consolidation, liquidation or dissolution of the
corporation nor any action that would result in the sale or other disposition of
all or substantially any of the assets of the corporation shall be valid unless
first approved by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares of common stock. This
provision may not be amended unless first approved by the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
outstanding shares of common stock.
b) The board of directors may, if it deems it advisable,
oppose a tender or other offer for the corporation's securities, whether the
offer is in cash or in the securities of a corporation or otherwise. When
considering whether to oppose an offer, the board of directors may, but it is
not legally obligated to, consider any pertinent issue; by way of illustration,
but not of limitation, the board of directors may, but shall not be legally
obligated to, consider any or all of the following:
(i) whether the offer price is acceptable based on the
historical and present operating results or financial condition of the
corporation;
A-3
(ii) whether a more favorable price could be obtained
for the corporation's securities in the future;
(iii) the financial and managerial resources,
reputation, business practices and future prospects of the offeror, the possible
impact on the business of the corporation and its subsidiaries and on the
employees, customers, suppliers and creditors of the corporation and its
subsidiaries and the effects on the communities in which the corporation's and
its subsidiaries' facilities are located;
(iv) the value of the securities (if any) which the
offeror is offering in exchange for the corporation's securities, based on an
analysis of the worth of the corporation as compared to the corporation or other
entity whose securities are being offered; and
(v) any antitrust or other legal and regulatory issues
that are raised by the offer.
(c) If the board of directors determines that an offer should
be rejected, it may take any lawful action to accomplish its purpose, including,
but not limited to, any of all of the following:
(i) advising shareholders not to accept the offer;
(ii) litigation against the offeror;
(iii) filing complaints with all governmental and
regulatory authorities;
(iv) acquiring the corporation's securities;
(v) selling or otherwise issuing authorized but unissued
securities or treasury stock or granting options with respect thereto;
(vi) acquiring a company to create an antitrust or other
regulatory problem for the offeror;
(vii) adopting a shareholder rights or similar plan;
(viii) amending the corporation's certificate of
incorporation; and
(ix) soliciting additional offers from another
individual or entity."
A-4
11. The Secretary of State is designated as the agent of the
corporation upon whom process may be served. The post office address to which
the Secretary of State shall mail a copy of any process served against the
corporation served upon him is: c/o Wilber National Bank, 245 Main Street,
Oneonta, New York 13820."
FOURTH: The foregoing amendment and restatement of the certificate
of incorporation of the corporation were authorized by the vote of the board of
directors at a meeting held on January 21 and February 25, 2005 and at the
annual meeting of shareholders held on April 23, 2005.
Signed on April __ , 2005
-------------------------------------
Douglas C. Gulotty
Secretary
A-5
[X]PLEASE MARK VOTES REVOCABLE PROXY
AS IN THIS EXAMPLE THE WILBER CORPORATION
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints the Board of Directors of The Wilber
Corporation, or their successors in office, Proxies, with full power of
substitution, to represent and vote all the shares of common stock of The Wilber
Corporation held of record by the undersigned on March 11, 2005 at the annual
meeting of shareholders to be held on April 23, 2005 at 10:30 a.m. at the Morris
Conference Center, State University of New York at Oneonta, Oneonta, New York,
upon the matters described in the accompanying Proxy Statement and upon other
business that may properly come before the meeting or any adjournment thereof.
Said Proxies are directed to vote or refrain from voting as marked hereon upon
the matters listed herein, and otherwise in their discretion.
1. Fixing the number of directors to be elected at For Against Abstain
twelve (12) [_] [_] [_]
2. Election of Directors For All Withhold For
Evenly Authority Unevenly
[_] [_] [_]
Voting Instructions: Cumulative voting is allowed for the election of directors.
Your total number of cumulative votes is equal to the number of shares you own
multiplied by the number of director nominees (12). For example, a shareholder
who owns 100 shares will hold 1,200 cumulative votes. You may divide your
cumulative votes in any manner you choose. This means that you can cast all
votes for any one nominee or you may divide your votes evenly or unevenly among
as many of the nominees as you choose. To cast your votes evenly for all
nominees, simply mark the "For All Evenly" box above with an X. To cast your
votes unevenly amongst the nominees or to vote for less than all of the
nominees, mark the "For Unevenly" box above with an X and write in the number of
votes to be cast for each nominee on the line following each nominee's name.
Note: not voting for a nominee is equivalent to voting against the nominee. To
withhold your authority to vote for all nominees mark the "Withhold Authority"
box above with an X.
Mary C. Albrecht ___________________ Olon T. Archer ________________________
Philip J. Devine____________________ Douglas C. Gulotty ____________________
Richard E. Keene ___________________ Joseph P. Mirabito ____________________
James L. Seward ____________________ Geoffrey A. Smith _____________________
James F. VanDeusen _________________ Alfred S. Whittet _____________________
David F. Wilber, III _______________ Brian R. Wright _______________________
3. Approval of certain amendments to, and a For Against Abstain
restatement of the Company's Certificate of [_] [_] [_]
Incorporation.
4. Ratification of the appointment of KPMG LLP as the For Against Abstain
Company's independent auditors for the fiscal year [_] [_] [_]
ended December 31, 2005.
THIS PROXY MAY BE REVOKED AT ANY TIME BEFORE IT IS VOTED.
PLEASE DATE, SIGN AND RETURN IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
------------------------
Please be sure to sign and date | Date |
this Proxy in the box below. | |
--------------------------------------------------------------------------------
| |
| |
-----------Stockholder sign above----------Co-holder (if any) sign above-------
--------------------------------------------------------------------------------
Detach above card, date, sign and mail in postage-prepaid envelope provided.
THE WILBER CORPORATION
--------------------------------------------------------------------------------
Please sign exactly as your name appears on this card. When shares are
held by joint tenants, both should sign. When signing as attorney, executor,
administrator, trustee or guardian, please give full title as such. If a
corporation, please sign in full corporate name by President or other authorized
officer. If a partnership, please sign in partnership name by authorized person.
THIS PROXY WILL BE VOTED AS DIRECTED, BUT IF NO DIRECTION IS SPECIFIED,
THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS. IF ANY OTHER BUSINESS IS PRESENTED
AT THE MEETING, THIS PROXY WILL BE VOTED BY THOSE NAMED IN THIS PROXY IN THEIR
JUDGMENT AND DISCRETION. AT THE PRESENT TIME, THE BOARD OF DIRECTORS KNOWS OF NO
OTHER BUSINESS TO BE PRESENTED AT THE MEETING.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" ALL OF
THE PROPOSALS. THIS PROXY MAY BE REVOKED AT ANY TIME BEFORE IT IS VOTED.
PLEASE ACT PROMPTLY - SIGN, DATE AND RETURN YOUR PROXY IN THE
ENCLOSED, POSTAGE-PAID ENVELOPE.
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IF YOUR ADDRESS HAS CHANGED, PLEASE CORRECT THE ADDRESS IN THE SPACE PROVIDED
BELOW AND RETURN THIS PORTION WITH THE PROXY IN THE ENVELOPE PROVIDED.
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